EMPEROR Vs. MUHAMMAD FAZLE BARI

JUDGEMENT

(1.) This is an appeal under Section 417, Criminal P.C., against the order of acquittal of the respondent passed by a Magistrate of the First Class of Koraput

(2.) The respondent, who at the date of the appeal was a Sub-Inspector of Police under suspension, had been prosecuted under Section 29, Police Act, (5 of 1861) for (1) wilful breach of lawful orders of the Superintendent of Police, Koraput, and (2) absenting himself from duty "without leave or orders, on the complaint of Mr. T. Nath, Assistant Superintendent of Police, Koraput. The prosecution had been launched under the orders of the Superintendent of Police with the sanction of the District Magistrate. As it was a summons trial, no formal charge was framed against the accused, but the nature of the accusation and the attitude of the respondent will appear from the following questions put by the trial Magistrate under Section 242, Criminal P.C., and answered by the accused: Q.--Did you absent yourself from the place of your posting District Police Reserve Headquarters with effect from 6 December 1941 to 26 January, 1942 without leave or permission? A.--I plead not guilty to this charge. I shall file a written statement hereafter. Q.--The S.P. Koraput, suspended you while you were a Sub-Inspector of Police under him and posted you to Koraput Reserve Headquarters in his order dated 10 November 1941 and 13 November 1941 but you never reported yourself at this post and wilfully disobeyed the order? A--I shall file a written statement. I plead not guilty. Q.--Were you a Police Officer? A.--I shall file written statement.

(3.) The complaint was filed on 27 January 1942, and the District Magistrate transferred the case to the file of the Magistrate of the First Class that very day; but it appears from the order-sheet of the case that, as a result of the delaying tactics of the accused respondent, the trial could not begin before 4 January 1943, and even then the case had to be adjourned on several dates on account of the dilatory method adopted by the accused until judgment was delivered on 8th April a 1948, acquitting him of the charge. 6. The facts of the case, in so far as it is necessary to state them, are as follows: The accused was appointed a Sub-Inspector of Police in 1929 and was working in the Koraput Police Force Since April 1989. He served as the thana officer of Police station Boriguma from 80 April 1941 to 11 August 1941, when he was transferred to Police station Kodinga. While attached to the Kodinga Police station in Koraput District, he was suspended by the Superintendent of Police with effect from 10 November, 1941, pending an inquiry against him in respect of certain alleged grave misconduct and neglect of departmental rules and procedure while he was in charge of Boriguma Police station. The Superintendent of Police entrusted his First Assistant, Mr. T. Nath, with the inquiry. On 10 November, the Superintendent of Police passed the following orders: S.I.M.P. Bari is suspended with effect from 10 November 1941, and will draw 1/4 subsistence allowance pending the result of proceedings drawn up against him. He should report to B.S.M. without delay. 5. Before this order was served upon him on 14 November 1941, in the Koraput District Hospital, on 11 November the respondent's made an application to the Superintendent of Police for permission to join Koraput Hospital for treatment as he had been suffering from chronic blood dysentery, etc., for over a month, which had incapacitated him from discharging his duties. On that very date the Superintendent of Police made the following order: You may appear before the Civil Surgeon, Koraput, to whom you should explain (as also to me) why, if you were so ill, you did not seek competent medical advice more promptly. 6. 12 November, the respondent was admitted as a patient in the hospital. On 6 December 1941, the respondent made an application to Mr. T. Nath informing him that he had been granted two months leave on medical certificate by the Civil Surgeon and that he was proceeding to his native place with the members of his family, on which Mr. Nath wrote the orders (1) that the Sub-Inspector should not leave the hospital (being under the impression that he was still in hospital); and (2) that the Civil Surgeon should be asked to report as to the date by which the Sub-Inspector would be fit to face the proceeding against him. On that the accused again wrote to Mr. Nath that he had been discharged from hospital on that very day (that is, 6 December 1911), to go on a hange. Mr. Nath passed an order to the effect that the Sub-Inspector should not move out of the Union Board limits of Koraput until he got orders fixing the date of the hearing of the proceeding which presumably will be conducted at Boriguma Police station. On 7 December 1941, the respondent wrote again to Mr. Nath to the effect that he was much too weak in body and mind to attend the hearing of the proceeding proposed to be conducted at Boriguma and that his family was lying ill at Kodinga which necessitated their removal from that place in the interest of their health. Hence, he prayed for the postponement of the hearing of the proceeding until his return from leave. He also