R.N. Dutt, J.
1. This revisional application in directed against an appellate order confirming an order ofconviction and sentence passed by a Magistrate at Krishnagar.
2. The petitioner was a police constable in the district of Nadia. He was placed under suspension on September 21, 1959. Under Rule 881 of the Police Regulations, police officers under suspension are required to reside in the police lines and to attend all parades and roll calls. The petitioner failed to attend the usual roll calls from 4 P. M. on January 7, 1960. He was tried under Section 29 of the Police Act, 1861 for contravening the provisions of Rule 881 and convicted and sentenced to a penalty of two months pay viz. Rs. 96/-, in default, rigorous imprisonment for one month. He filed an appeal and the appellate court has upheld the order of conviction and sentence.
3. It was at first argued that a constable under suspension cannot be considered to be a 'police officer' within the meaning of Section 29 of the Police Act, 1561. Reliance was placed on the case of Queen v. Dinanath Ganguly, 8 Beng LR App 58 and the case of Queen Empress v. Durga, ILR 10 All 489. It appears, however, that Section 8 of the Police Act, 1861, was subsequently amended and it has now been enacted that a Police Officer under suspension shall not cease to be a police officer for the purpose of Section 29 of the Act.
4. Mr. Mukherjee who appears as amious curiae at a later stage of the hearing argues that R. 881 of the Police Regulations is illegal being inconsistent with the provisions of Section 7 of the Police Act, 1861. Section 7 reads thus:
'Subject to the provisions of Article 311 of the Constitution and to such rules as the State Government may from time to time make under this Act the Inspector General, Deputy Inspectors-General, Assistant Inspector-General and District Superintendents of Police may at any time dismiss, suspend or reduce any police officer of the subordinate ranks whom they shall think remiss or negligent in the discharge of his duty or unfit for the same;
or may award any one or more of the following punishments to any police-officer of the subordinate ranks who shall discharge his duty in a careless or negligent manner, or who by any act of his own shall render himself unfit for the discharge thereof namely:
(a) fine to any amount not exceeding one month's pay'
(b) confinement to quarters for a term not exceeding fifteen days with or without punishment drill, extra guard, fatigue or other duty;
(c) deprivation of good conduct pay;
(d) removal from any office of distinction or special emolument.'
5. Mr. Mukherjee submits that here in this case the petitioner is required to reside in the Police lines for an indefinite period, contravening Section 7(b) of the Act Mr. Roy who appears for the State argues that obligation on the part of a suspended police officer to reside in the police lines does not amount to confinement. The question for consideration is if such obligatory residence on the part of a suspended police officer in the police lines can be said to be confinement within the meaning of Section 7(b) of the Act. It is true that there is no order by way of punishment under Section 7 of the Act. Mr. Mukherjee however, argues that the effect ofthe obligation under Rule 881 of the Police Regulations does amount to punishment. The petitioner was placed under suspension pending enquiry. I agree with Mr. Roy that an officer can be placed under suspension pending an enquiry and such suspension is not by way of punishment. But no other restriction can be placed on a suspended police officer because such other restriction will amount to punishment. But there can be no punishment before the officer is found guilty. The requirement of such obligatory residence in the Police lines is nothing but punishment during enquiry. Mr. Mukherjee relies on the case of Ramgopal Adhikary v. Emperor : AIR1932Cal285 . There in that case it was held that obligatory residence in the police lines does amount to confinement and that Rule 1067 of the Police Regulations was ultra vires and illegal as no order requiring a suspended police officer to reside in the police lines for an unlimited period of time could be legally made. Rule 881 of the present Police Regulations is the same rule as Rule 1067 of the previous regulations. The decision in this case was based on the decision in the case of Ramgopal Ghose v. Emperor, 3 Cri LJ 110 (Cal) where it was held that an order requiring a suspended police officer to reside in the police lines for an unlimited period of time is illegal and there could be no conviction under Section 29 of the Act for disobeying such an order. Mr. Roy refers to the case of Emperor v. Md. Fazle Bari AIR 1944 Pat 256 and states that conviction under Section 29 of the Act was upheld in similar circumstances. But the Patna case distinguished the Calcutta Case on the ground that in that case there was no order against the police officer under suspension requiring him to reside in the police lines for an indefinite period as in the Calcutta Case. The Patna decision did not consider a case where there was a requirement for such residence for an indefinite period. But in the present case the petitioner was required to reside in the police lines for an Indefinite period. The facts are, therefore, on all fours with the facts of the aforesaid cases of this Court. Mr. Roy then refers to the case of Shivanandan v. State of West Bengal, : AIR1954Cal60 and argues that this Court has subsequently held that Rule 881 of the Police Regulations is not void of Article 21 of the Constitution. We are not concerned in this case as to whether Rule 881 is void of Article 21 of the Constitution or not. We are concerned here as to whether Rule 881 is ultra vires and inconsistent with Section 7(b) of the Police Act, 1861. The Court has in Shivanandan's case, : AIR1954Cal60 held that Section 7 of the Police Act is not ultra vires of the Constitution. Ram Gopal Ghosh's case, 3 Cri LJ 110 (Cal) was referred to but distinguished on the ground that the confinement directed in that ease was for an unlimited period whereas in Shivanandan's case, : AIR1954Cal60 there was no direction for confinement for an unlimited period. I think that this Court has in that case also held that if there be an order for confinement for an indefinite period, that order will be illegal being inconsistent with Section 7(b) of the Police Act. Here in this case the petitioner while under suspension was required to reside in the police lines for an indefinite period. Rule 881 must, therefore, be held to be illegal and ultra vires for the purposes of this case and the conviction ofthe petitioner for contravening the provisions of that Rule cannot be sustained.
6. The rule is, therefore, made absolute. Theorder of conviction and sentence is set aside and thepetitioner is acquitted.