The State of Punjab v. Kharaiti Lal.

Sinha J. February, 1953, I came to know that my absence had

been noted. Thereupon I presented myself for duty to the Head Constable and signed at Exhibit P.E./I. My leg was burnt in rescue work at Gujranwalla when I was in the special Police Lines".

He also examined a number of defence witnesses in-cluding the Civil Surgeon of Jullundur who deposed to having examined the respondent on the 27th February 1953 "and found that he had got extensive burn scars on the back of the right thigh and leg crossing the knee. Hence he could not perform any strenuous duty like standing for long hours. In my opinion he could be given some light duty in the office. Ex. D. W. l/D is a true copy of my medico-legal re-port of this case".

The learned Magistrate acquitted the accused in respect of the first part of the charge relating to his alleged disobedience of the lawful orders of his superior officer to perform sentry duty. But he convicted .him of the second part of the charge, namely, absence from duty and sentenced him to 15 days' rigorous imprisonment. On appeal by the accused, the learned Sessions Judge affirmed the_ findings of the trial Magistrate and held that the appellant before him was absent from duty without permission during the night between the 2nd and 3rd February 1953. He accordingly dismissed the appeal.

On a revisional application made by the convicted person, the learned single Judge who heard the case, came to the conclusion that the accused had not offended against any provisions of the Act. Accord-ingly he acquitted him. The ratio of his decision may be given in his own words as follows:- "This Act does not appear to me to apply to the kind of act which the constable is said to have done. He had been called to Dharamsala on a refresher course and on the night in question and in the early 1956_ morning he appears to have been not present at the time when be according to the prosecution should Tire State of P11njab have been present. This, in my opinion, does not v. attract the attention of the Essential Services Main-K/im·aiti I.al tenance Act. It is possible that if he is guilty he is liable to some disciplinary punishment, but his pro-Sinha J. secution under the East Punjab Essential Services Maintenance Act is in my opinion not justified. I hold that he has not offended· against the provisions of this Act and therefore he has not committed any offence under this Act".

Against this order of acquittal the State of Punjab obtained special leave to appeal to this Court, appa-rently because the judgment of the learned Judge of the High Court involved very important questions as to the scope and effect of the Act and the question of law decided by the High Court was of great public importance.

This case was first placed on the 11th April this year before another Bench of this Court and learned counsel for the respondent raised a preliminary objec-tion to the maintainability of the prosecution on the ground, it was alleged, that there was no proper com-plaint under section 7(3) of the Act and as this ques-tion had not been raised in any of the courts below and as counsel for the appellant was taken by surprise, the Bench granted two weeks time to enable him to satisfy the court that there was a proper compliance with the provisions of section 7(3) of the Act. When the matter came up before us for hearing, the learned counsel for the appellant placed before us the follow-ing notification by the Punjab Government auth-orising all police officers above the rank of Deputy Superintendent of Police and the Heads of the various Government Departments to make complaints in writing to a court in respect of alleged offences against the Act:-

" Dated Simla-2, the 20th January, 1948.

No. 1248-H Camp-48/2075.-ln exercise of the powers conferred by sub-section (3) of section 7 of the East Punjab Essential Services (Maintenance) Act 1956 1947, the Governor of the East Punjab is pleased to

authorise all police officers of and above the rank of The State of Deputy Superintendent of Police and the Heads of

Punjab

v. the various Government Departments to make com-Kharaiti Lal plaints in writing to a court against persons of their

respective Departments, who are alleged to have com-SinhaJ. mitted offences against the Act.

Sd. Nawab Singh Home Secretary to Govt. of East Punjab". On a reference to the notification quoted above, it is clear that the complaint filed by. the Superin-tendent of Police, Kangra District, in the court of the Ilaqa Magistrate, Dharamsala in the district of Kangra, was filed in compliance with the provisions of sub-section (3) of section 7 of the Act which is in these terms:- "N o court shall take cognisance of any offence under this Act except upon complaint in writing made by a person authorised in this behalf by the State Government".

