Crl. Revision No. 1768 of 2005 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Revision No. 1768 of 2005 Date of decision: April 4, 2011 Jagtar Singh and another ...Petitioners Versus State of Punjab ...Respondent CORAM:- HON'BLE MR. JUSTICE GURDEV SINGH Present: Mr. AS Brar, Advocate, for the petitioners. Mr. PS Paul, DAG, Punjab. GURDEV SINGH, J. (Oral) The petitioners/accused were convicted by SDJM, Talwandi Sabo for the offences under Sections 203, 221 and 223 IPC, vide judgment dated 30.4.2001 and were sentenced as under:- 1 Jagtar Singh (i) to undergo rigorous imprisonment for a period of six months under Section 203 IPC; (ii) to undergo rigorous imprisonment for a period of three years under section 221 IPC and to pay fine of `1000/-, in default thereof to further undergo rigorous imprisonment for a period of six months; and(iii) to undergo rigorous imprisonment for a period of one year under Section 223 IPC; 2 Lakha Singh (i) to undergo rigorous imprisonment for a period of four months under Section 203 IPC; (ii) to undergo rigorous imprisonment for a period of two years under section 221 IPC and to pay fine of `500/-, in default thereof to further undergo rigorous imprisonment for a period of three months; and (iii) to undergo rigorous imprisonment for a period of eight months under Section 223 IPC; Crl. Revision No. 1768 of 2005 2 Against that conviction and sentence, they preferred an appeal, which was decided by the Additional Sessions Judge, Bathinda, vide judgment dated 5.9.2005. In the appeal, their conviction under Section 221 IPC was set aside, whereas their conviction and sentence was maintained for the offences under Sections 203 and 223 IPC. Now they have preferred the present revision against that conviction and sentence. The facts, in brief, are that Motha Singh was undergoing life imprisonment in Central Jail, Hisar, after having been convicted by the Additional Sessions Judge, Hisar, in the case arising out of FIR No. 14 of 22.1.1996 registered under Sections 302 and 460 IPC, in Police Station Kalanwali, District Sirsa. He was also standing his trial in the case arising out of FIR No. 15 dated 10.3.1997 registered under Sections 307 and 353 IPC in Police Station, Talwandi Sabo, in the Court of Additional Sessions Judge, Bathinda. In that case, he was to be produced before that court on 26.8.1997. The present petitioners/accused, who were posted as Constables in Police Lines, Bathinda, were deputed to collect Motha Singh from Central Jail, Hisar, for producing him in the court. Report to that effect Ex. PW5/A was entered vide, DDR No. 33 dated 25.8.1997 in the roznamcha being maintained in said Police Line. The accused went to the Central Jail, Hisar, on 25.8.1997 and took the charge of Motha Singh from the Superintendent of Jail, for producing him in the court at Bathinda. On 28.8.1997, the accused disclosed to Savinder Singh, Line Officer, Police Lines, Bathinda that Motha Singh escaped from their custody on 26.8.1997 at about 8.30 a.m from Bus Station, Dabwali, after making an excuse for going to toilet. On the same day, Amrik Singh DSP got registered FIR No. 348 in Police Station City Dabwali. An inquiry was conducted by Jagjit Crl. Revision No. 1768 of 2005 3 Singh, SI (PW-1), in which he recorded the statements of the witnesses, including Ajaib Singh, Harnek Singh, Baldev Kaur, Mukand Kaur, Banta Singh, Lambardar, Gurdev Singh, Mithu Singh and Chhota Singh. During that inquiry, it transpired that on the said day, the accused had taken Motha Singh in a jeep to the house of his uncle Chhota Singh and stayed there during the night and said Motha Singh escaped from the custody of the accused from that place. In the FIR No. 348, Ramesh Pal, Officer in-charge of Police Station City Dabwali made investigation and came to the conclusion that Motha Singh escaped from the custody of the accused in village Jogewala, where they had taken that Motha Singh to the house of his uncle Chhota Singh and where they slept during the night after consuming alcohol. He also came to the conclusion that under a well arranged plan, the accused came out with a false version that Motha Singh escaped from their custody under the pretext of going to toilet. Written application Ex. P2 was sent by that officer to the officer in-charge Police Station Talwandi Sabo and on the basis thereof, FIR Ex. PW3/B was registered against the accused under Sections 223, 224 IPC. The investigation was conducted by Devinder Singh ASI, (PW-3), who went to the place of occurrence and after inspecting the same prepared rough site plan Ex. PW2/A with correct marginal notes. He collected copies of the relevant documents and recorded the statements of witnesses under Section 161 Cr.P.C. The prosecution of the accused was sanctioned by the SSP, Bathinda, vide order Ex. PX. After completion of the investigation, challan was put in before the SDJM, Talwandi Sabo, who found sufficient grounds for presuming that the accused committed offences punishable under Sections 203, 221, 223 and 224 IPC. They were charged accordingly, to Crl. Revision No. 1768 of 2005 4 which they pleaded not guilty and claimed trial. To