http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 5  

PETITIONER: PRITAM SINGH

       Vs.

RESPONDENT: STATE OF HARYANA

DATE OF JUDGMENT15/03/1971

BENCH: VAIDYIALINGAM, C.A. BENCH: VAIDYIALINGAM, C.A. RAY, A.N.

CITATION:  1973 AIR 1354            1971 SCR  (3) 971  1971 SCC  (1) 653  CITATOR INFO :  R          1974 SC 923  (31)

ACT: Police   Act,   1861,  s.  42-Period   of   limitation   for prosecution. Supreme  Court Appeal New point-Can be permited to be  urged if  raises  pure  question  of  law  and  does  not  require investigation into facts.

HEADNOTE: The  appellant  was  a constable in  the  police  force’  of Haryana  State.   At the relevant time he was posted  to  do duty  at the police lines, Karnal.  It was reported  by  the Lines  Officer that he was not present at the roll  call  on the  evening of November 25, 1963.  The Judicial  Magistrate gave him a notice in January 1966 asking him to explain  why he should not he held guilty under s. 29 of the police  ’Act 1891  being  absent on the aforesaid  date.   The  appellant explained that he was mentally upset on account of the death of two near relatives and was himself ill.  The,  Magistrate held that the appellant was technically guilty, even  though his  case required sympathetic consideration.  In this  view he  sentenced the appellant to pay a fine of Rs. 51- and  in default  to  undergo  simple imprisonment  for  seven  days. Appeals before the Sessions Judge and the High Court failed. In appeal to this Court by special leave it was contended on behalf of the appellant, that since more than three  months, had intervened between the commission of the alleged offence and the commencement of the prosecution, the trial was time- barred  by limitation under s. 42 of the Police  Act.   This point  was raised in this Court for the first time  but  had been  stated in the statement of propositions of law  to  be advanced  before the Court, and a copy of the same had  been supplied to the counsel for the State.  Allowing the appeal, HELD  : (i) The question of limitation being purely  one  of law   requiring  no  fresh  investigation  into  facts   the appellant could be permitted to raise it for the first  time in this Court. [973 H] (ii)The  appellant’s prosecution was initiated  against  him for  something done under the provisions of the Act,  namely non-compliance  with  the  requirement  to  be  on  duty  as required under the Police Act.  Therefore under s. 42 of the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 5  

Act  the prosecution should have been commenced against  the appellant  within three months of the commission of the  act complained  of.  The act complained of was alleged  to  have been  committed  on November 25, 1963.   Even  treating  the notice  issued  by the judicial magistrate as  amounting  to commencement  of prosecution, it took place only on  January 10,  1966,  long after the expiry of three months  from  the date  of  the  commission of  the  offence.   Therefore  the prosecution  commenced against the appellant was  barred  by limitation under s. 42 of the Act. [974 D-E] Maulud  Ahmad  v.  State of Uttar Pradesh,  [1961]  Supp.  2 S.C.R. 38, distinguished.

JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 240  of 1968. 972 Appeal  by special leave from the judgment and  order  dated February  8,  1968 of the Punjab and Haryana High  Court  in Criminal Revision No. 237 of 1967. S.   Lakshminarasu, for the appellant. B.   D. Sharma and R. N. Sachthey, for the respondent. The  Judgment of the Court was delivered by Vaidiafingam,  J.  In  this appeal, by  special  leave,  the appellant  accused challenges the judgment and  order  dated February  8,  1968, of the Punjab & Haryana High  Court  in Criminal Revision No. 237 of 1967, confirming the conviction and  sentence passed against him for an offence under s.  29 of  the Police Act, 1861 (hereinafter to be referred as  the Act). The appellant was at the relevant period a constable  having roll number 857.  He was originally recruited in 1950 to the police  service  in the composite Punjab State; and  on  the formation  of  the  State of Haryana,  he  was  allotted  to Haryana.  The appellant was posted to do duty at the  police lines,, Kamal, before November 25, 1963.  It was reported by the  Lines Officer on November 25, 1963 that when  roll-call was taken on the evening of that day at about 6.30 p.m., the appellant  was found absent.  The report also refers to  the absence  of certain other police officers, with whom we  are not concerned.  The judicial magistrate, Karnal, issued what is  stated  to  be a notice dated January 10,  1966  to  the appellant, alleging that he was found absent from duty  from the  police lines at the time of roll-call on  November  25, 1963.   He  was asked to "plain why he should  not  be  held guilty under S. 29 of the Act.  The appellant stated that he would  neither  plead  guilty nor would  he  admit  that  he remained  absent from duty.  He has further stated  that  he was  mentally  upset  in view of the sudden  deaths  of  his mother  and  brother-in-law, and also due  to  his  children being  cut off from him.  He wound up, his answer by  saying that  he was under medical treatment in the civil  hospital, Karnal, and the doctor therein sent him to Patiala. He  was tried for an offence under S. 29 of the Act  on  the ground  that he was absent from duty on November  25,  1963. The  judicial magistrate, by his order dated March 4,  1966, found the appellant guilty of the offence and sentenced  him to  pay a fine of Rs. 51- and in default to  undergo  simple imprisonment   for  seven  days.   The  learned   magistrate considered  the  plea of the accused  regarding  his  having undergone  treatment  in  the civil hospital,  as  also  the evidence of the doctor who has spoken to this fact, and held that the case of the accused requires a very sym-