But it was argued on behalf of the respondent that there was nothing to show that the complaint on the basis of which the prosecution had been initiated in this case had been authorised by the State Govern-ment. The law does not require that the particular complaint should have been authorised by the State Government. What is required is that the complaint should have been filed by a person authorised by the State Government to do so. The notification has authorised a Superintendent of Police to file a com-plaint in respect of a contravention of the provisions of the Act by a person in his department. It is not denied that the respondent was such a person. Hence the preliminary objection.must be overruled.

Coming to the merits of the decieion, it is a little surprising that the learned Judge below should have completely ignored the opening words of section 3 of the Act which completely answer the ratio of the de-cision under appeal.

"This Act shall apply to all employment under the State Government ........ " (omitting words not material for the present case).

The learned Judge of the High Court has quotea the 1956 provisions of sections 5 and 6 of the Act in support of his conclusion that the Act is "intended to be ap-The State of plied in special cases of dislocation of essential ser-Pttnjab v. vices because of extraordinary events such as strikes Kharaiti Lal or because of political agitation or similar circum-stances". The relevant portion of section 5 is in these Si11ha J. terms:-

" Any person engaged in any employment or class of employment to which this Act applies who-

( a) disobeys any lawful order given to him in the course of such employment, or

. (b) without reasonable excuse abandons such employment or absents himself from work, is guilty of an offence under this Act".

The opening words of section 5 have reference to the opening words of section 3 so far as an employee under the State Government is concerned. As the learned Judge missed these opening words as indi-cated above, he fell into the error of supposing that a)>erson in the position of the respondent was not intended to be governed by the Act. It is mainfest that the learned Judge has acquitted the appellant, not on a misreading of the provisions of the Act, but by ignoring the opening words of section 3. It must therefore be held that the judgment of the High Court cannot be sustained. ·

But it still remains to consider whether the orders passed by the High Court acquitting the respondent should be interfered with. The courts below have acquitted the respondent of the first part of the charge which could have come within clause (a) of section 5 which lays down offences under the Act. The respon-dent had been convicted by the first two courts of an offence referred to in the second part of the charge, namely, of his having absented himself from duty.

Under section 22 of the Police Act, V of 1861, every police officer is to be considered to be always on duty and may at any time be employed as a police officer, and on the findings of the courts of fact that the res-pondent had absented himself from the Police Lines 1956 during the night between the 2nd and 3rd February

1953 he may have made himself liable to the penalty The State of for neglect of duty under section 29 of the Police Act,

Punjab

v. or may have made himself liable to departmental Kltaraiti Lal punishment for absence from the police lines without

permission. But we are not concerned here with Sinha}. these provisions. The respondent bad been found

guilty under clause (b) of section 5, that is to say, for the offence of absenting himself from work. Neglect of duty as contemplated by section 29 of the Police Act is quite different from abandoning an employ-ment or of absenting oneself from work without rea-sonable cause which is the particular offence contem-plated by clause (b) of section 5. As already indi-cated, on account of the respondent's physical infir-mity or deficiency the work assigned to l:lim had been cancelled and he was expected to be in police lines during the material time without apparently doing any "work". It is clear from the record that he bad · not been assigned any "work" within the meaning

of clause (b) of section 5. Hence his absence from Police Lines during the relevant time may have amounted to neglect of duty; but, in our opinion, is not synonymous with absence from work or abandon-ment of employment which has been made penal under clause (b) of section 5.

For the reasons aforesaid it must be held that the respondent bad been rightly acquitted, though for wholly wrong reasons. The appeal must therefore stand dismissed.

Appeal dismissed.

CRIMINAL APPELLATE JURISDICTION: Criminal Ap'peal No. 140 of 1954.

Appeal by special leave from the judgment and order dated the 23rd July 1953 of the Punjab High Court in Criminal Revision No. 487 of 1953 arising out of the judgment and order dated the 17th April 1953 of the Court of Sessions Judge at Hoshiarpur in Criminal Appeal No. D/1 of 1953.

