Mr.V.Rajasekaran, learned Special Government Pleader has taken notice for the respondents. By mutual consent of both sides, the Writ Petition itself is taken up for final hearing at the stage of admission.
2.Challenge in this Writ Petition is to the order dated 11.11.2009 passed by the third respondent in his proceedings in RC.No.A3/9406/2008 informing the petitioner that he was not finally selected for the post of Sub Inspector of Police(Technical).
3.The case of the petitioner is that he is a Diploma holder in Electronics and submitted his application for the post of Grade-II Police Constable as per the newspaper advertisement in 'Daily Thanthi' dated 05.03.2003. The petitioner also underwent the physical test and thereafter, called upon to attend the written test held on 10.06.2003. The petitioner also succeeded in the written test and medical board also certified that the petitioner is fit to be appointed to the post of Grade-II Constable.
4.Thereafter, the Inspector of Police, Panavadali chathiram conducted an enquiry with reference to the past antecedents of the petitioner. On enquiry, the petitioner submitted that a criminal case in Crime No.185 of 2002 for offence under
Sections 294(b) and
323 IPC was registered against him and the said case was ultimately ended in acquittal. While the petitioner was expecting appointment order, he received a communication from the first respondent stating that the petitioner is not qualified to be appointed as a Grade-II Police Constable. Being aggrieved against the said order, the petitioner preferred a Writ Petition before this Court in W.P.No.10870 of 2006 and the said Writ Petition was dismissed by this Court on the ground that the petitioner has not disclosed anything about the pendency of the criminal case. Thereafter, the petitioner preferred Writ Appeal in W.A.No.14 of 2008 and the same was also dismissed.
5.Thereafter, the petitioner applied for the post of Sub Inspector of Police (Technical) for the recruitment year 2006-2007. The petitioner has passed all the tests and also disclosed the acquittal in the criminal case at the time of police verification. But in spite of the same, the third respondent herein has passed an order holding that the petitioner was not finally selected for the post of Sub Inspector of Police (Technical) as the acquittal was on the ground that witnesses P.Ws.1, 2 to 4 turned hostile. Being aggrieved against the said order, the petitioner preferred the present Writ Petition with the aforesaid prayer.
6.Mr.K.Srinivasan, learned counsel for the petitioner contended that the petitioner has been acquitted in the criminal case as the trial Judge held that no direct evidence available against the petitioner and as such the said acquittal in the criminal case should be considered to be an honourable acquittal. It is contended that in view of such honourable acquittal in the criminal case, the third respondent ought to have selected the petitioner as the petitioner is otherwise qualified and eligible and he has also passed the written test, physical test etc. In support of his contention the learned counsel for the petitioner would place reliance on the decision of this Court reported in 2008 (4) MLJ 1988 in (D.Mahadevan vs. Director General of Police, Mylapore, Chennai-4). He would further contend that the petitioner would come in the category of explanation II Rule 13(b) of the Tamil Nadu Police Subordinate Service Rules (hereinafter referred to as 'the Rules') and as such he may be permitted to seek the relief of appointment for the future recruitment.
7.Per contra, the learned Special Government Pleader contended that the criminal case registered against the petitioner ended in acquittal only on the ground that the witnesses turned hostile as per the judgment of the trial Court. It is contended that in view of Rule 13(b) of the Rules, explanation-1, in the event of persons getting acquittal due to the fact that the complainant turned hostile shall be treated as a person involved in a criminal case. It is further contended that the Full Bench of this Court in W.P.No.38298 of 2005 etc., batch of cases (Manikandan and others vs. Chairman, Tamil Nadu Uniformed Services Recruitment Board and others) by an order dated 28.02.2008 held that a person acquitted on a benefit of doubt or discharged in a criminal case, can still be considered as disqualified for selection to the police service of the State and that the same cannot be termed as illegal or unjustified. Therefore, it is contended that there is no ground made out warranting interference of this Court in the impugned order.
8.I have carefully considered the rival contentions put forward by either side and perused the materials available on record.
9.The fact remains that the petitioner was disqualified even for the post of Grade-II Police Constable on the ground of his implication in a criminal case and the said order was challenged by the petitioner by filing a Writ Petition in W.P.No.10870 of 2006 and this Court dismissed the said Writ Petition and the said order was also challenged by preferring a Writ Appeal in W.A.No.14 of 2008 and the same was also dismissed by this Court. Thereafter, the petitioner made a second attempt for the post of Sub Inspector (Technical) for the recruitment of the year 2006-2007. It is seen that the petitioner has been acquitted by the trial Court in respect of the criminal case as per the judgment dated 04.09.2003 in S.T.C.No.1446 of 2002 for the alleged offence under
Sections 294(b) and
323 IPC. A perusal of the said judgment makes it crystal clear that in the criminal case, the author of the complaint, namely, P.W.1 turned hostile and the other witnesses P.Ws.2 to 4 also turned hostile and as such the prosecution case was left with the sole evidence of the Investigating Officer and as such the petitioner has been acquitted by the trial Court. It is pertinent to note that the said acquittal cannot be stated to be an honourable acquittal.
