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Pooran Mistry v. State Of U.P Opposite Party.
Structured Summary of the Opinion
Factual and Procedural Background
This revision was filed from jail by the applicant against an order of the Sessions Judge of Moradabad, which dismissed the petitioner's appeal against his conviction under provisions of the U.P. Provincial Armed Constabulary Act (variously referenced in the opinion as Sections 6(e), 7(e) and later 7(c)). On appeal the Sessions Judge had reduced the sentence from three years' rigorous imprisonment to eighteen months' rigorous imprisonment.
The applicant had asked to be informed of the appeal hearing date; an order was passed that he be informed and that Sri S.P. Gupta be notified to appear on his behalf. Mr. Gupta did appear and argued for the applicant.
The prosecution alleged that the applicant, an officer of the Provincial Armed Constabulary (IX Battalion, Moradabad), absented himself without permission beginning 14-3-1951, malingered or feigned illness up to 31-3-1951, and subsequently absconded and deserted service. The factual timeline in the prosecution case includes applications for leave (early March 1951), a refusal of an extension, multiple communications and notices requiring him to report for duty, failure to report, enquiries by civil authorities, a formal report of desertion on 7-5-1951, police proceedings and a charge-sheet dated 27-1-1952, the applicant's enrolment as a police constable at Rampur, and his eventual arrest on 26-6-1953.
Procedurally, the applicant was convicted by the Assistant Sessions Judge on 15-2-1954; he had been arrested on 26-6-1953, remained without bail through trial and appeal, and was in custody as an undertrial until February 1954 and thereafter as a convict.
Legal Issues Presented
- Whether the U.P. Provincial Armed Constabulary Act (the Act) is within the legislative competence of the U.P. Legislature (i.e., whether the Act is intra vires the Provincial List under the Government of India Act, 1935).
- Whether the Act violates Article 14 (equality before law) and Article 19(1)(g) of the Constitution of India and is therefore void under Article 13.
- Whether the functions of the armed constabulary fall within the meaning of "police" for purposes of the Provincial legislative list.
- Whether, in view of the period already spent in custody, the applicant's sentence should be reduced to the period already undergone.
Arguments of the Parties
Applicant's Arguments (as presented by Sri S.P. Gupta)
- The U.P. Provincial Armed Constabulary Act is ultra vires the U.P. Legislature because it is not covered by any item in the Provincial legislative list (Schedule 7, Government of India Act, 1935).
- The Act violates Articles 14 and 19(1)(g) of the Constitution and is therefore void under Article 13.
- The armed constabulary's functions are not "police" functions and therefore cannot be regulated under the Provincial entry for police; the Act is beyond the provincial power.
- Alternatively, even if convicted, the applicant had already been in jail for a sufficiently long time (including undertrial custody) and the sentence should be reduced to the period already undergone.
Prosecution / State Case (factual and procedural contentions)
- The applicant, an officer of IX Battalion, PAC, absented himself from duty without leave beginning 14-3-1951, malingered up to 31-3-1951, and later absconded and deserted service.
- He applied for various leaves (7 days, 20 days, and an extension) and submitted medical certificates; extensions were refused or not acted upon, and he failed to report for duty after the authorized period.
