THE STATE OF RAJASTHAN & ORS.versusLOVE KUSH MEENA

1192                      [2021]REPORTS
                SUPREME COURT   2 S.C.R. 1192              [2021] 2 S.C.R.


 A                   THE STATE OF RAJASTHAN & ORS.
                                        v.
                             LOVE KUSH MEENA
                         (Civil Appeal No. 3894 of 2020)
 B                              MARCH 24, 2021
        [SANJAY KISHAN KAUL AND R. SUBHASH REDDY, JJ.]
              Service Law: Appointment for post of constable –
       Disqualification for appointment – Advertisement provided for
       disqualification clause that only those candidates would be qualified
 C
       to appear who have not been convicted for offence of moral
       turpitude, violent activities and not honourably acquitted by court
       – Respondent-candidate was found ineligible since in a criminal
       case under ss.302, 323, 341, 34 IPC, he was not acquitted
       honourably but was acquitted on benefit of doubt – High Court
 D     held in favour of respondent – Appeal by employer-State – Held:
       The mere fact of an acquittal would not suffice but rather it would
       depend on whether it was a clean acquittal based on total absence
       of evidence or in the criminal jurisprudence requiring the case to
       be proved beyond reasonable doubt, that parameter having not been
       met, benefit of doubt has been granted to the accused – No doubt,
 E
       in that case, the person who ran the tractor over the deceased lady
       was one of the other co-accused but the role assigned to the others
       including the respondent was not of a mere bystander – The attack
       with knives was alleged against all the other co-accused including
       the respondent – During trial, a compromise was entered with
 F     complainant in favour of accused persons under ss.341, 323 IPC –
       However, since no compromise was possible for offence under s.302,
       trial continued – The prosecution witnesses having turned hostile,
       prosecution failed to prove case against the accused persons beyond
       reasonable doubt and accused were granted benefit of doubt
       resulting in their acquittal – This cannot fall under the category of
 G
       a clean acquittal and the trial court was thus right in using the
       terminology of benefit of doubt in respect of such acquittal – Thus,
       respondent was rightly held not eligible to appointment – Penal
       Code, 1860 – ss.302, 323, 341 – Criminal jurisprudence – Benefit
       of doubt.
 H
                                       1192
       THE STATE OF RAJASTHAN v. LOVE KUSH MEENA                       1193


     Words and Phrases: Expression “honourable acquittal” –            A
Meaning of.
      Allowing the appeal, the Court
       HELD: This is a clear case where the endeavour was to
settle the dispute, albeit not with the job in mind. This is obvious
from the recital in the judgment of the Trial Court that the           B
compoundable offences were first compounded during trial but
since the offence under Section 302/34 IPC could not be
compounded, the Trial Court continued and qua those offences
the witnesses turned hostile. This cannot fall under the category
of a clean acquittal and the Judge was thus right in using the         C
terminology of benefit of doubt in respect of such acquittal.
[Para 24][1201-D-E]
      Avtar Singh v. Union of India & Ors.(2016) 8 SCC
      471:[2016] 7 SCR 445 – relied on.
      Union Territory, Chandigarh Administration & Ors. v.             D
      Pradeep Kumar & Anr. (2018) 1 SCC 797 : [2018] 1
      SCR 112; Inspector General of Police v. S. Samuthiram
      (2013) 1 SCC 598 : [2012] 11 SCR 174; State of
      Madhya Pradesh & Ors. v. Abhijit Singh Pawar (2018)
      18 SCC 733 : [2018] 13 SCR 1133; Commissioner of                 E
      Police v Mehar Singh (2013) 7 SCC 685:[2013]
      13 SCR 432; Anil Bharadwaj v. High Court of Madhya
      Pradesh & Ors. 2020 SCC Online SC 832; Joginder
      Singh v. State (UT of Chandigarh & Ors. (2015) 2 SCC
      377 : [2014] 11 SCR 155; Mohammed Imran v. State
      of Maharashtra & Ors. 2019 (17) SCC 696 – referred               F
      to.
                      Case Law Reference
     [2016] 7 SCR 445             relied on           Para 13
     [2018] 1 SCR 112             referred to         Para 15          G
     [2012] 11 SCR 174            referred to         Para 15
     [2018] 13 SCR 1133           referred to         Para 16


                                                                       H
1194             SUPREME COURT REPORTS                            [2021] 2 S.C.R.


