DURGA PRASAD Vs. EMPEROR

JUDGEMENT

(1.) This is an application for revision of an order of the Sessions Judge of Agra, confirming the conviction of the applicant by a Magistrate of the first class under Section 223, Indian Penal Code, but substituting a fine for a sentence of imprisonment. Oil behalf of the applicant it is contended that even if the facts are as found by the Courts below, the applicant has committed no offence under Section 223.

(2.) The following statement of facts is taken from the judgment of the Magistrate. The applicant was the officer in charge of Thana Dawki in the Agra District. Seven men, who were subsequently convicted of dacoity and other offences, were arrested by the Circle Inspector on November 10 last and sent to the applicant's Thana. Early on the morning of the 11th, the Superintendent of Police, who was in camp a few miles away, went to the Thana and ordered the applicant to send the prisoners to his camp on their way to Agra and informed him that he (the Superintendent) would leave for Agra about I.P.M. The Superintendent waited till 1-30, and as the prisoners had not appeared, left for Agra. Meanwhile the applicant, taking a constable with him, went off to attend to what has been described as a petty cattle theft case and left the moharrir Irshad Ali who was a Head Constable, to arrange for the despatch of the prisoners. There being only one constable, named Dharamjit, in the Thana. Irshad Ali had to await the return of others. At about 12 o clock, two constables, named Pahalwan Singh and Mukhtar Ali, returned, and at 1-30 a constable, named Azimullah, returned. Soon afterwards the prisoners were despatched in charge of constables Dharamjit, Pahalwan Singh, Mukhtar Ali and Azimullah and six chaukidars, who had been on duty all night in the Superintendent's camp. The prisoners were handcuffed, permission to take them in handcuffs having been given by the applicant before he left the Thana, At the Superintendent's camp the place of Pahalwan Singh was with the approval of Irshad All taken by a constable, named Angan Lal, who was on duty there. All went well till the party reached a place called Tora, about half past six in the evening. There the prisoners acting apparently in concert suddenly rushed off the road and four of them succeeded in escaping.

(3.) As the above statement of facts shows, the prisoners were not in the immediate custody of the applicant when they escaped. But the Courts below consider that he may be held responsible for the escape because he did not make proper arrangements for the despatch of the prisoners. It was, no doubt, the duty of the applicant to arrange for the despatch of the prisoners, but the question is whether he can be said to have "negligently suffered them to escape" within the meaning of Section 223, Indian Penal Code. It appears to me that before a person can be convicted under this Section of having negligently suffered a prisoner to escape, it must be shown not only that he was guilty of negligence, but that the escape was at least the natural and probable consequence of his negligence. Indeed, I am disposed to think that it must be shown that the escape was directly due to the negligence.