JUDGMENT

Chandra Prakash, J. - This is an application in revision against the order dated July 6, 1970 of Sri B.P. Agarwal, Additional Sessions Judge, Varanasi affirming the conviction and sentence of the applicant under/R. 41 (5) of the Defence of India Rules and under/Sec. 29 of the Police Act.

2. The prosecution case, in brief, was that the applicant Murtaza Ali was the Constable in the U.P. Police Force. During the emergency the services of some constables were transferred to the PAC. The applicant was also transferred to 'L' Coy. V Bn. PAC Ramnagar. He arrived at Ramnagar on September 15, 1965. From the very beginning the applicant was reluctant to join PAC and was dissuading other constables also. He used to ask his companions not to join PAC because the members of that force had to go on war duty. He used to go to PAC hospital on one pretext or the other. He also refused to sign the statement required to be filled in by the new entrants of PAC On September 20, 1965 at about 6.11 a.m. he was found absent from the Lines. He came back in the evening at about 7 p.m. and was punished by the Asstt. Commandant, He refused to parry out the punishment and on September 22, 1965 he absented himself without leave. He remained untraceable till he was finally arrested on September 23, 1965. His kits were checked and some articles like buttons etc. were found short. On these allegations he was tried under/R. 41 (5) of the Defence of India Rules and Section 29 of the Police Act besides Section 409 of the IPC.

3. The applicant denied all the allegations. The prosecution examined eight witnesses in support of its story. The applicant examined one witness in defence. After considering the entire evidence on record the trial court found the applicant guilty of all the three charge,. He was sentenced to one year's R.I. under/R. 41 (5) of the Defence of India Rules and to one month's R.I. under/Sea. 29 of the Police Act and to a fine of Rs. 100/- under/Sec. 409 of the IPC.

4. The applicant filed an appeal and the court below acquitted the applicant of the charge under/Sec. 409 of the IPC while the conviction and sentences on the other two counts were affirmed. Feeling aggrieved, the applicant has come up in revision before this Court.

5. I have heard the learned counsel for the applicant and the learned counsel for the state and after going through the record and giving the matter my anxious consideration 1 have come to the conclusion that this application in revision must fail.

6. From the testimony of the Coy, Commandar Sri Gauri Shanker Singh (P.W. 1) it is quite clear that the applicant used to dissuade the cunstables from joining the PAC on the ground that they will have to go to the war front. His testimony on this point remained uncross-examined. His testimony was further corroborated by Lakshman Singh (PW 3) and Ram Sutar Singh (P.W. 4) who are independent witnesses having no motive to involve the applicant in false case. It was, therefore, established that the applicant tried to dissuade his companions from joining the PAC.

7. It was contended on behalf of the applicant that his asking the people not to join the PAC did not amount to any prejudicial act contemplated under the Defence of India Rules. Prejudicial act has been defined under/R. 35, sub-R. (6) (d) of the DIR as follows:

"R. 35 (6) :-"Prejudicial act" means any act which is intended or is likely

(d) to prejudice the recruiting of, or the attendance of persons or service in, any of the Armed forces of the Union or the Civil Defence Service or any police force or fire brigade or any other body of persons entered, enrolled, or engaged as public servants."

Under/Sec. 5 of the U.P. Pradeshik Armed Constabulary Act, 1948 every member of the PAC shall be deemed to be a police officer. It reads as follows :

Section 5. "........Every member of the Pradeshik Armed Constabulary shall upon his appointment and as long as he continues to be a member thereof, be deemed to be a police office