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Manglaram Vs. State of Rajasthan - Court Judgment

LegalCrystal Citation
SubjectService;Criminal
CourtRajasthan High Court
Decided On
Case NumberCriminal Revn. No. 23 of 1968
Judge
Reported inAIR1970Raj32; 1970CriLJ300; 1969()WLN71
ActsRajasthan Armed Constabulary Act, 1950 - Sections 4 and 6; Code of Civil Procedure (CPC) , 1908
AppellantManglaram
RespondentState of Rajasthan
Appellant Advocate S.D. Rajpurohit, Adv.
Respondent Advocate M.L. Shrimal, Adv. and;Dy. G.A.
DispositionPetition allowed
Cases ReferredState of U. P. v. Manbodhanlal Srivastava
Excerpt:
rajasthan armed constabulary act, 1950 - section 6(e)--declaration in prescribed form--lack of assestation--whether a mere technicality.;it is not open to a member to be enrolled in the rajasthan armed constabulary to sign a declaration in any words that he likes. the legislature has prescribed even the form as a part of the statute. the language of the declaration, inter alia, provides that at no time during the period of service of the executant in the force, he will be entitled to obtain his discharge at his own request. it is evidently a condition different from the ordinary contracts of master and servant. in order to ensure that the executant has understood its legal implication, the legislature prescribes that the executant shall sign it in acknowledgement of the above having been..........the quashing of the order of his commitment to face a trial under section 6(e) of the rajasthan armed constabulary act, 1950, hereinafter called 'the act'.2. the circumstances which have led up to this application, briefly stated, are these. manglaram applicant was appointed as a constable in the rajasthan armed constabulary (r.a.c.) on the 20th of june, 1963. on the 10th of october, 1964, he was attached to the 5th battalion stationed at jodhpur, when he absented from duty. his case is that he had orally taken permission to leave the service from the platoon commander, whereas the case of the prosecution is that he absented without leave. it is not in dispute that on the 11th of october, 1964, he joined as a soldier in the indian army. on the 13th of october, 1964, a first.....
Judgment:
ORDER

B.P. Beri, J.

1. This criminal revision application is directed against the order dated the 11th December, 1967, passed by the City Magistrate, Jodhpur. The petitioner prays for the quashing of the order of his commitment to face a trial under Section 6(e) of the Rajasthan Armed Constabulary Act, 1950, hereinafter called 'the Act'.

2. The circumstances which have led up to this application, briefly stated, are these. Manglaram applicant was appointed as a constable in the Rajasthan Armed Constabulary (R.A.C.) on the 20th of June, 1963. On the 10th of October, 1964, he was attached to the 5th Battalion stationed at Jodhpur, when he absented from duty. His case is that he had orally taken permission to leave the service from the Platoon Commander, whereas the case of the prosecution is that he absented without leave. It is not in dispute that on the 11th of October, 1964, he joined as a soldier in the Indian Army. On the 13th of October, 1964, a first information report was lodged at the Police Station, Udaimandir, Jodhpur, against Manglaram for his having deserted the R. A. C. He came to be arrested on the 15th of May, 1966, while he was still in service in Jammu and Kashmir where he was stationed as a member of the Indian Army, and on that very day he was discharged from that service.

Enquiry was made against him by the City Magistrate, Jodhpur, and it was urged on his behalf that he was not an officer of the R. A. C. as defined in Section 2(3) of the Act as he did not sign any statement as required by Section 4 of the Act because there was no attestation by the appropriate authority as envisaged by the said provisions, and therefore, he was not an officer liable to be prosecuted for an offence under Section 6 (e) of the Act. The learned Magistrate framed a charge under Section 6(e) of the Act, and committed Manglaram to face his trial before the Sessions Judge, Jodhpur, holding that the plea of the applicant was merely a technical one. Against that order he has come up in revision before me.

3. Mr. S. D. Rajpurohit appearing on behalf of the applicant has submitted that for the sake of argument let it be assumed that Manglaram had signed his statement as required by Section 4 of the Act, but the said statement was not explained to him and duly attested by anyone or the authorities mentioned in Section 4 of the Act. Assuming again, the learned counsel submitted that Shri Amarsingh explained and attested the said statement signed by Manglaram, Shri Amarsingh being only of the rank of an Inspector, was not competent to attest it, as required by the provisions of Section 4 of the Act, and therefore, Manglaram did not come to acquire the status of a member of the Rajasthan Armed Constabulary and could not incur the liability laid down by Section 6 of the Act. His further submission is that Section 6 of the Act is a penal provision which must be strictly construed. He relied on M. V. Joshi v. M. U. Shimpi, AIR 1961 SC 1494.

4. Mr. Rajpurohit also submitted that the expression 'Officer of the Rajasthan Armed Constabulary' is an expression which should be given the same meaning as envisaged by the definition Clause, and in support of this argument, he relied ou Jain Bros. and Co. Bundi v. State of Rajasthan, ILR (1963) 13 Raj 1063 = (AIR 1964 Raj 17).

