R.N.LAL and Indu Prabha Singh JJ.

1. This petition is considered on the reference made by. S. S. Hasan, J. (as.he then was) doubting the decision reported in 1984 BBCJ 871.Rabindra Nath Choubey and others V/s. Charai Chaman and another, decided by a Division Bench of this Court consisting of S. S. Sandhawalia, C. J. and B. P. Griyagney, J. (as they then were). Similar matter had come up before another Division Bench of this Court in Criminal Revision No. 1023 of 1980 consisting of S. S. Sandhawalia, C. J. and S. S.Hasan, J. The petition was dismissed by S. S. Sandhawalia, C. J. but S. S. Hasan, J. did not agree and held that the matter should be referred to the Honble Chief Justice to place before a larger Bench because there were several decisions of this Court taking a contrary view in the matter but it stood dismissed for default on 15-10-1987 for non-compliance of the Courts peremptory order dated 24-9-1987.

2. In the present case, S. S. Hassan, J. formulated the reference to be considered by a Full Bench that if a limited rule is issued on the question of sentence, the Court can go into the merits of the ease and acquit the petitioner, once for all. Thus, the matter has come up before this Full Bench for consideration.

3. The petitioner was a member of C. R. P. F. bearing No.700820457 Ct. of G. C. C. R. P. F. Mokamaghat who was undergoing simple imprisonment for 25 days under Section 10(d) and 10(m) of C R. P. F. Act, 1949 awarded by Shri S. S. Soni, Judicial Magistrate, Ist Class and Assistant Commandant Group Centre, Mokamaghat for leaving of lines while made to undergo punishment of confinment of lines for 15 days with effect from 19-2-1982 to 5-3-1982 and also for absenting himself without leave with effect from 1-3-1982 to 15-3-1982. The period of eighteen days of sentence of imprisonment was adjusted towards his detention in the judicial custody. The remaining sentence of seven days simple imprisonment had been served out by the petitioner.

4. Later the complaint was filed on 6-3-1982 by Sri S. D. Pandey, Dy. Superintendent of Police, Commandant (Administration) of G. C.C R. P. F. Mokamaghat against the petitioner Rama Nand Choudhary on 6-3-1982 in the Court of aforesaid Magistrate with the allegation that the petitioner was a member of Force G.C.C.R.P.F. Mokamaghat and was awarded 15 dayss confinement of lines under Section 11(3) of the C R.P. F. Act by the Commandant with effect from 19-2-1982 to 5-3-1982 with forfeiture of all pay and allowance. The petitioner while undergoing the aforesaid sentence left the lines on 1-3-1982 at 6.10 hours before he was set at liberty by the lawful authority. He absented himself from the lines with effect front 1-3-1982 and so he committed an offence under Section 10(a) and 10(m) of the C R. P. F. Act. After framing of The charge against the petitioner he was tried and was held guilty and awarded above sentence by a judgment delivered in case No. 1 of 1982 by Sri S. S.Soni, Judicial Magistrate, Ist Class and Assistant Commandant, C.R.P.F. Mokamaghat, Bihar on 22-4-1982. The petitioner went up in the appeal before the Sessions Judge, Patna and the appeal was heard and decided by learned 2nd Additional Sessions Judge, Patna in Criminal Appeal No.180/82, dated 31st July, 1984 by which Sri A. N. Jha, learned 2nd Additional Sessions Judge dismissed the appeal and maintained the conviction and sentence. The learned appellate Court in its finding stated that "the findings of facts arrived at by the Court below were not challenged. However, he pressed the appeal more or less, on humanitarian ground and mainly pressed the appeal on modification of the sentence of imprisonment but under the provision of C. R. P. F. Act the sentence of imprisonment entails dismissal from the service."

5. The petitioner came up in criminal revision bearing No. 1052/84 against the aforesaid judgment and the petition was admitted by H. L.Agrawal, J. (as he then was) on 13-2-1985 which reads as follows