K.N. Saikia, J.
1. This criminal revision, is against the appellate Judgment and order of the Sessions Judge, Cachar, upholding the Judgment and order of the Assistant Commandant, 15th Bn. and Magistrate 2nd Class, Central Reserve Police Force, C/o 19 APO convicting the accused petitioner Under Section 10 (p) and (m) of the Central Reserve Police Force Act, 1949, hereinafter called 'the Act'.
2. On 13-10-1972 the accused petitioner Ex. Naik Chaturbhuj No. 62014153 attached to RHQ (Badribasti) was informed during evening roll call by Jitar Singh and Jem Bhairab Dutt, l/c. Rear Head Quarter that there was a command for him to proceed by first means and report at Bn. HQ at Kolasib on 14-10-1972 and a Bn. vehicle would be going to the HQ that day. On 14-10-1972 the accused petitioner absented himself from the camp and did not fall in. L/NK Ramji Chaube and L/NK Auter Singh were sent to accompany him to the Bn. HQ but he refused to accompany them saying that he would go only after a written order of the lie, RHQ was sent to him. Subsequently such an order was sent through the above two persona; but the accused petitioner was not found at his home. After a while I/c. RHQ sent a letter through NK Gajraj Singh and L/NK Auter Singh. But this time also he refused to accept the letter. The commandant vide signal No. P VIII-20/72-15 (Esstt) dated 14-10-1972 ordered that the accused petitioner b6 arrested and sent to Bn. HQ in the convoy, but he was not found at home and he remained absent till 18-10-1972 on which date he reported at Kolasib Check Post and was arrested. On that very day a complaint was lodged by Shri S. Varma, Company Commander, 15,h Bn. C R. P. F. Under Section 10 (m) and (p) of the Act. The accused being produced in the Court of the Assistant Commandant and 2nd Class Magistrate, 15th Bn. C. R. P. F. and charges explained, he consented to be tried by.that Court, He was asked to engage a pleader, but he declined to do so, and he pleaded guilty to the charge of being absent but did not admit that he disobeyed lawful command of his superior officer. He was given opportunity to cross-examine the prosecution witnesses and to adduce evidence which he did not. Prosecution witnesses Nos. 1 to 5 proved that he was informed of the order1 on 13-10-1972 and that he was found absent at his home from 14th to 18th October on which date he was arrested at Kolasib. It was also proved that he did not report for duty between 14-10-1972 and 18-10-1972. In his statement he said that he did not go to Bn. HQ lest some harm would be caused to his wife. But the trial Court held that this could not be established by him. He further stated that as he was placed under suspension, he was ordered to be at RHQ and not to leave it without order of the Commandant. But such a command was there and was conveyed to him on 13-10-1972.
3. Considering the evidence on record the trial Court held him guilty Under Section 10 (m) and (p) of the Act and sentenced him to two months rigorous imprisonment.
4. His appeal was dismissed by the Sessions Judge who held that Exts. 1 and 2 clearly showed that there was a command and he was informed to proceed to Bn. HQ and the accused petitioner violated that order and that the allegation of violation was proved beyond reasonable doubt.
5. Mr. A. M. Mazumdar, learned Counsel for the accused petitioner submits that the learned Courts below committed an error inasmuch as the accused petitioner who was under suspension was not on active duty and could not have been punished under Section 10 (m) and (p) of the Act. He further submits that the accused petitioner was required to proceed to Bn. HQ, Kolasib to attend the enquiry against him and he actually reported at Kolasib on 18-10-72 and as such there was no violation of any lawful order.
6. The learned public prosecutor demurs that there was clear violation of lawful command and absence without leave on the part of the accused petitioner and there was no error of law or jurisdiction in convicting and sentencing the accused petitioner.
