Sivanesan vs Superintendent of Police, Tiruvannamalai District Tamil Nadu

K. Chandru, J.—The petitioner in this writ petition has come forward to challenge an order dated 11.12.2012 issued by the respondent

Superintendent of Police, Tiruvannamalai District and after setting aside the same, seeks for a direction to consider his representation, dated

5.12.2012 so as to select him for the post of the Police Constable, Grade-II under the Tamil Nadu Special Police Force. When the writ petition

came up on 4.1.2013, this Court directed the learned Additional Government Pleader to take notice. On such notice, a counter affidavit, dated

12.2.2013 has been filed by the respondent. The original file relating to the non selection of the petitioner was also produced.

Heard both sides. The petitioner had applied for the post of Grade-II Police Constable. He came out successful in his written test, physical

efficiency test and medical test etc. It is when his antecedent and character were verified by the police department, it was found that he was

involved in Crime No. 730 of 2011 for the offence u/s 366 IPC and a charge sheet has been filed before the learned Judicial Magistrate, Arni. But,

however, the charge sheet has not yet filed. In terms of Rule 14(b) of the Special Rules relating to the Tamil Nadu Police Subordinate Services, if a

person is involved in any criminal case, it will be considered that his conduct and character was not satisfactory and therefore, he was not given an

appointment order. The petitioner, thereafter, sent a representation, dated 5.12.2012. When no reply was forthcoming, the writ petition came to

be filed.

The petitioner was the diploma holder in Mechanical Engineering. Subsequently, he was employed in Vittalnaickenpatti in a private company.

During August, 2011, his friend one Sudhakar of Arni got married to one Arachelvi and it was a love marriage. On 17.8.2011, both got married at

Melvaruvathur temple. Subsequent to the marriage, as the sister-in-law of the said Arachelvi was the Sub Inspector of Police, a false case was

registered in Crime No. 730 of 2011 u/s 366 IPC against the said Sudhakar and three others including the petitioner. They were arrested and

remanded to judicial custody. But, they had filed a bail application before the Sessions Court at Tiruvannamalai in Crl. M.P. No. 3403 of 2011.

During the hearing of the bail application, the said Arachelvi, the girl whom Sudhakar got married, filed an affidavit and also produced the

educational certificate to show that her date of birth was 9.6.1988. At the time of marriage, she was 23 years old and there was no compulsion in

her marriage and her marriage was voluntary. The learned Sessions Judge, Tiruvannamalai, by an order dated 6.9.2011 had granted bail to the

petitioner by observing that he had the benefit of hearing the girl in Court and her statement was recorded in open Court. Under the facts and

circumstances of the case, prima facie the offence was not proved. Hence the petitioner was granted bail.

It was subsequent to the bail, which was granted on 6.9.2011, the petitioner had applied for the post of Grade-II Police Constable. In the

application form submitted on 25.4.2012, in column No. 29 against the question whether any criminal case is pending against him, the petitioner

wrote thereby meaning ""Nil"". Subsequently, he came out successful in the written test, physical efficiency test and medical test and was eligible for

being appointed for the post of Grade-II Police constable. It was at that stage, in order to verify the antecedents, a Verification Roll in Annexure-

III of the Tamil Nadu Police was given to the petitioner to be filled up by him. The petitioner filled up the said Verification Roll. For question Nos.

15, 16 and 18, he gave the following answers:

Crime 730

Crime: 730/11 u/s 366 IPC.

It is pursuant to the same, a verification was done by the Inspector of Police, Arni Town Police. It was informed after verification that a Crime

No. 730 of 2011 was filed u/s 366 IPC and the petitioner was shown as A-4 and he came out on bail. Subsequent to the investigation on

30.8.2011, a final report was filed before the Judicial Magistrate Court and it is yet to be taken cognizance. The Special Branch report sent by the

Head Constable, Ami showed that on enquiry it was found that the petitioner has good conduct and he does not belong to any political party and

not belonging to any communal or religious organizations. Insofar as the criminal case was concerned, the learned Judicial Magistrate released all

the persons. He also asserted that the petitioner was not involved in the said criminal case. Apart from this case, there is no other case available.

He also produced a copy of the affidavit filed by Arachelvi, who is said to be the victim girl kidnapped, wherein she had stated that she was in love

with Sudhakar and out of her own will, she eloped with him and got married. The de facto complaint given by her father Murugesan was false and

based on suspicion and that she was a major girl having born on 9.6.1988. At the time of the marriage, she was more than 23 years old. The

marriage certificate between Arachelvi and Sudhakar was also enclosed for perusal by the authority. A copy of the bail order given by the

Sessions Court was also enclosed.

