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Superintendent and Remembrancer of Legal Affairs Vs. Sayed Ishaq Ali - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata
Decided On
Judge
Reported in1949CriLJ508
AppellantSuperintendent and Remembrancer of Legal Affairs
RespondentSayed Ishaq Ali
Excerpt:
- .....he was charged with 'wilful breach of orders of the deputy commissioner of police, south, being a police-officer, to wit a constable of alipore thana, by refusing to go to the police training school when under suspension, vide d. 0. no. 1676 dated 16tb october 1943, on 4th november 1948, at about 11 a, m. which it was his duty as such police officer to obey.' the charge was under section sb,. calcutta suburban police act, (act (n [a] of 1866).2. the matter came before mr. b. l, roy,., magistrate, 1st class, alipore, on 8th november 1943. there were, for the size of the case, somewhat protracted proceedings before judgment was delivered on 16th may 1944, convicting the accused and sentencing him to pay a fine of rs. 60 is default to suffer rigorous imprisonment for two-weeks. in those.....
Judgment:

Ormond, J.

1. This is an appeal on behalf of the Grown against an acquittal. In this case the accused was convicted by the trial Magistrate) and sentenced to a fine of rs. Co in default to suffer two weeks' rigorous imprisonment. He was thereafter acquitted by the Sessions Judge. It is from that acquittal by the Sessions Judge that the Grown now appeal. The accused is a. constable of the Calcutta Police. He was charged with 'wilful breach of orders of the Deputy Commissioner of Police, South, being a police-officer, to wit a constable of Alipore Thana, by refusing to go to the Police Training School when under suspension, vide D. 0. No. 1676 dated 16tb October 1943, on 4th November 1948, at about 11 A, m. which it was his duty as such police officer to obey.' The charge was under Section SB,. Calcutta Suburban Police Act, (Act (n [a] of 1866).

2. The matter came before Mr. B. L, Roy,., Magistrate, 1st class, Alipore, on 8th November 1943. There were, for the size of the case, somewhat protracted proceedings before judgment was delivered on 16th May 1944, convicting the accused and sentencing him to pay a fine of Rs. 60 is default to suffer rigorous imprisonment for two-weeks. In those proceedings, three prosecution witnesses and four defence witnesses were examined. In his statement made to the Magistrate on 28th January 1944, when he is asked why ha did not go to the Police Training School in spite of orders, his answer merely is 'I have not committed any offence': and when be is asked 'will you say anything else' he merely repeats 'I have committed no offence,' In his statement made to the Magistrate on 24th February 1944, he says 'The Deputy Commissioner Saheb did not give me order to go to the Police Training: School. I have not committed any offence.' It was no doubt, as seems to appear from the order sheet, because of this defence of a denial of the order having been given that there were various adjournments of the matter, since the defence was insisting on calling the evidence of the Deputy Commissioner of Police. Oni5th April 1944, the Deputy Commissioner of Police did appear as-required by the defence for the purpose of giving evidence; but the defence refused to examine him as a defence witness and he was discharged. In view of those facts and of the clear evidence of p. w. 8, Z, Easul, Officer-in-barge of the Alipore Police Station who deposes that on 4th November 1943, he himself passed on the order of the Deputy Commissioner and personally directed the ac used to go: to the Police Training School but the accused did not go, there can be no force in our view in any defence denying that the order was given.

3. On 4th November 1948, at the time when this order was given it would appear that the accused was under suspension, he having been suspended as a result of a criminal case under s, 411, Penal Code, lodged against him. The case made on behalf of the accused by his own witnesses, so far as they may be treated as substantiating any case for the defence, relate only to the question of whether an accused on bail in a criminal case should be in the Police Training School; and these witnesses give evidence of their own suggested grievances only because they say that in their own case they have not been allowed to leave out from the Police Training School as often as they have wished in order to attend to 'their cases. From the foregoing, it will be seen that the defence which is now sought to be raised before us and was raised before the Sessions Judge has never been raised by the accused him--self until the stage of arguments in the trying Court.