prove the guilt of the accused, the prosecution examined Jagjit Singh, SI (PW-1), Devinder Singh, ASI (PW-2), Iqbal Singh, SI, (PW-3), Baldev Kaur (PW-4), Mukand Kaur (PW-5), Savinder Singh, Line Officer (PW-5A) Gurcharan Singh, ASI (PW- 6), Hakam Singh, DSP (PW-7), Darshan Singh, Constable (PW-8), Prem Kumar (PW-9), Dharmveer Singh, ASI (PW-10) and Gurcharan Singh, HC (PW-11). After the close of the prosecution evidence, statements of the accused were recorded under Section 313 of the Code of Criminal Procedure (hereinafter referred to as 'the Code'). The incriminating circumstances appearing against them in the prosecution evidence were put to them in order to enable them to explain the same. They admitted that custody of Motha Singh was with them after they were deputed to collect that Motha Singh from the Central Jail, Hisar, for producing him in the Court at Bathinda and that Motha Singh escaped from their custody. They denied the other incriminating circumstances and pleaded that they never allowed Motha Singh to escape from their custody intentionally. After making efforts to trace that Motha Singh, they appeared before their superior and reported the matter. They pleaded their innocence and false implication. They were called upon to enter on their defence and they examined Shankar Lal (DW-1) and Gurtej Singh (DW-2) in their defence evidence. I have heard learned counsel for both the sides. It has been submitted by the learned counsel for the accused that the court at Talwandi Sabo had no jurisdiction to try and convict the accused as no offence was committed within the jurisdiction of that court. The story put forward by the prosecution that the accused allowed Motha Crl. Revision No. 1768 of 2005 5 Singh to escape from the house of his uncle Chhota Singh situated in village Jogewala was not believed. In such circumstances, these are the contents of the FIR, which was lodged regarding the escape of that Motha Singh and proved on record as Ex. PW10/A, which are to be looked into. As per that FIR, Motha Singh had escaped from their custody from Bus Stand Dabwali and, as such, they were to be tried by the Court at Dabwali. The accused have been materially prejudiced on account of their trial in the Court at Talwandi Sabo, as they have not been able to establish their case regarding the escape of Motha Singh from their custody inspite of the fact that they took due pre-cautions. He further submitted that no offence under Section 203 IPC is proved against the accused as the prosecution has miserably failed to prove that they gave any wrong information to any public servant for setting the law in motion. They had given a correct version about the escape of Motha Singh to their superiors. In support of his submission he made reference to the findings recorded by the appellate court that the prosecution failed to establish that the accused intentionally aided in the escape of Motha Singh. He also submitted that sanction order proved on record as Ex. PX was never put to the accused in their statements under Section 313 of the Code and, as such, it cannot be used against them. In the absence of any sanction, they could not have been prosecuted and that itself is a ground for their acquittal. In the last, he contended that the accused are poor persons and only bread winner of their families and the benefit of probation of good conduct be granted to them, as they are not previous convicts. The challan was put in before the Court at Talwandi Sabo as the evidence was collected during the investigation that Motha Singh had Crl. Revision No. 1768 of 2005 6 escaped from the custody of the accused in village Jogewala, which falls in the limits of Talwandi Sabo. Merely on the ground that the prosecution failed to prove that fact, it cannot be concluded that the court at Talwandi Sabo could not have taken cognizance of the offence. The cognizance of the offence is taken on the basis of the facts collected during the investigation, whatever may be the out come of the case. Even if it is assumed that the offence was committed within the jurisdiction of the Court at Dabwali, still the trial and conviction of the accused by the court at Talwandi Sabo was not an illegality but was a mere irregularity. It cannot be said that the irregularity, so committed, vitiates the trial itself. Though, an argument has been raised that the accused have been materially prejudiced on account of their trial by the court at Talwandi Sabo, yet the same has not been substantiated by referring to any evidence or circumstances proved on the record. It is a fact that the sanction order Ex. PX was proved on the record, vide which the prosecution of the accused was sanctioned. That order was never put to them during their statements under Section 313 of the Code. It is well settled that any material evidence which has not been put to the accused under Section 313 of the Code cannot be used against him. The position would have been different if such sanction for prosecution of the accused was required. In that eventuality, there was much force in the submission so made by their counsel. Section 197 of the Code is applicable only to