10.At this juncture, it is relevant to refer Rule 13 and 13(b). Rule 13 reads hereunder:
"Qualifications:
No person shall be eligible for appointment to the service by direct recruitment unless he satisfies the appointing authority,
(a)that he is of sound health, active habits and free from any bodily defect or infirmity unfitting him for such service;
(b)that his character and antecedents are such as to qualify him for such service;
(c)that such person does not have more than one wife living; or if such person is a woman, that she is not married to any person who has a wife living and
(d)that he does not have knock knees or bow legs or flat feet." Rule 13(b) is the stumbling block for the petitioner. In G.O.Ms.No.101 dated 30.01.2003, the following amendments have been made to the above Rules under Sections 8 and 10 of the Tamil Nadu District Police Act, 1859; "Explanation-1:A person who is acquitted or discharged on benefit of doubt or due to the fact that the complainant turned hostile, shall be treated as a person involved in a criminal case.
Explanation-2:A person involved in a criminal case at the time of police verification and the case yet to be disposed of any subsequently ended in honourable acquittal or treated as mistake of fact shall be treated as not involved in a criminal case and he can claim for appointment only by participating in the next recruitment."
11.A reading of the above said provision abundantly made clear that as per explanation-1, if a person is acquitted or discharged on benefit of doubt or on the ground that the complainant turned hostile shall be treated as a person involved in a criminal case. The said provision is clearly applicable to the facts of the instant case, as in this case also the petitioner has been acquitted by the trial Court only on the ground that the author of the complaint i.e. P.W.1 turned hostile and also the witnesses P.Ws.2 to 4 turned hostile.
12.The learned counsel for the petitioner made a feeble attempt to contend that the petitioner may be permitted to seek for the relief of appointment to the post of Sub Inspector for the future recruitment as per explanation-2 of Rule 13(b) of the Rules. It is seen that explanation-2 is applicable only to a person involved in a criminal case at the time of police verification. But in the case on hand, the petitioner has already been involved in a criminal case and he has been acquitted on the ground that the witnesses turned hostile. It is further seen from the explanation-2 only the cases ended in honourable acquittal or treated as 'Mistake of Fact' shall be treated as not involved in a criminal case and only such person can claim for appointment only by participating in the next recruitment. As already pointed out by this Court, it cannot be stated that the criminal case registered against the petitioner ended in honourable acquittal. Therefore, the petitioner cannot seek shelter under explanation-2 of 13(b) of the Rules.
13. The learned counsel for the petitioner also placed reliance on the decision of this Court in D. Mahadevan V. Director General of Police reported in 2008 (4) MLJ 88. It is seen that this Court in the above said decision held that the petitioner in that case has been honourably acquitted and as such, the criminal case shall not be a bar to his selection to the post of Sub Inspector of Police, if he is otherwise qualified and eligible. The learned Judge in the decision cited supra also referred to Rule 13 (b) of the Tamil Nadu Police Subordinate Service Rules and also referred to the relevant portions in the judgment of the criminal case and pointed out that in the said case the witnesses have not been treated as hostile and the learned trial Judge has held that there is no evidence against the accused and the case has not been proved beyond reasonable doubt and therefore, the learned Judge in the decision cited supra has held that though the words "benefit of doubt" are used, the case is really one of honourable acquittal. In view of the same, the said decision is not applicable to the facts of the case on hand.
14.The Full Bench of this Court has also held in Manikandan vs. The Chairman, Tamil Nadu Uniformed Services Recruitment Board, Chennai reported in 2008 (2) LW 106 as hereunder:
"27.The reason as to why the Code does not make a distinction between an acquittal on benefit of doubt and an honourable acquittal, is to ensure that no person shall be tied for a second time for the same offence for which he is tried and convicted or acquitted once. What is provided under Section 300(1) of the Code, is only a reassurance of the constitutional right guaranteed under
Article 20(2). The principle behind this prescription under
Section 300 of the Code is to avoid double jeopardy to a person. If the Code recognises such a distinction, it may make inroads into this concept of double jeopardy.
28.But the concept of double jeopardy, to some extent, is allergic to service law. In as many cases as one can think of, the Supreme Court has made it clear (i) that the imposition of a punishment and the denial of promotion did not amount to double jeopardy and (ii) that the conviction by a criminal Court and the disciplinary proceedings initiated either on the basis of conduct which led to the conviction or on pure questions of misconduct, did not amount to double jeopardy.
29.Since, the concept of "acquittal is an acquittal" is an off shoot of the principle of double jeopardy underlying section 300(1) of the Code, it cannot be imported into service law, where the principle of double jeopardy itself is looked down upon. Therefore, the Explanation 1 to Rule 14(b) of the impugned Rules, treating a person acquitted on benefit of doubt, as a person involved in a criminal case, is only in tune with well settled principles applicable to Service jurisprudence. A person discharged does not even have protection under
section 300 of the Code and hence such a person cannot assail the Explanation 1 to the impugned rule 14(b).
30.Therefore, we hold, in answer to the first issue referred to the Full Bench, that by virtue of Explanation 1 to clause (iv) of Rule 14(b) of the Tamilnadu Special Police Subordinate Service Rules, a person acquitted on benefit of doubt or discharged in a criminal case, can still be considered as disqualified for selection to the police service of the State and that the same cannot be termed as illegal or unjustified."
15.In view of the above principles laid down by the Full Bench of this Court in the decision cited supra, the principle of law is now well settled to the effect that a person acquitted on benefit of doubt in a criminal case can still be considered as disqualified for selection to the post of Police service of the State.
16.In view of the aforesaid reasons, the Writ Petition is liable to be dismissed and accordingly, the same, is dismissed. No costs. Consequently connected Miscellaneous Petition is also dismissed.
RR To
1.The Director General of Police, Office of Director General of Police, Chennai-4
2.The Chairman, Tamil Nadu Uniformed Services, Recruitment Board, Chennai-2
3.The Deputy Inspector General of Police, (Technical Services) Chennai-600 004.