Union of India (UOI) and Another vs Gogaraj Singh

H.K. Sema, J.—This appeal is directed against the Judgment and order dated 30.9.92 passed by the learned Addl. Deputy Commissioner (J) Phek, Nagaland in Criminal Appeal No. 41/90 whereby the learned A.D.C. set aside the order of Conviction of the Respondent herein passed by the Asstt. Commandant, 43 Bn. C.R.P.F. Chozouba-cum-Magistrate 2nd Class u/s 10(m) of C.R.P.F. Act, 1949 (Act No. 56 of 1949) herein after the Act, sentencing the Respondent to undergo S.I. of 21 days from 31.3.76 to 28.4.76. This appeal is preferred by the Union of India.

I have heard Mr. E.Y. Renthungo, learned Jr. Govt. Advocate for the Appellant as well as Mr. R.K. Singh learned Counsel for the Respondent.

Factual metrix first, The Respondent was a member of C.R.P.F. and joined the said force on 1.4.68. During relevant time he was serving in 43 Bn. C.R.P.F. posted at Chozouba. The Respondent was granted 10 days Casual leave w.e.f. 13.2.76 to 24.2.76 with permission to interfix 22.2.76 and 15.2.76 bang Sundays and further granted 4 days time for journey period from his home town to the place of joining report i.e. from 25.2.76 to 28.2.76. The Respondent was to report back for duty at Dimapur (Group Centre) on 28.2.76 (AN).

On 27.2.76, the Respondent sent a Telegram to his Commandant 43 (Bn.) C.R.P.F. seeking extension of leave by 30 days on the ground that his Grand Mother had expired on 25.2.76 at 19.30 hours. The Respondent also sent a registered letter on 27.2.76 addressed to his Company Commander requesting 30 days extension of leave. It is undisputed that both the communication have been received by the Appellant herein and the same has been exhibited as Ext. 3 during the trial. The Respondent thereafter did not receive any reply either from the Commanding Officer or from his Company Commander.

On 12.3.76 (Ext. 4) the Company Commander wrote a letter informing the Respondent to immediately join duty on receipt of the letter failing which disciplinary action will be taken against him. At this stage it may be pertinent to mention herein that there is no evidence on record to show that the Respondent had received the letter dated 12.3.76 sent by his Company Commander. Ultimately, the Respondent jointed his duty on 30.3.76 at Group Centre at Dimapur. Thereafter, a Criminal case namely, Criminal case No. 6/76 was instituted against the Respondent on 15.4.76 and on the same day the learned Asstt. Commandant-cum-2nd Class Magistrate found the Respondent guilty u/s 10(m) of the Act, and sentenced him as aforesaid. Being aggrieved, the Respondent herein preferred an Appeal before the learned A.D.C (J). The said appeal was registered as Criminal Appeal No. 41/90, The learned A.D.C. (J) after hearing the parties by its Judgment and order dated 30.9.92 allowed the appeal and set aside the order of conviction passed by the learned 2nd Class magistrate. Hence the present appeal.

ft is submitted by Mr. E.Y. Renthungo learned Counsel for the Appellant that the Respondent had overstayed the leave granted to him without any sufficient cause and therefore the Judgment and order passed by the learned 2nd Class Magistrate rightly held the Respondent guilty u/s 10(m) of the Act, and the same was not warranted any interference from the appellate lower Court arid as such the Judgment and order dated 30.9.92 passed by the learned Lower Appellate Court is liable to be set aside. In other words, the submission of the counsel for the Appellant is that there is no infirmity in the Judgment and order passed by the learned 2nd Class Magistrate convicting the Respondent u/s 10(m) of the Act.

As against this, Mr. R.K. Singh, learned Counsel for the Respondent contended that form the facts as alluded above, the Respondent was prevented by sufficient cause to overstay the leave granted to him. He further submitted that as there was no reply from the Commandant and Company Commander to the request of the Respondent dated 27.2.76 requesting extension of 30 days leave it was presumed that the extended leave as prayed for was granted and as such no offence u/s 10(m) of the Act been made out against the Respondent.