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 5  

                          9 7 3 pathetic  consideration.   But nevertheless  the  magistrate found  that as the appellant was technically guilty  of  the offence under s. 29 of the Act, with which he was  charged, he has be punished Accordingly; he convicted him and imposed the  fine,  as stated above.  The appellant  challenged  his conviction  and sentence ’before the learned Sessions  Judge as well as the High Court,  but was unsuccessful. Though  several  contentions regarding the legality  of  the conviction  have been taken by Mr. Lakshmi  narasu,  learned counsel  nominated to represent the appellant by  the  Legal Aid  Society  of the Supreme Court Bar Association,  in  the view that we take regarding the prosecution being barred  by limitation under s. 42 of the Act, it becomes unnecessary to refer to those contentions and deal with them. We  have already referred to the fact that  the  allegations against  the  appellant related to hi absence from  duty  on November  25 , 1963, stated to be an offence under s. 29  of the  Act.  The notice issued by the judicial magistrate  was on  January 10, 1966.  The contention that is taken  by  Mr. Lakshminarasu  based  on  s.  42 of  the  Act  is  that  the prosecution against the appellant has been commenced  beyond the period of three months, as provided in s. 42 of the Act and therefore, the trial and other proceedings leading  upto the  conviction of the appellant ate illegal and void.   The counsel  pointed  out  that the act complained  of  was  the appellant’s  absence from duty at the time of the  roll-call on November 25, 1963.  The earliest step taken in this  case for  prosecuting the appellant was on January 10, 1966  when the  judicial magistrate issued the notice to the apple  ant calling upon him to explain why he should not be held guilty under  s. 29 of the Act.  That notice was issued long  after the  expiry of three months from the date of the  commission of  the offence complained of.  In fact.   Mr.  Lakshminarsu argued  that the date of filing ’the complaint will  be  the date  when prosecution is commenced.  But he was willing  to assume that the issue of the notice on January 10, 1966., is a  step  in the prosecution.  Even then he argued  that  the prosecution is barred under s. 42 of the Act. It  is no doubt true that this point has not been  taken  as such before any of the courts; but in the statement given on February  9,  1971 regarding the propositions of law  to  be advanced  before  this  Court,  this  contention  has   been specifically raised.  A copy of the said statement has  been given  to the counsel for State the same day.  However,  the point  that  is  raised  is a  pure  question  of  law,  not involving any further investigation of facts.  We  therefore permitted  counsel  for the appellant to  raise  this  legal contention. 974 The question therefore is whether the prosecution  initiated against  the appellant in this case is barred by  limitation under  s.  42  of the Act.  " the material part  of  s.  42, relevant for the present purpose reads as follows               "All  . . . prosecutions against any  person,               which  may  be lawfully brought  for  anything               clone  or  intended  to  be  done  under   the               provisions  of this Act, or under the  general               police powers hereby given shall be  commenced               within  three months after the act  complained               of   shall  have  been  committed,  and   not,               otherwise, From  the  section quoted above, it will he clear  that  the period   of  three  months  prescribed  for   commencing   a prosecution  under the said section is only with respect  to

