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Criminal Miscellaneous No. 3048 of 1964, decided on 9th March 1965.

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----S. 29‑Words ". . . . who shall withdraw from the duties of his office without permission"‑Deputy Superin tendent of Police under suspension, merely informing Superintendent of Police of his intention to leave place of his posting M, and without waiting for permission, going from M to L‑Information of his having arrived at L also sent to Superintendent‑Held: Deputy Superintendent thereby does not "withdraw from duties of his office"‑A Deputy Superintendent under suspension has "no duties to perform"‑Prosecution under S. 29 quashed, being "abuse of process of Court" within meaning of S. 561‑A, Criminal Procedure Code (V of 1898)‑‑Vest Pakistan (D. S. P.) Service Rules, 1964-- Civil Services Rules (Punjab), r. 147‑West Pakistan Government Servants (Efficiency and Discipline) Rules, 1960‑Para. 4 of Memorandum No. S (R) 27‑43/57 S. O. K. III dated 16‑11‑1957 issued by Additional Chief Secretary, Government of West Pakistan- Police Rules, Vol. II, r. 16.21(2) Police Act (V of 1861), Ss. 1, 4, 8 & 9‑Section 9 indicates that provision of notice for two months' contemplated by S. 29, Police Act (V of 1861), relates to cases of resignation‑Section 8 not applicable to Deputy Superintendents of Police‑"Suspension" of Government servant means "suspension" of "capacity to perform functions of office"‑Police Act (V of 1861), Ss. 23 & 25‑Duties of a Police Offer.

A complaint under section 29, Police Act, 1861, lodged with the A. D. M., by the Superintendent of Police, M District against A, a Deputy Superintendent of Police, alleged that A, who was posted as Deputy Superintendent of Police at M, was placed under suspension with, effect from the 16th of November 1964.' On the 21st of November 1964 A sent a note to the Superintendent of Police at 4‑45 p.m. through his orderly worded as follows:

"I am proceeding to Multan, etc. and will return after having legal consultation from my lawyers."

It was alleged that he left M about 3 hours before the note was sent "without leave or proper permission." It was contended in the complaint that the conduct of the said D. S. P. is regulated by rules and regulations, even though he is under suspension and cannot leave the place of his posting "without leave or proper permission".

A list of witnesses and a list of documents had been typed at the foot .of the complaint. This list of documents referred to "a copy of telegram from A, dated 21st November 1964".

Reference had been made to this telegram in paragraph 2(iv) of the affidavit filed‑by A which ran as follows:‑

"That on the same day, the deponent left for Lahore and sent a telegraphic information to the Superintendent of Police, Muzaffargarh, of his arrival at Lahore."

Having received notice of the complaint from the A. D. M.'s Court, A by an application under section 561‑A, Cr. P. C. sought quashment of proceedings initiated against him:

Held, that having been placed under suspension the petitioner had no duties to perform as contemplated by the Police Act V 'of 1861. There being no duties to perform the question of withdrawal from such duties did not arise, and therefore section 29 was not ‑attracted to the facts of the case. The prosecution was; therefore, very much an abuse of the process of the Court and to secure the ends of justice it was necessary to quash the proceedings pending under section 29 against A and they were accordingly quashed.

Neither the West Pakistan (D. S. P.) Service Rules, 1964, the Civil Services Rules (Punjab) nor the West Pakistan Government Servants (Efficiency and Discipline) Rules, 1960 contained any provision dealing with the consequences of suspension, specially the question whether a police officer has to restrict his stay to a particular station during the period of suspension.

Paragraph 4 of the Memorandum No. S(R) 21‑43/57‑S. O. K III dated 16‑11‑1957, issued by Additional Chief Secretary, Government of West Pakistan, could lead one to the only conclusion that unless an order prohibiting such an officer from leaving a station was passed there was no particular restraint upon him in doing so except the usual information which he had to give to his superior before he left the station. Had this not been sc this Memorandum would not have used the expression "an office: is generally prohibited".

Section 29, Police Act; 1861 could be split up into two portions, namely:

(i) "who shall withdraw from the duties of his office without

(ii) "or, without having given previous notice for the period of two months,"

A reading of the provisions of the Act would show that both these onions of section 29 have reference .to section 9 of the Act.

