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1986 DIGILAW 352 (CAL)

STATE v. OMPRAKASH

1986-08-20

GOBINDA CHANDRA CHATTERJEE, SUKUMAR CHAKRAVARTY

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SUKUMAR CHAKRAVARTY, J. ( 1 ) THIS appeal at the instance of the State is directed against the order of acquittal of the accused respondent Omprakash passed by Sri N. K. Batabyal, learned Additional Sessions Judge, 10th Court, Alipore in Criminal Appeal No. 1 of 1978. ( 2 ) THE aforesaid Criminal Appeal arose out of the conviction and sentence of the accused Omprakash by Sri M. S. Yadav, learned Judicial Magistrate, Second Class, who happened to be an Assistant Commandant of 58 BN C. R. P. F. , Calcutta in Case No. 1 of 1977 under section 10 (p) of the Central Reserve Police Force Act, 1949 (hereinafter referred to as the Act ). ( 3 ) THE facts, in brief, leading to the institution of the aforesaid case are as follows: A complaint was filed before the court of Sri M. S. Yadav, Judicial Magistrate, Second Class, S8 BN CRPF, Calcutta, under section 10 (p) of the Act by Sri R. C. Pun, Ole, Head Quarters Coy. S8 BN on 8. 10. 77 against Head Constable Omprakash No. 580050234 of, A Coy. 58 BN CRPF. It was alleged that the said Head Constable befog involved in a criminal case was placed under suspension and was ordered to stay at Group Centre CRPF Nagpur pending trial. The said Head Constable applied for permission to leave his campus for thirty days to visit his home town for the purpose of seeing the ailing members of his family. The leave for twenty days was allowed and the permission was conveyed to him by Signal dated 12. 9. 77 but the Head Constable concerned left the Group Centre Camp on 11. 9. 77 without waiting for the permission from the competent authority. Accordingly, Omprakash, the Head Constable was put to trial for an offence under section 10 (p) of the Act and Sri M. S. Yadav, learned Judicial Magistrate, Second Class. 58 BN CRPF found him guilty and convicted and sentenced him to imprisonment till the rising of the Court on 3rd December, 1977. ( 4 ) THE accused being aggrieved preferred an appeal and the learned Additional Sessions Judge concerned acquitted the accused on the ground that the trial had been vitiated although he found on merit that the said Head Constable left the Camp without permission from the competent authority and thereby committed the desertion. ( 4 ) THE accused being aggrieved preferred an appeal and the learned Additional Sessions Judge concerned acquitted the accused on the ground that the trial had been vitiated although he found on merit that the said Head Constable left the Camp without permission from the competent authority and thereby committed the desertion. ( 5 ) THE State being aggrieved by the said judgment of acquittal has preferred this appeal. Mr. Mondal appearing for the State submits that the finding of the learned Additional Sessions Judge to the effect that the trial has been vitiated because of the non-compliance of the provisions of Rule 36d of the Central Reserve Police Force Rules, 1955 is not at all sustainable as the said Rules was deleted by the Central Reserve Police Force (Second Amendment) Rules, 1976 which came into force on and from April 17, 1976, the date of publication of the said Rules in the Official Gazette. Mr. Mondal further submits that in view of the finding already arrived at by the learned Additional Sessions Judge as to the desertion by the accused, the accused deserves the conviction and sentence according to Jaw and the conviction and sentence as imposed by the learned trial Magistrate should be upheld. Mr. D Roze appearing for the respondent Omprakash has accepted the submission of Mr. Mondal with regard to the deletion of Rule 36d in view of the coming into force of the Central Reserve Police Force (Second Amendment) Rules, 1976. Mr. D Roze, however, placing reliance on the decision reported in Birendra Kumar v. Chief of the Army Staff with regard to the meaning of desertiont, has submitted that the Head Constable Omprakash in this particular case did not desert the company as his conduct has proved the same and that he only committed the offence of absence without leave and not the offence of any desertion. ( 6 ) WE have given due consideration to the submissions of the learned Advocates on both sides with reference to the decision in A. I. R. 1936 S. C. 1060. There is no dispute to the fact that this Head Constable Omprakash made three applications successively for leave on 12. 8. 1977, 6. 9. 1977 and 8. 9. 1977 respectively for permission to visit his home town on the ground of the illness of his wife and children. There is no dispute to the fact that this Head Constable Omprakash made three applications successively for leave on 12. 8. 1977, 6. 9. 1977 and 8. 9. 1977 respectively for permission to visit his home town on the ground of the illness of his wife and children. There is no dispute to this fact also that this Head Constable Omprakash left the Camp on 11/9/1977 without obtaining any permission to leave the Camp from the competent authority. Omprakash appears to be sufficiently: experienced being the Head Constable in the Central Reserve Police Force. It is expected that he would abide by the Rules and Regulations under the Central Reserve Police Force Act. Whatever may be the urgency a Constable, not to Peak of the Head Constable, cannot be allowed to leave the Camp without the permission of the competent authority at the risk of the break of the discipline which is the most essential thing to he cautiously observed by each and every personnel in the Police Force. Omprakash bas no doubt violated the discipline and has absented himself without any leave and permission for the period in question. ( 7 ) NOW the question comes whether that absence can be considered to be the desertion. The learned Additional Sessions Judge after f consultation with the Oxford Dictionary about, the meaning of desertion has arrived at the finding that this temporary absence without leave also will tantamount to desertion. Keeping in our view the decision reported in A. I. R. 1986 S. C. 1060 about the meaning and connotation of the word desertion although in a case under the Army Act, we accept the guideline as enunciated by the Supreme Court that in a case of desertion the animus deserendi should be the main consideration. In the instant case even the learned Advocate for the State submits that the accused voluntarily returned to the Camp although after a period of 32 days. From the facts already discussed above and from the conduct of the accused concerned we are of the view that the absence of Omprakash without the leave and permission of the competent authority, as in this case, was not a desertion because of the absence of the animus deserendi. Such being the position we are of the view that the accused Omprakash cannot be held liable for desertion but he is certainly liable for absence without leave. Such being the position we are of the view that the accused Omprakash cannot be held liable for desertion but he is certainly liable for absence without leave. Section 10 (m) of the Act provides that every member of the force who absents himself without leave shall be punishable with imprisonment for a term which may extend to one year or with fine which may extend to three months pay or with both. ( 8 ) NOW the question poses before us for consideration whether the accused Omprakash who was tried for the offence under section 10 (p) of the Act for desertion in view of the provisions of section 9 (f) of the said Act can be convicted and sentenced under section 10 (m) of the Act when the accused was not actually confronted with the charge under section 10 (m) of the Act. Mr. D Roze submits that it may not be proper to convict him under section 10 (m) of the Act when be was not put to trial under that section. We respectfully differ from Mr. DT Roze in this respect. Undoubtedly absence without leave may turn into desertion provided there is animus deserendi. Such being the position if an accused is put to trial for the offence under section 10 (p) of the Act he can be rightly dealt with under section 10 (m) if the ingredients of section 10 (m) are complied with. ( 9 ) IN the instant case we have been convinced from the materials in the record that the accused Omprakash has committed the offence under section 10 (m) of the Act for his absence without leave. Accordingly, he deserves the punishment according to law. While considering the question of sentence to be imposed we have not list sight of the circumstances under which Omprakash had to leave the Camp even at the risk of the break of the discipline of the Force. In these circumstances the sentence of fine alone will meet the ends of justice. ( 10 ) IN the result the appeal is allowed. The order of acquittal is set aside. The accused Om prakash is found guilty under section 10 (m) of the Act and he is sentenced to a fine, which shall extend to one months pay.