Gujarat High Court
State vs Harendrasinh on 7 February, 2011
Author: Akil Kureshi
Bench: Akil Kureshi
Gujarat High Court Case Information System
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CR.RA/551/2010 5/ 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
REVISION APPLICATION No. 551 of 2010
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STATE
OF GUJARAT - Applicant(s)
Versus
HARENDRASINH
JAYENDRASINH PUVAR & 1 - Respondent(s)
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Appearance :
MR DC SEJPAL
APP for Applicant(s) : 1,
MR HARDIK A DAVE
for Respondent(s) : 1 -
2.
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CORAM
:
HONOURABLE
MR.JUSTICE AKIL KURESHI
Date
: 07/02/2011
ORAL
ORDER
State has preferred this revision application questioning legality and validity of an order dated 29.9.2009 passed by the learned JMFC, Halol in acquitting the respondents herein original accused as confirmed by judgment and order dated 9.11.2010 passed by learned Addl. Sessions Judge, Godhra in Criminal Appeal No.8 of 2010.
Facts in brief are as follows:
1Respondents are original accused No.1 and 2 respectively in Criminal Case No.2039 of 2008. They were at the relevant time engaged as unarmed constables (Lok Rakshahk Dal) by the State Government. It is not in dispute that they were in charge of custody of accused Chiman @ Tinyo Rayjibhai Bariya and were bringing him back from Balasinhor Court after the case was adjourned on 5.5.2008. While they were bringing him back, the said accused Chiman @ Tinyo Rayjibhai Bariya pushed respondent No.1 in the vegetable market of Halol Town and ran away and disappeared. Initially, therefore an FIR was lodged by respondent No.1 for offence under Section 224 of Indian Penal Code which provides for punishment for resistence or obstruction of a person to his lawful apprehension. Subsequently, however, while investigating into said complaint the Investigating Officer filed a charge-sheet also against the present petitioners principally for offence under Section 225A of Indian Penal Code. The original accused Chiman @ Tinyo Rayjibhai Bariya was absconding. The trial therefore proceeded against the present respondents. Learned Magistrate, found that it was neither a case of negligence nor intentional act on part of the accused by virtue of which said prisoner could escape. Learned Magistrate, therefore, acquitted the accused. State appeal was dismissed by the Sessions Court. Hence, this revision application by the State.
Learned APP, Mr.Sejpal, vehemently contended that accused police officials were in custody of the prisoner. He absconded in a busy locality either on intentional or negligent acts on the part of the accused. He invited my attention to the observations made by the Courts below to contend that it is a fit case where revisional powers should be exercised.
Learned counsel Shri Dave for the accused drew my attention to evidence on record to contend that no independent eye witnesses were examined to prove the charge. Respondents were unarmed. The prisoner escaped and ran away in a market place by pushing down one of the constables.
I have perused the judgments under challenge as well as evidence brought on record. With the limited scope of inquiry revisional powers under Section 397 read with Section 401 of Criminal Procedure Code are required to be exercised.
Admittedly, no eye witnesses have been examined to bring on record the exact manner in which the incident took place. Only 4 witnesses were examined by the State who are the Investigating Officer, panch witnesses who turned hostile, the Police Station Officer who recorded the FIR and the official who alloted the duty of carrying the prisoner to the respondent and one witness to produce and prove on record the inward or outward register of the jail.
Insofar as the fact that prisoner was in custody of the respondents is not seriously in dispute. That after the case was adjourned at Balasinhor Court, the prisoner was brought back to the Halol Jail by the present respondents is also not disputed. The prisoner escaped while in custody of the respondents is also not in doubt. Question is whether these respondents were responsible for such escape either intentionally or upon acting in negligent manner?
Section 225 A of Indian Penal Code reads as under:
"225A:
Omission to apprehend, or sufferance of escape, on part of public servant in cases not otherwise, provided for:
Whoever, being a public servant legally bound as such public servant to apprehend, or to keep in confinement, any person in any case not provided for in section 221, section 222 or section 223, or in any other law for the time being in force, omits to apprehend that person or suffers him to escape from confinement, shall be punished-
(a) if he does so intentionally, with imprisonment of either description for a term which may extend to three yeas, or with fine, or with both; and
(b) if he does so negligently, with simple imprisonment for a term which may extend to two yeas, or with fine, or with both".
To drive home the charge of Section 225A of Indian Penal Code, it is necessary for the prosecution to establish that the person escaped from the confinement of public servant on account of his intentional acts or on account of negligent actions.
In the present case, as already noticed, no eye witnesses were examined. The incident allegedly took place in a vegetable market. The State could have easily examined persons present to demonstrate the manner in which the incident took place. The same was not done. In-fact initially, the complaint was lodged by the respondent No.1 himself about the accused having absconded. Simply by establishing on record that two unarmed Constables were in charge of the prisoner and such a prisoner escaped, ipso-facto, without any further evidence cannot establish the charges under Section 225A of Indian Penal Code. In the present case, no evidence whatsoever has been led. Two Courts below have threadbare examined the evidence and found that charges have not been proved, I have no reason to take a different view. Viewed from narrow confinement by scrutinizing under revisional powers, I see no reason to interfere. We must remember that present proceedings arose out of criminal complaint where nature of proof would be stricter as compared to civil disputes.
Revision Application is therefore dismissed. Rule discharged.
(AKIL KURESHI, J.) (ashish) Top