Rajendra Singh v. State Of U.p. And Others

1. Order dated July 26, 2022 passed by learned Single Judge has been impugned by filing present intra-Court appeal.

2. The appellant was before this Court impugning order dated November 21, 2020 passed by the Superintendent of Police, Jalaun whereby the representation filed by him was dismissed. It is a case in which the appellant was selected to the post of Constable vide selection list dated May 15, 2018. He received call letter dated June 9, 2018 for medical checkup and completion of other formalities. In terms thereof, the appellant was to appear for medical examination on June 12, 2018. The admitted case of the appellant is that immediately after coming to know about his selection as a Constable, his enemies in the village became active and a false First Information Report (hereinafter referred to as ‘FIR’) was registered against him on July 3, 2018 under Section 354A(1)(iv) of IPC. The allegation in the FIR is that the present appellant namely, the accused named in the FIR, has enticed the prosecutrix inside his house and used certain obscene words. Even in the statement got recorded by the prosecutrix under Section 161 Cr. P.C., she reiterated the stand taken in the complaint made to the police, on the basis of which FIR was registered. Thereafter, statement of the prosecutrix was recorded under Section 164 Cr. P.C. wherein she improved from the version as contained in the FIR and it was added that she was molested and she was ravished with use of force by the accused (appellant herein). The aforesaid statement was recorded on July 5, 2018. Thereafter, medical examination of the prosecutrix was conducted on July 7, 2018. No injury was found on any part of her body.

3. The appellant faced trial. While getting her statement recorded in the Court, the prosecutrix stated that nothing, as stated in her statement to the police at the time of registration of FIR or what was stated in her statement recorded under Section 164 Cr. P.C., had happened. She had not lodged complaint and her statements were recorded under pressure of her brother and father. As a result of which, the charges having not been proved, the accused, namely the present appellant was acquitted vide judgment and order dated January 27, 2020 passed by the learned Special Judge, POCSO Act.

4. Immediately after acquittal of the appellant, he made a representation to the competent authority on February 3, 2020 for consideration of his case for appointment as a Constable. As the same was not decided, Writ Petition No. 3076 of 2020 was filed, which was disposed of on March 3, 2020 with a direction to respondent no. 4 therein for decision of the representation made by the appellant within a period of three months. As the representation was not decided in a time bound manner as directed by this Court, Contempt Application (Civil) No. 4159 of 2020 was filed. The same was disposed of on November 2, 2020 giving one more opportunity to the respondents for disposal of the representation within a period of six weeks from the date of production of a copy of the order. Thereafter, the representation was disposed of on November 21, 2020 rejecting the claim of the appellant. It is the aforesaid order, which was challenged before the learned Single Judge.

5. Learned Single Judge, with the opinion that the acquittal of appellant was not honourable. Considering the serious charges levelled against him, who had to become part of a disciplined force, he does not deserve to be given any concession and dismissed the writ petition.

6. The argument raised by Mr. Khare, Senior Advocate is that it is a case in which the prosecutrix improved her statement from what has been made at the time of registration of the F.I.R. and statement recorded under Section 161 Cr. P.C. Initially, there was no allegation of rape and subsequently while getting her statement recorded under Section 164 Cr. P.C., it was added. During the trial, she categorically stated that no incident as reported to the police, initially on the basis of which F.I.R. was registered, or what was stated by her in the statement recorded under Section 164 Cr. P.C., had happened. In fact, her statement was due to the pressure built by her brother and father to settle their personal scores, hence, it was not a case of giving benefit of doubt to the appellant, rather acquittal was honourable as the prosecution has failed to prove the charges. It is further pointed out by learned counsel for the appellant that at the time of registration of FIR the prosecutrix is shown to be a minor, whereas in evidence it was found that on the date of alleged incident, she was 19 years of age.

7. On the other hand, learned counsel for the State could not dispute the aforesaid factual matrix of the matter, however, he still tried to support the order passed by the learned Single Judge.

8. The principles regarding the right to be appointed in government service, where the background of a candidate indicates involvement in a criminal case were laid down by the Supreme Court in Avtar Singh v. Union of India, (2016) 8 SCC 471. In Avtar Singh's case (supra), the following principles have been enumerated:

“38. We have noticed various decisions and tried to explain and reconcile them as far as possible. In view of the aforesaid discussion, we summarise our conclusion thus:

38.1 Information given to the employer by a candidate as to conviction, acquittal or arrest, or pendency of a criminal case, whether before or after entering into service must be true and there should be no suppression or false mention of required information.

38.2 While passing order of termination of services or cancellation of candidature for giving false information, the employer may take notice of special circumstances of the case, if any, while giving such information.

38.3 The employer shall take into consideration the government orders/instructions/rules, applicable to the employee, at the time of taking the decision.

38.4 In case there is suppression or false information of involvement in a criminal case where conviction or acquittal had already been recorded before filling of the application/verification form and such fact later comes to knowledge of employer, any of thefollowing recourses appropriate to the case may be adopted:

38.4.1 In case a trivial in nature in which conviction had been recorded, such as shouting slogans at young age or for a petty offence which if disclosed would not have rendered an incumbent unfit for post in question, the employer may, in its discretion, ignore such suppression of fact or false information by condoning the lapse.

