JUDGMENT V.S. Kotwal, J.-An armed police constable in the police constabulary in service since 1950 had to land himself not only in facing a prosecution hut also in suffering a conviction and on account of order of transfer which he did not comply. The respondent herein has been in service from 1950. Prior to April 28, 1977 he was in armory cell of Raigad district at Alibag, and thus was working as armed police constable in that cell. On April 28, 1971 he was transferred from Alibag to Mahad Police station not as armed police constable but as regular police head constable, and he was asked to report to Mahad Town Police Station on 7th June 1977. The respondent failed and did not report. He was issued notice to join his duties at Mahad by 25th August 1977. Then also he did not report. Therefore, on 3rd January 1980 a complaint came to be filed against the respondent under section 145 of the Bombay Police Act for having committed breach under section 29 of the said Act for withholding himself from the duty, This is the subject matter of Criminal Case No. 10 of 1980 before the learned Judicial Magistrate, First Class, Mahad. 2. According to the respondent as disclosed in his report, he had not withheld from the duty since he felt and was convinced that the impugned order was not sustainable in law as according to him he has been absorbed and has been working as an armed police constable for years together and his transfer to a place where there has been no armed constabulary was not permissible. In any event~ alternatively atleast he felt that that would amount to demotion and he therefore, as soon as he received the order of transfer, brought this to the notice of the higher-ups and made representation to different forums though his representations were not decided one way or the other and he was hoping to get a favorable decision therein and it is on that count alone that he did not join the duties. 3. The learned trial Magistrate convicted the respondent under section 29 read with section 145(2) (b) of the Bombay Police Act and sentenced him to pay a fine of Rs. 501- in default to suffer simple imprisonment for one day." 4. 3. The learned trial Magistrate convicted the respondent under section 29 read with section 145(2) (b) of the Bombay Police Act and sentenced him to pay a fine of Rs. 501- in default to suffer simple imprisonment for one day." 4. Criminal Revision No. 77 of 1981 was directed against that order to the Session Court, Alibag. The learned Sessions Judge felt that this alleged lapse on the part of the accused does not amount to "withdrawal from duty" and, therefore, it did not attract the provisions of section 29 of the Act and consequently the revision was allowed and order of conviction and sentence was set aside. The State has preferred this revision against that order which was recorded on 23rd June 1983 by the learned Sessions Judge. 5. Shri, Gangakhedkar, the learned Public Prosecutor, mainly contends that it is immaterial and irrelevant to find out motive of the accused and the bare fact that the accused did not report to Mahad Police Station ipso facto formulates an offence under section 29 of the Bombay Police Act and it was not open for him to say that he was waiting for the decision in his representation. Shri J.A. Bardey, the learned counsel appearing for the respondent accused, while countering these contentions submitted that the defence propagated by the accused squarely takes him out of the clutches of section 29. According to him, the order which is not sustainable in law or under Rules and Regulations, if not complied with, does not amount to withdrawal from duty. According to him, even if the order is unreasonable then that by itself is enough 'for not being complied with and it is not required that such an order should be outright illegal. 6. The facts are apparent and not disputed. The respondent was working all along in armed constabulary cell and was posted, as Armed Head Constable at Alibagh prior to 28.4.1977. On that day he was transferred to Mahad not as armed constable but was attached to Mahad Town Police Station in regular constabulary force as there was no armed constabulary cell at Mabad. He did not report though reminders were sent to him and ultimately a complaint was filed. It is an accepted position that the respondent was all along acting in the armed constabulary cell which was not available at Mahad. . He did not report though reminders were sent to him and ultimately a complaint was filed. It is an accepted position that the respondent was all along acting in the armed constabulary cell which was not available at Mahad. . It is further accepted position that in between the respondent had made representations to higher authorities to post him at any place where be could be absorbed and continued as armed Head Constable and that it is not as if that he was reluctant to go to Mahad but was willing to go anywhere provided be was allowed to continue as Armed Head Constable. These facts are accepted. 7. In the second category, the respondent felt that such a transfer to regular constabulary amounts to demotion as there is also difference in pay and nature of work. Right or wrong he carried that impression and promptly after receipt of the transfer order he made representation and he continued to be in representation thereafter also, to the higher-ups. This aspect of his having made representations is undisputed. It is further accepted that his representations were never turned down and all along were pending even when the complaint was filed and he was never informed by the authority that be should first join and thereafter his representation would be considered. It is under these peculiar facts and circumstances that the concept of terminology used in section 29 of the Act is to be assessed. No doubt a reading on the surface of the said provision may ostensibly indicate that it has no qualification but "bare withdrawal from- the duty except with