(1.) THE respondent, Puran Chand, was prosecuted of an offence under Section 29, Police Act, on a complaint filed by Sardar Bagh Singh, District Inspector of Police, Bilaspur. The gist of the complaint was that on 12-5-1952, Puran Chand refused to perform his duties as a member Of the Hawalat guard, although instructed to do so by the Lines Officer, Sri Amir Chand. Puran Chand's statement before the Magistrate was that he had never refused to perform the duties and as such had committed no offence. The trial Magistrate found, on facts, however that Puran Chand was instructed to perform duty as a member of the Hawalat guard, but he refused to do so. In the view of the Magistrate, however, this refusal did not amount to an offence under Section 29, Police Act, because Puran Chand was a drill instructor and could not, ordinarily, be employed for guard duties and further on the day in question, there were 33 constables in spare and available for guard duties. The Magistrate, under these circumstances, expressed his opinion that it was a fit case for departmental action and not for prosecution. It is against this order that the State Government has preferred this appeal under the provisions of Section 417, Criminal P. C.
(2.) I have heard learned counsel for the parties. As far as the facts of the case are concerned, there is ample evidence on the record to show that on the day in question the respondent was asked to perform guard duties but he refused to do so on the ground that he was a drill instructor and not an ordinary constable. It now remains to be seen whether by reason of this refusal, the respondent committed any offence. Under Section 29, Police Act, every police officer, who is guilty of any violation of duty or wilful breach or neglect of any lawful order, made by a competent authority, would be guilty of an offence under that section. Exhibit P. W. 5/a--an extract from the Recruits Register--shows that the respondent was appointed as a foot-constable on 15-12-1950. This register is maintained under Rule 12. 13 of the Punjab Police Rules, which were applied to Bilaspur, vide Chief Commissioner's notification dated 28-10-1950. This is also borne out from the respondent's service and character-roll, which shows that he was appointed a foot-constable on 15-12-1950 on a salary of Rs. 30/-p. m. Rule 17. 1 of Chapter 17 of the above Rules shows that the duties of an assistant drill instructor would be performed by a constable. Reliance was placed on behalf of the respondent on Ex. D/b/1, which is a copy of a letter issued by Employment Exchange, Ambala, to the respondent directing him to report to the Superintendent of Police, Bilaspur, for interview for the post of drill instructor. Reliance was also placed on Ex. D/a, which is a letter issued from the office of the Superintendent of Police, Bilaspur, to the respondent on 4-12-1950 informing him that he had been appointed as a drill instructor in Bilaspur. It may be that in these two letters, the respondent was told that he had been appointed to the post of drill instructor at Bilaspur, but the fact remains that, although his duties were those of a drill instructor, his rank was that of a foot-constable. Page 1 of the respondent's character-roll contains an agreement signed by the respondent to the effect that he understood that he has been appointed under Section 7, Police Act and he undertook not to resign his appointment within three years from the date of his enrolment. Further, Exs. P. W. 5/b and P. W. 5/c, extracts from the file orderly room, show that the respondent had signed himself as constable No. 140. Therefore, it is a hard fact that the respondent occupied the rank of a foot-constable, although for departmental purposes he had to perform the duties of a drill instructor. The learned Government Advocate rightly pointed out that there is no separate post of drill instructor. The expression rather denotes the duties which may be assigned to any constable qualified in that regard.
(3.) ON behalf of the respondent emphasis was "laid on the fact that there were 33 spare constables on the day in question and Ved Prakash, Chief Inspector, P. T. S. , Phillaur,--who was examined on commission--had stated that in a case of emergency a drill instructor could be asked to" perform guard duties. No rule, however, was quoted by him. It may, ordinarily, be that a drill instructor may not be asked to perform guard duties but that would not justify a drill instructor refusing to perform guard duties, if asked to do so. I may further point out that when the respondent was first examined by the Magistrate, he did not contend that he was justified in refusing to perform guard duties. On the other hand, he stated that he had never refused to perform the guard duties. The respondent appears to have shifted his ground subsequently.;