Kash Mahomed vs The Empress

Wilson, J.—It is unnecessary for the purposes of the present case to decide whether the section under which the accused person was convicted, has any application to the case, that is to say whether sec. 29 of Act V of 1861 applies to special constables appointed under sec. 17. On the one hand the language of sec. 18 was relied upon as showing that sec. 29 is applicable to special constables. On the other hand, there is the existence A special provisions in sec. 19 to meet the case of special constables, and there is certainly much in the language of sec 29 that makes it to my mind, perfectly clear that, whatever the effect of sec. 18 may be, whether it does or does not make the provisions of sec 29 applicable to special constables, whoever framed sec. 29 could never have intended to apply to such a case. One provision in that section is conclusive on this point. Under sec 29 a penalty not exceeding three months'' pay or three months'' imprisonment or both is prescribed for a police-.officer who engages himself in any employment other than his Police duty. However, as I have said, it is not necessary for us to determine whether sec. 29 applies to this case or not. If it does apply, it is, to say the least of it, an exceedingly stringent provision of the law which should not be put in force except in extreme cases, and where milder remedies have been tried and have failed. And 1 have no hesitation in saying that if sec. 29 applies at all, it ought not to be applied to cases of this kind. The Court should have recourse to sec. 19 which is expressly enacted to meet the very case of special constable. But in the present case we think that the conviction canuot be supported on other grounds--assuming sec. 29 to apply. The provisions of sec. 263 of the Criminal Procedure Code, which prescribe the matters which must be recorded in the case of a summary trial, have not been complied with. It has been repeatedly pointed out and laid down by this Court that in the case of a summary trial, in which so little is recorded, and therefore there is so little protection from without to the person accused, against the risk of error, haste or inaccuracy, the scanty provisions of that section must be fully and strictly complied with, and complied with in this sense that the record must be sufficiently exact, and sufficiently full to enable the Judges of the Revisional Court to say whether the law has been complied with or not on the -points to be recorded. Three particular things amongst others are required to be recorded under the heading (f) the offence complained of, and the offence, if any, proved, and under the heading (h) in the case of a conviction, a brief statement of the reasons therefor must be recorded. These three things, the offence charged, the offence, if any, proved and the reasons for convicting, must be recorded, and recorded in such a way as to enable the Court of Revision to say, aye or no, from within the four corners of the record itself, whether the offence charged is an offence in point of law, whether the offence proved is an offence in point of law, and whether the reasons for the conviction are good and sufficient reasons. Now, the offence charged is thus recorded :--" absence from special constables'' parade on the 21st and 28th May 1888 without permission" and then reference is made to sec. 29 of Act V of 1861. Now sec. 29 contains no such offence as "absence from special constables'' parade." If absence from special constables'' parade on the days in question were an offence under sec. 29, it would seem to be so, because it was a violation of duty or neglect of a rule or of a lawful order. If so, the offence should have been so framed. It should have been stated that the offence charged was a breach or violation of a duty somehow imposed on the accused or a breach of an order given to him by some one to attend a parade at such and such place and time, and on the days named. This has not been done. Therefore the offence is not so recorded as to enable us to say that there was an offence.

Then the offence proved is thus recorded:--"Guilty of wilful neglect of duty in absenting himself from special constables'' parade on the 21st and 28th May." But how it was a neglect of duty to absent himself from these parades is not stated. Therefore the offence, if any, proved, is not recorded in such a way as to enable us to say whether it was an offence.

Then when we come to look at the reasons for the conviction, there is exactly the same defect. If the absence from parade was a ground for convicting, it. must be because of some duty or of some special order to attend parade, and because there was some parade which it was the duty of the accused to attend at some particular place and hour on the 21st and 28th of May. There is no record of any finding on this subject.

The result is that there are no materials on this record to enable us to say that there was any offence properly charged and properly found against the accused. The conviction must therefore be set aside.

Rampini, J.

I agree.