Courtney Terrell, C.J:— This is a petition for the revision of a decision of the Sessions Judge of Shahabad convicting the petitioners Banslochan Lal, a mukhtar practising at Bhabhua and Barmeshwar Nath Varma, a Court Sub-Inspector employed at the same place. The facts are as follows:— At Bhabhua there were two factions which I will term A and B respectively of the Moslem community. Between these factions litigation and criminal cases had taken place. One Khurshaid Mian, a member of faction A had lodged a first information accusing one Sher Muhammad and several others of faction B of rioting. The matter was investigated by the police, a charge sheet was prepared and the charge sheet together with His case diaries were sent to the petitioner Barmeshwar Nath Varma. The Sub-divisional Officer fixed the 5th June, 1928, for the hearing. The petitioner Banslochan Lal was employed to defend the accused. On. the 4th June the Inspector Zeaur Rahman acting on information received at the thana went accompanied by two Sub-Inspectors and a constable to the house of the Court Sub-Inspector. There he found the petitioner mukhtar together with another mukhtar. The petitioner Banslochan had in his hands the case diary and was taking notes from it. The Court Sub-Inspector was away in another part of the house but he appeared after a few moments and explained that in his absence the mukhtar had taken the case diary. It is clear, however, that he had without permission from superior authority and on his own responsibility allowed the mukhtar to see the case diary and take the notes. The other mukhtar has since been acquitted. The Court Sub-Inspector and the two mukhtars were taken before the Sub-divisional Officer of Arrah and a charge sheet was prepared by the police. This charge sheet contained amongst other things charges under section 29 of the Police Act, 1861. The Magistrate, however, charged the Sub-Inspector under sections 409 and 217 of the Indian Penal Code and the petitioner Banslochan Lal was charged with abetment under sections 409/114; also under sections 217/114 and section 379 of the Indian Penal Code. The trial Court convicted the accused under all these sections. The petitioners were ordered to be detained until the rising of the Court. The petitioner Banslochan Lal was sentenced to pay a fine of Rs. 300 and the petitioner Barmeshwar Nath Varma to pay a fine of Rs. 250.
On appeal to the Court of Sessions the Judge held on the facts that there could be no conviction under sections 409 or 217 or 379 of the Indian Penal Code. But he himself framed a charge under section 29 of the Police Act as against the Court Sub-Inspector and as against the mukhtar under section 29 read with section 114 of the Indian Penal Code. He convicted the petitioners under these sections, and he reduced the sentences to fines of Rs. 150 in respect of each of the accused. He found that there had been a breach of rules 278, and 803 of the Police Manual, Part I.
section 29 of the Police Act is as follows:—
“Every police-officer who shall be guilty of any violation of duty or wilful breach or neglect of any rule or regulation or lawful order made by competent authority, or who shall withdraw from the duties of his office without permission, or without having given previous notice for the period of two months, or who being absent on leave, shall fail, without reasonable cause, to report himself for duty on the expiration of such leave, or who shall engage without authority in any employment other than his police-duty, or who shall be guilty of cowardice, or who shall offer any unwarrantable personal violence to any person in his custody, 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.”
The first point taken on behalf of the petitioners is that the rules 278 and 803 held to have been broken are not statutory rules or regulations and that the meaning of the words “made by competent authority” implies that the rules referred to in section 29 must be such only as have such statutory authority. Now under section 12 of the same Act it is enacted as follows:—
“The Inspector-General of Police may, from time to time, subject to the approval of the Local Government, frame such orders and rules as he shall deem expedient relative to the organization, classification and distribution of the police-force, the places at which the members of the force shall reside, and the particular services to be performed by them; their inspection, the description of arms, accoutrements and other accessaries to be furnished to them the collecting and communicating by them of intelligence and information: and all such other orders and rules relative to the police-force as the Inspector-General shall, from time to time, deem expedient for preventing abuse or neglect of duty, and for rendering such force efficient in the discharge of its duties.”
If such rules have received the approval of the Local Government it is clear that they are rules to which section 29 applies. At the head of the volume of rules contained in the Police Manual (among which rules 278 and 803 are to be found) there appears a preface signed by the officiating Chief Secretary to the Government of Bihar and Orissa. It is as follows:—
“The Lieutenant-Governor in Council has, in exercise of the powers conferred by the, sections mentioned on the margin of the paragraphs or sub-paragraphs of this Manual which are marked with an asterisk, or a single or double dagger, made or approved the orders and rules contained in those paragraphs or sub-paragraphs in supersession of all orders and rules heretofore made under those sections.
