Anuj Kumar v. State of U.P. and
Case Details
Court No. - 3 Case :- SPECIAL APPEAL DEFECTIVE No. - 28 of 2022 Appellant :- State Of U.P. And 2 Others Respondent :- Anuj Kumar Counsel for Appellant :- C.S.C. Counsel for Respondent :- Arvind Kumar Singh Hon'ble Surya Prakash Kesarwani,J. Hon'ble Jayant Banerji,J. Heard learned Standing Counsel for the State-appellants and Arvind Kumar Singh, learned counsel for the respondent- petitioner. This special appeal has been filed by the State-appellants praying to set aside the judgement and order dated 30.4.2021 passed in Writ-A No. 9594 of 2020 (Anuj Kumar Vs. State of U.P. and 2 others). The impugned judgement is a well considered judgement in which both the factual and legal positions have been considered. After referring to various decisions, the learned Single Judge has held in para 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47 and 48 as under: "37. The current case falls in the ambit of Juvenile Justice (Care and Protection of Children) Act, 2000, but the above said reasoning would fully apply here. 38. Finally in Rajiv Kumar (supra) the holdings were summed up as follows: "157.....The insistence of the State employer on a disclosure of criminal prosecution faced as a child reflected an impersonal attitude and a rote response to child rights. This is not an environment which fosters a healthy development of children and where rights of children flourish. 158. The requirement posed by the respondents to the petitioner to make a declaration disclosing details of criminal prosecution faced by the latter, insofar as it included the criminal prosecution faced by the petitioner as a minor child of 10 years was in violation of the fundamental rights of the petitioner guaranteed by Article 14 and 21 of the Constitution of India and in the teeth of Section 25 of the Juvenile Justice Act, 1986. 159. The details of past prosecution faced by the petitioner as a child was not a valid criteria nor a lawful consideration to judge his suitability for appointment. Such criteria was arbitrary and illegal. 160. The declaration made by the petitioner was not a relevant consideration in the appointment of the petitioner. Hence, even the falsity of the declaration made by the petitioner could not invalidate his appointment. 161. The petitioner in defence of his fundamental rights vested by Article 14 and 21 of the Constitution of India, could hold his silence or decline to disclose details of the prosecution in a criminal trial faced by him as a minor child of 10 years. Such action or declaration of the petitioner cannot be faulted with. The services of the petitioner cannot be terminated on the foot of such action or declaration." (emphasis supplied)
Legal Reasoning
39. A similar view was taken by a Division Bench of this Court in Shivam Maurya Vs. State of U.P. and others, reported at 2020 (5) ADJ 5: "14. The said Act is a beneficial legislation. The principles of such beneficial legislation are to be applied only for the purpose of interpretation of this statute. The concealment of the pendency of criminal case against the appellant-petitioner was of no consequence. As per the requirement of law a conviction in an offence will not be treated as a disqualification for a juvenile. The records of the case pertaining to his involvement in a criminal matter are to be obliterated after a specified period of time. The intention of the legislature is clear that in so far as juveniles are concerned their criminal records is not to stand in their way in their lives. The cancellation of the candidature of the appellant- petitioner was thus bad. The authority concerned failed to appreciate the fact that the appellant-petitioner was entitled to benefit of the provisions of Act of 2000. The cancellation of the candidature of the petitioner goes contrary to the object sought to be achieved by the Act of 2000. Section 19 of the Act of 2000 protects a juvenile and any stigma attached to his conviction is also removed. The Act of 2000 does not envisage incarceration of a juvenile which clearly shows that the intention and object was not to shut the doors of a disciplined and decent civilised life. It provides him an opportunity to mend his life for the future. 15. We thus hold that the authority concerned fell in complete error in not extending the benefit of Act of 2000 to the appellant-petitioner particularly when there are specific provisions provided therein to take care of a juvenile being implicated, tried and / or convicted in a criminal matter. We thus extend the benefit provided under Section 19 of the Act of 2000 to the appellant-petitioner." 40. While construing the provisions of Section 19 of the Juvenile Justice (Care and Protection of Children) Act, 2000, insofar as they remove any disqualification attaching to a conviction under the said Act, the Division Bench of the Calcutta High Court in the case of Sahadeb Ghosh Vs. State of West Bengal held thus: "Section 19 of the said Act of 2000 clearly says that, notwithstanding anything contained in any other law, a juvenile, who, has committed an offence and has been dealt with under the provisions of the said Act of 2000, shall not suffer disqualification, if any, attaching to a conviction of an offence under such law. Therefore, if conviction does not become a bar and/or disqualification, it is unacceptable that pendency of a proceeding against a juvenile can be a bar. A benefit sought to be given by the legislature under section 19 of the said Act of 2000 cannot be obliterated. Logical corollary of the said provision is that even if a juvenile is convicted, such conviction would not act as disqualification. Even, under sub-section (2) of section 19 of the said Act of 2000 records of such conviction are to be removed after the period of expiry of appeal or alter a reasonable period as prescribed under the rules. We are of the opinion that inactions on the part of the authorities are against the provisions of the said Act of 2000. It goes contrary to the object sought to be achieved by the said Act of 2000. Section 19 of the said Act of 2000 protects a juvenile and any stigma attached to his conviction is, also, removed. The approach should be to condone minor indiscretions made by young people than to brand them as criminal for the rest of his life. The said Act of 2000 does not envisage incarceration of a juvenile nor wants to shut on him the doors of a decent and disciplined civilised life. On the contrary, it opens for him such a vista by providing him an occasion to amend and regulate his delinquency. The Courts are not to thwart such a course for him by either caprice, bias or any impractical or unimaginable reason.
