When an Accused is acquitted on the basis of a Compromise, it cannot be said that the Accused was Honourably Acquitted [CASE LAW]

When an accused is acquitted on the basis of a compromise, it cannot be said that the accused was honourably acquitted.

IN THE HIGH COURT AT CALCUTTA

Constitutional Writ Jurisdiction APPELLATE SIDE

Present: The Hon’ble Justice Tapabrata Chakraborty

Judgment On : 12th July, 2019

W.P. No.24638 (W) of 2016

Goutam Kumar Pramanik

Versus

The State of West Bengal & Others

For the Petitioner : Mr. Gautam Kumar Thakur, Ms. Anandamayi Ghosh, Mr. Debasis Ghosh.

For the State Respondents : Mr. Sushanta Chatterjee, Mr. Abdus Salam.

Tapabrata Chakraborty, J.

1. The present writ petition has been preferred challenging an order dated 17th December, 2015 passed by the respondent no.4 and an order of the District Level Selection Committee (in short, DLSC) as communicated by a memo dated 28th July, 2016.

2. Shorn of unnecessary details the facts are that having emerged to be successful in a written test and interview, the petitioner was provisionally selected to the post of a panchayat karmee under Gokulpur Gram Panchayat by a memo dated 17th January, 2006. Thereafter, he along with thirteen others was deputed to perform election duty at the Patashpur area by a memo dated 17th April, 2006. As indicated in the memo dated 17th January, 2006 the petitioner filled up the verification roll form within the time as directed. Surprisingly thereafter, no letter of appointment was issued to the petitioner. Aggrieved thereby, the petitioner preferred a writ petition being WP 2083 (W) of 2007. The same was disposed of by an order dated 15th October, 2015 directing the respondent no.4 to consider the representation submitted by the petitioner for appointment. Pursuant to the said order the respondent no.4 passed an order on 17th December, 2015 observing inter alia that the final decision needs to be taken by the DLSC as constituted by a notification dated 6th January, 2006. Thereafter by a memo dated 28th July, 2016 the said respondent no.4 intimated the petitioner that the DLSC, upon considering the petitioner’s representation and the legal opinion of the Government Pleader, Purba Medinipur, rejected the petitioner’s claim observing that as the validity of the original panel has expired, as police verification report is not received till date and as new notification has been published and applications have been received, the original panel cannot be revived.

3. Mr. Thakur, learned advocate appearing for the petitioner submits that the petitioner’s appointment was initially withheld since three criminal cases were pending against him. After the verification form was filled up by the petitioner, the same was forwarded to the Superintendent of Police, DIB Purba Medinipur by the respondent no.3 vide memo dated 31st January, 2006 and upon considering the same the Deputy Inspector General of Police, IB, West Bengal by a memo dated 22nd May, 2006 intimated the respondent no.3 that “no opinion over the suitability or otherwise of the subject or his employment can be given from this end till finalisation of the cases”.

4. He submits that there had been no suppression on the part of the petitioner while filling up the verification form. The three pending criminal cases were finally decided on 31st March, 2012, 10th October, 2013 and 27th August, 2014 respectively. The charges were trivial and the petitioner was a victim of political vendetta. A perusal of the said judgments would reveal that in all the three cases the petitioner was honourably acquitted. In view thereof, the employer ought to have exercised its discretion in a reasonable manner and in the totality of the circumstances. In support of such argument reliance has been placed upon the judgments delivered in the case of Avtar Singh – Vs- Union of India & Ors., reported in (2016) 8 SCC 471, in the case of Vikram Singh –Vs- The Commissioner of Police, reported in (2018) 1 SCC 308 and in the case of Union Territory, ChandigarhAdministration and Ors. –Vs- Pradeep Kumar and Another, reported in (2018) 1 SCC 797.

5. He argues that even after disposal of the three criminal cases way back in the year 2014, the respondents maintained a deceptive silence and did not take any decision. It is only after the Court directed, the respondent no.4 passed an order on 17th December, 2015 forwarding the records to the DLSC. The sole ground for withholding the letter of appointment was nondisposal of the criminal cases. After the petitioner was acquitted, the DLSC took a decision on the basis of a purported legal opinion of the learned Government Pleader rejecting the petitioner’s claim on a ground that the panel had expired and that the same cannot be revived as new notification has been published and applications have been received.

6. He contends that the letter of selection was issued on 17th January, 2006, the writ petition was preferred in the year 2007, which stood disposed of after about eight years on 15th October, 2015. There had been no laches on the part of the petitioner to approach this Court and as such the petitioner’s claim towards appointment could not have been negated on a purported ground that the life of the panel had expired. For expiry of the life of the panel during pendency of the earlier writ petition, the right of the petitioner could not have been denied. In support of such contention he has placed reliance upon a judgment delivered inthe case of Nirupama (Roy) Barman & Ors. –Vs- State of West Bengal & Ors., reported in 2013(2) CLJ(Cal) 462.

