Mumbai: 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 Justices S A Bobde
and 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.
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 (cruelty and harassment for dowry) 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 court said.
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 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 court said.
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 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 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.