 A           [2013] 13 SCR 432                referred to            Para 16
             [2014] 11 SCR 155                referred to            Para 18
             2019 (17) SCC 696                referred to            Para 19
             CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3894
       of 2020
 B
             From the Judgment and Order dated 16.07.2019 of the High Court
       of Judicature for Rajasthan at Jodhpur in Civil Special Appeal (Writ)
       No. 373 of 2019.
             Vidhan Vyas, Ms. Pragati Neekhra, Advs. for the Appellants.
 C           Ms. Shobha Gupta, Ms. Medha Garg, Advs. for the Respondent
             The Judgment of the Court was delivered by
             SANJAY KISHAN KAUL, J.
             1. The moot point which arises for consideration is whether a
       benefit of doubt resulting in acquittal of the respondent in a case charged
 D     under Sections 302, 323, 341/34 of the Indian Penal Code [IPC] can
       create an opportunity for the respondent to join as a constable in the
       Rajasthan Police service.
                2. The respondent and three others were charged with the
       aforesaid provisions of the Indian Penal Code and tried before the
 E     Additional Sessions Judge (Fast Track), Laxman Garh, District Alwar,
       Rajasthan. The incident relates to 6.10.2008 at about 6 p.m. when, as
       per the complainant Babulal, one Jagdish and Dayaram came in a tractor
       for tilling a disputed field in jungle Patan. Tofli, mausi of Babulal forbade
       them to till the land and apparently stayed back in the field. At that time,
 F     the tractor driver Jagdish drove the tractor and ran over Tofli. The
       complainant Babulal along with one Raju, Om Prakash and Dinesh rushed
       to her side but were beaten up and knife injuries were inflicted upon
       them by Dayaram, Love Kush (respondent), Bodan and Jagdish. Tofli
       was taken in a Buggi to the hospital where the doctor declared her
       brought dead. On the basis of the said report, PS Khedli registered Case
 G     No.255 of 2008 under Sections 302, 341, 323, 34 of the IPC and
       commenced the investigation. Upon completion of the investigation, the
       charge sheet against all the accused persons vide No.1/2009 was filed
       in the Court of Judicial Magistrate, Kathumar from where it was
       committed to the Court of the Additional Sessions Judge, Laxman Garh.
       The charges were framed and all the accused denied the charges.
 H
         THE STATE OF RAJASTHAN v. LOVE KUSH MEENA                                  1195
                   [SANJAY KISHAN KAUL, J.]

        3. It is relevant to note that during the trial injured persons, Babulal,   A
Om Prakash and Raju alias Rajesh obtained permission of the Court and
filed a compromise in favour of accused persons under Sections 341,323
of IPC which was approved but naturally, there could not have been any
compromise qua the offences under Section 302/34 IPC. In those charges
the trial continued and it is quite obvious that in view of the compromise,
                                                                                    B
all the prosecution witnesses, including those injured, turned hostile. On
the basis of the case of the prosecution, the learned Judge opined in
terms of the judgment dated 01.05.2009 that “the prosecution had failed
to prove the case against the accused persons beyond reasonable
doubt”.
       4. A notification for recruitment of constable was issued on                 C
14.07.2013 under the provisions contained in part III of the Rajasthan
Police Subordinate Service Regulations, 1989 for 12178 posts of constables
setting out the procedure for making the application. Para (ix) of the
advertisement provided for disqualification for appointment. The relevant
clause (ix) reads as under-                                                         D
       “(ix) As per judgment of Hon’ble Supreme Court in Civil Appeal
       No.782/2004 State Government and others v. Mohd. Salim Dated
       10.12.2009, Director General Police, Rajasthan Circular No.1687
       dt.29.4.1995 is held legal. In compliance with the said judgment,
       only those candidates shall be qualified to appear in recruitment            E
       for Rajasthan police who- have not been convicted for offence of
       moral turpitude, violent activities and not honourably acquitted by
       Court.”
        5. The aforesaid would show that the disqualification would
operate qua conviction and “not honourably acquitted by Court” for                  F
offences of moral turpitude and violent activities. The respondent herein
participated in the same and it appears was successful in the recruitment
process. However, a letter dated 04.08.2015 was issued to him on the
basis of character antecedent verifications carried out by the Police
Superintendent. District Alwar, Dy. Inspector General Police, Security,
Rajasthan, Jaipur, whereupon the aspect of the aforesaid case was looked            G
into (it is an accepted position that the respondent had disclosed this fact
and there was no concealment). The respondent was found not eligible
in view of the aforesaid. The operative portion reads as under:
       “Due to serious criminal offence against you, police headquarter
       in reference to circular No.1687 dated 29.4.1995 and also in                 H
1196             SUPREME COURT REPORTS                           [2021] 2 S.C.R.