The second portion of section 29 which dealt with the giving of notice before withdrawing front the duties of his office, related to cases of resignation only.

When an order was passed placing a Government servant under suspension what, in fact, was being suspended was his capacity to go the functions of his office, to exercise the powers which ho would otherwise have enjoyed as such officer, to perform the duties normally assigned to an officer of that rank and of course to draw his pay for only a subsistence allowance was paid to him in place of salary. In other words, an officer placed under suspension had no duties to perform, and if he had no duties to perform the question of withdrawing himself from duties of his office could naturally not arise.

In such a state of affairs section 9 no longer remains applicable and since there are no duties to perform the question of withdrawal from them would not arise and the penalty imposed in section 29 would not a attracted to the case of such a one.

The duties of a police officer have been enumerated in the Act itself, Sections 23 and 25 lay down the duties and their perusal would show that asking for permission before leaving a district is not included in them. That being the gravaman of the charge against A it could not be covered by section 29 which was a penalty for withdrawal "from the duties of his office without permission', And it is understandable that the Legislature did not want to place such a lapse on the art of a police officer on the same footing as dereliction of duty which has been made punishable inter alts by imprisonment not exceeding three months.

The more fact that a suspended police officer continues to be a police officer does not mean that he continues to have functions to perform.

Section 8, Police Act, 1861, is not applicable to a Deputy Superintendent of Police.

As a consequence of suspension a police officer to whom section 8 is applicable does not cease to be a police officer and by virtue of rule 16.2(2) of the Police Rules he will continue to have duties to perform. The section itself not being applicable to A the amendment does not affect him.

Queen ‑Empress v. Durga I L R 10 All, 459 and Queen v, Dina Nath Gangoll (72) 8 Bang. L R (App.) 58 ref.

S: M. Zafar assisted by Saeed Akhtar and Syed Abid Hussain for Petitioner.

Aslam Riaz Hussain, A. A.‑G. assisted by Shamim Mirza for Respondents.

Date of hearing: 25th January 1965.

The Superintendent of Police, Muzaffargarh, filed a complaint against Mirza Muhammad Abbas under section 29 of the Police Act in the Court of the Additional District Magistrate, Muzaffargarh. Having received a notice of the complaint from the Additional District Magistrate requiring him to appear on the 29th of December 1964 the accused, who is a Deputy Superintendent (under suspension), has filed this petition under section 561‑A of the Code of Criminal Procedure for the quashment of these proceedings;

2. The complaint alleges that Mirza Muhammad Abbas, who was posted as Deputy Superintendent of Police at Muzaffargarh, was placed under suspension with effect from the 16th of November 1964. On the 21st of November 1964 he sent a note to the Superintendent of Police at 4‑45 p.m. through his orderly worded as follows:

"I am proceeding to Multan etc. and will return after having legal consultation from my lawyers."

It was alleged that he left Muzaffargarh about 3 , hours before the note was sent‑‑

"without leave or proper permission." It is contended in the complaint that‑

"the conduct of the said D. S. P. is regulated by rules and regulations, even though he is under suspension and cannot leave the place of his posting without leave or proper permission."

A list of witnesses and a list of documents has been typed at the foot of the complaint. This list of documents refers to‑

"a copy of telegram from Mirza Muhammad Abbas, D. S. P., dated 21st November 1964."

Reference has been made to this telegram in paragraph 2(iv) of the affidavit filed by the petitioner which runs as follows:

"That on the same day, the deponent left for Lahore and sent a telegraphic information to the Superintendent of Police Muzaffargarh, of his arrival at Lahore."

3. The relevant portion of section 29, on which the charge has been based, is:

"Every police officer--------who shall withdraw from the duties of his office without permission, or without having given previous notice for the period of two months . . . . . shall be liable, on conviction before a Magistrate to a penalty not exceeding three months' pay, or to imprisonment with or without hard labour, for a period not exceeding three months, or to both."

4. It is contended by the learned counsel for the petitioner that‑

"there is no obligation on a suspended Deputy Superintendent of Police to remain at any particular station. All that is required is, that he should be at a known address. Section 29 is, therefore, inapplicable."

