( 1 ) THIS is a criminal appeal by the State against the acquittal of the respondent under sec. 145 (2) (b) (c) of the Bombay Police Act by the Judicial Magistrate First Class Dhoraji.

( 2 ) THE respondent was an unarmed Head-Constable at Dhoraji City Police Station and was suspended on 18-11-1959. The order of suspension also mentioned that his headquarters were fixed at Dhoraji during the period of his suspension that he should not leave headquarters without the permission of the District Superintendent of Police Rajkot District Rajkot and that he should report daily in the morning as well as in the evening to the Police Sub-Inspector Dhoraji City Police Station. He was also informed by the same order that he a Police Officer had not ceased to be such while under suspension and that he continued subject to the same responsibilities discipline and penalties and to the same authorities as if he had not been placed under suspension but the powers functions and privileges vested in him as a Police Officer were in abeyance for the period of suspension. On 15-1-60 the respondent was granted permission to leave the headquarters for 15 days. On the expiry of the said period he did not return to Dhoraji. He made various applications to the superior Police Authorities for permission to leave Dhoraji. On 16-2-60 he was finally informed that his application for further extension of the period during which he could leave the headquarters was rejected and that he must carry out the order. But as the respondent did not return to Dhoraji he was prosecuted for an offence punishable under sec. 145 (2) (b) (c) of the Bombay Police Act. The learned Magistrate held that although the respondent made a willful breach of the order his act did not amount to an offence under sec. 145 (2) (b) (c) of the Bombay Police Act. He observed that Chapter VI of the Bombay Police Act provides for the executive powers and duties of the police which do not include the ordinary responsibility of a Police Officer as government servant but only his powers and duties as a Public Officer. The Police Officer under suspension has no such powers and duties. He therefore acquitted the respondent and the State has now come in appeal challenging that acquittal.

( 3 ) THE facts that the respondent was an unarmed Head-Constable at Dhoraji and that he was suspended on 18-11-59 are proved by the prosecution and are not in dispute. When a Police Officer is suspended his powers functions and privileges remain suspended; but notwithstanding such suspension he does not cease to be a Police Officer and continues to be subject to the control of the same authorities to which he would have been if was not under suspension. (Vide sec. 15 of the Act ). Sub-sec. (1) of sec. 28 of the same Act reads as follows:

( 4 ) EVERY Police Officer not on leave or under suspension shall for all purposes of this Act be deemed to be always on duty and any Police Officer or any number of body of police Officers allocated for duty in one part of the State may if the State Government or the Inspector-General so directs at any time be employed on Police duty in any other part of the State for so long as the services of the same may be there required.

( 5 ) THIS section clearly shows that it is only the officers who are on duty i. e. the officers who are neither on leave nor under suspension who are deemed to be officers on duty. This would imply that an officer on leave and an officer under suspension are not on duty.

( 6 ) IN this case we are only concerned with clause (c) of sub-sec. (2) of penal sec. 145 of the Bombay Police Act under which may person who is guilty of any willful breach or neglect of any provision of law or of any rule or order which as such Police Officer it is his duty to observe or obey is liable to the punishment mentioned in that section. In this case admittedly the order passed by the District Superintendent of Police requiring the respondent during his period of susp