the written permission of the Commissioner or the concerned official", amounts to an offence as punisable under Section 145 of the Act, which also contemplates apparently bare minimum of withdrawal from duties in contravention of section 29. Prosecution is launched only on the basis of this clause and not the other clause in section 29 and sec. 145. The learned Sessions Judge, therefore, against the backdrop of these features cannot be said to be unjustified when he arrived at the conclusion that it does not amount to withdrawal from duty. The learned Judge observed as : - "Absenting one from duty amounts withdrawal from duty but the expression “withdrawal from duty” imports international refusal or cessation to perform one’s duty. The learned Judge observed as : - "Absenting one from duty amounts withdrawal from duty but the expression “withdrawal from duty” imports international refusal or cessation to perform one’s duty. Therefore, mere absence from duty by police officer is not sufficient to attract the provisions of section 29 r.w. section 145(2) of the Act. the Act. 8. It does appear that there is a difference in grade and difference of pay to the tune of Rs. 200/- and which is not controverted by the prosecution, which generated a feeling in his mind that he has been demoted and, therefore, the learned Judge observed that the accused remained absent in the hope that his representation would be considered for cancelling his order of transfer 'and, therefore, it does not amount to withdrawal from duty. As stated his representation was still alive and he was never asked even inferentially to first join his duty and whereafter only his representation would be considered. 9. Having regard to the legislative intent and the scheme of the Act as a whole, the concept of withdrawal therefore, as specified does not fit in with the facts of the instant case. The learned Judge, therefore, was justified in observing that merely remaining absent is not withdrawal from the duty and legislative intent is manifested by deliberate employment of the term "withdrawal from duty" and not merely "absence from duty". There is some motive or dement of intention with a deliberate and calculated act of not merely remaining absent and further the act must tantamount that accused must absent from duty. In the instant Case both these thing$ are missing. 10. Shri J.A. Bardey, the learned counsel for the respondent placed reliance on two decisions in support of his proposition that if the order is not only illegal and against the Rules and Regulations but also unreasonable then its non-compliance does not attract the provisions of section 29 and 145 of the Bombay Police Act. Thus for instance in State v. Mamad1 the District Superintendent of Police directed- the accused not to leave the head-quarters during the period of suspension without permission. He was granted permission to leave the head quarters for 15 days and his application 'for extension was rejected even then he did Dot return to head-quarters and, therefore, was prosecution on this very count. He was granted permission to leave the head quarters for 15 days and his application 'for extension was rejected even then he did Dot return to head-quarters and, therefore, was prosecution on this very count. It was thus held that the impugned order was not only outside the scope of Chapter VI of the Bombay Police Act but it was also unreasonable and, therefore, non-compliance of the said order did not entail into the penal consequences No doubt reference therein was made to the other part of section 145 and not necessarily the terminology that the accused had withdrawn from duty. In that sense a distinction can be made. However, the general principle cannot be said to be irrelevant. This ratio, therefore-, has only a limited relevance. However, in Ram Gopal Adhicary v. The Emperor2 there it was held that an order of the higher police- officer asking the accused not to leave the head quarters beyond the particular period and thereby continuing himself to that place was an illegal order in getting a mandate under the law and Act and, therefore, its disobedience by accused would not amount to an offence under section 29. Jt is apparent even from this ratio that this is not a ratio to suggest that the order is merely unreasonable which can be disobeyed without entailing into penal consequences. It cannot be said that in the instant case order of transfer was illegal outright. Consequently. both these ratios could not be applicable to the facts of the instant case. 11. Nonetheless the fact remains that the representation was in existence and it cannot be said that it was a frivolous representation just to prolong the. matter and the accused had expressed that he was willing to go anywhere provided he is .sent as armed head constable. Under the circumstances, waiting the outcome of the representation and intimating the officer without making secrecy thereof Would not amount to "withdrawal from duty". 12. It is on this short premise that the prosecution is difficult to be sustained. In addition, it cannot be overlooked that it is an appeal against acquittal and though fresh assessment is permissible it cannot be said that the' learned Sessions Judge was wrong or thoroughly unjustified in recording the said finding. Consequently, there is no reason to interfere with the impugned order of acquittal. 13. The appeal dismissed. In addition, it cannot be overlooked that it is an appeal against acquittal and though fresh assessment is permissible it cannot be said that the' learned Sessions Judge was wrong or thoroughly unjustified in recording the said finding. Consequently, there is no reason to interfere with the impugned order of acquittal. 13. The appeal dismissed. The order of acquittal recorded in favour of the respondent-accused is confirmed. Acquittal upheld -------------------------------------------------------------------------------- 1. 2 Guj. L.R. 643. 2. 35 C.W.N. 547.