- Notices were sent requiring him to report for duty; enquiries later suggested he had returned to duty but no reply was received from him; ultimately a formal report of desertion was lodged and police proceedings (including Sections 87 and 88 CrPC procedures) and a charge-sheet followed, culminating in his arrest when his enrolment as a police constable elsewhere was discovered.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| State of Bombay v. P.N. Balsara, AIR 1951 SC 318 | Items in legislative lists (Schedule) are not to be read in a narrow or restricted sense; attempt to reconcile seeming conflicts between List I and List II to avoid jurisdictional conflict. | The court relied on this principle to interpret the word "police" in the Provincial List broadly and to reject the contention that the Armed Constabulary Act fell outside provincial competence. |
| United Provinces v. Atiqa Begum, AIR 1941 PC 16 | Similar principle regarding reconciliation of entries between lists to avoid conflict of jurisdiction. | Used to support the view that the Provincial entry for "police" can encompass the Act, avoiding a conflict of jurisdiction. |
| Ameerunnissa Begum v. Mahboob Begum, AIR 1953 SC 91 | Principle on classification under Article 14: legislature may make special laws and classifications; inequality does not by itself amount to discrimination unless unreasonable or arbitrary. | The court applied this classification principle to hold that creating an armed constabulary constituted a valid classification and did not violate Article 14. |
| Charanjit Lal v. Union of India, AIR 1951 SC 41 | Authority cited among decisions interpreting constitutional and legislative competence/related principles. | Cited as supporting authority in the court's overall assessment that the Act is intra vires and constitutionally valid. |
| Ram Prasad v. State of Bihar, AIR 1953 SC 215 | Authority cited in the context of constitutional review and classification principles. | Used as one of several precedents supporting the proposition that the Act does not offend Article 14. |
| State Of West Bengal v. Anwar Ali Sarkar, AIR 1952 SC 75 | Authority concerning constitutional interpretation and limits of legislative action. | Included among the cases relied upon to uphold the validity of the Act against Article 14/Article 19 challenges. |
| Lachhman Das Kewalram v. State of Bombay, AIR 1952 SC 235 | Another authority cited in relation to constitutional and legislative competence issues. | Relied upon as part of the body of precedents supporting the court's view that the Act is intra vires and classification under it is justifiable. |
Court's Reasoning and Analysis
The court undertook a two-part analysis: (A) legislative competence (whether the Act falls within the Provincial legislative field "police" under Schedule 7 of the Government of India Act, 1935), and (B) constitutional validity under Article 14 (and the asserted Article 19(1)(g) challenge).
A. On legislative competence and the meaning of "police": the court referred to Schedule 7 (Provincial list), notably item 3 concerning "police including railway and village police," and noted that the Provincial legislature has power to legislate on police matters including strength and recruitment. The court rejected the applicant's contention that the armed constabulary's functions are not police functions. After examining the Act and its underlying purpose, the court concluded the Act's object was the maintenance of internal peace and order and therefore fell within the ambit of "police." The court also applied the interpretive principle (from P.N. Balsara and Atiqa Begum) that items in legislative lists must not be read narrowly and apparent conflicts should be reconciled. These principles supported a broad understanding of "police" that encompassed the Armed Constabulary Act.
B. On Article 14 and classification: the court accepted the principle (cited from Ameerunnissa Begum and other authorities) that legislatures may make reasonable classifications in order to achieve particular objectives, and that differential treatment does not amount to unconstitutional discrimination unless it is arbitrary or lacks a rational basis relative to the legislative objective. Applying that principle to the Act, the court found the classification creating an armed constabulary to be valid and justifiable, and thus the Act did not violate Article 14.
The court therefore held that the U.P. Armed Constabulary Act is intra vires the provincial legislature and is constitutionally valid. On the specific conviction and sentence, the court noted the timing of arrest (26-6-1953), trial conviction (15-2-1954), lack of bail during trial and appeal, and the total period spent in custody (undertrial and as a convict). Having regard to the period already undergone (in excess of a year) and the ends of justice, the court concluded the sentence should be reduced to the period already served while otherwise maintaining the conviction.
Holding and Implications
Core Ruling: The court held that the U.P. Provincial Armed Constabulary Act is intra vires the Provincial Legislature and constitutionally valid; the applicant's conviction is maintained, but the sentence is reduced to the period already undergone by the applicant.
Implications:
- Direct effect on the parties: The applicant's conviction remains in force, but his term of imprisonment is reduced to cover only the period he has already spent in custody (having been in jail from his arrest through trial and conviction). The court therefore granted the relief of sentence modification but did not overturn the conviction.
- Broader precedent: The opinion applies established interpretive principles (as reflected in cited authorities) to include the Armed Constabulary within the provincial "police" entry and to uphold legislative classification against Article 14 challenge. The court did not state that it was laying down a new legal principle; it relied on existing authorities. (The opinion does not explicitly claim to set a new precedent beyond applying existing authorities.)
Order concluded in the opinion: "Order accordingly." The opinion text identifies the conviction as being under a provision referenced by the court as Section 7(c) of the U.P. Provincial Armed Constabulary Act (11 of 1948) while the charging and earlier references in the record also refer to Sections 6(e) and 7(e) elsewhere in the text; the court's ultimate statement was that the applicant "has been rightly convicted" under the provision it cites, and that the sentence should be reduced to the period already undergone.