5. Mr. Mohanlal Shrimal, Deputy Government Advocate argued that the provisions of Section 4 are merely directory and not mandatory notwithstanding the fact that the word 'shall' has been employed therein. He relied on State of U. P. v. Manbodhanlal Srivastava, AIR 1957 SC 912. He further submitted that the fact that Manglaram did not run away from the service out of cowardice may influence the eventual punishment that may be awarded to him because he joined the Army and remained in an area which was critical in view of the Indo Pakistan conflict in 1965 but merely because the statement was attested by a person inferior in rank to those mentioned in Section 4, he could not escape the liability as envisaged by Section 6 of the Act. He submitted mat attestation was merely intended to facilitate the recall to the mind of the witness for the purposes of evidencing the fact that Manlaram had signed a statement as required y Section 4 of the Act. In this view of the matter, Manglaram should face his trial and this is not a fit case for quashing the commitment order.

6. Let me examine the provisions of law which require consideration.

7. Section 2(3) of the Act defines an 'Officer of the Rajasthan Armed Constabulary' as follows:

' 'Officer of the Rajasthan Armed Constabulary' means a person appointed to the Rajasthan Armed Constabulary under this Act, who has, in accordance with the provisions of this Act, signed a statement, in the form given in the Schedule.'

8. Section 4 of the Act reads as follows: 'Enrolment and discharge of officers of the Rajasthan Armed Constabulary. Before any person whether already enrolled in the Rajasthan Police Force or not so enrolled, is appointed to be an officer of the Rajasthan Armed Constabulary, the statement in the schedule shall be read, and if necessary, explained to him by a Magistrate, Inspector-General, Deputy Inspector General, Commandant, or Assistant Commandant, shall be signed by him in acknowledgment of its having been so read and explained to him and shall be attested,by the Magistrate, Inspector-General, Deputy Inspector General, Commandant, or Assistant Commandant, as the case may be.'

The statement mentioned in Section 4 reads as follows:

'STATEMENT

(See Section 4)

At no time during the period of your service in the Rajasthan Armed Constabulary, you will be entitled to obtain your discharge at your own request. On the liquidation of the force or of the battalion in which you may for the time being be posted, you will be discharged from the Rajasthan Armed Constabulary and, unless you were already a confirmed member of the Rajasthan Police Force before joining the Rajasthan Armed Constabulary, from the Rajasthan Police also ('you will, however, be eligible for re-enlistment in the Rajasthan Police Force). In the event of your continuing in the Rajasthan Police Force or your re-enlist-ment therein, your services in the Rajasthan Armed Constabulary will count for promotion and pension in the Rajasthan Police Force.

Signature of Police Officer in acknowledgment of the above having been read over to him.

Signed in my presence, after I had ascertained that ..... understood the purport of what he signed.

Magistrate, Inspector General, Deputy Inspector General, Commandant or Assistant Commandant.

This portion in brackets will be deleted in the case of officers who are already members of the Rajasthan Police Force on joining the Rajasthan Armed Constabulary.'

It is common ground that the petitioner did sign a statement as required by Section 4. Mere reading over to him of the declaration would have served no purpose because the petitioner did not know English. It had to be explained to him and attested by a person of the requisite rank. This was not done. What is the effect of this failure on his prosecution for desertion is the point which falls for consideration?

9. In determining the aforesaid question, as indeed all questions of statutory constructions, the first object is to ascertain the Legislative intent. What Section 4 lays down is that before any person is appointed to be an Officer of the R. A. C., the statement in the Schedule shall be read and if necessary explained to him by a Magistrate, Inspector-General, Deputy Inspector-General etc. and shall be signed by him in acknowledgment of its having been so read and explained to him and it shall further be attested by the Magistrate, Inspector-General, Deputy Inspector-General, Commandant or Assistant Commandant as the case may be.

10. It is not open to a member to be enrolled in the Rajasthan Armed Constabulary to sign a declaration in any words that he likes. The Legislature has prescribed even the form as a part of the statute. The language of the declaration, inter alia, provides that at no time during the period of service of the executant in the force, he will be entitled to obtain his discharge at his own request. It is evidently a condition different from the ordinary contracts of master and servant. In order to ensure that the executant has understood its legal implications, the Legislature prescribes that the executant shall sign it in acknowledgment of the above having been read over to him and if necessary explained to him.

Not content with this, the Legislature probably having regard to the large percentage of illiteracy in our country has prescribed an endorsement to the effect that the aforesaid declaration has been signed in the presence of an officer of a requisite rank evidencing the fact that he has ascertained that the executant had understood the purport of what he had signed. This important function of attestation again has not been entrusted to any English-knowing person, capable of translating the purport of the statement; but the Legislature has further laid down the official ranks of the persons who alone arc qualified to attest. In doing so, the Legislature reposed trust for this duty only on officers of specified status and has apparently declined to trust the linguistic attainments of an ordinary person. Perhaps the Legislature intended to impart an element of solemnity to the transaction. In this view of the matter, an attestation by an Inspector is clearly contrary to the law.