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 5  

prosecution of a person or something done or intended to  be done by him under the provisions of the Police Act or  under the  general  police powers given by the Act.  It  is  clear that  the appellants prosecution was initiated  against  him for. something done under the provisions of the Act, namely, noncompliance with the requirement to be on duty as required under the, Police Act.  Therefore, under s. 42 of ’the  Act, the  prosecution  should  have been  commenced  against  the appellant  within three months after the act  complained  of has  been committed.  The act complained of was  atieged  to have been committed on November 25, 1963.  Even treating the notice  issued  by the judicial magistrate is  amounting  to commencement  of prosecution, it took place only on  January 10,  1966,  long after the expiry of three months  from  the date  of  the  commission of the  offence.   Therefore,  the prosecution,  commenced against the appellant is  barred  by limitation under s. 42 of the Act. In  this case there is no controversy that the offence  with which  the appellant was charged was one under s. 29 of  the Act  and  for the said offence he was tried  and  convicted. Mr. B. D. Sharma, learned sounsel for the respondent  State, faced with this situation urged that in the notice issued by the judicial magistrate, Karnal, to the appellant on January 10, 1966, it was specifically stated that the appellant  was absent  not  only  on November 25, 1963, but  that  he  also continued to be absent as before.  According to the  learned counsel,  this clearly means that even on the date when  the notice was issued to the appellant, that is, on January  10, 1966, the appellant was absent and was guilty of an  offence under  s.  29  of  the Act and  hence  the  prosecution  has cornmeal  within the period mentioned in S. 42 of  the  Act. We are not inclined to accept this contention.  A perusal of the  order  of" the trial magistrate, the  learned  Sessions Judge  and the High Court, clearly shows that the  appellant was tried on the specific charge of having absented  himself from duty on November 25,                             975 1963.   The notice issued ’by the magistrate on January  10, 1966  also refers to the report of November 25,  1963  about the appellant’s being absent on that evening at  roll-call., For  his absence on November 25, 1963 he was called upon  to show  cause why he should not be held guilty under s. 29  of the  Act.  Further it is also seen from the  examination  of the accused under s. 342.  Code, of Criminal Procedure, that a  specific  question  was put to him  "It  is  in  evidence against you that you were absent from the Police Lines Kamal on  25-11-63 and as such were marked absent at the  time  of Roll-call.  What do you say to it ?" We  may also refer to the decision of this Court  in  Maulud allegation  against the appellant related to his absence  on November  25,  1963 and it was the evidence in  that  regard that was put to the appellant for offering his explanation. All  the  above facts clearly show that  the  appellant  was tried and convicted for an offence under s. 29 of the Act in which  case the prosecution for such An offence should  have been done within the time laid down thereunder. We  may also refer to the decision of this Court  in  Maulud Anand v. State of Uttar Pradesh(1) wherein it alas been held that  if there is a prosecution of a police officer  for  an offence under s. 29 of the Act, such a prosecution should be one  within the period of limitation mentioned in s.  42  of the  Act.   In  that  case the  appellant  therein,  a  Head constable,  was  charged  and  tried,  along  with another person,  for various offences under the Indian  Penal  Code, such  as  ss.  304A  and 218/109.   The  other  accused  was

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 5  

acquitted but the head constable was convicted under s.  218 I.P.C. One of the contentions raised by the appellant before this Court was that as the prosecution was launched  against him  more  than three months after the  commission  of  the’ offence, it was barred by limitation under s. 42 of the Act. This Court after a perusal of the scheme of ss. 36 and 42 of the  Act  rejected the contention of  the  appellant.   This Court  held  that  the head  constable  was  prosecuted  and convicted  for  offences  not under the Act  but  under  the Indian Penal Code.  To such prosecution, it was held that s. 42 did not apply.  On the other hand, it was held that s. 42 of the Act applies to a prosecution against a person for an offence  under s. 29 of the Act.  The conclusion arrived  at by us that the prosecution in the case on hand is barred  by s.  42 of the Act is also supported by the  decision  quoted above. To  conclude, it is clear that the prosecution  against  the appellant  has  been commenced beyond the  period  of  three months and as such it is barred by limitation under s. 42 of the Act.  Hence (1)  [1963] Supp. 2 S.C.R. 38. 9 7 6 the orders of the High Court and the two subordinate  courts are  set  aside.  in  consequence,  the  conviction  of  the appellant as well as the levy of fine are also set aside. The  appeal  is  allowed and fine, if  collected,  shall  be refunded. to the appellant. G.C                                       Appeal allowed. 110O Supp.C.I.(P)/71-2500-2-6-72-GIPF. 1