While taking a very principled, pragmatic and so also persuasive stand, the Allahabad High Court in a most learned, laudable, landmark, logical and latest judgment titled Pradeep Kumar vs State of UP & Anr in Case Writ – A No. – 4810 of 2021 and cited in Neutral Citation No.: 2024:AHC:192065-DB that was pronounced as recently as on December 6, 2024 has very rightly directed the State Government to issue an appointment order for the petitioner who was honourably acquitted of being an alleged spy for an enemy nation as an Additional District Judge (ADJ). It must be noted that the High Court allowed a writ petition that was filed by the petitioner who was not issued an appointment letter even after being declared successful in his selection in UP Higher Judicial Service (Direct Recruitment) Examination 2016. The Bench minced just no words to hold that suspecting a citizen after their honourable acquittal by a Court successfully militate against the rule of law guaranteed by the Constitution. The Bench thus very rightly allowed the writ petition of the petitioner.

At the very outset, this brief, brilliant, bold and balanced judgment authored by a Division Bench of Allahabad High Court comprising of Hon’ble Mr Justice Saumitra Dayal Singh and Hon’ble Mr Justice Donadi Ramesh sets the ball in motion by first and foremost putting forth briefly in para 2 that:
Present writ petition has been filed for the following relief :-

(a) Issue a writ, order or direction in the nature of certiorari quashing the order of the State Government dated 26.09.2019 (Annexure No.11) and the order of High Court on administrative side dated 09.07.2020 (Annexure No.8);

(b) Issue a writ, order or direction of a suitable nature commanding the respondents to forthwith grant appointment to the petitioner as Additional District Judge in U.P. Higher Judicial Service in pursuance of his selection in U.P. Higher Judicial Service (Direct Recruitment) Examination-2016, within a period to be specified by this Hon’ble Court, with all consequential benefits with effect from the date from which other selected candidates have been appointed.

To put things in perspective, the Division Bench envisages in para 3 while elaborating on facts of the case that:
The undisputed facts of the case are, the petitioner applied for selection to the U.P. Higher Judicial Service under the U.P. Higher Judicial Service (Direct Recruitment) Examination, 2016. In that application, the petitioner disclosed the facts pertaining to Session Trial No.69 of 2004, State versus Pradeep Kumar @ Akash Verma, under Sections 3, 6, 9 of Official Secrets Act & Section 120-B IPC and Session Trial No.236 of 2004, State versus Pradeep Kumar @ Akash Verma, under Section 124-A IPC, arising out of Case Crime No.268 of 2002, Police Station Kotwali, District Kanpur Nagar. It was thus disclosed that the present petitioner was charged and tried at those session trials. It was also disclosed, vide judgement and order dated 06.03.2014, passed by the Additional Sessions Judge, Court No.24, Kanpur Nagar, the petitioner was acquitted, at those trials.

As we see, the Division Bench points out in para 4 that:
The petitioner participated in the selection process. He was declared successful. He secured merit position twenty-seven. On 18.08.2017, the High Court forwarded to the State Government the list of selected candidates and recommended their appointments. Appointment letter was not issued to the petitioner. At that stage, the petitioner approached this Court by means of Writ-A No.23371 of 2018, Pradeep Kumar versus State of U.P. & others. It was disposed of with the following directions: -

In view of the aforesaid facts and circumstances, we dispose of this writ petition with the direction to the respondent No.1 to place the matter of appointment of the petitioner in the Higher Judicial Service of the State of U.P. pursuant to the recommendation of the High Court dated 18.8.2017 before the Hon’ble Governor of the State immediately within two weeks and have his opinion within next one month, after necessary consultation with any other authority, as may be deemed proper, and thereafter to proceed, if necessary, with the appointment.

In the end, we saddle the respondent No.1 with an exemplary cost of Rs.10 Lakh for the indifferent attitude shown by it in the matter of appointment of the Judicial Officer and for remaining inactive on the recommendation of the High Court for a period of two years. The said cost is directed to be deposited in the Registry of the Court within a period of one month to be utilized for the benefit of the litigants by the High Court.

As it turned out, the Division Bench enunciates in para 5 that:
That order was not challenged. Thereafter, the matter was considered by the State Government. Vide Office Memorandum dated 26.09.2019, the State Government has declined to offer appointment to the petitioner. That Office Memorandum has been communicated to the petitioner, by the High Court, vide its further communication dated 09.07.2020. Hence this writ petition.