5. The conditions of service applicable to Deputy Superintendent of Police in the former Punjab were contained in the Punjab (D. S. P.) Service Rules of 1952 which were framed by the Governor under section 241 of the Government of India Act, 1935. They were replaced by the West Pakistan (D. S. P.) Service Rules of 1964 which were made by the Governor of West Pakistan in exercise of the powers conferred by clause (2) of Article 178, and Article 179 of the Constitution of the Islamic Republic of Pakistan and were in supersession of similar rules of 1962. Rule 10 provides that

"in all matters not expressly provided for in these rules, members of the service shall be governed by such rules as have ' been or may hereafter be prescribed by the Government and made applicable to them."

Rule 19 of the Rules of 1952 provided that‑

"in matters relating to discipline the members of the service shall be governed by the rules as laid down in section 2 of Chapter 14 of the Civil Services Rules Punjab, Volume I, Part 1, and those relating to punishment ‑ and .appeals by the rules in section 3 ibid, subject to the proviso that the nature of the penalties that may be imposed, the authority competent to impose such penalties and the Appellate Authority shall be specified in Appendix B'."

Rule 14.7 of the Civil Service Rules (Punjab) runs as follows:

"14.7: A competent authority may make rules to regulate the conduct of the members of the Provincial and subordinate services and holders of special posts."

Neither the rules, referred to above;' nor the West Pakistan Government Servants (Efficiency and Disciplines) Rules, 1966 contain any provision dealing with the consequences of suspension, 4 specially the question whether a police officer has to restrict his stay to a particular station during the period of suspension.

6. Learned counsel submits that the only material which touches upon this aspect of the conditions of service of Government employees is contained in a Memorandum issued by the Additional Chief Secretary to the Government of West Pakistan under No. S(R)21‑43/57 S. O. K‑III on the 16th of November 1957 to all the Commissioners of the Divisions containing instructions for the speedy disposal of disciplinary cases. Paragraph 4 of this Memorandum runs as follows:‑

"It had been observed that, on being placed under suspension, an officer is generally prohibited from leaving the station. This is permissible where it is felt that, unless he is confined to a particular station, he might tamper evidence likely to be produced against him, but such prohibition should not be in force if there is no valid cause for such apprehension. He should simply be required to inform the authorities concerned of his movements."

This instruction was continued by another letter issued by the Chief Secretary to the Government of West Pakistan.

7. Paragraph 4 of the Memorandum can lead one to the only conclusion that unless an order prohibiting such an officer from leaving a station is passed there is no particular restraint upon him in doing so except the usual information which he has to give to his superior before he leaves the station. Had this not been so this Memorandum would not have used the expression‑

"An officer is generally prohibited."

On the face of it, it is difficult to rebut this argument.

8. Section 7 of the Police Act authorises 'the Provincial Government to make rules for the control of disciplinary action against police officer of the subordinate ranks. "Subordinate ranks" has been defined in the interpretation clause as members of the police force below the rank of Deputy Superintendent. The rules made under section 7, therefore, although not applicable to the present petitioner, who is admittedly a Deputy Superintendent of Police, will nevertheless be helpful in determining the question involved in this case. Rule 16.21(2) of the Police Rules contained in Volume II runs as follows:‑

"16.21(2): A police officer under suspension shall be transferred to the lines, if not already posted there. He shall attend all roll‑calls and shall be required to perform such duties and to attend such parades as the Superintendent tray direct; provided that he shall not perform guard duty or any other duty entailing the exercise of the powers or functions of a police officer; shall not be placed on any duty involving the exercise of responsibility, and shall not be issued with ammunition. A police officer under suspension shall ordinarily be confined to lines when off duty, but shall be allowed the reasonable facilities for the preparation of his defence . . . ."

This rule specifically requires the posting of a suspended police officer to the Lines; and also lays down the functions that he is required to perform during this state of suspension. No such provision has been pointed out to me by the learned counsel for the parties in the rules which govern the conditions of service of Deputy Superintendents of Police or officers of grades higher than an Inspector of Police. In the absence of such a provision in those rules it cannot be argued that an officer not governed by rule 16.21. can be subjected to a similar restraint or can be‑ required to confine himself to a district in which he was posted at the time the order of suspension was passed. As already stated he could be expected only to conform to the normal requirement of informing his officer of his whereabouts before leaving the station so as to enable the former to locate him for the purpose of the service of process upon him, in connection with the inquiry to be held against him.