 A           compliance with the orders of Hon’ble Supreme Court in Civil
             Appeal No.782/04, you are not being appointed as not found
             eligible”.
              6. The aforesaid order was assailed before the Rajasthan High
       Court in S.B. Civil Writ Petition No.2391/2016 and the Writ Petition was
 B     allowed in terms of the judgment dated 11.11.2016, remitting the matter
       back to the respondent- Superintendent of Police, Udaipur for passing a
       fresh appropriate order with regard to the candidature of the respondent
       in accordance with law within a period of three months from the date of
       receipt of the order and consequences would follow.

 C             7. Accordingly, fresh orders were passed by the District Police
       Superintendent, Udaipur on 23.05.2017. It was opined that the charges
       against the respondent were not of a trivial nature but were serious
       offences and the candidate was not acquitted by the Court honourably.
       In view of the circular in question, once again the respondent was held
       ineligible.
 D
              8. The second round began with assailing of the aforesaid order
       dated 23.05.2017 in S.B. Civil Writ Petition No.8323/2017. In terms of
       the order of the learned Single Judge dated 14.05.2018, it was opined
       that the Court was not convinced that the authority had applied its mind
       in accordance with the directions given by the Court vide order dated
 E     11.11.2016. In this behalf, reliance was placed on a circular dated
       28.03.2017 and it was found that the respondent is falling in the first
       category.
              9. We may notice that the circular is undisputedly post the
       recruitment process. Be that as it may, the relevant portion of the circular
 F     reads as under:
             “Subject: Regarding the candidates deprived of appointment due
             to concealment of facts of criminal cases/being involved in criminal
             cases.
                       xxx xxxxxxxxx
 G           Only those candidates of the following category are found to be
             eligible to be appointed, who have mentioned the criminal case in
             the application form or character verification form (both or one of
             them):-
             1. Found not guilty of criminal case after investigation, Final/
 H           closure Report submitted for approval.
           THE STATE OF RAJASTHAN v. LOVE KUSH MEENA                           1197
                     [SANJAY KISHAN KAUL, J.]

         2. Acquitted by the Court (including by giving benefit of doubt or    A
         want of evidence).
         3. Acquitted/discharged on the basis of compromise.
         4. Given benefit of Section 12 of the Probation of Offenders Act,
         on conviction in certain sections (the conviction is not based on
         any impunity/no adverse effect on state service/future life).         B
         5. Convicted and given benefit of Section 15(1)(a) of Juvenile
         Justice Act.”
       10. It is the say of the learned counsel for the respondent that the
aforesaid circular is applicable and in terms of the said circular even
cases where the acquittal is by giving benefit of doubt would not disqualify   C
a candidate.
       11. The appellant/State aggrieved by the aforesaid order preferred
an D.B.Special Appeal Writ No.373/2019 before the Division Bench.
The Division Bench opined that since no cogent evidence connecting
the accused person to commission of offence was found, the respondent          D
was not disentitled for appointment to the post of a constable,
notwithstanding his involvement in a criminal case. It further opined that
since the benefit of doubt was given to the respondent and that aspect
was considered in the earlier judgment of the learned single Judge dated
11.11.2016, the said aspect cannot be looked into. With this, the appeal
                                                                               E
stood dismissed.
       12. In the present appeal post issuance of notice, leave was granted
on 27.11.2020 and the interim order passed on 03.02.2020 staying the
operation of the impugned order was made absolute. Learned counsel
for the parties have taken us through the aforesaid factual matrix as
already penned down by us. The question which arises is whether in the         F
aforesaid factual matrix and taking into consideration various judicial
pronouncements of this Court, would the respondent be disentitled to
appointment i.e. whether the subsequent speaking order passed by the
appellant authority dated 23.05.2017 is liable to be interfered with or not.
      13. Learned counsel for the appellant has referred to the seminal        G
judgment in Avtar Singh v. Union of India & Ors.1 where a three
Judge Bench of this Court has in detail dealt with the aspects arising
from such cases and laid down various parameters. Conclusions are
summarized in para 38.
1
    (2016) 8 SCC 471                                                           H
1198                SUPREME COURT REPORTS                         [2021] 2 S.C.R.