4. The defence now raised, as I understand it, is to this effect. It is argued for the defence that when a constable is suspended, be ceases to be responsible to perform all 'duties' of his office. That in this category of 'duties' of his office is included all responsibility to obey the orders of a polios officer. The, learned advocate for the accused seeks to rely on Section 4A(l), Calcutta Suburban Police Act which contains particulars of the matters described there as the ' duty of a police officer,' and Section 4A(l)(a) in particular which says that 'it shall be the duty of ejery police officer promptly to obey every order lawfully issued to him by competent authority'. The learned advocate for the defence turns to Section 8 of the same Act referring to the certificate given to a police officer on enrolment, where it is stated that such certificate shall cease to have effect whenever the person named in it is suspended. The learned advocate for the accused in dealing with Section 4(2) further con-tends that the words there ' during the term of such suspension -the 'duties' conferred upon him as a police officer shall be in abeyance' have relieved the accused in this case from his obligation to obey the order of his superior officer is report to the Police Training School. We find ourselves unable to accede to this contention.

5. The argument of Mr. Ahmed for the Crown is that 8, 4 (2) itself dearly shows that the responsibilities to obey the order of his superior officers in matters of internal discipline continue even after suspension. We are pf opinion that this view is clearly correct.

6. In the course of the argument the learned advocate for the accused referred us to the case of Pramatha Nath Bar at v. P. C. Itakiri, 46 Cal. 081 : (A.I.R. (7) 1920 Cal. 45: 21 Or. L. J. 15) of which he sought to rely as supporting his contention. It clearly however does not do so. That was a case heard on 9th April 1919. It is of interest to note that Section 4(2), Calcutta Sub. urban Police Act of 1866 together with Section 10(2), Calcutta Police Act (Act iv [4] of 1866) were both introduced by virtue of Bengal Act VII [7] of 1919, being the Calcutta Suburban Police Amendment Act 1919, which was published on '2lat September 1919. At the time of decision of that case it is thus clear that Section 4(3) was not in force. Prom a perusal of the case it will be seen that it turns on the legality of a circular order published in the Calcutta Police Gazette, which was worded on lines similar to Section 4(2), Calcutta Suburban Police Act; and it was there held that that police circular order was illegal and of no effect. For that reason, at that time it was decided in that case that the Commissioner of Police had no authority to order the detention of a police officer on suspension the ground for this being (at the date of that case) that the police officer had ceased to be a police officer at the date of his suspension. The case is thus of interest only in allowing what bad been held to be the legal position in regard to suspension before introduction of Section 4(2). It seems clear that it was to remedy that state of affairs that Section 4(2) was introduced. This is evident from the first sentence which directly and specifically enacts that 'a police officer shall not by reason of being suspended from office cease to be a police officer'. The section goes on to lay down as follows:

During the term of such suspension... he shall continue subject to the same responsibilities, discipline and penalties and to the same authorities as if he had not been suspended,

It has already been seen that this order in question was duly given to the constable by his superior officers. They are clearly in our view the same authorities to whom be was1 responsible before his suspension; and the order given to him to report to the Police Training School comes in our view dearly under the term of 'discipline' for which he is required to continue subject as before. The other part of the section which enacts that 'during the term of such suspension the powers, privileges and duties conferred or imposed upon him as a police officer shall be in abeyance' is we think directed to his official duties as a police officer visa is the public and has no effect on his duty to continue to obey for the purpose of internal discipline the orders of his superior officers. Quite apart from any consideration of the case cited the wording of the relative provisions of the Act (Act II [2] of 1866) is in our view per. fectly clear in itself.

7. There is one additional minor point made by the defence to which I may refer, which was based on the evidence of p. w, 3, who made a bare statement to this effect ' Court's permission is necessary to send a constable to Police Training School if that constable is suspended after the institution of the case against him,' No authority has been oiled to us by the learn. ed advocate for the accused in support of this proposition nor can we see that there is any support in law for any such proposition. It may be the customary practice for the police to mention to a Court, when an order for bail or an order relating to bail is being made, that it is proposed to send the man in question to the Police Training School; but it would certainly seem that at the highest this is nothing more than a matter of courtesy between the police and the Court. The police authorities may naturally be expected to afford requisite facilities for a man on bail to report as necessary to the Court; it has not been suggested that they have not done so or will not do so, P. W. 3 has mentioned in evidence that it is the practice of the police in all cases of suspension to send constables on suspension to the Police Training School; and that while there they draw one-fourth of their pay. This is an internal matter of police organization with which we have no concern.

8. From what has been said it becomes dear that the conviction by the trial Magistrate is right. The appeal is, therefore, allowed and the original conviction and sentence of the trial Magistrate are restored.

Roxburgh, J.

9. I agree.


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