Punjab-Haryana High Court
The State Of Haryana vs Phula Ram on 3 April, 1972
JUDGMENT Pritam Singh Pattar, J.
1. This is an appeal filed by the State of Harvana against the iudsment dated 31st July. 1968 of Shri K. L. Nagpal Chief Judicial Magistrate. Jind by which he acauitted respondent Phula Ram of the offence under Section 7 of the East Puniab Essential Services (Maintenance) Act, 1947 (hereinafter called the Act).
2. The prosecution case is that Constable Phula Ram was sanctioned seven davs earned leave by the authorities with effect from 5th September. 1967 to llth September, 1967. He however, did not resume duties after the exPirv of his leave. He sent a telegram on 11th September, 1967 for extension of his leave on the ground of illness of his wife. This re-auest of the accused was reiected by the Superintendent of Police on loth September. 1967 and he was ordered to ioin dutv and necessarv information was sent to him by registered post. He was also informed that in case of his failure to ioin duties he will be proceeded against and he will be treated as absent and strict disciplinary action will be taken against him- This registered letter was received back undelivered with the report that he was evading service to take delivery of the same.
3. Another letter was issued to him by the Police Department which was delivered to him on 7th October, 1967, but in spite of that he did not resume dutv. Subsequently he sent a medical certificate of Government Dispensary Dhamtan Sahib, wherein the Doctor had recommended him 15 davs rest, which was received in the Police Department on 13th October 1967. The respondent, however, did not resume dutv even on 26th October, 1967. He sent another telegram for extension of leave upto 8th November, 1967 on the ground of his illness without attaching any medical certificate. No action was taken on this telesjfam as his reauest for further leave had jalreadv been declined. No application was: received from him for further extension of leave after 8th November, 1967.
4. A case under Section 7 of the Act was registered against the respondent. Phula Ram was arrested on 5th December, 1967 and was challaned. The Chief Judicial Magistrate framed the charge aeainst him and recorded the evidence of the prosecution and also of the respondent, but did not give any finding on merits and acquitted the respondent on the preliminary objection raised by his counsel that the complaint which was the foundation of the whole case was not dulv proved and exhibited and, therefore, he had no iurisdic-tion to take cognizance of the offence against him. Feeling dissatisfied the State Government filed this appeal alleging that the complaint was filed by the Deputy Superintendent of Police and it was not essential to prove and exhibit it, and the decision of the trial Court was wrong and that it may be reversed and the accused may be convicted and sentenced under Section 7 of the Act.
5. Section 7 Sub-section (3) of the Act reads as follows:
No Court shall take cognizance of any offence under this Act except upon complaint in writing made by a person authorised in this behalf by the State Government.
Vide Notification No. 1248-Camp/48/2075. dated 20th Januarv 1948 the Puniab Government authorised all police officers of and above the rank of Deputy Superintendent of Police and Heads of various Government Departments to make complaints in writing to a Court against persons of their respective Departments, who are alleged to have committed offence against the Act. In the instant case the complaint was filed by the Deputy Superintendent of Police, Jind and it bore his signatures. The Chief Judicial Magistrate, Jind on receipt of this complaint, took cognizance and framed the charge on 16th March. 1968 under Section 7 of the Act against respondent Phula Ram, The prosecution examined three witnesses in this case and closed its evidence on 23rd Mav, 1968 and then the case was adiourned for evidence of the defence. The respondent examined two witnesses in defence, His application for production of additional evidence was reiected by the Chief Judicial Magistrate on 25th June. 1968 and he heard the arguments and acquitted Phula Ram on the aforesaid preliminary obiection raised by him.
6. Section 190 (1) of the Code of Criminal Procedure as amended by Puniab Act 25 of 1964 lavs down as under.
Except as hereinafter provided any Chief Judicial Magistrate and any other Judicial Magistrate specially empowered in this behalf may take cognizance of any offence
(a) upon receiving a complaint of facts which constitute such offence;
(b) ....
(c) ....
Section 200 (aa} of the Code of Criminal Procedure lavs down that When the complaint is made in writing, nothing herein contained shall be deemed to reauire the examination of a complainant in any case in which the complaint has been made by a Court or by a public servant acting or purporting to act in.,the discharge of his official duties.
7. In the instant case the complaint was made by the Deputy Superintendent of Police. Jind against the respondent in his capacity as a public servant, and therefore it was not necessary to examine the Deputy Superintendent of Police regarding the facts mentioned therein and to prove the complaint and exhibit it. The Deputv Superintendent of Police was authorised by the State Government to file the complaint.