Do note, the Division Bench notes in para 24 that:
What survives with the respondent state authorities is a lingering belief or suspicion that the petitioner had spied for a foreign country. That lingering suspicion has not arisen or survived on any fresh or other cogent material or objective fact, not considered at the criminal trial. Even the document produced during course of the hearing, contains an inference on the self-same information and material that were considered by the trial court, and it is not based on any other information or material. It uses high sounding words and expressions to describe a purely subjective belief entertained, not based on any objective material.

Do also note, the Bench then notes in para 25 that:
If the inference drawn were to arise and prevail as true, on its simple recital, as if by way of a magician’s spell, without applying the test of objectivity, that suspicion may be actionable. Yet, that cannot be, and it is not the law. The fact allegation that the petitioner had worked for a foreign intelligence agency was not proven (to any extent), at the criminal trial.

Do further note, the Bench notes in para 26 that:
We recognize that the standard of proof in a criminal case is proof beyond all reasonable doubt whereas the proof in a civil proceeding or in a proceeding involving civil rights is one of preponderance of probabilities. At the same time, it also cannot be said, though the petitioner has been honourably acquitted at the criminal trial, the ‘stigma’ arising from that allegation of criminal offence (made against the petitioner), would itself cause or result in adverse civil consequences.

Quite forthrightly, the Division Bench propounds in para 27 that:
Then, even if it may have remained open to the said respondents to examine the impact of the transaction alleged against the petitioner, in the context of the civil right of the petitioner to seek appointment as a judicial officer, such examination would necessarily involve consideration of objective material, in a prudent manner. Neither suspicion, nor simple belief - not founded on objective material, nor whims and fancies may propel or govern that objective exercise, to be performed by the state respondents. Here, no objective material survived or existed to allow for a possibility to reach a conclusion other than that reached by the criminal court. It therefore remained impermissible for the State respondents to infer guilt or culpability of the petitioner, in the alleged transaction.

Most forthrightly, the Division Bench mandates in para 28 postulating that:
No material exists with the State respondents to reach a conclusion that the petitioner may have worked for any foreign intelligence agency. The fact that he may have been on the radar of the Indian intelligence agencies, itself means nothing. To be suspected of an offence is not an offence or a scar on a citizen’s character. Unless objective material was shown to exist with the authorities for that suspicion to continue to exist, no adverse civil consequence may ever arise against a citizen, based on such a lingering suspicion, that too in the face of result of an order of honourable acquittal at the criminal trial.

Be it noted, the Division Bench notes in para 29 that:
Unless a citizen is reasonably suspected to be involved in an illegal or other activity that may invite adverse civil consequences, the fact that an intelligence agency or police authority may opine -purely subjectively and thus suspect that such a citizen had indulged in any illegal nature of activity or to have performed such act, without any supportive objective material, may remain a wholly inactionable belief, therefore extraneous to the issue of character certification of the concerned citizen.

Most brilliantly, the Division Bench expounds in para 30 stating that:
Second, the fact that the petitioner was unemployed and was in search of gainful employment, is also wholly extraneous to the issue, to the point of being absurd. If unemployment, poverty and like unfortunate circumstances could by themself be a valid ground to suspect a citizen of infringement of the law, a substantial population would be suspected for one or the other offence. In fact, the circumstance of being poor or unemployed or marginalised, itself would become a tool for suspicion and oppression, specifically to deny public employment. Mere registration of a criminal case and perhaps submission of a charge-sheet would be enough to tear to tatters, the precious and fundamental rights guaranteed under Part-III of the Constitution. In the present status of our society, where many criminal prosecutions arise in doubtful circumstances, frequently for collateral reasons, that would be a dangerous proposition.

Most sagaciously, the Division Bench underscores in para 31 observing that, Third, the fact that the petitioner’s father may have been suspended/dismissed from service on charges of bribery etc., is equally extraneous to the issue. A person may not be penalised, and his character may not be judged, for the act of another, be it his father or son. It is indeed regrettable that the respondent authorities have also chosen to rely on the allegations of corruption levelled against the father of the present petitioner. That consideration if allowed to stand will admit untenable bias in the process in the objective exercise of character certification that was to be conducted by the State authorities.

