POORAN MISTRY Vs. STATE OF U P

JUDGEMENT

(1.) THIS revision was filed from jail by the applicant against the order of the Sessions Judge of moradabad who dismissed the appeal of the petitioner filed against his conviction under Section 6 (e), U. P. Provincial Armed Constabulary Act (40 of 1948) by" the Sessions Judge of moradabad. In appeal however the Sessions Judge reduced the sentence of imprisonment from three years' rigorous imprisonment to 18 months' rigorous imprisonment. The applicant had prayed that he should be informed of the date fixed for hearing. An order was passed by Hon'ble mukerji, Judge that the applicant be informed of the date and he should either appear in person or as was desired by him, Sri S. P. Gupta practising in the district Court be informed of the date and asked to appear on his behalf. Notice was then issued to Mr. Gupta and on the date of hearing he appeared and was permitted to argue the case on behalf of the applicant. The charge against the applicant was that he being an officer of the Provincial Armed Constabulary, malingered or feigned disease in himself with effect from 14-3-1951 till 31-3-1951 and thereby committed an offence under Section 7 (e) of the U. P. provincial Armed Constabulary Act (40 of 1948 ). He was further charged of an offence under Section 6 (e) of the said Act.

(2.) THE prosecution case, in brief is that the applicant was employed in the Provincial Armed constabulary, IX Bn. stationed at Moradabaa and absented himself from duty, without permission or leave and malingered and feigned up to 31-3-1951 and subsequently absconded and deserted service. On 2-3-1951 the accused made an application to the Commandant of his battalion for seven days leave on the ground that his wife had been seduced by certain persons from his father-in-law's place, and was sold to someone. The leave-was granted with effect from the 7th March till 13-3-1951. He went to his house and on 12-3-1951 he sent a reply paid telegram to his Company Commander, praying for further extension of his leave for ten days. This was refused and he was required to report himself for duty immediately. The order was communicated to him on the same day by wire. He did not report himself on duty and he was noted absent with effect from 14-3-1951. A notice was sent to him on the 17th March by the Assistant Commandant, requiring him to report himself for duty within seven days, failing which he was to be prosecuted under Section 6 (e) of the Act. This notice remained unserved and was received back on 17-4-1951. On 21-3-1951 another application was sent by the applicant accompanied by a medical certificate of the same date, for 20 days leave. In that it was stated that before the expiry of the leave the accused fell ill. This leave would have expired on 2-4-1951. On 31-3-1951 another application was sent by the accused supported by a medical certificate stating that he had not completely recovered as yet and the leave should be extended till 3-4-1951. No order was passed on this application as well. The accused appellant did not report himself on duty even after 3-4-1951. Again on 16-4-1951 the P. A. G. authorities at Moradabad sent a letter to the Deputy superintendent of police, Garhwal, requesting him to direct the accused to report himself for duty within seven days of the receipt of that letter. The Deputy Commissioner war, informed by the Patwari of the circle on 29-4-51 that the accused-appellant had gone back to join his duty some 16 or 17 days before. No reply was received from the applicant. Another letter was sent to him by the P. A. C. authorities on 30-4-1951. The applicant remained untraced and thereafter on 7-5-1951 the Commandant of the Battalion lodged a formal report to the S. O. Kotwali, Moradabad, for registering a case of desertion under section 6 (e) of the Act. The Battalion thereafter left Moradabad in January 1952 and on 16-4-1952 after making certain enquiries another request was made to the said S. O. Kotwali to register a case. The Police could not find the applicant and proceedings under Section 87, criminal P. C. and Section 88, Criminal P. C. were taken against the accused. The charge-sheet was sent on 27-1-1952. In the meantime the applicant got himself enrolled as a police constable at Rampur and when all these facts came to light he was arrested on 26-6-1953.

(3.) A number of points have been raised by Sri Gupta on behalf of the applicant. Firstly he has contended that the U. P. Provincial Armed Constabulary Act is 'ultra vires' of the U. P. Legislature as it is not covered by any of the provincial lists. Secondly it is contended that the 'act violates the provisions of Article 14 arid 19 (1) (G), Constitution of India and as such it is void under Art. 13 of the Constitution.