added that he had "decided to proceed tomorrow morning positively." Upon this Mr. Nath passed the following order: R.O. The S.I. has not put in any application for leave. The certificate of the Civil Surgeon does not entitle him to leave unless the application as such is granted by S.P. If the S.I.'s family members are indisposed, he should make some other arrangement for their transference to his home. The S.I. should appear before the S.P. in person on his return from tour and take orders. Meanwhile he should not leave out of the Koraput U.B. limits. It appears that Mr. Nath ordered a copy c of the following order to be sent to the respondent: Already the S.I. has put in a host of petitions about leaving Koraput, in fact in one application, he said that he was leaving in anticipation of sanction to save himself, his family, etc. He should understand that repeating the same request when circumstances have not changed is derogatory to discipline, to which he is still subject even though under suspension (P.M. 842). His previous petitions have been rejected by me. 7. The above order seems to have been passed when a copy of the application of the same date, 7 December 1941, submitted by the respondent to the Superintendent of Police for leave was sent to him also. To this application to the Superintendent of Police praying for leave was attached a true copy of the medical certificate granted by the Civil Surgeon of Koraput on 6 December 1941. On this application the Superintendent of Police passed the following orders: This must pend the conclusion of proceedings drawn up against the officer, in the disposal of which the officer is expected to co-operate to facilitate early orders on this leave application. 8. From what has been stated so far, it will be absolutely clear that the Superintendent of Police and the Assistant Superintendent of Police were both insisting upon the respondent to have the inquiry against him finished as soon as possible and that he should not leave the head- quarters of Koraput before the inquiry had been made. On the other hand, the respondent was equally insistent that he was much too feeble in body and mind to face any such inquiry. Hence, we find that on 10thDecember 1941, the respondent again made an application to the Superintendent of Police arguing that the Service Code Rule 132 did not apply to the circumstances of his case and that he was proceeding to his native place under painful circumstances in the interest of his health, and praying for the postponement of the hearing of the proceeding against him until after his return from medical leave which was to expire in about a month's time. As this application had been sent to the police office in circumstances which led the Superintendent of Police to infer that the respondent was in hiding, the Superintendent of Police on that very day, that is, 10 December 1941, issued the following orders to the Sub-Inspector, Koraput Police station: Every bus leaving Koraput is to be checked and should S.I., M.F. Bari be found travelling thereon, he is to be stopped and produced before me promptly. On this order the Sub-Inspector of Koraput made the following note on 14 December 1941: Sir, I beg to report that it is learnt S.I., M.P. Bari has gone to Kodinga on 10 December 1941 morning. He has not yet come back here. I shall produce him when he will come back to Koraput. 9. On 12 December 1941, the Superintendent issued orders to the Sub-Inspectors and Divisional Inspectors of the district that the respondent had left Koraput and gone in the direction of Nowrangpur/Kodinga or Boipariguda in contravention of his express orders. Hence, they were to make inquiries and ascertain his whereabouts and to inform him, if traced, that he was to report to him without further delay. The officers were also to inform the Superintendent immediately the respondent was traced and the time and the date on which his orders were communicated to the respondent. In pursuance of the above orders of the Superintendent of Police, an Inspector of Police sent a telegram from Jeypore to the Superintendent informing him that the respondent with his family was proceeding to Salur by motor bust upon, which the Superintendent instructed the Sub- Inspector Diveri to intercept the respondent and to produce him before the Superintendent, his family members being allowed to proceed. 10. It appears from the evidence of Mr. Holmes (p.w. 3) that he was able to find out the accused in the bus after a lot of trouble as he was sitting behind the purdah with purdah ladies. All this happened on 17 December, 1941. Hence, there is no doubt that, though according to the Civil Surgeon's certificate the respondent required complete rest until 12 January 1942, he found himself it enough to undertake the long journey by bus to and from Kodinga said to be about 60 to 70 miles from the headquarters. In my opinion, there cannot be the least doubt that the respondent was avoiding personally reporting himself to his superior officers who were anxious to finish the inquiry in connexion with the proceeding pending against him; but the respondent was equally anxious to avoid that being done. The result has been that the Sub- Inspector did not report himself to the headquarters