7. It is admitted that the accused petitioner was under suspension at the relevant time, Ext. 6 is the order of suspension issued by the Commandant, 15Bn. C. R. P. F. C/o. 19 A. P. O. Para 3 of the said order runs:—
It is further ordered that during the period of suspension, the Headquarters of No. 62014153 NK Chaturbhuj shall be at Rear Headquarters Badribasti-Sil-char and the said individual will not leave the Hqrs. without the prior permission of the undersigned.
8. Thus it is clear that he could not leave the Headquarter without permission of the Commandant; but the order to report at the Bn. HQ was also issued by the Commandant and as such there would be no violation of this condition if the order was complied with. Rule 27-A of the Central Reserve Police Force Rules, 1955 lays down the responsibilities of the members of the force during suspension as under:—
27-A. Responsibility of members of the Force during suspension:—
(1) A member of the Force shall not by reason of his suspension cease to be a member of the Force; during the period of his suspension, the powers vested in him as such member shall be in abeyance, but he shall be subject to the same responsibilities, discipline and penalties to which he would have been subject if he were on duty,
(2) Every such member shall during the period of his suspension stay at Battalion Headquarters or Detachment Headquarters as the Commandant or Suspending Authority may direct:
Provided that the Commandant or Suspending Authority may, for special reasons, grant permission in writing to the member to stay elsewhere.
(3) A member under suspension shall deposit his arms and belt, if any, with the Quarter Master or Suspending Authority.
(4) A member under suspension shall not be employed on guard duty or any such duty which might entail exercise of his power as a member of the Force, nor shall be issued arms and ammunition. He shall not be detailed as motor transport driver or signal operator.
(5) A member of the Force under suspension shall be allowed reasonable facilities for the preparation of his defence.
Section 10 (m) and (p) of the Act provides: Every member of the Force who—(m) absents himself without leave, or without sufficient cause over-stays leave granted to him, and (p) commits any of the offences specified in Cls. (e) to (1) (both inclusive) of Section 9 shall be punishable with imprisonment for a term which may extend to one year or with fine which may extend to three months' pay, or with both. Section 9 (e) to (1) are as follows :—
Every member of the Force who-while on active duty
(e) disobeys the lawful command of his superior officer, or
(f) deserts the Force, or
(g) being a sentry, sleeps upon his post or quits it without being regularly relieved or without leave; or
(h) leaves his commanding officer, or his post or party, to go in search of plunder; or
(i) quits his guard, picquet, party or patrol without being regularly relieved or without leave; or
(j) uses criminal force to; or commits an assault on, any person bringing provisions or other necessaries to camp or quarters, or forces a safeguard or breaks into any house or other place for plunder or plunders, destroys or damages property of any kind; or
(k) intentionally causes or spreads a false alarm in action or in camp, garrison or quarters; or
(1) displays cowardice in the execution of his duty.
9. A member of the Force, while under suspension, cannot be regarded as being on active duty. As per Section 2(a) of the Act 'active duty' means the duty to restore and preserve order in any local area in the event of any disturbance. So long one is under suspension and is subject to the responsibilities and deprivations prescribed under Rule 17, he may not. be regarded as being on active duty. The offences stated in S, 10 (p), by reference to Cls. (e) to (1) of Section 9, may be committed while not on active duty. Section 9 (e) to (1) have to be regarded as contents of Section 10(p), and if a member of the Force, while not on active duty, disobeys the lawful command of his superior officer, he shall be punishable under that clause. Thus the accused petitioner having pleaded guilty of absence without leave and concurrently found to have disobeyed the lawful command of his superior officer, has rightly been convicted under those provisions, I find no error of infirmity in appreciation of the evidence On record and in application of law thereto.
10. Mr. A. M. Mazumdar submits that there having already been an enquiry against the accused petitioner, he was labouring under difficult circumstances at the relevant time and the conviction may even deprive him of his job. I have given due consideration to this aspect of the matter and in my opinion ends of justice and prevention of indiscipline will be met if the conviction is upheld but the sentence is reduced to a fine equivalent to one month's pay of the accused petitioner, and I order accordingly.
11. With the above modification of the sentence the Rule is disposed of accordingly.