 A           14. It would suffice to reproduce the relevant summarized
       conclusion as under:
                 “38.xxx xxx xxx
                38.3. The employer shall take into consideration the government
                orders/instructions/rules, applicable to the employee, at the time
 B              of taking the decision.
                38.4.3. If acquittal had already been recorded in a case involving
                moral turpitude or offence of heinous/serious nature, on technical
                ground and it is not a case of clean acquittal, or benefit of
                reasonable doubt has been given, the employer may consider all
 C              relevant facts available as to antecedents, and may take appropriate
                decision as to the continuance of the employee.”
              15. It is pointed out that various nuances arising in this judgment
       has been considering even in the subsequent judgments. In Union
       Territory, Chandigarh Administration & Ors. v. Pradeep Kumar &
 D     Anr.2 a two Judge Bench of this Court dealt with the expression
       “honourable acquittal”. It was opined that acquittal in a criminal case
       was not conclusive for suitability of the candidate concerned and it could
       not always be inferred from an acquittal or discharge that the person
       was falsely involved or has no criminal antecedents. Thus, unless it is an
 E     honourable acquittal, the candidate cannot claim the benefit of the case.
       No doubt, it was mentioned by relying on the earlier judgment of this
       Court in Inspector General of Police v. S. Samuthiram3 that while it
       was difficult to define precisely what is meant by the expression
       “honourable acquittal”, an accused who is acquitted after full
       consideration of the prosecution evidence and prosecution has miserably
 F     failed to prove the charges levelled against the accused, it can possibly
       be said that the accused was honourably acquitted. In this context, it has
       been specifically noticed by this Court that entry into the police service
       required a candidate to be of good character, integrity and clean
       antecedents. Finally, it was opined that the acquittal in a criminal case
 G     does not automatically entitle a candidate for appointment to the post, as
       a person having criminal antecedents will not fit in this category.
             16. In a similar factual scenario to the extent of recruitment to the
       posts of Subedars, Platoon Commandants and Inspectors of Police in
       2
           (2018) 1 SCC 797
 H     3
           (2013) 1 SCC 598
         THE STATE OF RAJASTHAN v. LOVE KUSH MEENA                            1199
                   [SANJAY KISHAN KAUL, J.]

pursuance to an advertisement and disqualification of one of the              A
candidates being assailed resulted in a judgment of this Court in State of
Madhya Pradesh & Ors. v. Abhijit Singh Pawar4 by a two Judge
Bench. Suffice to say, in the factual context, a case registered in the
year 2006 was pending on the date when affidavit was tendered and
within four days the compromise was entered into between the original
                                                                              B
complainant and the respondent. An application for compounding was
filed. The compounding was found to be permissible as it dealt with
offences under Sections 294, 325/34, 323, 506 Part II of the IPC and on
discussion of the legal principle enunciated in the earlier judgments, it
was opined that the earlier judgment in the case of Commissioner of
Police v Mehar Singh5 it was opined that there is no doubt about the          C
proposition that even after the disclosure is made by a candidate, the
employer would be well within his rights to consider the antecedent and
suitability of the candidate. In this context, it was held, the employer is
entitled to take into account the job profile for which the selection is
undertaken, the severity of the charge levelled against the candidate and
                                                                              D
whether acquittal in question was an honourable acquittal or was merely
on the ground of benefit of doubt as a result of composition. We may
also add that one aspect which was noticed which is common with the
present case is the absence of any suggestion that the decision was
actuated by malafide or suffered on other accounts except the issue
raised of the subsequent circular applicable.                                 E
       17. A reference was also made to Anil Bharadwaj v. High Court
of Madhya Pradesh & Ors.6 where once again a two Judge Bench of
this Court found that a criminal case against the candidate under Sections
498A, 406, 34 of the IPC was pending consideration on a complaint filed
by the wife and thus, the rejection of candidature could not be said to be    F
unsustainable. While saying so, the Court also opined that the plea that
the deletion of the name would result in stigma against the candidate
was not sustainable since the candidate already stood acquitted.
       18. On the other hand, learned counsel for the respondent sought
to distinguish some of the judgments on the factual matrix while also         G
referring to certain other pronouncements. In this behalf, she referred to
the judgment in Inspector General of Police v. S. Samuthiram (supra)

4
  (2018) 18 SCC 733
5
  (2013) 7 SCC 685
6
  2020 SCC Online SC 832                                                      H
1200                SUPREME COURT REPORTS                        [2021] 2 S.C.R.