in accordance with the directions given by the Superintendent of Police till 27 January 1942, when the complaint was filed against him. Though there was no order passed by the Superintendent informing the respondent that he had been granted the leave applied for, it does appear that on 13 January, 1942, the respondent made an application for extension of leave upon which the Superintendent wrote a letter, dated 26 January 1942, informing him that his application, dated 9 January 1942, for leave to the Inspector General of Police was irregular inasmuch as the Superintendent only is the sanctioning authority. To this letter was attached a copy of the report of the Medical Board, dated 3rd/8 January, 1942, which had recommended two months? leave to the Sub- Inspector with effect from 12 November 1941. The third and the last paragraph of the letter is rather significant, and is to the following effect: On 12 January 1942 you were due back to duty. You have contravened and are continuing to contravene the provisions of Orissa Police Manual Rules 802 and 843. A prosecution under Section 29 (Police) Act V of 1861 is being instituted against you. 11. When questioned by the trial Magistrate, the accused pleaded not guilty and promised to file a written statement of his defence, but I do not find on the record any such written statement. But it appears from the trend of the cross-examination of the prosecution witnesses that the defence of the respondent is that owing to his feeble health it was absolutely necessary for him to go for a change to his native place and that, as his repeated applications for leave were rejected, he had no alternative but to go away for the sake of his life. It was also contended by the accused that under Section 7, Police Act, he cannot both be suspended and confined to headquarters for an indefinite time. It was, therefore, contended that the orders of the Superintendent and the Assistant Superintendent of Police to remain within the limits of the Koraput Union Board, or to post him to the Reserve Headquarters, are illegal, and hence he was not guilty under Section 29, Police Act. Reliance was placed in the Court below even as it has been done in this Court, on behalf of the accused on the decision in Ram Gopal Adhikari V/s. Emperor . That case lays down that the orders of the Police Superintendent confining the dismissed Assistant Sub-Inspector of Police to the police lines for an indefinite period is an illegal order. Reference is made in that decision to Section 7, Police Act, and it is pointed out that that section does not contemplate confinement in addition to suspension, and certainly not indefinite confinement. In that case the prosecution had relied upon Rule 1067 of the Police Regulation. The Single Judge of the Calcutta High Court before whom the case came up for hearing is reported to have held that that rule was clearly ultra vires and illegal. He relied upon a previous decision of that very Court in Ram Gopal Ghose V/s. Emperor (1905) 2 C.L.J. 616. Relying upon the said decisions of the Calcutta High Court, the learned Magistrate took the view that the orders aforesaid of the Superintendent and the Assistant Superintendent of Police posting the accused to the Headquarters of Koraput, or asking him not to leave the limits of the Koraput Union Board, were ultra vires and illegal. In that (view of the matter, the learned Magistrate acquitted the respondent of the charge under Section 29, Police Act. 12. In my opinion, in view of the facts and circumstances set out in detail above, the learned Magistrate has completely misdirected himself. The learned Magistrate has misapplied the provisions of Section 7, Police Act, to the facts of this case. Section 7 consists of two parts: the first part is contained in para. 1 which empowers the superior police officers named therein to dismiss or suspend or reduce any police officer of the subordinate ranks whom they consider negligent in the discharge of his duty. And the second part enumerates such punishments as may be awarded by them to such a police officer. These powers are subject to such rules as the Provincial Government may make from time to time under the Act. Section 7 contemplates punishments to be awarded after the police officer has been adjudged by his superior officer to be remiss or negligent in the discharge of his duty. In the present case, the Sub- Inspector had been suspended not by way of punishment, but under Rule 840 of the Orissa Police Manual vol. I, 1940, p. 364, pending the result of the (inquiry into his conduct. Under the rule, suspension is authorized only in cases in which the continuance on duty of the officer concerned, pending inquiry into his conduct, is prejudicial to public interest. The rule makes the specific provision that "suspension shall not be awarded as a specific punishment." The learned Magistrate has taken the view, following the Calcutta decisions aforesaid, that the Sub- Inspector could not have been punished in both ways at the same time, that is to say, could not have been suspended and at the same time confined to his quarters. 