Section 56 of the Indian Evidence Act. 1872 lavs down that no fact of which the Court will take iudicial notice need be proved. Section 57 clause (7) savs that the Court shall take iudicial notice of the accession to office names, titles, functions, and signatures of the persons filling for the time being any public office in any State, if the fact of their appointment to such office is notified in any Official Gazette. The appointment etc- of all Gazetted Officers are published in the official Gazette of the State. In view of these provisions of law the Court is to take iudicial notice of the name designation and signatures of the Deputv Superintendent of Police and there was no necessity to prove the complaint and to exhibit it. After the receipt of this complaint the Chief Judicial Magistrate took cognizance of the offence and summoned the accused, framed charge against him and recorded the evidence of the parties. Consequently the decision of the Chief Judicial Magistrate that the complaint should have been Proved and exhibited before he could take cognizance of the offence in view of the provisions of Section 7 (3) of the Act is erroneous and must be set aside and I order accordingly.
8. The learned Counsel for the respondent contended that assuming that the facts of this case are correct, even then there was no offence committed by the accused under the provisions of the Act. Section 3 of the Act savs that Any person engaged in any employment or class of employment to which this Act applies who:
(a) disobeys any lawful order given to him in the course of such employment or
(b) without reasonable excuse abandons such employment or absents himself from work or
(c) xx xx xx is guilty of an offence under this Act.
The penalty for the offence is given under Section 7 (1) of the Act. It is admitted that this Act applied to the Police Department of the Harvana State vide notification issued by the Government under Section 3 of that Act.
(Edt: Para 9 omitted in this report as requisite relevant facts are stated in paras 2 to 6)
10. The learned Counsel for the appellant State of Harvana contended that the above facts showed that the respondent abandoned his employment or absented himself from work. This contention of the learned Counsel for the State does not seem to be correct. The respondent, Phula Ram had proceeded on leave and thereafter he had been making applications for extension of leave on ground of illness of his wife and also of himself, but the leave was not granted to him. Under these circumstances he cannot be said to have abandoned his employment. He also cannot be said to have absented himself from work because no work had been assigned to him as he had proceeded on leave and had not ioxned his dutv. He could only be assigned any work after he had ioxned his duty- Since he did not ioin his duty and no work had been assigned to him. the question of his absenting himself from work within the meaning of Section 5 clause fb) of the Act did not arise.
11. In the notices issued by the Police Department after the reiection of his leave by the authorities on 15th September 1967 he was simply asked to resume duty at once failing which he will be treated as absent from dutv without permission and disciplinary action will be taken against him. He may be guilty of neglect of duty, but this fact is different from abandoning employment or of absenting oneself from work without reasonable cause which is the Particular offence contemplated in Clause fb) of Section 5 of the Act.
12. Section 22 of the Police Act lavs down that every police officer shall, for all purposes in this Act contained, be considered to be alwavs on dutv, and may at any time be employed as a police officer in any part of the general police district, Section 29 of the Police Act prescribes penalty for neglect of dutv which reads as under;
Every police officer who shall be guilty of any violation of dutv or wilful breach or neglect of any rule or regulation or lawful order made by competent authority, or who shall withdraw from the duties of his office without permission, or without having given previous notice for the period of two months, or who, being absent on leave shall fail, without reasonable cause, to report himself for dutv on the expiration of such leave, or who shall engage without authority in any employment other than his police dutv, or who shall be guilty of cowardice or who shall offer any unwarrantable personal violence to any person in his custody, shall be liable, on conviction before a Magistrate to a penalty not exceeding three months' pay or to impristnment with or without hard labour, for a period not exceeding three months, or to both." Thus the action of the respondent is a clear neelect of dutv within the meaning of Section 29 of the Police Act because he had proceeded on leave and at the most failed to report himself to duty on the expiration of such leave without reasonable cause. He may be thus liable for neglect of dutv as contemplated in Section 29 of the Police Act but is not guilty of offence under clause fb) of Section 5 read with Section 7 of the Act. If any authority on this point is needed reference may be made to the Supreme Court decision in State of Puniab v. Kharaiti Lai wherein it was held Neglect of duty as contemplated by Section 29 of the Police Act is quite different from abandoning an employment or of absentins oneself from work without reasonable cause which is the particular offence contemplated by Clause (b) of Section 5 of the East Puniab Essential Services (Maintenance) Act. Where on account of the physical infirmity or deficiency the work assigned to a constable on refresher course is cancelled and he is expected to be in Police Lines during the material time without doing any work, his absence from Police Lines during the relevant time may amount to neglect of dutv but is not svnonvmous with absence from work or abandonment of employment which has been made penal under Clause (b) of Sec, 5. Hence he is not guilty under Section 5 (b).
These observations clearly applv to this case. The respondent is not guiltv of abandonment of employment or absenting himself from work. However he is euiltv of neelect of dutv within the meaning of Section 29 of the Police Act.
13. The contention of the learned Counsel for the respondent is correct and is accepted, and I hold that no offence was committed by the respondent under Section 7 of the Act. The respondent has been rightly acquitted by the Chief Judicial Magistrate thoueh for wholly wrone reasons. The appeal filed by the State of Harvana therefore, stands dismissed.
Muni Lal Verma, J.
14. I agree.