Decision
We hold that benefits sought to be given to a convicted person under section 19 of the said Act of 2000 read with the said Rules of 2007 shall equally apply to a person against whom a case is pending before the Juvenile Justice Board. Thus, the authorities cannot refuse to give appointment to the writ petitioner on the sole ground of pendency of a criminal case before the said Board. We are unable to accept the contention of Mr. Majumdar that this Court in exercise of the power of judicial review is unnecessarily interfering with the managerial functions of the State by extending the benefits of section 19 of the said Act of 2000 to the writ petitioner. We are simply extending the benefits provided under section 19 of the said Act of 2000 as provided by the legislatures in their wisdom. We, therefore, set aside the order of the tribunal and direct the authorities to complete the police verification of the petitioner irrespective of pendency of his case before the Juvenile Justice Board and to consider his case for appointment for the post of constable of police on the basis of such report, keeping in mind the intention of the legislature as enshrined in section 19 of the said Act of 2000." 41. The said judgements rendered by this Court and Calcutta High Court in Rajeev Kumar (supra), Shivam Maurya (supra) and Sahadeb Ghosh (supra) respectively were also followed in Kishan Paswan Vs. Union of India and others. The holdings of the Courts are consistent in successive cases in point. 42. From the preceding legal narrative, the following position of law emerges: I. Juveniles and adults form separate classes. Criminal prosecution of an adult is a lawful basis for determination of suitability of a candidate for appointment to public office. However prosecution of juveniles is in a separate class. Using criminal prosecution faced by a candidate as a juvenile to form an opinion about his suitability for appointment, is arbitrary illegal and violative of Article 14 of the Constitution of India. II. The requirement to disclose details of criminal prosecutions faced as a juvenile is violative of the right to privacy and the right to reputation of a child guaranteed under Article 21 of the Constitution of India. It also denudes the child of the protection assured by the Juvenile Justice Act, 2000 (as amended from time to time). Hence the employer cannot ask any candidate to disclose details of criminal prosecution faced as a juvenile. III. The candidate can hold his silence or decline to give information about the criminal prosecution faced as a juvenile. Denial of such information by the candidate will not amount to a false declaration or a willful suppression of facts. IV. The conviction by a Juvenile Justice Board under the Juvenile Justice Act, 2000 of a juvenile is not a disqualification for employment. As a sequitor prosecution faced as a juvenile is not a relevant fact for forming an opinion about the criminal antecedents and suitability of the candidate for appointment. Such prosecution cannot be made a basis for denial of appointment. Non disclosure of irrelevant facts is not "deliberate" or willful concealment of material facts. Hence non-disclosure of such criminal cases cannot invalidate the appointment of the said person. V. Clarification: These holdings shall not apply to cases beyond the ambit of Juvenile Justice Act, 2000 (as amended from time to time) and also in cases of heinous crimes committed by persons in the age group of 16 to 18 years. 43. The undisputed facts narrated in the preceding part of the discussion establish the fact that the petitioner was a juvenile within the meaning of the Juvenile Justice (Care and Protection of Children) Act, 2000 (as amended from time to time), on the date of the commission of the alleged offence. He is entitled to the protection of the said Act considering the nature of the offence he was prosecuted for. Merely because the petitioner did not raise the plea of juvenility before the learned trial court, does not denude him of the protection conferred upon him by law. The offence in issue is not a heinous crime. Further the impugned order is vitiated by its failure to consider the unimpeached report of the police authorities that the petitioner enjoys a good social reputation. 44. The questions posed earlier are answered in terms of the preceding holdings. A. Prosecution and imposition of penalty upon the petitioner by the Lok Adalat in the judgment dated 05.11.2019, rendered in Case Crime No. 104/2011, under Sections 3/4 of U.P. Public Examinations (Prevention of Unfair Means) Act, 1998, cannot be the basis of denial of appointment to the petitioner. The said proceedings are not relevant criteria for purposes of appointment of the petitioner. I find that the respondents authorities have acted in a manner contrary to law by requiring the petitioner to disclose criminal prosecution faced by him as a juvenile. 45. The competent authority had misdirected itself in law by finding the petitioner unsuitable for appointment and him appointment on the post of Constable in PAC. 46. The impugned order dated 03.09.2020 is arbitrary and illegal. The order dated 03.09.2020 passed by the respondent No.3-Commandant, 43 Battalion, Provincial Armed Constabulary (PAC), District Etah, is liable to be set aside and is set aside. 47. A writ in the nature of mandamus is issued commanding the respondents to execute the following directions: i. The appointment of the petitioner shall be processed in light of the observations made in this judgment. ii. The appointment letter shall be issued to him in accordance with law. iii. The petitioner shall be given the seniority, he would have been entitled to but for cancellation of his candidature by the impugned order. 48. The writ petition is allowed." No legal infirmity, whatsoever, could be pointed out by the learned Standing Counsel in the impugned judgement. We also do not find any error of law in the impugned judgement. In view of the aforesaid, we do not find any merit in this special appeal. Consequently, the special appeal is dismissed with cost. Digitally signed by AJAY VIKRAM SINGH Date: 2022.02.23 10:50:55 IST Reason: Location: High Court of Judicature at Allahabad Order Date :- 22.2.2022 A. V. Singh