The definition of "active duty" under section 2(a) of the Bombay State Reserve Police Force Act, 1951, requires a written direction from the State Government or the Inspector-General, and the prosecution must establish such a direction in order to prove that an accused was on active duty.

PRATAP J.- Order of acquittal dated 13th January 1977 passed by the learned Sessions Judge, Dhule, in Sessions Case No. 61 of 1976, in which the accused stood charged for offence under section 14 (g) (ii) of the Bombay State Reserve Police Force Act, 1951 (hereinafter the said Act), is chal1enged in this appeal against the same by the State.

2. At the relevant time (October 1973), the accused was one out of five constables under a head constable manning check post at Jawda in Shahada taluk a 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 28th October 1913, the Company Commander one Abbaskhan Path an 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 chargesheeted 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, inasmuch as he had deserted 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 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. B. 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 terms "active duty" has been defined by section 2 (a) of the said Act to mean -

"(i) the duty to prevent or investigate offences involving a breach of peace or danger to life or property and to search for and apprehend persons concerned i