Back
IN THE HIGH COURT OF BOMBAY
S.C. Pratap N.K. Parekh, JJ.
State of Maharashtra.... Appellant.
Versus
Nanaji Kalu Jadhav.... Respondent.
Criminal Appeal No. 342 of 1977, decided on 9-3-1981.
Advocates appeared :
B.Y. Deshmukh, P.P., for appellant.
S.R. Chitnis, for respondent.
BOMBAY STATE RESERVE POLICE FORCE ACT, 1951 - SECTION 14(G)(II) - DEFINITION OF ACTIVE DUTY - DESERTION OF DUTY - SANCTION FOR PROSECUTION - RULES FRAMED UNDER SECTION 21 - RULE 47(2) - COMPLAINT BEFORE SANCTION - LEGALITY OF PROSECUTION - BOMBAY STATE RESERVE POLICE FORCE ACT, 1951 - SECTION 14(G)(II) - DEFINITION OF ACTIVE DUTY - DESERTION OF DUTY - SANCTION FOR PROSECUTION - RULES FRAMED UNDER SECTION 21 - RULE 47(2) - COMPLAINT BEFORE SANCTION - LEGALITY OF PROSECUTION - BOMBAY STATE RESERVE POLICE FORCE ACT, 1951 - SECTION 14(G)(II) - DEFINITION OF ACTIVE DUTY - DESERTION OF DUTY - SANCTION FOR PROSECUTION - RULES FRAMED UNDER SECTION 21 - RULE 47(2) - COMPLAINT BEFORE SANCTION - LEGALITY OF PROSECUTION - SUMMARY: The accused, a constable in the Bombay State Reserve Police Force, was charged with desertion of duty under section 14(g)(ii) of the Bombay State Reserve Police Force Act, 1951. The accused had left his post to visit his son who had suffered an accident. The Sessions Court acquitted the accused, holding that the prosecution had failed to prove that the accused was on active duty at the relevant time or that he had deserted his duty without leave or proper authority. The State appealed against the acquittal. The High Court dismissed the appeal, holding that: (i) the prosecution had failed to establish that the accused was on active duty at the relevant time, as defined by section 2(a) of the Act; (ii) the prosecution had also failed to establish that the accused's duty was deemed to be active duty under sub-clause (iii) of section 2(a), as there was no evidence of any written or oral direction to that effect; (iii) the complaint against the accused was filed before the sanction for prosecution was obtained, which was a clear illegality vitiating the prosecution; and (iv) the commandant had not considered whether the accused should be prosecuted or dealt with departmentally, as required by sub-rule (1) of Rule 47 of the Rules framed under section 21 of the Act.
Fact of the Case:
The accused, a constable in the Bombay State Reserve Police Force, was charged with desertion of duty under section 14(g)(ii) of the Bombay State Reserve Police Force Act, 1951. The accused had left his post to visit his son who had suffered an accident. The Sessions Court acquitted the accused, holding that the prosecution had failed to prove that the accused was on active duty at the relevant time or that he had deserted his duty without leave or proper authority.
Finding of the Court:
The High Court dismissed the appeal, holding that: (i) the prosecution had failed to establish that the accused was on active duty at the relevant time, as defined by section 2(a) of the Act; (ii) the prosecution had also failed to establish that the accused's duty was deemed to be active duty under sub-clause (iii) of section 2(a), as there was no evidence of any written or oral direction to that effect; (iii) the complaint against the accused was filed before the sanction for prosecution was obtained, which was a clear illegality vitiating the prosecution; and (iv) the commandant had not considered whether the accused should be prosecuted or dealt with departmentally, as required by sub-rule (1) of Rule 47 of the Rules framed under section 21 of the Act.