1. This revision was filed from jail by the applicant against the order of the Sessions Judge of Moradabad who dismissed the appeal of the petitioner filed against his conviction under Section 6(e) of the U.P Provincial Armed Constabulary Act (40 of 1948) by the Sessions Judge of Moradabad. In appeal however the Sessions Judge reduced the sentence of imprisonment from three years' rigorous imprisonment to 18 months' rigorous imprisonment. The applicant had prayed that he should be informed of the date fixed for hearing. An order was passed by Hon'ble Mukerji, Judge that the applicant be informed of the date and he should either appear in person or as was desired by him, Sri S.P Gupta practicing in the district Court be informed of the date and asked to appear on his behalf. Notice was then issued to Mr. Gupta and on the date of hearing he appeared and was permitted to argue the case on behalf of the applicant. The charge against the applicant was that he being an officer of the Provincial Armed Constabulary, malingered or feigned disease in himself with effect from 14-3-1951 till 31-3-1951 and thereby committed an offence under S. 7(e) of the U.P Provincial Armed Constabulary Act (40 of 1948). He was further charged of an offence under S. 6(e) of the said Act. The prosecution case, in brief is that the applicant was employed in the Provincial Armed Constabulary, IX Bn. stationed at Moradabaa and absented himself from duty without permission or leave and malingered and feigned up 10, 31-3-1951 and subsequently absconded and deserted service. On 2-3-1951 the accused made an application to the Commandant of his Battalion for seven days leave on the ground that his wife had been seduced by certain persons from his father-in-law's place and was sold to someone. The leave was granted with effect from the 7th March till 13-3-1951. He went to his house and on 12-3-1951 he sent a reply paid telegram to his Company Commander, praying for further extension of his leave for ten days. This was refused and he was required to report himself for duty immediately. The order was communicated to him on the same day by wire. He did not report himself on duty and he was noted absent with effect from 14-3-1951.
2. A notice was sent to him on the 17th March by the Assistant Commandant, requiring him report himself for duty within seven days, failing which he was to be prosecuted under S. 6(e) or the Act. This notice remained unserved and was received back on 17-4-1951. On 21-3-1951 another application was sent by the applicant accompanied by a medical certificate of the same date, for 20 days leave. In that it was stated that before the expiry of the leave the accused fell ill. This leave would have expired on 2-4-1951. On 31-3-1951 another application was sent by the accused supported by a medical certificate stating that he had not completely recovered as yet and the leave should be extended till 3-4-1951. No order was passed on this application as well. The accused appellant did not report himself on duty even after 3-4-1951. Again on 16-4-1951 the P.A.C authorities at Moradabad sent a letter to the Deputy Superintendent of Police, Garhwal, requesting him to direct the accused to report himself for duty within seven days of the receipt of that letter. The Deputy Commissioner was informed by the Patwari of the circle on 29-4-51 that the accused-appellant had gone back to join his duty some 16 or 17 days before. No reply was received from the applicant. Another letter was sent to him by the P.A.O authorities on 30-4-1951.
3. The applicant remained untraced and thereafter on 7-5-1951 the Commandant of the Battalion lodged a formal report to the S.O Kotwali, Moradabad, for registering a case of desertion under S. 6(e) of the Act. The Battalion thereafter left Moradabad in January 1952 and on 16-4-1952 after making certain enquiries another request was made to the said S.O Kotwali to register a case. The Police could not find the applicant and proceedings under Section 87 of the Cr PC and Section 88 of the Cr PC were taken against the accused. The charge-sheet was sent on 27-1-1952. In the meantime the applicant got himself enrolled as a police constable at Rampur and when all these facts came to light he was arrested on 26-6-1953.
4. A number of points have been raised by Sri Gupta on behalf of the applicant. Firstly he has contended that the U.P Provincial Armed Constabulary Act is ‘ultra vires’ of the U.P Legislature as it is not covered by any of the provincial lists. Secondly it is contended that the Act violates the provisions of Articles 14 and 19(1)(G), Constitution of India and as such it is void under Article 13 of the Constitution.