I have given my anxious consideration to the submission advanced by counsel of both sides. Section 10(m) of the Act reads as under:

10(m): absents himself without leave or without sufficient cause overstays leave granted to him

(emphasis supplied).

The punishment for contravention of the aforesaid section of law is with imprisonment for a term which may extend for one year, or with fine which may extend to 3 months pay or with both.

A cursory reading of the aforesaid section of law would clearly show that it consists of two parts; first part deals with an incumbent absenting himself without leave. This we are not concerned for the present controversy. Second part deals with an incumbent overstayed the leave granted to him without sufficient cause. This would allow that if sufficient cause in shown and established for overstays the leave granted, there is no offence or to put it alternately the question of contravention of Section 10(m) would arise only in the cases where an incumbent overstayed the leave granted to him without sufficient cause. The factors constituting the sufficient cause would, however, depend upon the facts and circumstances of each case. Now let us see whether any offence has been able to made out against the Respondents u/s 10(m) in the present case. In other words whether the Respondent overstays the leave granted to Him without sufficient cause?

Reverting to the facts of the case, the Respondent was granted leave upto 28.2.76. Grand Mother of the Respondent expired on 25.2.76 at 19.30 hours. On 27.2.76, he sent a Telegram to the Commanding Officer requesting extension of leave by 30 days on ground of death of his Grand mother on the same day he also sent a registered letter to his Company Commander requesting for the same. No reply/communication was received by the Respondent neither from his Commanding Officer nor from his Company Commander. In law silence amounts to consent. Therefore the Respondent was confident that this extended leave as requested was granted. This position is compounded by the fact that the Respondent had joined the duty on 30.3.76 after the expiry of the extended period of 30 days.

From Ext. 4, letter dated 12.3.76, it appears for the first time the Company Commander directed the Respondent to join duty immediately on receipt of the letter failing which disciplinary action would be taken against him.

It is stated at the bar the Respondent is from village Taswaria P.O. Krishnagopal Kofeda P.S. Kojeri Dist. Ajmer, and the distance from the town of the Respondent to the place of posting at Jagalana is about 2,000 Kms. There is no evidence on record to show that the Respondent had received the letter dated 12.3.76 sent by the Company Commander asking the Respondent to join the duty immediately.

The facts and circumstances as alluded above would show that two factors are clearly appearing in favour of the Respondent. First, that he was under the impression that the request for extension of leave period by 30 days has been granted as no communication was received from the Commandant or Company Commander rejecting the prayer. Therefore, the request of extending leave period by 30 days is deemed to have been granted. Secondly, the overstay of the leave granted by the Respondent was due to the demise of the grand mother of the Respondent which in normal circumstances would constitute sufficient cause to overstays the leave granted to Win. It is not the case of the Appellant that the statement of the Respondent that his grand mother expired was proved false.

Therefore, the fact of the expiry of the grand mother of the accused on 25.2.76 at 19.30 hours stands admitted. Under this circumstances as already said, the Respondent overstay of the leave granted to him was with sufficient cause.

As already said every overstays leave granted to him is not an offence under second part of Section 10(m) it becomes an offence if the incumbent overstays leave granted to him without sufficient cause, In other words overstays of leave granted to him must be wilful. Once sufficient cause is shown and established no offence under second part of Section 10(m) has been committed.

Considering the facts and circumstances as alluded above, no offence u/s 10(m) has been made out against the Respondent. Therefore the findings recorded by the learned trial Court by its Judgment and order dated 13.4.76 is clearly erroneous and has rightly set aside by the lower Appellate Court. There is no infirmity in the Judgment and order dated 30.9.92 passed by the learned Lower Appellate Court which warranted interference by this Court.

The appeal is accordingly dismissed.