Judgment Ramabhadran, J [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. 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. [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. [4] It was further urged on behalf of the respondent that he was not examined by the Magistrate under Section 342, Criminal P. C., and, therefore, he has been prejudiced. A perusal of the record would show that the prosecution evidence was concluded on 3-6-1952, when the case was adjourned for recording statements of the defence witnesses. The learned trial Magistrate overlooked the provisions of Section 342, Criminal P. C., but I am not satisfied that the respondent was prejudiced on this account. The respondent was represented by a counsel at the trial. He was obviously aware what the case against him was. Defence was adduced. Learned counsel for the respondent urged that in case his client had been examined under Section 342, Criminal P. C., he would have stated that, due to enmity, he had been implicated by the prosecution witnesses. It is significant, in this connection, that when the prosecution witnesses were being examined, no questions were put to them suggesting that they bore enmity towards the respondent. It is significant, in this connection, that when the prosecution witnesses were being examined, no questions were put to them suggesting that they bore enmity towards the respondent. In Bejoy Chand v. State of West Bengal, 1952 AIR(SC) 105, their Lordships of the Supreme Court observed that: "It is not sufficient for the accused merely to show that he has not been fully examined as required by Section 342, but he must also show that such examination has materially prejudiced him." In an Allahabad ruling, Deb Ram v. State , 1952 AIR(All) 33, it was held that: "Under Section 342, the accused should be asked to explain, if he wishes to do so, salient points appearing in the evidence against him. A failure to comply with the provisions of Section 342 does not vitiate the trial altogether but is a defect curable under Section 537, Criminal P. C., if the accused has not been prejudiced by such omission." In--'Ajmer Singh v. State of Punjab' AIR 1953 SC 76 their Lordships of the Supreme Court pointed out that : "Every error or omission not in compliance with the provisions of Section 342 does not necessarily vitiate a trial. Errors of this type fall within the category of curable irregularities, and the question whether the trial is vitiated depends upon the degree of the error and upon whether prejudice has been or is likely to have been caused to the accused." In Orissa ruling "Trilochan Misra v. The State' a Division Bench of that High Court observed that: "The non-compliance of the provisions of Section 342 is a mere irregularity which will not suffice for setting aside the conviction unless it can be shown that the accused have been materially prejudiced by the inadequate examination." A similar view was taken by the Pepsu High Court in--'Sarwan Singh v. State' AIR 1953 Pep 186 where their Lordships observed that: "The object behind Section 342, Criminal P. C., is that the accused should be told by the Court as to what has been alleged and stated against him in the prosecution evidence and he should be asked to explain, if he can, the circumstances appearing in that evidence. Where this requirement is not complied with rigidly but the omission is not accompanied by any prejudice to the accused, the failure to scrupulously conform to the provisions of Section 342, Criminal P. C., does not vitiate the trial. It would be the facts of each case that would decide whether any prejudice has been caused to the accused and whether the defect is so grave that it must constitute a gross and incurably irregularity necessitating a fresh trial." [5] I have already given my reasons for holding that the respondent has not been prejudiced due to the failure of the trial Magistrate to examine him under Section 342, Criminal P. C. Therefore, the question of ordering a retrial does not arise. [6] After arguments in this case had been completed, an application was put in by the respondent to the effect that he had submitted his resignation to the Superintendent of Police on more than one occasion but he was not relieved. It was, therefore, suggested that the case had been concocted against him so that he could be given a bad name and turned out of the service. The learned Government Advocate rightly pointed out that under his agreement the respondent could not tender his resignation within three years of his enrolment. Therefore, this argument is with out substance. As regards the argument which found favour with the trial Magistrate, namely, that there were 33 spare constables and no case was made out for the respondent (a drill instructor) to be engaged on guard duty, I may point out that the allotment of duties is necessarily a matter within the discretion of the higher authorities. It was not for the respondent, who occupied the rank of a foot-constable, to suggest that others and not he, should be put on guard duty. The proper course for the respondent would have been to perform the duty allotted to him and in case he felt aggrieved, he could have made a representation to the higher authorities. There was no justification for the respondent to refuse to per form the duties allotted to him. I would, there fore, reverse the finding of the trial Magistrate and hold the respondent guilty of an offence under Section 29, Police Act.. [7] There remains the question of sentence. The accused appeared in the Magistrate's Court, for the first time, on 29-5-1952. I would, there fore, reverse the finding of the trial Magistrate and hold the respondent guilty of an offence under Section 29, Police Act.. [7] There remains the question of sentence. The accused appeared in the Magistrate's Court, for the first time, on 29-5-1952. There were as many as 30 hearings and the judgment was eventually delivered on 29-10-1952. The respondent has been discharged from police service and now is employed under the District Board in Rohtak district. In case the respondent is sent to prison, he runs the risk of losing his present job. I find from the respondent's character-roll that he was granted a commendation certificate for good work done in connection with the recruiting fair held at Bilaspur on 29-8-1951. Considering all the circumstances, I am of the opinion that the ends of justice would be met by sentencing the respondent to imprisonment till the rising of the Court and inflicting a penalty equivalent to one month's pay (Rs. 31). ORDER [8] I allow the appeal, set aside the order of the Court below, convict the respondent, Puran Chand, of an offence under Section 29, Police Act, and sentence him to imprisonment till the rising of the Court. Further, a penalty of Rs. 31/-representing one month's pay is inflicted upon him. This will be recovered by withholding the amount from arrears of pay and allowances if any due to the respondent from the Police Department. In case no arrears of pay and allowances are due to the respondent, the penalty will not otherwise be realized. Appeal allowed.