Decided on January 11,1945

Sayed Ishaq Ali Respondents


Ormond, J. - (1.) THIS is an appeal on behalf of the Grown against an acquittal. In this case the accused was convicted by the trial Magistrate) and sentenced to a fine of rs. Co in default to suffer two weeks' rigorous imprisonment. He was thereafter acquitted by the Sessions Judge. It is from that acquittal by the Sessions Judge that the Grown now appeal. The accused is a. constable of the Calcutta Police. He was charged with "willful breach of orders of the Deputy Commissioner of Police, South, being a police -officer, to wit a constable of Alipore Thana, by refusing to go to the Police Training School when under suspension, vide D. 0. No. 1676 dated 16tb October 1943, on 4th November 1948, at about 11 A, m. which it was his duty as such police officer to obey." The charge was under Section SB,. Calcutta Suburban Police Act, (Act (n [a] of 1866).
(2.) THE matter came before Mr. B. L, Roy,., Magistrate, 1st class, Alipore, on 8th November 1943. There were, for the size of the case, somewhat protracted proceedings before judgment was delivered on 16th May 1944, convicting the accused and sentencing him to pay a fine of Rs. 60 is default to suffer rigorous imprisonment for two -weeks. In those proceedings, three prosecution witnesses and four defence witnesses were examined. In his statement made to the Magistrate on 28th January 1944, when he is asked why ha did not go to the Police Training School in spite of orders, his answer merely is "I have not committed any offence": and when be is asked "will you say anything else" he merely repeats "I have committed no offence," In his statement made to the Magistrate on 24th February 1944, he says "The Deputy Commissioner Saheb did not give me order to go to the Police Training: School. I have not committed any offence." It was no doubt, as seems to appear from the order sheet, because of this defence of a denial of the order having been given that there were various adjournments of the matter, since the defence was insisting on calling the evidence of the Deputy Commissioner of Police. Oni5th April 1944, the Deputy Commissioner of Police did appear as -required by the defence for the purpose of giving evidence; but the defence refused to examine him as a defence witness and he was discharged. In view of those facts and of the clear evidence of p. w. 8, Z, Easul, Officer -in -barge of the Alipore Police Station who deposes that on 4th November 1943, he himself passed on the order of the Deputy Commissioner and personally directed the ac used to go: to the Police Training School but the accused did not go, there can be no force in our view in any defence denying that the order was given. On 4th November 1948, at the time when this order was given it would appear that the accused was under suspension, he having been suspended as a result of a criminal case under s, 411, Penal Code, lodged against him. The case made on behalf of the accused by his own witnesses, so far as they may be treated as substantiating any case for the defence, relate only to the question of whether an accused on bail in a criminal case should be in the Police Training School; and these witnesses give evidence of their own suggested grievances only because they say that in their own case they have not been allowed to leave out from the Police Training School as often as they have wished in order to attend to "their cases. From the foregoing, it will be seen that the defence which is now sought to be raised before us and was raised before the Sessions Judge has never been raised by the accused him - -self until the stage of arguments in the trying Court.
(3.) THE defence now raised, as I understand it, is to this effect. It is argued for the defence that when a constable is suspended, be ceases to be responsible to perform all "duties" of his office. That in this category of "duties" of his office is included all responsibility to obey the orders of a polios officer. The, learned advocate for the accused seeks to rely on Section 4A(l), Calcutta Suburban Police Act which contains particulars of the matters described there as the " duty of a police officer," and Section 4A(l)(a) in particular which says that "it shall be the duty of ejery police officer promptly to obey every order lawfully issued to him by competent authority". The learned advocate for the defence turns to Section 8 of the same Act referring to the certificate given to a police officer on enrolment, where it is stated that such certificate shall cease to have effect whenever the person named in it is suspended. The learned advocate for the accused in dealing with Section 4(2) further con -tends that the words there " during the term of such suspension -the 'duties' conferred upon him as a police officer shall be in abeyance" have relieved the accused in this case from his obligation to obey the order of his superior officer is report to the Police Training School. We find ourselves unable to accede to this contention.;

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