13. The learned Magistrate, apparently, was thinking of the terms of Section 7, Police Act. But in the present case there was no question of punishment of the respondent. He had been reported against as having been negligent in the discharge of his duties with the result that a proceeding had been started against him for holding an inquiry into his alleged misconduct, and as the Superintendent of Police took the view that his continuance on duty pending the inquiry was prejudicial to public interests, he was placed under suspension and was asked to report himself at the headquarters of the district to take his orders from the inquiring officer, namely, Mr. Nath, the First Assistant to the Superintendent of Police. There is no order against him confining him to the police lines for an indefinite period as seems to have been the case in the Calcutta decisions referred to above. As a matter of fact, the inquiring officer had made it clear, more than once, that he wanted the Sub-Inspector to appear before him so as to fix a date for the inquiry into his conduct; but the Sub-Inspector, for reasons of his own, was not prepared to face the inquiry at all, or by the officer specially selected to hold the inquiry, and therefore was avoiding personally appearing before him or before the Superintendent of Police himself. Rule 842 of the Police Manual specifically provides that: During the term of such suspension, the powers, functions and privileges vested in him as a police officer are in abeyance, but he continues subject to the same responsibilities, discipline and penalties, and to the same authorities as if he had not been suspended. 14. In view of this rule, the Sub-Inspector was not entitled to think that he was free to move about and go wherever he chose to do, he had to take his orders from his superior officers. In this case the specific orders to him were to report at the headquarters and to take his Orders from the Assistant Superintendent of Police in the matter of the inquiry against him. This he persistently refused to do, and, as I have held that the orders of the Superintendent of Police or of the Assistant Superintendent of Police, referred to above, were not unlawful, in disagreement with the learned trial Magistrate, the conclusion is irresistible that the respondent is guilty of wilful breach of the lawful orders passed by his superior officers. 15. The question still remains to consider whether the respondent is also guilty of absenting himself from duty or, being absent on leave, failed without reasonable cause to report himself for duty on the expiration of such leave--the first part of the accusation against him. So far as this part of the accusation goes, in my opinion, the prosecution has failed to make out all the ingredients of the offence. It is true that there is no specific order passed by either the Superintendent or the Assistant Superintendent of Police granting him leave; but the letter from the Superintendent of Police, dated 26 January 1942, quoted above in part, shows that he treated the respondent as on leave until 12 January, 1942, as he distinctly says in para. 3 of that letter that "on 12- 1-42 you were due back to duty." This attitude the Superintendent of Police adopted apparently in view of the recommendation of the Civil Surgeon, endorsed as it was by the g Medical Board, recommending that the respondent be granted two months leave with effect from 12 November, 1941. The letters, Exs. 6 and 7 at page 49 of the printed paper book would also indicate that on 20 March and 22 March, 1942, the Superintendent of Police was treating the Sub-Inspector as "under suspension (on leave)." The charge as explained to the accused was that he absented himself from the place of his posting from 6 December, 1941 to 26 January 1942. The period thus set out is well within 22 March, 1942. It also appears that the respondent had made an application for extension of the leave h which was to have expired on 12 January 1942. This application had been supported by a medical certificate, or, at any rate, was subsequently supported by a medical certificate. Hence, the respondent could not be said to have overstayed his leave when he did not join his duties on 12 January 1942. He availed himself of the leave applied for in anticipation of the same being sanctioned. Hence, in my opinion, the prosecution has not been able to show that he, being absent on leave, failed to report himself for duty without reasonable cause. There is no evidence that the Sub-Inspector had fully recovered from his illness and wilfully absented himself from duty. 16. As a result of all these considerations, I a have come to the conclusion that the first part of the charge against the accused fails, but the second part has been established. 17. I would therefore hold him guilty under Section 29, Police Act, of wilful breach of lawful orders passed by his superior officers. On the question of sentence, I think that there are mitigating circumstances in that the accused Sub-Inspector had been physically and mentally enfeebled by his serious illness and thus lost his balance of mind and judgment. The learned advocate on his behalf also informed us that he had been dismissed by his departmental head. Taking all these facts into consideration, I think a nominal fine of Rs. 5 would vindicate the law and meet the ends of justice. Chatterji J. 18. I agree.