It is also brought to the notice of this Court that the first accused in Crime No. 730 of 2011, i.e., Sudhakar, who got married to the said

Arachelvi, filed a Criminal Original Petition No. 1892 of 2013 before this Court to set aside the FIR registered against him. This Court by an order

dated 13.2.2013 had allowed the criminal original petition and quashed the FIR. In paragraphs 2 to 5 of the order, it was observed as follows:

2 When the matter was taken up for hearing, the petitioner/accused and his wife Araiselvi appeared before this Court. The petitioner produced a

copy of the marriage certificate dated 20.9.2011 given by the Sub Registrar, Arni, Thiruvannamalai District. It proves that the petitioner got

married with Araiselvi on 14.9.2011. Araiselvi has submitted before this Court that she on her own accord went with the petitioner because of love

and got married with him and for which, the complaint has been given by the second respondent/paternal grand father of Araiselvi and there is no

coercion or compulsion on the part of the petitioner.

The grandfather of the petitioner is also present before this Court and submitted that after the marriage held between the petitioner and Araiselvi,

they are living in the village. Araiselvi is also on the family way as on today.

In spite of service of notice, the second respondent did not appear before this Court either in person or through counsel.

Considering the above said circumstances of the case, no useful purpose would be served if the matter is pending for farther proceedings in

Crime No. 730 of 2011. Hence, the First Information Report is quashed. The Criminal Original Petition is allowed accordingly.

When the first accused, i.e., Sudhakar himself was held to be innocent and the FIR was quashed, it has to be taken that the petitioner cannot be

proceeded being involved in the crime any more, oth before the Sessions Court and before this Court, it was well established that the girl was

major and she has given a statement on her own. These facts even though were brought to the notice of the respondent, they have not applied their

mind in deciding whether the petitioner was having any criminal background. Since the very FIR itself was quashed, it cannot be held that he was

having any criminal background. Even the learned Magistrate, before whom the so-called final report has been filed, cannot proceed to deal with

the same. Even the petitioner has made an allegation that the sister-in-law of Arachelvi was the Sub Inspector of Police and she was instrumental in

registering the FIR against Sudhakar and his friends including the petitioner. It is rather unfortunate that these facts were not noted.

In the counter affidavit filed by the respondent, in paragraphs 6 and 7, it was averred as follows:

6....it is submitted that the representation dated 5.12.2012 of the petitioner was received by the respondent to consider his name for the Selection

of Grade II Constable in Tamil Nadu Special Police Force. The respondent has sent reply to the representation of the petitioner vide N.K. No.

A3/13005/2012, dated 11.12.2012, wherein it has been stated that one of the requirements for selection to the abovementioned post is that the

candidate should not have a previous criminal record was not satisfied and that he named as an accused in Crime No. 730 of 2011 registered by

Arani Police Station and Charge sheet had already been filed by the Arani Police before the Judicial Magistrate in Crime No. 730 of 11 on

30.8.2011 and hence, his name will not be considered for selection.

7....it is submitted that even though the charge sheet has been filed by the respondent before the Judicial Magistrate, Arani and it is not yet

numbered. As and when it is numbered, it will be taken into file. Hence, the copy application of the petitioner for getting charge sheet has been

returned by the Judicial Magistrate, Arani with endorsement ""Charge sheet not yet filed"".

It is in this context, it has to be seen whether the petitioner suffered any disqualification from being considered for the post of Grade-II

Constable?

Reliance was placed upon Rule 14(b) of the Special Rules to the Tamil Nadu Police Subordinate Service. It is necessary to reproduce the rule

14(b) in its entirety, which reads as follows:

14(b). No person shall be eligible for appointment to the service by direct recruitment unless he satisfies the Appointing Authority,-

(i) that he is of sound health, active habits and free from any bodily defect or infirmity unfitting him for such service; and

(ii) that his character and antecedents are such as to qualify him for such service; and

(iii) that such a person does not have more than one wife living;

(iv) That he has not involved in any criminal case before police verification.

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 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 and 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 right for appointment only

by participating in the next recruitment.

In the present case, the question to be considered is whether under Rule 14(b), a person, against whom a criminal case was filed before the

police authority, is automatically disqualified and whether the petitioner has willfully suppressed any information in the Verification Roll signed by

him?

In the present case, though in the original application the petitioner gave a negative answer, subsequently he has given correct answers relating

to the pendency of the case as per the questions and answers extracted above. Therefore, he cannot be said that he has suppressed any material

facts before entering into the service. The learned Additional Government Pleader strongly relied upon a judgment of the Full Bench of this Court in

Manikandan v. Chairman, Tamil Nadu Uniformed Services Recruitment 2008 (2) CTC 97, wherein an explanation appended to Rule 14(b) was

upheld. In that case, one of the question considered was the non disclosure of the involvement in the criminal case can also be a relevant ground for

rejecting a candidate''s name.

