Full Judgment
Falshaw, J.
1. This is an appeal by the State against the order of a Magistrate at Ludhiana acquitting Murli Dhar respondent who was prosecuted for an offence under Section 29 of the Police Act.
2. The facts of the case are quite simple and not seriously disputed. Murli Dhar was recruited in the Police as a constable in Lyallpur District in 1930, and after the partition he was appointed as a Constable in Ludhiana District. In October 1954, while he was on leave he was arrested for being in possession of illicit liquor and a case was started against him under Section 61(1)(a) of the Excise Act. As soon as this reached the knowledge of the Superintendent of Police, the latter by his order dated the 16th of October 1954, placed Murli Dhar under suspension as from the previous day and order-ed him to report to Police Lines, Ludhiana, without delay. The accused presented himself in the Police Lines on the morning of the 24th of October 1954 and remained there answering the daily roll-calls until the 19th of January 1955, when he was found to be absent at the evening roll-call at 7 P. M. after which he remained absent.
3. In due course he was prosecuted under Section 29 of the Police Act. His defence was that he had been required by his surety Kishan Singh, the clerk of an Advocate, to live in his own house, which adjoins that of the surety, so that the latter could keep him under proper surveillance. In these circumstances the learned Magistrate held that the accused was not a free agent and, largely on the strength of a decision of my Lord the Chief Justice in a Criminal Revn. No: 1246 of 1950. Sohan Lal v. The State D/- 21-12-1951 (Punjab) (A), held that no offence had been committed.
4. Although the case in itself is not very serious and relates to a matter which in my opinion could well have been dealt with depart-mentally by the Police, it raises questions of some interest and importance. Section 29 of the Police Act makes punishable the violation by any Police officer of duty or wilful breach or neglect of any rule or regulation or lawful order made by competent authority, and Rule 16. 21 (1) of the Police Rules framed under the Act provides that a Police Officer even after being suspended shall attend all the roll calls and shall be required to perform such duties and to attend such parades as the superintendent may direct him to do and during the term of suspension he shall continue subject to the same responsibilities, discipline and penalties to the same authority as if he had not been suspended.
The question which arises is therefore whether a Police Officer who is involved in some criminal case and is placed under suspension during the pendency of the case, can be lawfully ordered to remain in Police Lines, or whether he can lawfully disobey such an order and plead that he was forced to place himself at the disposal of the person who had stood surety for him in connection with his bail in a criminal case.
5. The facts in the case referred to above are that the accused was a Head Constable in [the Railway Police posted at Ambala and he became involved as an accused in a case at Patiala where he was released on bail early in February 1950. A few days after that the Assistant Inspector-General of Railway Police ordered him to remain in Police Lines until further orders. He remained there until the 5th of March when he had to come to Patiala to give evidence in some case. The next day he wrote to the Assistant Inspector-General stating that as the person who had stood surety for him in the criminal case in which he was an accused, required him to stay at Patiala, he was unable to comply with the orders directing him to remain in the Police Lines at Ambala.
Thereafter the Assistant Inspector-General issued a notice to him to present himself in the Police Lines as early as possible, and the Head Constable replied that he was unable to do so as he had to appear before the Court. About three months later the Assistant Inspector-General instituted a case against him under Section 7 of the East Punjab Essential Services (Maintenance) Act of 1947 and he was fined Rs. 250/-. Various points were raised on his behalf in his revision petition which was accepted by my Lord the Chief Justice, who took the view that the Head Constable was not guilty of any offence under the Essential Services (Maintenance) Act as he was not a free agent, his surety being entitled to require his continued stay in Patiala while the case was pending.
6. One of the points raised in that case but not fully discussed, was that the Assistant Inspector-General could not order the confinement of the Head Constable to Police Lines for the period he actually remained there which was 26 days, since as a punishment only 15 days' confinement could be ordered under Section 7 of the Police Act. From this it would appear that the order confining him to Police Lines was passed without his being suspended and to that extent that case differs from the present one. Another difference is that in this case apparently the surety, an Advocate's clerk, also lives in Ludhiana where the accused was confined in the Police Lines, whereas in the other case the surety was apparently resident of Patiala and the Head Constable was confined in the Police Lines at Ambala.
7. In the present case I must say that I am extremely doubtful about the bona fides of the defence set up by the accused and I find it impossible not to suspect that he was tired of being confined to Police Lines and that the judgment in Sohan Lal's case was seized on as an excuse for him to disobey the order of the Superintendent of Police. I can only say that if I myself had stood a surety for an accused person, I should be. quite happy if I knew that he was confined in Police Lines and had to attend roll-calls every morning and evening and I consider that this is much more likely to be a check on his movements and deterrent to his absconding than any sort of supervision which an ordinary surety could or would be entitled to exercise.
8. One case which was relied on in Sohan Lal's case was the decision of Raghubar Dayal and Wanchoo JJ. in Chotey Lal v. Emperor, 49 Cri. L. J. 1:(AIR 1948 All 72) (A), as an authority for the proposition that a person who stands surety for another has a right to control the movements of the accused. I find, however, that the proposition acutally laid down is not by any means in such sweeping terms, since while it has been held that it stands to reason that since the surety is responsible for the appearence of the other person in Court and his liability to the forfeiture of the bond will arise by the mere fact of the non-appearence of the other party, he should have some sort of control over the other person, but at the same time it was held that such control is not unlimited in extent and must be the mininum control and is to an extent up to such minimum period which is prerequisite for the surety to put himself in contact with the public authorities in order to get himself relieved of the surety bond and to enable the Court to pass such suitable orders for the person as would be necessary. I certainly do not consider that a Surety is entitled to control the movements of an accused over a protracted period.
9. In my opinion the facts of the present case give rise to the inference that the alleged request of the surety that the accused should live in his house next to that of the surety was wholly unwarranted and unjustified and that this device was adopted as an excuse for freeing the accused of the irksome restriction of being confined to Police Lines.
10. As a general proposition I should have no hesitation whatever in holding that there is nothing whatever illegal if a Superintendent of Police places a subordinate Police Officer who is accused of a criminal offence, under suspension and orders to remain in Police Lines during the pendency of the case against him, so long as the accused is given facilities for attending Court on the days when his presence is required. There is no suggestion in the present case that any hinderance was placed in the accused's way in this respect. The Police Rule quoted above makes it quite clear that during his period of suspension a Police Officer is just as much liable to discipline and just as much bound by any orders he may receive as if he were not under suspension, and in my opinion it would lead to absurd and unfortunate results if any Police officer placed in this position were to cease to be subject to Police discipline during the pendency of a case against him.
I would accordingly accept the appeal of the State and hold Murli Dhar respondent guilty of an offence under Section 29 of the Police Act. At the same time I am informed that he was long since acquitted in the Excise case against him and that he is back in ordinary service and since he appears to have been misguided by advice from his surety, I do not consider that any punishment need be imposed on him at this late date. I would accordingly discharge him with an admonishment under Section 562, Criminal Procedure Code.
Khosla, J.
11. I agree.