a public servant, who is removable from his office save by or with the sanction of the Government. At the time of the commission of the offence, the accused were employed as constables. As per the Punjab Police Rules, they were removable from service by the Crl. Revision No. 1768 of 2005 7 Superintendent of Police. Therefore, it cannot be said that they were removable from the office save by or with the sanction of the Government. It was held by the Hon'ble Supreme Court in AIR 197 Supreme Court 722 (K. Ch. Prasad v. Smt. J. Vanalatha Devi and others) that Section 197 of the Code is attracted only in cases where the public servant is such who is not removable from his office save by or with the sanction of the Government. For other public servants, the provisions of Section 197 of the Code are not attracted. Therefor, mere omission on the part of the Court to put the sanction order Ex. PX to the accused is of no consequence. The main point to be decided in the present revision is whether the prosecution has been able to prove that the accused committed offences under Sections 203 and 223 IPC. According to their counsel, it was for the prosecution to prove that the accused negligently suffered Motha Singh to escape from the confinement and no evidence was produced by the prosecution to prove that negligence was on the part of the accused and, as such, they could not have been convicted for the offence under Section 223 IPC. Negligently means, without exercising the degree of care which a person of ordinary sense and prudence under like circumstances and in the performance of the like acts would have exercised. It was proved on the record by the prosecution that the accused were having the custody of Motha Singh and he was to be produced in the Court at Bathinda after having secured his custody form the Central Jail, Hisar, and that he escaped from their custody. How that Motha Singh escaped was in the exclusive knowledge of the accused. According to Section 106 of the Evidence Act, 1872, when any fact is specially within the knowledge of any person, the Crl. Revision No. 1768 of 2005 8 burden of proving that fact is upon him. Therefore, it was for the accused to prove that inspite of taking all the pre-cautions by them, Motha Singh escaped from their custody and in the absence of the proof of that fact, the negligence on their part was to be inferred. They did not produce any evidence to that effect, nor were able to elicit any such fact during the cross- examination of the prosecution witnesses, on the basis of which it may be held that such pre-cautions were taken by them. It is pertinent to note that Motha Singh escaped from their custody on 26.8.1997. They did not report the matter to their superiors immediately and it was only on 28.8.1997, that they brought that fact to the notice of their superiors. This circumstance also weighs against them. In The Kutch State v. Bachu Sama 1952 Crl. L.J. 22, the accused was posted on duty to guard sub-jail at midnight. During the period of his watch, the prisoners escaped from that jail. It was held therein that the escape was prima facie evidence of the negligence of the accused. He was to establish satisfactorily that he took all reasonable care in performing his duty which required extra-vigilance and which is expected of a person performing similar duties. On his failure to establish the same, it was to be held that he was actually negligent in performing his duties. The ratio of this ruling fully applies to the facts of the present case. As already said, the accused have failed to prove that they took reasonable care in the performance of their duties to keep Motha Singh in their custody. If one prisoner escapes from the custody of two constables and they fail to prove that they took all the precautions and reasonable care to prevent escape of the prisoner, the negligence on their part can easily be inferred. A correct finding was recorded by the trial court that the accused negligently suffered Motha Singh to escape from the lawful custody, as they Crl. Revision No. 1768 of 2005 9 failed to prove their plea that the accused escaped after having made a false pretext of going to toilet. It is to be held that the information given by them to their superiors was false. No illegality was committed by those courts, while convicting the accused for the offences under Sections 203 and 223 IPC and their conviction is hereby upheld. Can a person who is convicted of such offences, be given the benefit of probation ? To my mind, such benefit cannot be extended to such like person, who was negligent in performance of his duties. The accused negligently suffered a life convict to escape from their custody. It will just be a mockery of law in case such like accused are given the benefit of probation. They are to be dealt with deterrently, which will be an eye- opener to the other police officials to be vigilant and careful in the performance of their duties. In the result, this revision is hereby dismissed. Accused be taken into custody to serve the remaining sentence. Records of the trial court be returned forthwith April 4, 2011 (GURDEV SINGH ) prem JUDGE