9. Section 29, under which the petitioner has been charged arms the relevant part of which has been reproduced above, can be split up into two portions, namely‑

"(i) who shall withdraw from the duties of his office without permission;

(ii) or, without having given previous notice for the period of two months."

A reading of the provisions of the Act would show that both these portions of section 29 have reference to section 9 of the Act which runs as follows:‑

"No police officer shall be at liberty to withdraw himself from the duties of his office unless expressly allowed to do so by the District Superintendent or by some other officer authorised to grant such permission, or, without the leave of the District Superintendent, to resign his office, unless he shall have given to his superior officer notice in writing, for a period of not less than two months, of his intention to resign."

The second portion of section 29, therefore, which deals with the giving of notice before withdrawing from the duties of his office, relates to cases of resignation only as is clear from the second part of section 9. It is no body's case that Mirza Muhammad Abbas bad resigned his post. This portion of section 29 is, therefore, not applicable to him.

10. As for the first portion, which makes withdrawal from duty without permission penal, it relates to the first part of section 9. Withdrawal from duty contemplates that the person concerned has some duties to perform under the rules or the law. It was contended that the last paragraph of section 8 of the Act provides that a police officer who has been suspended from office does not cease to be a police officer and‑

"shall continue subject to the same responsibilities, discipline and penalties and to the same authorities, as if he had not been suspended."

A perusal of section 8 of the Act, which I would presently demonstrate is not applicable to the petitioner, shows that during the time of suspension of police officers governed by section 8, their‑

"powers, functions and privileges vested in him as a police officer shall be in abeyance . . . . ."

These words are, in fact, a restatement of the general principles applicable to the status of a suspended officer. When an order is passed placing a Government servant under suspension what, in fact, is being suspended is his capacity to perform the functions oft his office, to exercise the powers which he would otherwise have enjoyed as such officer, to perform the duties normally assigned to an officer of that rank and of course to draw his pay for only a subsistence allowance is paid to him in place of salary. In other words, an officer placed under suspension has no duties to perform, and if he has no duties to perform the question of withdrawing himself from duties of his office can naturally not arise.

11. In such a state of affairs section 9 no longer remains applicable and since there are no duties to perform the question of withdrawal from them would not arise and the penalty imposed in section 29 would not be attracted to the case of such a one.

12. It is significant that while section 9 talks in terms of duties as do sections 22 and 29, section 8 advisedly does not use the expression but says,‑

"shall continue subject to the same responsibilities, discipline and penalties."

The word "duties" has not been included in the last paragraph of section 8 because performance of duties and suspension could not possibly go side by side.

13. The same problem may be looked at from another angle. It is the withdrawal from duties without permission that has been made penal by section 29. The duties of a police officer have been enumerated in the Act itself. Sections 23 and 25 lay down the duties and their perusal would show that asking for permission before leaving a district is not included in them. That being the gravamen of the charge against the petitioner it cannot be covered by section 29 which as we have already seen is a penalty for withdrawal‑

"from the duties of his office without permission."

And it is understandable that the Legislature did not want to place such a lapse on the part of a police officer on the same footing as dereliction of duty which has been made punishable inter alia by imprisonment not exceeding three months.

14. It was contended by the learned Assistant Advocate --General that the last paragraph of section 8 provides that‑

"a police officer shall not by reason of being suspended from office cease to be a police officer."

and that since he continues to be a police officer he is liable .under section 9 not to withdraw himself from the duties of his office and under section 22‑

"to be considered to be always on duty"

and, therefore, his leaving the district without permission was, in fact, synonymous with withdrawal from his duties. We have already seen above, that an officer under suspension does not perform any duties and, in fact, if the portion of section 8 following the portion quoted above were to be read, it will be found that it says that during the term of such suspension the powers, functions and privileges vested in him as a police officer shall be in abeyance. The mere fact, therefore, that he continues to be al police officer does not mean that he continues to have functions to perform and, in fact, it has' been so stated in no unmistakable terms.