5. Lastly, it was contended that, in any view of me matter the applicant was already peen in jail for a sufficiently long time and the sentence be reduced to the period already undergone. Schedule 7, Government of India Act, 1935 contains a legislative list and these lists contain the subject which can be legislated upon by the Central Legislature and the Provincial Legislature. There is also the concurrent list specifying the subjects on which the Central and the Provincial Legislatures could legislate. In the Provincial Legislative list item 3 relates to the “police including railway and village police”. It is within the powers of the Provincial legislature to legislate with regard to the police inducing its strength, its manner of recruitment and other matters incidental thereto.
6. The argument of the counsel for the applicant was that the Act creating a force of armed constabulary is not covered by item 3 of the Provincial list of the Government of India Act, 1935. The functions and duties to be performed by the Armed constabulary are not police functions. The functions of the police are enumerated in the Indian Police Act. On a close examination of the Act and the purpose underlying the Act, it cannot be said that the object of creating the force of armed constabulary was anything but the maintenance of internal peace and order. The Act came within the ambit of the word ‘Police’. Therefore, force created under the Act, is not a combatant force like army.
7. The contention of the applicant is that in the absence of any definition of the word “Police” given in the Government of India Act, it should be given the same meaning as is given to it in the Police Act of 1861. The word “Police” is defined in the said Act “including all persons who shall be enrolled under this Act.” It is conceded that the word “Police” in its general sense connotes, the “department of the Government or the civil force charged with duty to maintain internal peace and order.” In interpreting the words used in the list given in Sch. 7 of the Government of India Act, 1935 it is an established principle that none of the items are to be read in a narrow or restricted sense.
8. Reference in this connection may be made to the case of — ‘State of Bombay v. P.N Balsara’, AIR 1951 SC 318 (A), where it has been laid down that one of the principles for the interpretation of the items given in the list is that they are not to be read in a narrow or restricted sense. The second principle in interpreting the items in the list is that where there is a seeming conflict between an entry in List II and an entry in List I, an attempt should be made to see whether the two entries cannot be reconciled so I as to avoid a conflict of jurisdiction. A similar principle was laid down by their Lordships of the Federal Court in the case of — ‘United Provinces v. Atiqa Begum’, AIR 1941 PC 16 at p. 25 (B). There is, therefore, no force in the contention of the applicant that the U.P Act of Armed Constabulary does not come within the ambit or the word “Police” used in the Provincial List.
9. As regards the contention that the Act is ‘ultra vires’ in view of the provisions of Article 14 or the Constitution, it is enough to point out that having regard to the nature of the subject-matter of cue Act the armed constabulary is a valid and justifiable classification and the Act is fully supported on the principle of classification.
“It is well settled that a legislature which has to deal with diverse problems arising out of an infinite variety of human relations must of necessity have the power of making special laws to attain particular objects; and for that purpose it must have large powers of selection or classification of persons and things upon which such laws are to operate. Mere differentiation or inequality of treatment does not ‘per se’ amount to discrimination within the inhibition of the equal protection clause. To attract the, operation of the clause it is necessary to show that the selection or differentiation is unreasonable or arbitrary: that it does not rest on any rational basis having regard to the object which the legislature has in view.” ‘Ameerunnissa Begum v. Mahboob Begum’, AIR 1953 SC 91 at p. 91 (C).
10. Reference in this connection may be made to the cases of — ‘Charanjit Lal v. Union of India’, AIR 1951 SC 41 (D), — ‘Ram Prasad v. State of Bihar’, AIR 1953 SC 215 (E), — ‘State Of West Bengal v. Anwar Ali Sarkar,’, AIR 1952 SC 75 (F) and the case of — ‘Lachhman Das Kewalram v. State of Bombay’, AIR 1952 SC 235 (G). In my judgment the U.P Armed Constabulary Act is, ‘intra vires’ and the applicant has been rightly convicted under Section 7(c) of the U.P Provincial Armed Constabulary Act (11 of 1948). As regards the sentence, the applicant was convicted by the Assistant Sessions Judge on 15-2-1954. He was arrested on 26-6-1953. He was not let out on bail throughout the trial and before the Sessions Judge in appeal. He has, therefore, been in jail from June 53 to February 1954 as an under trial prisoner and from February 1954 up to the present day as a convict. He has, therefore, been in jail for more than a year and the ends of justice will be met if the sentence of imprisonment is reduced to the period already undergone. In other respects, the conviction of the applicant is maintained.
D.H.Z
11. Order accordingly.
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