The State of Punjab Vs. Kharaiti Lal
[1956] INSC 35 (8 May 1956)
SINHA, BHUVNESHWAR P.
JAGANNADHADAS, B.
CITATION: 1956 AIR 551 1956 SCR 569
ACT:
East Punjab Essential Services (Maintenance)
Act, 1947 (East Punjab Act XIII of 1947), ss. 3, 5, 7-Complaint-Whether it
should be authorised by the State Government-Police Act, 1861 (V of 1861), ss.
22, 29-Absence from Police LinesNeglect of duty Whether amounts to abandonment
of employment or absence from work.
HEADNOTE:
Section 7(3) of the East Punjab Essential
Services (Maintenance) Act, 1947, provides that "no court shall take cognizance
of any offence under this Act except upon complaint in writing made by a person
authorised in this behalf by the State Government".
Held, that the law does not require that the
particular complaint should have been authorised by the State Government and it
is sufficient if it has been filed by a person authorised by the State
Government to do so.
Neglect of duty as contemplated by s. 29 of
the Police Act, 1861, is quite different from abandoning an employment or
absenting oneself from work without reasonable cause within the meaning of s.
5(b) of the East Punjab Essential Services (Maintenance) Act.
The respondent, a constable, on account of
physical infirmity was not assigned any "work" in the Police Lines
within the meaning of el. (b) of s. 5 of the East Punjab Essential Services
(Maintenance) Act. He absented himself from the Police Lines without
permission. Held, that his absence from Police Lines during the relevant time
may have amounted to neglect of duty but he could not be convicted under s.
5(b).
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal 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/I of
1953.
N. S. Bindra and P. G. Gokhale, for the
appellant.
A. N. Chona and K. L. Mehta for,-the
respondent, 71 570 1956. May 8. The Judgment of the Court was delivered by
SINHA J.-This is an appeal by special leave from the judgment of a single Judge
of the High Court of 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 dated the 30th
March 1953 and sentenced to 15 days' rigorous imprisonment, which. orders of
conviction and sentence had been affirmed by the Sessions Judge of Hoshiarpur,
Camp Dharamsala, 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 complaint
filed by the Superintendent of Police, Kangra District, in the Court of the
1laqa Magistrate, Dharamsala, 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 constable in Jullundur District in 1947, that in
December 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,from9p.m.toll.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. Thereupon
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 571 of an alarm sounded with a bugle which was blown
continuously for about 15 minutes. The respondent was found absent on such a
roll call and another constable was deputed to search for the respondent but he
could not be found. He appeared the next morning at about 9-30 a.m. after
remaining absent from the Police Lines without offering any explanation 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 evidence 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 District 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 1 1 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 office duty. I
showed him the copy Exhibit D. E. I also told him that the Civil Surgeon,
Dharamsala, had also examined that very day on 2nd February 1953. Thereupon
Raghbir Singh P.W. cancelled my said duty. I was lying ill in the Police Lines
Barracks and did not hear the bugle In the morning of 3rd 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./1. 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 including 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. I/D
is a true copy of my medico-legal report 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.
Accordingly 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 573 course and on the night in question and in the early morning
he appears to have been not present at the time when he according to the
prosecution should have been present.
This, in my opinion, does not attract the
attention of the Essential Services Maintenance Act. It is possible that if he
is guilty be is liable to some disciplinary punishment, but his prosecution
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 appear to this Court, apparently 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 objection to the maintainability of the
prosecution on the ground, it was alleged, that there was no proper complaint
under section 7(3) of the Act and as this question bad 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 following
notification. by the Punjab Government authorising 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.-In exercise of the
powers conferred by sub-section (3) of section 7 -of the East Punjab Essential
Services (Maintenance) Act 574 1947 the Governor of the East Punjab is pleased
to authorise all police officers of and above the rank of Deputy Superintendent
of Police and the Heads of the various Government Departments to make
complaints in writing to a court against persons of their respective
Departments, who are alleged to have committed 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 Superintendent of Police
Kangra District; in the court of the Ilea 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:"No 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
Government. 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 complaint
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 decision,
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 decision under appeal.
"This Act shall apply to all employment
under the State Government.......... (omitting words not material for the
present case).
575 The learned Judge of the High Court has
quoted the provisions of sections 5 and 6 of the Act in support of his
conclusion that the Act is "intended to be applied in special cases of
dislocation of essential services because of extraordinary events such as strikes
of because of political agitation or similar circumstances". The relevant
-portion of section 5 is in these 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 indicated above, he fell into the error of supposing that a person in the
position of the respondent was not intended to be governed by the Act. It is
main fest 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 respondent 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 respondent had absented himself from the Police Lines 576 during the
night between the 2nd and 3rd February 1953 he may have made himself liable to
the penalty for neglect of duty under section 29 of the Police Act, or may have
made himself liable to departmental punishment for absence from the police
lines without permission. But we are not concerned here with 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 employment or of
absenting oneself from work without reasonable cause which is the particular
offence contemplated by clause (b) of section 5. As already indicated, on
account of the respondent's physical infirmity or deficiency the work assigned
to him 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 had not been assigned any "work" within the
meaning of clause (b) of section 5. Hence his absence from Police Lines during
the relevanttime may have amounted to neglect of duty;
but, in our opinion, is not synonymous with
absence from work or abandonment 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 dissmissed.
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