 A     expounding as to what is meant by “honourable acquittal” in para 24
       to contend that it is difficult to define precisely what is meant by the
       expression “honourable acquittal”. Counsel also sought to make a
       reference to a judgment in Joginder Singh v. State (UT of Chandigarh
       & Ors.)7. The charges against the candidate in this case were under
       Sections 148, 149, 323, 325 and 307 of IPC where it was held by the
 B
       Trial Court that the prosecution had miserably failed to prove charges
       levelled against him since the complainant as well as injured eyewitnesses
       failed to identify the assailants. It was opined to be a case of honourable
       acquittal and thus, relief was granted to the candidate.
              19. The respondent also referred to a judgment of this Court in
 C     Mohammed Imran v. State of Maharashtra & Ors. 8 decided on
       12.10.2018 where the candidate had been charged under Sections 363,
       366, 34, IPC much prior to the clearance of examination. In that context,
       it was observed that since employment opportunity were a scarce
       commodity in our country, with large numbers of aspirants applying, there
 D     could not be any mechanical or rhetorical incantation of moral turpitude
       to deny appointment in judicial service simplicitor but much would depend
       on the facts of a case.
             20. In the instant case the aspect of there being a time lapse
       between the alleged offence and the recruitment process was
 E     emphasised to contend that the respondent herein was about 19 years of
       age when the incident occurred and had now carried his life further by
       being successful in a competitive examination some years down the
       line.
             21. A reference was also made in the counter affidavit to certain
 F     judgments of the Rajasthan High Court granting relief to the candidates
       based on acquittal obtained on benefit of doubt.
             22. Lastly, a reference was made of an order passed by this Court
       in SLP[C]No.15351/2020 dated 21.01.2020 wherein an SLP was
       dismissed against a direction for appointment of a candidate where the
 G     order was giving benefit of doubt to the candidates in a criminal case.
       We may, however, note that firstly, that this is an order and not a judgment
       and secondly, it has been clearly stated that the dismissal was “in the
       given facts and circumstances of the case”.

       7
           (2015) 2 SCC 377
 H     8
           Civil Appeal No.10571/2018
        THE STATE OF RAJASTHAN v. LOVE KUSH MEENA                              1201
                  [SANJAY KISHAN KAUL, J.]

       23. Examining the controversy in the present case in the                A
conspectus of the aforesaid legal position, what is important to note is
the fact that the view of this Court has depended on the nature of offence
charged and the result of the same. The mere fact of an acquittal would
not suffice but rather it would depend on whether it is a clean acquittal
based on total absence of evidence or in the criminal jurisprudence
                                                                               B
requiring the case to be proved beyond reasonable doubt, that parameter
having not been met, benefit of doubt has been granted to the accused.
No doubt, in that facts of the present case, the person who ran the
tractor over the deceased lady was one of the other co-accused but the
role assigned to the others including the respondent herein was not of a
mere bystander or being present at site. The attack with knives was            C
alleged against all the other co-accused including the respondent.
      24. We may also notice this is a clear case where the endeavour
was to settle the dispute, albeit not with the job in mind. This is obvious
from the recital in the judgment of the Trial Court that the compoundable
offences were first compounded during trial but since the offence under        D
Section 302/34 IPC could not be compounded, the Trial Court continued
and qua those offences the witnesses turned hostile. We are of the
view that this can hardly fall under the category of a clean acquittal and
the Judge was thus right in using the terminology of benefit of doubt in
respect of such acquittal.
                                                                               E
       25. The judgment in Avtar Singh’s case (supra) on the relevant
parameter extracted aforesaid clearly stipulates that where in respect
of a heinous or serious nature of crime the acquittal is based on a benefit
of reasonable doubt, that cannot make the candidate eligible.
       26. We may also note the submission of learned counsel for the          F
respondent that as per para 38.3 in Avtar Singh’s case (supra), the
employer has to take into consideration the Government orders/
instructions/rules applicable to the employee at the time of taking a
decision. It is her say that the issue whether the circular dated 28.03.2017
would apply or not was res integra in view of the earlier order of the
                                                                               G
learned Judge dated 14.05.2018. She has further contended that, in any
case, the circular had come into force and as per the judgment in Avtar
Singh’s case (supra) para 38.4, it is the date of decision which is material
and as on the date of decision dated 23.05.2017, the said circular was
applicable.
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1202              SUPREME COURT REPORTS                         [2021] 2 S.C.R.


 A            27. We may note here that the circular dated 28.03.2017 is
       undoubtedly very wide in its application. It seeks to give the benefit to
       candidates including those acquitted by the Court by giving benefit of
       doubt. However, such circular has to be read in the context of the judicial
       pronouncements and when this Court has repeatedly opined that giving
       benefit of doubt would not entitle candidate for appointment, despite the
 B
       circular, the impugned decision of the competent authority dated
       23.05.2017 cannot be said to suffer from infirmity as being in violation of
       the circular when it is in conformity with the law laid down by this Court.
              28. We are, thus, of the view that the impugned orders cannot be
       sustained and the appellants are well within their rights to have issued
 C     the order dated 23.05.2017.
             29. The consequence is that the appeal is allowed and the impugned
       judgment of the Division Bench dated 16.07.2019 and learned Single
       Judge dated 14.05.2018 are set aside leaving the parties to bear their
       own costs.
 D
       Devika Gujral                                                Appeal allowed.




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