2. The remaining paragraphs of the Manual, though not having statutory force, are binding on all police officers, as well as on all other officers of Government to whom they refer.
3. Only those rules or orders have been framed as statutory rules or orders to which it seemed necessary or desirable to give legal effect; but there are many others contained in the Manual which might have been issued as statutory rules or orders had it been deemed necessary to issue them in that form.”
In the margin of rules 278 and 803 there is no “asterisk or single or double dagger.” It is difficult to understand why the preface was framed in this way and no explanation of it is forthcoming. All that was required was the approval by the Government and the second paragraph of the preface clearly indicates that whether or not it was the intention of the Government to give to any particular rules and regulations the status of statutory rules it is very obvious that all the rules have received the approval of the Government and are intended by the Government to be binding upon all police officers. Rule 278 is divided into three paragraphs and the first two only are material. Rule 278, paragraph (a), is as follows:—
“The original file of case diaries is attached to the charge-sheet [see rule 177(a)]. The diaries shall remain in the personal custody of the Court officer, but he shall make them over to the prosecuting officer, who shall make his notes on the margin and keep the diaries with him for guidance. At the conclusion of the case, the Court officer shall return the original diaries to the police-station from which they were sent up.”
Paragraph (b) starts with a summary of the law relating to the use of case diaries in a Criminal Court and concludes with the sentence
“The accused and his agent are not entitled to call for or use the diary in any other circumstances.”
It is said that there is here a mere statement of law without any express prohibition upon a police officer from showing the case diary to the legal adviser of the accused. In my opinion this view is quite unsound. The meaning of the rule is that the Court officer is to keep the diaries in his own possession and that if the accused or his agent call for the diary in any circumstances other than those mentioned in the earlier part of paragraph (b) the Court officer is to refuse the request. There has, therefore, been a distinct breach of this rule by the Court Sub-Inspector. Rule 803 is as follows:—
“A police officer may not, unless generally or specially empowered by the Local Government in this behalf, communicate directly or indirectly to Government servants belonging to other departments, or to non-official persons, or to the Press, any document or information which has come into his possession in the course of his public duties, or has been prepared or collected by him in the course of these duties, whether from official sources or otherwise.”
It is urged that the custody of the case diaries having been specifically dealt with under rule 278 the words “document or information” in rule 803 do not include the case diaries. In my opinion this argument is untenable. The words “document or information” are quite comprehensive.
In my opinion section 29 of the Act is to be construed quite widely. The words “rules and regulations” it is true clearly refer to such rules and regulations as are properly framed by a competent authority, that is to say by the Inspector-General. The words “lawful order” refer to any order which any officer may lawfully give to any individual or specific body of individuals under his command and I agree with the judgment of Mr. Justice Adami in the case of Mohamed Yusuf v. Emperor. I would further point out that offences under section 29 are not limited to the wilful breaches or neglect of a rule or a regulation or a lawful order but include any “violation of duty”. A consideration of the statute as a whole indicates that as opposed to the constitution of a military force which provides for punishment to be inflicted by military officers for violation of duty or breach of orders the constitution of the police force under the Act is such that punishment by imprisonment or fine is to be inflicted by the civil Magistrate before whom the offender is to be brought; and provided that the rule or regulation has been properly framed, and approved by the Local Government or, on the other hand, that the order, if it be an order, was lawful, a breach is an offence under the section and furthermore any violation of duty is similarly punishable. It may well be that in any particular case the offence may be so trifling that the Magistrate may say that it should not have been brought before him but should have been dealt with departmentally. The offence, however, committed by the petitioner Barmeshwar was a serious offence.
The second point taken by the petitioners was that the conviction not being by the Magistrate but by the Sessions Judge it cannot stand because of the words in section 29, “shall be liable on conviction before a Magistrate.” Reference is also made to rule 261(a) of the Police Manual which is as follows:—
“Superintendents and the Principals of the Police Training College and Constables' Training School are empowered to; order the prosecution of police officers under section 29, Act V of 1861, but no Magistrate, except the Magistrate of the district, may exercise the power of instituting prosecutions under this section.”