7. Mr. Thakur submits that the vacancy in the post of gram panchayat karmee in Gokulpur Gram Panchayat in which the petitioner was selected is still vacant. In support of such contention he has placed reliance upon a document issued by the respondent no.3, annexed at page 8 of the supplementary affidavit. Reliance has also been placed upon a document issued by the respondent no.3 on 22nd October, 2014 in which the vacancy at Gokulpur Gram Panchayat had been declared to be vacant in view of pendency of the writ petition being WP 2083 (W) of 2007.

8. Per contra, Mr. Chatterjee, learned advocate appearing for the respondents submits that the authorities could not initially consider the petitioner’s claim since three criminal cases were pending against him. By the time the last criminal case was disposed of on 27th August, 2014, the life of the panel had expired. The appointment process stood concluded on 14th September, 2006. Till conclusion of the criminal cases there was no obligation on the part of the authorities to consider the question of entitlement of the petitioner for appointment. By the time the criminal cases were disposed of, the vacancy had been filled up. There was also no subsisting interim order in the earlier writ petition pertaining to the vacancy in which thepetitioner claimed appointment. There is no infirmity in the decision making process warranting interference of this Court.

9. In the memo dated 22nd May, 2006 issued by the Deputy Inspector General of Police, IB, West Bengal it was categorically stated that no opinion as regards the petitioner’s suitability can be given till final disposal of the criminal cases. In the affidavitin- opposition there is a passing remark that the petitioner suppressed the fact that criminal cases were pending against him.

10. Admittedly no interim order was passed in the earlier writ petition which was pending from the year 2007 till 27th October, 2015. In the affidavit-in-opposition it has been categorically stated that the concerned post of panchayat karmee at Gokulpur Gram Panchayat has been filled up by the selection committee. In the order of DLSC it has also been indicated that to fill up the said post a new notification had been published and applications have been received. In view thereof issuance of direction towards appointment in favour of the petitioner would unsettle the right which may have accrued in favour of a candidate on the basis of the new selection process.

11. In the said conspectus it needs to be determined as to whether the petitioner is entitled to the relief as prayed for. The petitioner is presently aged about 49 years. Further relegation of this matter to the appropriate authority for consideration afresh would have the effect of keeping the Damocles sword hanging upon the petitioner for an indefinite period of time.

12. The earlier writ petition was affirmed in the year 2007. No explanation is forthcoming as to why appropriate steps were not taken on behalf of the petitioner to secure an interim protection in respect of the concerned vacancy. At the time of final disposal of the earlier writ petition, there had been no endeavour on the part of the petitioner to advance any argument as regards the status of the vacancy. The petitioner only sought for a direction towards consideration.

13. It is well known that even a slight distinction in fact or an additional fact may make a lot of difference in decision making process. The judgment delivered in the case of Nirupama (Roy) Barman (Supra) is distinguishable on facts inasmuch as in the said judgment involvement in criminal cases was not an issue.

14. In the first criminal case being ST No.60/September/2000 judgment was delivered on 31st March, 2012. The charges were framed against the petitioner and others for offences punishable under Sections 148/448/323/325/435/436/427/379/307/149 of IPC and under Section 9B of IE Act. By the said judgment the petitioner was acquitted observing inter alia that “the evidence is translucent and opaque and not sufficient to bring home the charge against the accused persons”.

15. The next criminal case was disposed of by a judgment dated 10th October, 2013. The charges were framed against the petitioner and others for offences punishable under Sections 147/148/149/323/447/506. In the said judgment it was observed inter alia that “it appears that is much probable that a compromise was effected and so the prosecution witnesses have preferred to shut up their mouth with an intention not to proceed with the case any more. In such a circumstances so far the legal principals are concerned and provisions of Indian Evidence Act direct, it is not possible to come to the conclusion that the case has been proved against the accused persons beyond reasonable doubt and therefore, the accused are entitled to get benefit of doubt and accordingly they are acquitted from this case considering the dearth of incriminating materials in the prosecution evidence so far adduced”.

16. In the third criminal case judgment was delivered on 27th August, 2014. In the same charges were framed against the accused under Sections 147/148/149/448/323/427/379 of IPC. In the said judgment it was observed that there was no material in the evidence to come to the conclusion beyond all reasonable doubt that offences have been committed by the accused persons.

17. A perusal of the judgment delivered on 10th October, 2013 reveals that on the basis of a compromise the accused persons were acquitted by the Court granting benefit of doubt. Such acquittal is not conclusive of the suitability of the petitioner. Mere acquittal does not automatically entitle a successful candidate to be appointed, the acquittal has to be honourable. The expressions ‘honourable acquittal’, ‘acquitted of blame’, ‘fully exonerated’ are unknown to the Code of Criminal Procedure or the Penal Code, which are coined by judicial pronouncements. But when an accused is acquitted on the basis of a compromise, it cannot be said that the accused was honourably acquitted. In view thereof, the judgments delivered in the case of Vikram Singh (Supra) and in the case of Union Territory, Chandigarh Administration (Supra) do not fortify the petitioner’s claim.

18. For the reasons discussed above, this Court is unable to grant the reliefs, as prayed for by the petitioner and the writ petition is, accordingly, dismissed.

19. There shall, however, be no order as to costs.

20. Urgent Photostat certified copy of this judgment, if applied for, be given to the parties, as expeditiously as possible, upon compliance with the necessary formalities in this regard.