On the question that the petitioner in the original application form did not disclose this information, it must be noted that in the subsequent

verification roll, he has given correct information. Even otherwise, it may be a bona fide mistake on his part not to have disclosed since he has been

granted bail by the learned Sessions Judge after recording the statement of the lady victim Arachelvi. In this context, it is necessary to refer to a

judgment of the Supreme Court in State of Haryana and Others Vs. Dinesh Kumar, , where a person did not disclose his arrest in the attestation

form when he went for selection. Because of his non disclosure when he was denied appointment, the defence taken by that person was since he

was granted bail, he was under the bona fide impression that there was no arrest. The Supreme Court in paragraphs 31 and 33 had observed as

follows:

In our view, the reasoning given in State of Haryana v. Dinesh Kumar (supra) case in that context is a possible view and does not call for

interference under Article 136 of the Constitution. Conversely, the decision rendered in the writ petitions filed by Lalit Kumar and Bhupinder has to

be reversed to be in line with the decision in State of Haryana v. Dinesh Kumar (supra) case. When the question as to what constitutes ""arrest"" has

for long engaged the attention of different High Courts as also this Court, it may not be altogether unreasonable to expect a layman to construe that

he had never been arrested on his appearing before the Court and being granted bail immediately. The position would have been different, had the

person concerned not been released on bail. We would, in the facts of these cases, give the benefit of a mistaken impression, rather than that of

deliberate and wilful misrepresentation and concealment of facts, to the appellants in the second of the two appeals as well, while affirming the view

taken by the High Court in Dinesh Kumar''s case.

In the result, the civil appeal arising out of SLP (C) No. 1840 of 2007 is dismissed, while the civil appeal arising out of SLP (C) No. 14939 of

2007 is allowed. The judgment of the High Court dated 22.9.2005, impugned in the said appeal, is set aside and the respondents concerned are

directed to take steps to issue appointment letters to the appellants in the said appeals subject to fulfilment of other conditions by them. It is also

made clear that the appellants will be deemed to have been appointed as Constable-Drivers with effect from the date persons lower in merit to

them were appointed. However, while they will be entitled to the notional benefits of such continuous appointment, they will be entitled to salary

only from the date of this judgment on the basis of such notional benefits.

It is also necessary to refer to a judgment of the Supreme Court in Commr. of Police and Others Vs. Sandeep Kumar, and in paragraphs 5, 8,

11 and 12, the Supreme Court had observed as follows:

On 2.8.2001 a show-cause notice was issued to him asking the respondent to show cause why his candidature for the post should not be

cancelled because he had concealed the fact of his involvement in the aforesaid criminal case and had made a wrong statement in his application

form. The respondent submitted his reply on 17-8-2001 and an additional reply but the authorities were not satisfied with the same and on

29.5.2003 cancelled his candidature.

We respectfully agree with the Delhi High Court that the cancellation of his candidature was illegal, but we wish to give our own opinion in the

matter. When the incident happened the respondent must have been about 20 years of age. At that age young people often commit indiscretions,

and such indiscretions can often be condoned. After all, youth will be youth. They are not expected to behave in as mature a manner as older

people. Hence, our approach should be to condone minor indiscretions made by young people rather than to brand them as criminals for the rest

of their lives.

As already observed above, youth often commits indiscretions, which are often condoned.

It is true that in the application form the respondent did not mention that he was involved in a criminal case under Sections 325 /34 IPC.

Probably he did not mention this out of fear that if he did so he would automatically be disqualified. At any event, it was not such a serious offence

like murder, dacoity or rape, and hence a more lenient view should be taken in the matter.

It is also necessary to refer to a subsequent judgment of the Supreme Court in Ram Kumar Vs. State of U.P. and Others, and in paragraph 9 it

was observed as follows:

9... but it appears from the order dated 8.8.2007 of the senior Superintendent of Police, Ghaziabad, that he has not gone into the question as to

whether the appellant was suitable for appointment to service or to the post of constable in which he was appointed and he has only held that the

selection of the appellant was illegal and irregular because he did not furnish in his affidavit in the pro forma of verification roll that a criminal case

has been registered against him. As has been stated in the instructions in the Government Order dated 28.4.1958, it was the duty of the senior

Superintendent of Police, Ghaziabad, as the appointing authority, to satisfy himself on the point as to whether the appellant was suitable for

appointment to the post of a constable, with reference to the nature of suppression and nature of the criminal case. Instead of considering whether

the appellant was suitable for appointment to the post of male constable, the appointing authority has mechanically held that his selection was

irregular and illegal because the appellant had furnished an affidavit stating the facts incorrectly at the time of recruitment.