11. The learned Deputy Government Advocate urged that it should be treated as merely directory and not mandatory. Let me recall the principles which guide Courts in determining what is directory and what is mandatory. In Sutherland: 'Statutory Construction' Third Edition, Volume 3 at page 77, it is observed as follows:

'No statutory provisions are intended by the legislature to be disregarded; but where the consequences of not obeying them in every particular are not prescribed, the courts must judicially determine them. In doing so they must necessarily consider the importance or the literal and punctilious observance of the provision in question to the object the legislature had in view. If it is essential it is mandatory, and a departure from it is fatal to any proceeding to execute the statute or to obtain the benefit of it.'

Sutherland further says at the same page:

'The difference between mandatory and directory statutes is one of effect only. The question generally arises in a case involving a determination of rights as affected by the violation of or omission to adhere to, statutory directions. This determination involves a decision of whether or not the violation or omission is such as to render invalid acts or proceedings pursuant to the statute, or rights, powers, privileges or immunities claimed, thereunder. If the violation or omission is invalidating, the statute is mandatory; if not, it is directory.'

Craies on 'Statute Law', Sixth Edition, at page 63 says:

'When a statute is passed for the purpose of enabling something to be done, and prescribes the formalities which are to attend its performance, those prescribed formalities which are essential to the validity of the thing when done are called imperative or absolute; but those which are not essential, and may be disregarded without invalidating the thing to be done, are called directory.'

12. A broad survey of the relevant statute is proper and profitable at this stage. Under Section 5 of the Act, every member of the R. A. C. shall, upon his appointment and as long as he continues to be a member thereof, be deemed to be a police officer and subject to any terms, conditions and restrictions, as may be prescribed, to have and be subjected to in so far as they are not inconsistent with this Act or any rules made thereunder, all the powers, privileges, liabilities, penalties, punishments and protection as a Police Officer duly enrolled under the Police Act, 1861. For certain acts and omissions under Section 6, he is liable to heavy punishment. Relevant portion of Section 6 reads as follows:

'An officer of the Raiasthan Armed Con-stabulary, who--

(a) .....

b) .....

c) .....

d) .....

(e) deserts the service;

shall on conviction, be punished with transportation for life or with imprisonment for a term which may extend to fourteen years and shall be liable to fine.'

13. Thus when a person is appointed as an Officer of the R. A. C., he acquires certain rights, privileges and liabilities under the Act as well as under the Police Act. Desertion from duty for which the petitioner before me is facing his trial is punishable with transportation for life or 14 years rigorous imprisonment. The liability arises only if he is an Officer duly appointed under the Act.

14. In this connection, it will be relevant to remember what Maxwell has to say in his 'Interpretation of Statutes', Eleventh Edition at page 364 :--

'Where powers, rights or immunities are granted with a direction that certain regulations, formalities or conditions shall be complied with, it seems neither unjust nor inconvenient to exact a rigorous observance of them as essential to the acquisition of the right or authority conferred, and it is therefore probable that such was the intention of the Legislature.'

Where heavy penalty by way of a liability is imposed, I have no ground to construe the requirements of the law as merely directory.

15. In AIR 1981 SC 1494 (supra) their Lordships of the Supreme Court have observed:

'When it is said that all penal statutes are to be construed strictly it only means that the court must see that the thing charged is an offence within the plain meaning of the words used and must not strain the words. To put it in other words, the rule of strict construction requires that the language of a statute should be so construed that no case shall be held to fall within it which does not come within the reasonable interpretation of the statute. It has also been held that in construing a penal statute it is a cardinal principle that in case of doubt, the construction favourable to the subject should be preferred. But these rules do not in any way affect the fundamental principles of interpretation, namely, that the primary test is the language employed in the Act and when the words are clear and plain the court is bound to accept the expressed intention of the legislature.'

According to the language of Section 4, the appointment of a person to the Rajasthan Armed Constabulary is dependent on his signing and attestation of a declaration as set out in the schedule to the Act. The penalties under Section 6 can only be inflicted if a person is an officer of the Rajasthan Armed Constabulary. The severe penalty envisaged by Section 6 of the Act is the liability of a person who fulfils certain requirements of law. Thus on the plain language of the statute as well as on the principles I have set out above, it is not correct to call the lack of proper attestation as a mere technicality. The legislature intended certain steps to be taken before a person could be subjected to the liabilities. The liability in this case is severely penal. There is no reason why it should not have been rigorously observed. The provision is mandatory.

16. Accordingly on the aforesaid point of law I quash the order of commitment. The revision application is allowed.


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