1. No rules sanctioned by Government under Section 10 of Act XXIV 1859 have been brought to our notice, and in the absence of such rules the accused is liable to be prosecuted under Section 44. The mere fact of a departmental punishment having been awarded is not sufficient to exonerate from liability under Section 44, though the circumstance may be taken into consideration in passing sentence. I would set aside the order of acquittal and direct the Magistrate to dispose of the case on its merits.
Muttusami Ayyar, J.
2. I am also of the same opinion. In the absence of any rules framed by Government, the departmental punishment inflicted on the accused under Section 10 of Act XXIV of 1859 does not bar his prosecution under Section 44 of the same Act, unless the Magistrate thinks that the breach of duty is not grave but trivial. It is a grave violation of duty on the part of a police officer to go to sleep whilst on guard, and I would follow the principle laid down by this Court in its proceedings, dated the 3rd October 1878, No. 1601. Weir, p. 569. I would also set aside the order of acquittal and order a re-trial with reference to the foregoing observations.