N. S. Bindra and P. G. Gokhale, for the appellant. A. N. Chona and K. L. Mehta for the respondent. 1956 1956. May 8. The Judgment of the Court was

delivered by The State of

Punjab SINHA J.-This is an appeal by special leave from

v. the judgment of a single Judge of the High Court of Khaf'aiti Lal Judicature of. Punjab at Simla in Criminal Revision

No. 487 of 1953 dated the 23rd July 1953 acquitting the respondent, a constable in the police force of the State of an offence under section 7 of the East Punjab Essential Services (Maintenance) Act, XIII of 1947 (which hereinafter will be referred to as "the Act"), for which he had been convicted by a Magistrate of the First Class at Dharamsala by his judgment d'ated the 30th March 1953 and sentenced to 15 days' rigor-ous imprisonment, which orders of conviction and sentence had been affirmed by the Sessions Judge of Hoshiarpur, Camp Dharanisala, by his judgment and order dated the 17th April 1953.

The facts leading up to this appeal may shortly be stated. The respondent was prosecuted on a com-plaint filed ,l>y the Superintendent of Police, Kangra District, in the Court of the Ilaqa Magistrate, Dharam-sala, District Kangra, for an offence under section 7 of the Act. The allegations against the respondent were that he joined the Police Department as a con-stable in Jullundur District in 1947, that in Decem-ber 1952 he was transferred from Jullundur District to Kangra District and posted to Police Lines, Kangra, as a constable on general duty at Seraj police station; that in January 1953 he came to Police Lines, Dharamsala for monthly training (refresher course), that on the 2nd February 1953 at the time of roll call at 7 p.m. the appellant was assigned the duty as sentry No. 1 without rifle behind the Police Lines Armoury, Dharamsala, from 9 p.m. to 11 p.m. The respondent, though informed of the assignment of the aforesaid duty to him, refused to obey that order or to perform any other duty in the Lines. There-upon his name was struck off from the Duty Roster and another foot constable was duly placed in that post of duty. On the night between the 2nd and 3rd February 1953 at 11-30 p.m. a surprise roll call of the employees of the Police Lines was duly made by means of an alarm sounded with a bugle which was blown 1956 continuously for about 15 minutes. The respondent was found absent on such a roll call and another The State of Punjab constable was deputed to search for the respondent v. but he could not be found. He appeared the next Kharaiti Lal morning at about 9-30 a.m. after remaining absent from the Police Lines without offering any explana-Sinha}. tion for his unauthorised absence. The gravamen of the charge as laid in the petition of complaint was that he refused to carry out the order of his superior officer who had assigned a duty to him and that he remained absent from his official duty in the Police Lines without obtaining permission and without any cogent reasons, from 11-30 p.m. on the 2nd February 1953 till 9-30 a.m. on the day following. Thus he was said to have committed an offence under section 7 of the Act.

On those allegations the respondent was placed on his trial before the Magistrate of the First Class at Dharamsala. After recording the prosecution evi-dence the learned Magistrate framed a charge under section 7 of the Act under two heads, firstly, that he had on the 2nd February 1953 at Dharamsala as a foot constable in the police force of the Kangra Dis-trict had disobeyed the lawful orders given by a superior officer who had assigned to him a duty as such foot constable of a sentry without rifle in the rear of the armoury in the Police Lines from 9 p.m.

to 11 p.m. and, secondly, that on the same date and at the same place he had absented himself from duty as a foot constable without reasonable excuse and had thus remained absent from 11-30 p.m. on the 2nd February 1953 to 9-30 a.m. of the following day.

The respondent's defence as disclosed in his answer to questions put by the court under section 342, Criminal Procedure Code was one of denial of the charge. His substantive defence may be stated in his own words:-

"On 2nd February, 1953 at 7 p.m. my duty was allotted to me and I signed at Ex. P. D./I. I then told Raghbir Singh P.W. that according to the Civil Surgeon, Jullundur I could only be given sitting or

572 SUPREME COURT REPO-RTS [1956]

1956 office duty. I showed him the copy Exhibit D. E. I

also told him that the Civil Surgeon, Dharamsala, Th• Slate of bad also examined that very day on 2nd February

Punjab 1953. 'Thereupon Ragbbir Singh P.W. cancelled my

v.

Hharaiti Lal said duty. I was lying ill in the Police Lines Barracks

and did not hear the bugle. In the morning of 3rd