1. This is a case reported under Section 438 of the Criminal Procedure Code by the Sessions Judge of Singapore, who has also under that section suspended the sentence and let the petitioner out on bail.
2. Petitioner, a police constable, was tried summarily by the District Magistrate of Singapore, convicted of the offence of disobedience of orders, and sentenced under Section 29 of the Police Act V of 1861, to six weeks' rigorous imprisonment. The Sessions Judge is of opinion that the conviction by the Magistrate is bad in law.
3. The petitioner was sent up to the Magistrate for punishment by the District Superintendent with a memo which is attached to the record and runs as follows : '246 W.C. Abdul Hossein is again reported for absence from roll-call on the night of the 4th May, and says he went to eat at his house and fell asleep. In D.O. 385 he was fined ten days' pay for this very offence, and has been warned not to leave his lines.' 'His Disobedience of orders is willful and a defiance of my authority. I forward his case to the Magistrate for exemplary punishment under Section 29, Act v.' The prisoner was charged with disobedience to orders.
4. The Magistrate's decision is: 'It is satisfactorily proved that the accused was absent from the lines after 9 o'clock on the night in question, which is against rules.' The evidence as to rules is that of the line Sub-Inspector, who says that 'the orders are, that constables are to be within the lines at 9 P.M.' The evidence against the accused was, first, a former punishment for absence from 9 o'olock roll-call; second, that of Debiram, that accused was absent from the 12 o'clock roll-call; third, Bital proved the absentee roll-call. 'I call out the names. The havildar said such and such are not present, and I wrote his name down. Eighteen constables were absent. The havildar stood the file of men there. I was in a hut with a light;' fourth, Ramlall said : 'Abdul Hossein was absent from roll-call on May 4th at midnight. I was helping the havildar to take the roll-call. Bital was calling' over the names. He was sitting by a door with a lantern. Bital was with me when we looked for the men who did not answer. Bital marked down the absentees after they were called out and did not answar.' That is the evidence for the prosecution. Some evidence was given for the accused which the Magistrate apparently did not believe. The Sessions Judge thinks, first, that there is no satisfactory evidence that the accused was as a fact out of the lines at 12 o'clock; second, that there is no evidence that to be absent from the lines after 9 o'clock is against rules, except the statement of the line Sub-Inspector set out above; third, that there is nothing to show by whom the rule, if it exists, was made ; and fourth, he thinks that no rule the violation of which is punishable under Section 29 of the Police Act an be made, save by the Inspector-General under Section 12 of the Act.
5. We think the first three grounds for reversing the conviction are sufficient. If the rule be that the officers must be and remain within the lines after 9 P.M., there is no evidence that the accused violated it, for there is no proof that he was searched for and was, as a fact, absent from the lines. If there be a rule that the officers must attend roll-call at midnight, or at any other hour at which the roll is called, no evidence of the existence of such a rule was given. It is to be observed that it was for absence from roll-call apparently that the accused was sent up; and it was to his not having attended roll-call that the evidence was directed. We think the Sessions Judge well advised in pointing out, as he does, the distinction between a judicial and a departmental punishment. Rigorous imprisonment is no light punishment, and the law or rule, for the violation of which it is imposed, as well as the fact of such violation, ought to be clearly proved in order to warrant the infliction of it. The law requires proof before depriving the subject of his liberty, and is not satisfied by probabilities alone. Probably, or perhaps, there was a rule known to the accused requiring him to be in the lines at 9 P.M., or perhaps at the time when the roll was called, on the occasion in question. Probably or possibly he disobeyed it. It may even be the case that, if there was such a rule, it was one made by a competent authority. But there is no proof of it, or that it was notified to accused, or that, if it was, he violated it. The only fact established in the case is that he did not answer to his name at 12 o'clock roll-call; and there is not a title of evidence to show that he was bound to do so. There is no evidence properly so called of any rule whatever.
6. The fourth point mentioned by the Sessions Judge is of importance. He holds that, had it been proved that a rule requiring presence in the lines, or at roll-call, had been made by the District Superintendent, a violation of that rule would not have been punishable under Section 29 of the Act. There is no express power given by the Act to any officer, save the Inspector-General of Police, to make rules; he can do so under Section 12, for, amongst other purposes, 'preventing abuse or neglect of duty.' Such rules must be made subject to the approval of the local Government. It was argued before us that the District Superintendent has power under Section 4 which gives him the administration of the Police throughout the district, which, it is to be observed, is under the general control of the Magistrate. It is not necessary to determine the question in this case; but the matter is of such consequence that we think it right to state the inclination of our opinion, which is that a general rule of the nature suggested, but not proved in the present case, made by a District Superintendent, would not come under the Act, but that probably a special order requiring the presence of an officer or of certain officers within the Police lines, issued expressly to him or each of them, would come under Section 29 as being not a 'rule and regulation,' but a 'lawful order' made by competent authority and relating to the duties of the officer, one of which is to be at hand when required for service. A rule made under the Act, officers are bound to know and to obey. An order to bind an officer must he given to him, and to make him punishable for not carrying it out, the fact of its having been given to him must be proved. Any instance of failure to enforce discipline in the Police is much to be regretted, only the more necessary is it that regulations or individual orders be so framed and so promulgated or issued that the violation of them can be legally punished under the Act. We set aside the conviction and sentence.