38.4.2 Where conviction has been recorded in case which is not trivial in nature, employer may cancel candidature or terminate services of the employee.

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 relevant facts available as to antecedents, and may take appropriate decision as to the continuance of the employee.

38.5 In a case where the employee has made declaration truthfully of a concluded criminal case, the employer still has the right to consider antecedents, and cannot be compelled to appoint the candidate.

38.6 In case when fact has been truthfully declared in character verification form regarding pendency of a criminal case of trivial nature, employer, in facts and circumstances of the case, in its discretion, may appoint the candidate subject to decision of such case.

38.7 In a case of deliberate suppression of fact with respect to multiple pending cases such false information by itself will assume significance and an employer may pass appropriate order cancelling candidature or terminating services as appointment of a person against whom multiple criminal cases were pending may not be proper.

38.8 If criminal case was pending but not known to the candidate at the time of filling the form, still it may have adverse impact and the appointing authority would take decision after considering the seriousness of the crime.

38.9 In case the employee is confirmed in service, holding departmental enquiry would be necessary before passing order of termination/removal or dismissal on the ground of suppression or submitting false information in verification form.

38.10 For determining suppression or false information attestation/verification form has to be specific, not vague. Only such information which was required to be specifically mentioned has to be disclosed. If information not asked for but is relevant comes to knowledge of the employer the same can be considered in an objective manner while addressing the question of fitness. However, in such cases action cannot be taken on basis of suppression or submitting false information as to a fact which was not even asked for.

38.11 Before a person is held guilty of suppression veri or suggestio falsi, knowledge of the fact must be attributable to him.”

9. After hearing learned counsel for the parties, we find merit in the submission made by learned counsel for the appellant. It is a case in which it is evident from the record that the prosecutrix initially got the F.I.R. registered with the allegation of use of certain obscene words by the accused while taking her to his residence while she was out to trace out her younger brother. The aforesaid stand was reiterated by her while getting her statement recorded under Section 161 Cr. P.C. However, two days thereafter, she got her statement recorded under Section 164 Cr. P.C. where the allegation against the appellant was improved and the case of outraging her modesty was sought to be made out including the allegation under Section 376 Cr. P.C. Initially, FIR was registered under Section 354A(1)(4) of IPC. However, later on, the charges under Section 376 IPC and Section 4 of POCSO Act were added. However, while appearing in the Court as a witness, she stated that on July 2, 2018 at about 3 P.M., no incident happened with her as was reported to the police. As the statement of the prosecutrix recorded under Section 164 Cr. P.C. was not available, her evidence was deferred. On the next date of hearing, she again reiterated that the appellant had not done anything with her and she had got the FIR registered under pressure of her brother on account of certain disputes between the families, as her brother had beaten her up and also threatened to kill her. She also denied her statement made under Section 161 Cr. P.C. though bearing her signature stating that signature was taken on a blank paper. Though, she had admitted her photograph and signature made on the statement under Section 164 Cr. P.C., but when confronted in Court, she stated that the aforesaid wrong statement was also made by her under pressure of her brother and father. She also stated that before getting her statement recorded under Section 164 Cr. P.C., she was threatened even by the Police Constable and S.H.O. that in case, she will not state in the manner as they propose, she will be put to jail. She also stated that appellant was selected to the post of Constable. He had to join on July 11, 2018. She got the F.I.R. registered under pressure of her family members so that he may not be able to join the service. No incident, as stated by her in the FIR or in the statement under Section 164 Cr. P.C., has ever happened.

10. The stand taken by the prosecutrix in her statement in the Court is corroborated from the medical evidence wherein no injury mark was found on any part of her body.

11. From perusal of the judgment of the learned Special Judge (POCSO Act), it is evident that the appellant was not acquitted giving him the benefit of doubt. Rather, the acquittal of the appellant was on account of failure of the prosecution to prove its case as the prosecutrix herself had denied any incident on the basis of which FIR was registered.

12. Considering the aforesaid facts, in our view, order dated November 21, 2020 passed by the Superintendent of Police, Jalaun rejecting the claim of the appellant for giving appointment after his acquittal in the trial, is illegal. The aforesaid order as well as the order passed by the learned Single Judge dismissing the writ petition are set aside. The respondents are directed to consider the case of the appellant afresh, keeping in view the fact that the appellant was acquitted, within a period of three months from the date of receipt of a copy of the order. It is made clear that the appellant shall be entitled to all service benefits from the date of joining.

13. From the judgment passed by the Special Judge, POCSO Act, it is evident that the appellant was not at all involved in the incident, hence, it cannot be said to be a case in which the appellant was involved in a case of moral turpitude.

14. However, before parting with the case, we deem it appropriate to issue show cause notices to the prosecutrix in FIR No. 0185 of 2018, Police Station-Charkhari, District-Mahoba for getting a false case registered against the appellant, the incident of which she had denied in Court, and as well as to her father Ratan Singh and brother Sandeep, which according to the prosecutrix were instrumental in pressurizing her to get a false case registered, as to why appropriate proceedings may not be initiated against them for getting a false criminal case registered.

15. Let service on the aforesaid persons be effected through Chief Judicial Magistrate, Mahoba.

16. The present Special Appeal is allowed to the extent as mentioned above. However, for considering the notices issued to the prosecutrix, her father and brother, the appeal shall be listed before the Court on January 17, 2023.