Most significantly, the Division Bench encapsulates in para 32 what constitutes the cornerstone of this notable judgment holding that:
The fact that the petitioner was apprehended by the STF and the Military Intelligence, is the only fact proven. It is not rebutted. The fact of arrest in the context of criminal investigation is a relevant writing on the slate of character certification of the accused citizen. Yet, an order of clean acquittal or honourable acquittal earned by a citizen (earlier charged or arrested), wipes clean that slate as may not allow any person, agency or the State to read the impression of any previous writing on that slate (recording any fact pertaining to such criminal charge suffered by that citizen or of arrest suffered etc.), relevant to his character. Upon the order of honourable acquittal earned by the citizen, his innocence is etched hard and deep on that slate, in personam, i.e. in the particular facts of that case and in rem, i.e. to the whole world for the purpose of certification of his character, qua the allegation faced by him, in that case.

More to the point, the Division Bench then adds in para 33 propounding precisely that:
To say, a citizen would continue to be suspected of an offence alleged and therefore be deprived of fruits of hard labour and honourable acquittal earned by him, would be, to not only vicariously penalise an innocent citizen after his innocence has been established in a Court of law, but it would successfully militate against the rule of law itself, guaranteed by the Constitution. A criminal trial begins with a presumption of innocence of the person charged. Once, the charged person is honourably acquitted, after full appraisal of all prosecution evidence, that presumption is confirmed and sealed, by judicial pronouncement made. None may look beyond it.

Most remarkably, the Division Bench then holds in para 34 that:
While individuals, who may have levelled the charge against such a person, may continue to harbour a belief or suspicion (to themselves), that that person though honourably acquitted, was guilty, yet even they may act on such personal belief only against risk of preventive and other action (against them), by that person. On the other hand, the State and its’ institutions, may not continue to entertain such a suspicion or belief any further, as may deprive and deny to the innocent citizen his fundamental right to equality including his right to continuance and progression in life as a citizen, equal in all sense with any other innocent citizens, who may not have been charged with any criminal offence.

As a corollary, the Division Bench notes in para 35 that:
For the reasons noted above, we find, the respondents have wrongly continued to entertain a suspicion about the character of the petitioner. They also do not have in their possession any credible or actionable material. Only the fact that the petitioner was charged with a serious offence has prevented the State authorities to act with objectivity. We find no reason exists with the respondents to continue to entertain a belief or suspicion that the petitioner is a person who lacks good moral character to hold judicial office. The unfortunate circumstance of the petitioner having faced two criminal trials cannot be cited as that reason.

It cannot be glossed over that the Division Bench most clearly states in para 36 that:
The petitioner was honourably acquitted at two criminal trials faced by him and no element of truth was found in the prosecution story, in either case. Those orders have attained finality. On all vital aspects of allegation of violation of Official Secrets Act, we find that the lingering sense of suspicion with the State authorities, is to be equated with figment of imagination and nothing more.

Resultantly, the Division Bench then adds further in para 37 holding succinctly that:
In view of the above, the writ petition must succeed. It is allowed. The communication dated 26.09.2019 (Annexure No.11) is quashed. Mandamus is issued to respondent no. 1 to ensure Character Verification of the petitioner within a period of two weeks. Consequentially, upon completion of all formalities, appointment letter may be issued to the petitioner not later than 15th January 2025. The petitioner may be appointed against existing vacancies, as on date. This modified relief we have granted because though selected against vacancy of 2017, neither those vacancies survive in the light of the provision of U.P. HJS Rules and also, the petitioner does not have any work experience in the HJS cadre for the last seven years. Grant of larger relief may be detrimental both to the progression of the petitioner in service and also to the working of the cadre and its morale.

Finally, the Division Bench then concludes by holding in para 38 that:
The writ petition is allowed as above. No order as to costs.

In conclusion, the Allahabad High Court has thus very rightly held that suspecting citizen after an honourable acquittal militates the rule of law. The Court also in this leading case most commendably directs the appointment of the petitioner honourably acquitted of espionage as an Additional District Judge! No denying it! The State Government must now ensure that it is done at the earliest as directed in this leading case by the Allahabad High Court!

Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut - 250001, Uttar Pradesh