S A A BIYABANI Vs. STATE OF MADRAS

JUDGEMENT

(1.) This is an appeal by special leave against the judgment of the High Court of Madras reversing the acquittal of the appellant and convicting him under section 44 of the Madras District Police Act. The facts which have given rise to this prosecution and which are not in dispute are as follows. The appellant who belonged to Kurnool was in the year 1948, Sub-Inspector of Police in the Nellore District of the then State of Madras, having been recruited into the Police service in the year 1932. From the 11th May to the 25th June, 1948, he was on sanctioned leave and went to Cuddapah. On the expiry of the leave, he applied for extension of leave for two months enclosing a medical certificate and requested that his pay may be sent to the Station House Officer, Kurnool. He was on that date eligible for leave to average pay for seven months. On receiving the application, the District Superintendent of Police, Nellore, sent a requisition to the District Medical Officer, Kurnool, to examine him. He was also directed to appear before the District Medical Officer, Kurnool, on the 10th July, 1948. He received the intimation but did not appear before the District Medical Officer. On the other hand, he left suddenly for Hyderabad on that very day. Admittedly he was at Hyderabad till about December, when he returned to Kurnool. Meanwhile his name was struck off from the service by the Madras Government as a "Deserter" with effect from the 25th August, 1948. On the 22nd December,1948, he sent from Kurnool, a petition to the Inspector-General of Police, Madras, through the District Superintendent of Police, Nellore, praying for reinstatement. His prayer for reinstatement was refused and the present prosecution was initiated. On these facts a charge was framed against the appellant under section 44 of the Madras District Police Act. The explanation offered by the appellant in answer to the charge was as follows. During the period of his sanctioned leave, his eldest boy about 19 years of age left home without his knowledge and his whereabouts could not be known. He went to Cuddapah where his brother was serving as a Municipal Doctor hoping to find the boy there. He also searched at other places. In the course of the search, he came to know on the 10th July, 1948, at Kurnool, that the boy was seen by some common friend at Secunderabad. He immediately ran up to Hyderabad in search of the boy on the very day without presenting himself for medical examination since he felt that to be more urgent. He says that he expected to come back from Hyderabad in a few days and present himself for medical examination. He further says that when he went to Secunderabad, he was suspected by the Razakaras as being a spy of the Madras Police and that he was kept under close surveillance and custody by them and that, therefore, he could neither come away nor keep himself in communication with the authorities. According to his explanation he could move out of Hyderabad only in December, 1948 and on then knowing about the fact of his name having been struck off from service, he presented the application for reinstatement.

(2.) The charge against the appellant is under section 44 of the Madras District Police Act. The prosecution examined three witnesses in support of its case, while the appellant examined 14 witnesses to substantiate his defence. Section 44 of the Madras District Police Act is as follows:

(3.) Apart, however, from any question whether the appellant has been able to make out positively the truth of his explanation the material question in the case which the learned Judge appears not to have noticed is that the prosecution has to make out that the cessation of the appellant from duty was intentional. It is not disputed that under section 44 of the Madras District Police Act it is the prosecution that has to make out the cessation intentional. No doubt in an ordinary case where no other special circumstances appear on the record, the Court might well assume, that cessation as a fact, was intentional cessation. But where as in this case other circumstances appear, the requisite intention has to be clearly made out. The prosecution apparently realising this have in the charge put forward a positive case that the appellant left for Hyderabad to seek a job, but gave no evidence to substantiate it. The learned Government advocate for the State also laid particular stress on the following portion of the answer of the appellant to the charge framed against him.