The petitioner, a police constable, has been convicted by the Joint Magistrate of Tirupatur of an offence under Sect. 45 of the Madras District Police Act (Act XXIV of 1859) by receiving an unauthorised fee or recompense.
The first point argued on his behalf is that the prosecution is time-barred under Sect. 53 of the same Act, more than three months having elapsed between the commission of the alleged offence and its institution. The construction of this section is not altogether free from doubt; but, in my opinion, it does not apply to a case like the present one. The counsel for the petitioner contends that the three months limitation applies to all prosecutions for offences constituted by the Act: and he relies on an unreported decision by Boddam, J., in Criminal Revision Case No. 460 of 1898. He would have the words “under the provisions of this Act, or under the General Police-powers hereby given” read as qualifying the words “actions or prosecutions against any person.” How any “prosecutions,” to say nothing of “actions” can be said to be brought “under the General Police-powers hereby given” it is impossible to understand; and Mr. S. T. Srinivasagopalachari has to admit that his interpretation makes nonsense of the second clause of the section regarding notice “to the defendant, or to the superintendent or other superior officer.” The reason for the following clauses is also difficult to conjecture on this view of the scope of the section.
If, on the other hand, the words “under the provisions of this Act or under the General Police-powers hereby given,” be taken as applying to “anything done or intended to be done” then the section becomes perfectly coherent and intelligible, and its intention is obvious—to impose a bar of limitation against actions and prosecutions against officers, for acts done or purporting to be done in pursuance of their official powers: and to impose further restrictions on such proceedings in respect of notice, tender and costs. The only obstacle to such a construction is the insertion of commas after the words “intended to be done” and “provisions of this Act.” The second of these is certainly superfluous under any construction: and it seems to me more reasonable to disregard the first and view it as either superfluous or inserted by mistake than to adopt a reading of the section so irrational as that contended for by the petitioner's counsel. The view I am disposed to take has been taken apparently without hesitation by two Benches of this Court (Vide Criminal Revision Case No. 419 of 1894 reported in Weir's Criminal Rulings, Vol. I, page 846 and Gundam Venkatasami v. Chinnam Purushottamma: and I must respectfully dissent from the ruling of Boddam, J., in the case relied on for the petitioner. I hold that the prosecution was not barred by Sect. 53 of the Police Act.
The conviction must, however, be set aside on another ground. The petitioner has, in my opinion, been gravely prejudiced by the proceedure of the Joint Magistrate, and he has no fair chance of defending himself.
The hearing of the prosecution witnesses commenced as soon as the accused (petitioner) appeared or was brought before the Court on 30th July 1914 The accused, who was not represented by a vakil, after pleading not guilty to the charge framed, cross-examined one witness and as is stated “declined to cross-examine the others without a vakil.” Whether the cross-examination of these witnesses was postponed or omitted does not appear: but the case was adjourned till 11th August 1914 for defence evidence. On 31st July 1914, the accused put in a petition for copies of the depositions of the prosecution witnesses and other documents to which he was legally entitled, for the purpose of engaging a pleader and conducting the proceedings. On 3rd August 1914, not having received these copies, he filed another petition stating (in effect) that they were necessary to enable him to instruct a Vakil, and that in case they could not be granted him before the adjourned date a further adjournment might be necessary. Finally, on 11th August 1914, he put in a third petition calling attention to the previous two, and stating that as he had still not been given the copies, he had been unable to “engage a Vakil and conduct the case.” He, therefore, asked that the case sould be adjourned and copies given him.
The Joint Magistrate refused the adjournment, called on the accused to examine his defence witnesses, and, as the accused professed himself unable to do so without a Vakil, closed the case with-out them and convicted and sentenced the accused.
In his judgment he does not refer to the copy petitions but says “as accused is evidently trying to delay the case, without corresponding benefit, adjournments have been refused.”
The learned Public Prosecutor is unable to suggest any reason why the copies far which the accused applied were not granted; or to explain the joint Magistrate's procedure.
The accused's request for an adjournment on 11th August 1914, appears to have been quite reasonable. No doubt he might have engaged a Vakil, but without the copies applied for, he could not have properly instructed him. If, for whatever reason, the copies for which the accused had applied had not been given to him before the hearing on 11th August 1914, common fairness should have dictated an adjournment of the case, so that the accused might not be prejudiced in his defence.
I set aside the conviction and sentence and direct the retrial of the petitioner.
It is brought to notice that the offence was committed within the limits of the Chingleput District. I direct that the petitioner be retried by the District Magistrate of Chingleput District or any Subordinate Magistrate having jurisdiction to whom he may see fit to transfer the case.
Conviction set aside and retrial ordered.