It is not denied and we are satisfied that the prosecution in this case was ordered by a Superintendent. The rule is merely an enabling rule except that in the case of a Magistrate who institutes a prosecution he must be the Magistrate of the district. And an appellate Court has all the powers of the Court from which the appeal lies.
Two cases were relied upon to support the contention of the petitioners. The first is the case of Indrobeer Thapa where the accused under section 29 of the Act was committed straight to the Court of Sessions on the charge and it was held that the Sessions Judge had no power to try such cases. In the case of Bhooban Singh the person charged under section 29 was also committed direct to the Sessions and a similar decision was arrived at. In this case, however, the accused were tried on the facts before the Magistrate and a charge sheet was submitted which included charges under section 29. He merely failed to convict the accused under the proper section. In my opinion the cases cited have no application.
It was contended on behalf of the mukhtar that the whole of the offence of the Court Sub-Inspector, if any, was committed before the mukhtar began noting from the diary and that there cannot be an abetting of an offence after it has been committed. In my opinion a complete answer to this contention is to be found in the fact that the Court Sub-Inspector by allowing the mukhtar to have possession of the diary was committing an offence which continued so long as the diary was in the mukhtar's hands.
I would therefore decline to interfere with the convictions.
A rule was issued against the petitioners to shew cause why the sentences should not be enhanced. We have carefully examined this aspect of the matter. The police officer has been under suspension for a considerable period with all the disadvantages appertaining to that position and it is possible that he may receive further departmental punishment. The mukhtar, on the other hand, has not yet been dealt with under the Legal Practitioners Act and it will be for the Sessions Judge to consider the matter and to decide whether or not to make a formal reference to the High Court. In the particular circumstances of this case the punishments inflicted by the Sessions Judge appear to us to be adequate.
There remains another aspect of this matter involving a very important point of principle to which I desire to call the attention of criminal tribunals and legal practitioners for their guidance, and it received illustration in this case. After the submission of the points of law on behalf of the petitioners, the junior Advocate on their behalf proposed to enter into a discussion of the facts taking advantage of the principle that since there was a rule for enhancement he was entitled to shew that the accused should not have been convicted. For this purpose he offered to demonstrate from the evidence that the whole case had been concocted by the Inspector and the Sub-Inspectors who arrested the petitioners. I pointed out to the learned Advocate that he was quite at liberty to take this course but should it fail and should we come to the conclusion that the aspersions on the character of these police officers were without foundation, this circumstances would gravely aggravate the original offence and that the sentence would in that case be substantially enhanced. An adjournment for consideration was granted after which Sir Ali Imam, leading Counsel for the petitioners, appeared and stated that after consultation it had been decided not to go further into the facts and he confined himself to other and quite legitimate arguments against the rule for enhancement. It is extremely common for advocates for the defence to argue that the prosecution story is an entire concoction on the part of the police and in the vast majority of cases no evidence whatever, whether elucidated in cross-examination or offered by examination-in-chief, is ever produced in support of this argument. Now either the contention is raised on the direct instructions of the client or it is deliberately raised by the Advocate without any instructions at all. In the former case the accused has added to the heinousness of the offence with which he is charged by a baseless accusation of outrageous conduct on the part of the police or other prosecutor. In a clear case of this kind the tribunal should take this into account as a circumstance of aggravation in awarding the sentence. In the latter case, that is to say where the suggestion is made by the legal practitioner without reasonable cause, the legal practitioner is guilty of the grossest professional misconduct. Moreover cross-examination on these lines is often grossly abused and it is the duty of the tribunal if it has any suspicion when an Advocate begins an attack upon a prosecutor or a witness by way of so-called “suggestions” involving dishonourable conduct to demand from the Advocate an assurance that he has good grounds for making the suggestions. If the assurance is not received the cross-examination on these lines should be stopped promptly. If the assurance is given and if it should appear at the termination of the trial that no such grounds had existed, the tribunal should bring the conduct of the Advocate to the notice of the High Court. I make these observations in order that a check may be placed upon a growing and serious evil and without reference to the particular facts of this case.
Chatterji, J.:— I agree to the order proposed by the learned Chief Justice for the reasons given by him.