STATE Vs. INDRA PADHAN

JUDGEMENT

(1.) This is an appeal by the State of Orissa against an order of Shri T. Misra, Magistrate 1st Class, Baudh, acquitting the respondent, Indra Padhan of a charge under Section 224, Indian Penal Code. The fact giving rise to the present appeal are these :

(2.) There was a case of theft in village Mohakudpali as a result of which certain properties belonging to one Krutartha Meher were stolen which were found the following morning in possession of the respondent in village Karadi within the Police station of Boudh. The villagers of Karadi detained the respondent in their village and sent information to the Police Station of Boudh. The Officer-in harge of the Boudh Police Station being otherwise busy, deputed P.W. 1, Arikhit Behera, constable No. 242 to village Karadi on September 28, 1957. P.W. 1 on his arrival took charge of the respondent along with another accused, Raghunath Behera then in custody of the Chowkidars P.Ws. 3 and 6. P.W. 1 with P.Ws. 3 and 6 thereafter started for the Police Station taking the respondent with them. At the Karadi Dak Bunglow they decided to take rest for the night and allowed the respondent to sleep on the verandah of the said Dak Bunglow along with others. P.W. 1, the two choukidars and P.W. 4 kept watch over the respondent. Sometime during the night P.W. 1 went to sleep leaving the respondent in charge of P.Ws. 3 and 6. Early next morning it was discovered that the respondent had escaped from custody. Since there was another accused, P.W. 1 kept watch over him and deputed the Chowkidar to search for the respondent. He did not send any information to the Police Station since he was expecting the Sub-Inspector anytime there. At about ten o'clock however, the A.S.I, arrived on the spot and the constable, P.W. 1 lodged the first information report, Ext. 1. Thereafter the officer-in-charge of the Boudh Police Station (P.W. 10) came there and took over the investigation.

(3.) The learned Magistrate on a careful consideration of the evidence on record came to the conclusion that P.W. 1 never arrested the respondent and hence when under Section 66 of the Criminal Procedure Code a particular procedure has been laid down for the subordinate officers when deputed by superior officers is not complied with the respondent cannot be said to be in lawful custody of P.W. 1. Accordingly a conviction under Section 224 is not warranted. In the result he acquitted the respondent.