Issues: 1. Whether the accused was on active duty at the relevant time, as defined by section 2(a) of the Bombay State Reserve Police Force Act, 1951? 2. Whether the accused's duty was deemed to be active duty under sub-clause (iii) of section 2(a) of the Act? 3. Whether the complaint against the accused was filed before the sanction for prosecution was obtained? 4. Whether the commandant had considered whether the accused should be prosecuted or dealt with departmentally, as required by sub-rule (1) of Rule 47 of the Rules framed under section 21 of the Act?
Ratio Decidendi: 1. The definition of "active duty" in section 2(a) of the Act does not include the duty to visit a sick child. 2. There was no evidence of any written or oral direction from the commandant that the accused's duty was deemed to be active duty under sub-clause (iii) of section 2(a). 3. The complaint against the accused was filed before the sanction for prosecution was obtained, which is a clear illegality vitiating the prosecution. 4. The commandant had not considered whether the accused should be prosecuted or dealt with departmentally, as required by sub-rule (1) of Rule 47 of the Rules framed under section 21 of the Act.
Final Decision: The High Court dismissed the appeal against the acquittal of the accused.
2. At the relevant time (October 1973), the accused was one out of five constables under a Head Constable manning a check post at Jawda in Shahada taluka of Dhule District with a view to curb illegal export activities relating to cotton and foodgrains outside the State of Maharashtra. The Head Constable at the said time in charge of the aforesaid check post was one Sarode. This party was on duty from 14th October, 1973. On 25th October, 1973, the accused received information that his son, a one year old boy, suffered an accident by falling down from a staircase and injuring himself. On receiving this information, the accused requested Head Constable Sarode for permission to go and visit his son. The accused thereafter went. Some time thereafter, in the evening of 25th October, 1973, the Company Commander one Abbaskhan Pathan reached the aforesaid Jawda check post. The accused was found absent. The Commander was at the said check post till the morning of the next day 26th October, 1973. The accused had, however, not returned till that time. The commander made a report exhibit 6 in that behalf. Later on, Commander Abbaskhan lodged on 9th January, 1974 a complaint exhibit 9 (vide Crime No. 7 of 1974) against the accused under section 14(g) of the said Act. After completion of investigation and after obtaining sanction, the accused was charge sheeted before the Court of the Judicial Magistrate, First Class, Shahada, on 21st February, 1974 and he was, in due course, committed to stand his trial before the Court of Session.
3. Case against the accused was that he was guilty of offence punishable under section 14(g)(ii) of the said Act, in as much as he had desorted his duty and post at the relevant time. The accused pleaded not guilty. He submitted that he had in fact taken permission of Head Constable Sarode in charge of the Jawda check post and realising the gravity of the situation, Sarode had granted him permission to leave his post with instructions to return immediately. The accused also submitted that he had later on also contacted his own commandant and had explained to him the circumstances and the situation in which he had to leave. The commandant had then issued oral directions to be communicated to the Company Commander Abbaskhan to permit the accused to resume his duties. The accused submitted that he was falsely charged. It is also the submission of the accused that the prosecution was, even otherwise, bad in law. The accused claimed to be acquitted.
4. The learned Sessions Judge, considering the evidence and circumstances, came to the conclusion that the prosecution had failed to prove that the accused was on "active duty" on the relevant date 25th October, 1973. It was further held that the prosecution also failed to prove that on the said date 25th October, 1973, the accused deserted the check post at Jawda and his duty without leave or without proper authority. The accused was consequently acquitted.
5. In this appeal against the said acquittal, we have heard Mr. D.Y. Deshmukh, the learned Public Prosecutor for the State and Mr. S.R. Chitnis, the learned Counsel for the accused. Hearing the rival submissions of the respective Advocates, we are of the view that this appeal must fail on more than one ground.
6. In the first place, the prosecution has failed to establish and prove that the accused was on active duty at the relevant time. Now, the term "active duty was has been defined by section 2(a) of said Act to mean---
"(i) the duty to prevent or investigate offence involving a breach of peace or danger to life or property and to search for and apprehend perso
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
