In an important order, the Bombay High Court has held that a candidate who has been selected for the post of a Magistrate or a Judge cannot be denied the appointment merely because he is facing prosecution.
“It cannot be laid down as a rule that merely because he is facing prosecution he must be denied an appointment because indeed the candidate may be facing prosecution for a frivolous reason or for trifles,” observed Justice S.A. Bobde and Justice P.D. Kode recently.
Hearing a petition filed by aggrieved candidate and Buldana-based lawyer, the bench held that it would be open for the Government to make an appointment of such a candidate.
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In this case the Government had refused to appoint the petitioner as Judicial Magistrate First Class (JMFC) on the ground that he was facing prosecution in a dowry harassment case for offence under section 498A read with section 34 IPC.
“The question that arises is whether the reason that a candidate for selection to JMFC’s post is facing prosecution under section 498A IPC is a strong and cogent reason for not accepting the recommendation of the selection committee.”
“We find that the term ‘strong and cogent’ reason cannot be defined by its very nature and indeed has not been defined. Whether a reason such as pending prosecution of a candidate is strong and cogent, would depend on the fact of each case but it cannot be laid down as a rule that merely because he is facing prosecution the appointment should be denied to him,” the judges said.
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The petitioner argued that he had been acquitted in the dowry harassment case and injustice had been done to him by denying him the appointment of JMFC. He said that acquittal operates from nativity and he should be given the appointment.
The judges, however, noted that in the present case the Government had refused to appoint the petitioner as he was facing dowry harassment charges. “In such a situation, on the basis of a police verification report, if the Government had formed an opinion that the candidate was not suitable for the job of JMFC it cannot be said its decision was contrary to the rule under which such appointment is made.”
The bench felt that it would be improper to interfere with the impugned order rejecting the candidature of the petitioner for the post of JMFC. The judges felt that they did not consider it necessary for the Government to wait for the result of the prosecution which may take years and go through a series of appeals to decide on suitability of the candidate.
However, petitioner’s counsel, A.V. Bhide, cited an amendment to the recruitment rules for JMFC which said that a candidate for the post of JMFC cannot be the one who is convicted of any offence involving moral turpitude. He said his client at the relevant time was not convicted but was only undergoing a trial. Therefore, the petitioner should be given a fair chance to have his case considered, the lawyer argued.
Accordingly, the Court directed the petitioner to make a representation to the Government and asked the latter to consider it within 90 days in accordance with law.