If these two judgments are taken note of, then reliance placed on by the respondent in Manikandan v. Chairman, Tamil Nadu Uniformed

Services Recruitment (supra) case cannot have any direct relevance to the case on hand. On the other hand, the petitioner was honest and had

disclosed the pendency of the criminal case. Since the very FIR itself has been quashed by this Court, it cannot be said that he was involved in the

criminal case, which case is admittedly a false one filed at the instance of one Murugesan, who remained absent when in the criminal original

petition notice was ordered. It must also be true that Arachelvi''s sister-in-law was the Sub Inspector of Police, who was instrumental in registering

the case against the petitioner. For no fault on the part of the petitioner, he cannot be punished when he was not involved in any criminal case.

After all, in the present case what was happened was the love marriage between one Sudhakar and Arachelvi and that the two of them were

major. It was said to have been converted into a criminal case at the instance of some aggrieved relatives of the girl.

Further, it will not be out of place to refer to a judgment of the Supreme Court in Lata Singh Vs. State of U.P. and Another, , wherein the

Supreme Court had considered the case of inter-caste marriage of couples and false cases being lodged by the police and the duty of the police to

take stern actions against persons who are committing crimes against such couples and in paragraphs 14 to 18, the Supreme Court had observed

as follows:

This case reveals a shocking state of affairs. There is no dispute that the petitioner is a major and was at all relevant times a major. Hence she

is free to marry anyone she likes or live with anyone she likes. There is no bar to an inter-caste marriage under the Hindu Marriage Act or any

other law. Hence, we cannot see what offence was committed by the petitioner, her husband or her husband''s relatives.

We are of the opinion that no offence was committed by any of the accused and the whole criminal case in question is an abuse of the process

of the Court as well as of the administrative machinery at the instance of the petitioner''s brothers who were only furious because the petitioner

married outside her caste. We are distressed to note that instead of taking action against the petitioner''s brothers for their unlawful and high-

handed acts (details of which have been set out above), the police has instead proceeded against the petitioner''s husband and his relatives.

Since several such instances are coming to our knowledge of harassment, threats and violence against young men and women who marry

outside their caste, we feel it necessary to make some general comments on the matter. The nation is passing through a crucial transitional period in

our history, and this Court cannot remain silent in matters of great public concern, such as the present one.

The caste system is a curse on the nation and the sooner it is destroyed the better. In fact, it is dividing the nation at a time when We have to be

united to face the challenges before the nation unitedly. Hence, inter-caste marriages are in fact in the national interest as they will result in

destroying the caste system. However, disturbing news are coming from several parts of the country that young men and women who undergo

inter-caste marriage, are threatened with violence, or violence is actually committed on them. In our opinion, such acts of violence or threats or

harassment are wholly illegal and those who commit them must be severely punished. This is a free and democratic country, and once a person

becomes a major he or she can marry whosoever he/she likes. If the parents of the boy or girl do not approve of such inter-caste or inter-religious

marriage the maximum they can do is that they can cut-off social relations with the son or the daughter, but they cannot give threats or commit or

instigate acts of violence and cannot harass the person who undergoes such inter-caste or inter-religious marriage. We, therefore, direct that the

administration/police authorities throughout the country will see to it that if any boy or girl who is a major undergoes inter-caste or inter-religious

marriage with a woman or man who is a major, the couple is not harassed by anyone nor subjected to threats or acts of violence, and anyone who

gives such threats or harasses or commits acts of violence either himself or at his instigation, is taken to task by instituting criminal proceedings by

the police against such persons and further stern action is taken against such persons as provided by law.

We sometimes hear of ""honour"" killings of such persons who undergo inter-caste or inter-religious marriage of their own free will. There is

nothing honourable in such killings, and in fact they are nothing but barbaric and shameful acts of murder committed by brutal, feudal-minded

persons who deserve harsh punishment. Only in this way can we stamp out such acts of barbarism.

(Emphasis supplied)

In the present case, the Ami police instead of helping the couples, who got married, had not only filed a false case against the husband, but also

against his friends who helped them to get married. In the light of the above background, the impugned order passed by the Superintendent of

Police cannot be justified and hence it is set aside. The respondent is hereby directed to grant an appointment order to the petitioner within a

period of three weeks from the date of receipt of copy of this order. Accordingly, the writ petition will stand allowed. No costs. Consequently

connected miscellaneous petition stands closed.