Judgment

VAIDIALINGAM, J.:- In this is appeal by special leave, the appellant accused challenges the judgment and order dated February 8, 1968 of the Punjab and Haryana High Court in Criminal Revision No. 237 of 1967, confirming the conviction and sentence passed against him for an offence under S. 29 of the Police Act, l86l (hereinafter to be referred as the Act).

2. The appellant was at the relevant period a constable having roll number 857. He was originally recruited in 1950 to the police service in the composite Punjab State; and on the formation of the State of Haryana, he was allotted to Haryana. The appellant was posted to do duty at the police lines, Karnal, before November 25, 1963. It was reported by the Lines Officer on November 25, 1963 that when roll-call was taken on the evening of that day at about 6.30 p.m., the appellant was found absent. The report also refers to the absence of certain other police officers, with whom we are not concerned. The judicial magistrate, Karnal, issued what is stated to be a notice dated January l0, l966 to the appellant, alleging that he was found absent from duty from the police lines at the time of roll-call on November 25, 1963. He was asked to explain why he should not be held guilty under S. 29 of the Act. The appellant stated that he would neither plead guilty nor would he admit that he remained absent from duty. He lies further stated that he was mentally upset in view of the sudden deaths of his mother and brother-in-law and also due to his children being cut off from him. He wound up his answer by saying that he was under medical treatment in the civil hospital, Karnal, and the doctor therein sent him to Patiala.

3. He was tried for an offence under S. 29 of the Act on the ground that he was absent from duty on November 25, 1963. The judicial magistrate, by his order dated March 4, 1966, found the appellant guilty of the offence and sentenced him to pay a fine of Rs. 5 and in default to undergo simple imprisonment for seven days. The learned magistrate considered the plea of the accused regarding his having undergone treatment in the civil hospital, as also the evidence of the doctor who has spoken to this fact, and held that the case of the accused requires a very sympathetic consideration. But nevertheless the magistrate found that as the appellant was technically guilty of the offence under S. 29 of the Act, with which he was charged, he has to be punished. Accordingly, he convicted him and imposed the fine, as stated above. The appellant challenged his conviction and sentence before the learned Sessions Judge as well as the High Court, but was unsuccessful.

4. Though several contentions regarding the legality of the conviction have been taken by Mr. Lakshminarasu, learned counsel nominated to represent the appellant by the Legal Aid Society of the SC Bar Association, in the view that we take regarding the prosecution being barred by limitation under S. 42 of the Act, it becomes unnecessary to refer to those contentions and deal with them.

5. We have already referred to the fact that the allegations against the appellant related to his absence from duty on November 25, 1963, stated to be an offence under S. 29 of the Act. The notice issued by the judicial magistrate was on January 10, 1966. The contention that is taken by Mr. Lakshminarasu based on S. 42 of the Act is that the prosecution against the appellant has been commenced beyond the period of three months, as provided in S. 42 of the Act, and therefore, the trial and other proceedings leading upto the conviction of the appellant are illegal and void. The counsel pointed out that the act complained of was the appellant s absence from duty at the time of the roll-call on November 25, 1963. The earliest step taken in this case for prosecuting the appellant was on January 10, 1966 when the judicial magistrate issued the notice to the appellant calling upon him to explain why he should not be held guilty under S. 29 of th