15. I stated above that section 8 was not applicable to al Deputy Superintendent of Police. The opening part of section 8 reads as follows:

"Every police officer appointed to the police force other than an officer mentioned in section 4 shall receive on his appointment a certificate in the form annexed to this Act. "

The officers enumerated in section 4 are Inspector‑General of Police, Deputy Inspectors‑General, Assistant Inspector‑General, District Superintendent and Assistant Superintendents. If we turn to the interpretation clause we find that the word "District Superintendent" includes‑

"or other person appointed by general or special order of the Provincial Government to perform all or any of the duties of a District Superintendent, of Police under this Act in any district.

Police Rules contained in Volume I reads as follow:

"The powers and duties of Assistant and Deputy Superintendent of Police are the same and interchangeable. They derive their powers from the fifth definition in section 1 of the' Police Act (V of 1861) and from 551 of the Code of Criminal Procedure Assistant and Deputy Superintendents of Police are posted to districts and other duties at the discretion of the Provincial Government to be trained and to assist the Superintendent in the discharge of his responsibilities, and the authority of the Superintendent is delegated to them to the extent prescribed by these Rules.

We, therefore, find that the Superintendents of Police are required to perform some duties of a District Superintendent of Police under general orders contained in these rules. A Deputy Superintendent is, therefore, included in the expression "District Superintendent" as defined in section 1 of the Police Act and as used in section 4 of the Act. Being a person thus mentioned in section 4 of Deputy Superintendent of Police is an; officer not covered by the provisions of section 8.

16. Enquiries made by me from the learned Assistant Advocate‑General and the police officer assisting him in Court have revealed that, as a matter of fact, no certificate as is laid down in section 8 is ever issued to a person holding the rank of Deputy Superintendent or above. The whole scheme seems to be to, have two compartments in the police service, one consisting of gazetted police officers of and above the rank of Deputy Superintendent of Police and another comprising of enrolled police officers of and below the rank of Inspectors. This is explicit from rule 1.13 of the police Rules.

17. The circumstance, under which the last paragraph of section 8, on which reliance has been placed by the learned Assistant Advocate‑General was 'brought on the statute book may be of some interest.

18. The statement of Objects and Reasons of the Police Act (1861) Amendment Act, 1895 (VIII of 1895) discloses that the amendment had to be made because of two decisions of High Courts. Learned counsel for the petitioner had adverted my attention to those two decisions which are: Queen‑Empress v. Durga (I L R 10 All. 459) and Queen v. Dina Nath Gangoli ((72) 8 Beng. L R (App.) 58). I have before me the former case in which it was held‑

"Section 29 of Act V of 1861 contemplates that the person to be charged with an offence under it must have been, at the time of his being the act in respect of which the charge is preferred, a police constable within the meaning of that Act. When a police officer is suspended he ceases to be a police officer."

The other case has been noticed in this decision. The amendment seems .to have been brought about due to the following observation in the judgment‑

"It is of no use framing rules and formulating police manuals, if such rules and the directions in such manuals are not authorised by or are in hostility with the statute, and I think the 'subject is one which may fairly claim attention at the hands of the local Government, especially just now, when there are so many complaints of the working of the present police system, and a thorough overhauling and re‑organisation seems desirable."

19. Interpretation of section 8 as it then existed, i.e., shorn of the last paragraph which is now a part of it, was that a police officer when suspended ceased to be a police, officer.

Paragraph 4 of the statement of Objects and Reasons of this Act reads as follows:‑

"It has been held by two High Courts that at present a policeman when suspended, even temporarily, ceases to be a member of the police force and is no longer amenable to the provisions of Act V of 1861. Section 3 of the Bill will enact that a police officer shall not by reason of being suspended from office cease to be a police officer or to be subjected to responsibilities and discipline as such."

The result is that as a consequence of suspension of police officer to whom section 8 is applicable does not cease to be a police officer and by virtue of rule 16.2(2) of the Police Rules he will continue to have duties to perform. The section itself not being applicable to the petitioner the amendment does not affect him.

20. My conclusions, therefore, are:

(1) that having been placed under suspension the petitioner had no duties to perform as contemplated by the Police Act V of 1861,

(2) there being no duties to perform the question of withdrawal from such duties did not arise, and, therefore,

(3) section 29 is not attracted to the facts of the case.

The instant prosecution is, therefore, very such an abuse of the process of the Court and to secure the ends of justice it is necessary to quash the proceedings pending under section 29 against the petitioner in the Court of the Additional District Magistrate, Muzaffargarh, and they are hereby quashed.

A. H.

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