1. An interesting question of law as to the interpretation of Section 61, Criminal P. C., has arisen in this appeal against the order of acquittal passed by the Munsiff-Magistrate at Narayanpet.
2. The brief facts of the case are that the accused, respondent, was arrested under the offence of committing rape under Section 376, Penal Code, on 24th June 1952, at 11-30 P. M. by the Sub-Inspector of Police at Narayanpet. He was kept in the lock-up. The Sub-Inspector of Police at 8 P.M. on the subsequent day (25-6-1952) sent the accused to the Magistrate at Narayanpet for remand orders. When the accused together with the escort reached the Magistrate's Court it was found that the Magistrate was on leave and the Sheristadar of the Magistrate's Court directed the escort to take the accused for the purposes of the remand to the District Magistrate at Mahbubnagar. It is alleged that when the said direction was given there was no train or bus available for taking the accused to Mahbubnagar. The accused was, therefore, kept again in the police lock-up, awaiting journey by the next available conveyance, which was available at 8'O clock in the morning on the subsequent day.
It is stated that the accused escaped from the lock-up from police custody sometime between 3 to 6 A.M. in the early hours of 26-6-1952. The accused was re-arrested on 9-7-1952, and was prosecuted under Section 224, I. P. C., for escaping from lawful custody. Six witnesses were produced on behalf of the prosecution. P. W. 1 is Abdul Karim, who is the investigating officer. P. W. 2, Mohd. Khan, the police constable, relates to the fact that the accused escaped while in the police custody. P. W. 3, Abdus Shukur, is the police constable who was in charge of the lock-up at the time when the accused escaped, P. W. 4, Gangadhar, identified the accused. P. W. 5, Narayan, the Police Patel, states that he got the information of the escape of the accused and prepared a report. P. W. 6, Kistiah, deposes to the fact of the re-arrest of the accused. Upon this evidence the learned Magistrate framed a charge under Section 224, I. P. C., against the accused.
The accused in his statement at the stage of the charge stated that he ran away because Sagiah, the constable, beat him. In his examination under Section 342, Criminal P. C., the accused admits that he was taken to the house of the Sheristadar of the Magistrate's Court at Narayanpet; that he was arrested on the 24th of June and that he escaped from the custody and was allowed to go by Nagiah, the police constable. On this evidence the lower Court held mat the fact of the escape of the accused from the lock-up was proved. It also was of the opinion that the escape of the prisoner was due either to the negligence or wilful permission on behalf of the escort. It, further, held that the accused was not in lawful custody as the twenty-four hours time expired at 11-30 P. M. on 25-S-1952, after which the custody of the accused was unlawful, and therefore, ha was not guilty of the contravention of the provisions of Section 224, I. P. C.
3. We have heard the arguments of the learned Government Advocate, Shri Gopalrao Tuljapurkar. The accused is personally present. He again states before us that because Nagiah, the police constable, asked him to go away, he went away from the lock-up. The question for decision, therefore, is whether the lower. Court was right in holding that the accused was not in lawful custody after the expiry of 24 hours from 11-30 P.M. of 24-6-1952. In this respect the provisions of Section 61, Criminal P. C., are very clear. The section while providing that the police officer should not detain a person in custody for a period longer than the circumstances of the case reasonably requires states that the period of detention shall not exceed 24 hours.
The said 24 hours are to be exclusive of the time necessary for the journey from the place of arrest to the Magistrate's Court. We have to consider whether in view of the facts of this case the exclusion of time mentioned above is applicable. It is evident from the facts stated above that the police officer at Narayanpet carried out the directions laid down in Section 61, Criminal P. C., and sent the accused to the Magistrate at Narayanpet at 8 P.M. on the subsequent day. Thus he sent the accused to the Magistrate within 24 hours, of the arrest and detention by him of the accused. But as it transpires the Magistrate being on leave he was directed to produce the accused before the District Magistrate's Court at Mahboobnagar. So far as the Police Officer arresting the accused was concerned, he had complied with the provisions of Section 61. If time more than 24 hours lapsed before the accused reached or could be taken over to the District Magistrate's Court it was no fault of the Police Officer concerned.
This is one of the cases which is covered by the proviso of Section 61, which gives an extension of time necessary for the journey from the place of arrest to the Magistrate's Court. We are clearly of the opinion that the accused while being taken to Mahboobnagar and while being kept in detention for his being taken over to Mahbubnagar was in lawful custody. The opinion, therefore, of the lower Court that after the expiry of 24 hours at 11-30 P.M. of 25-6-1952, the accused could not be regarded to have been in lawful custody is erroneous.
4. In - '1839 Rat Un Cr C 22(2) (A)', it is stated that the 24 hours of detention under the section are to be counted upto the time when the accused person leaves the police station on the way to the Magistrate's Court. It is, therefore, clear that when the accused in this case left the police station on his way to the Magistrate's Court at Narayanpet the 24 hours of detention had not expired. The time occupied in the journey to the Magistrate's Court is not to be counted in the 24 hours. However, it is the duty of the Magistrate to see that the time so occupied is reasonable with reference to the distance to be traversed and other local considerations. The local considerations in this case are evident. The local Magistrate not having been available the police was directed to go to Mahbubnagar a place about 50 to 60 miles distant and to go to that place the only conveyance available was at 8 A.M. on the subsequent day. Thus, the police were compelled to keep the accused in detention till the time they could take the accused to Mahbubnagar. Such a custody cannot in any way be termed as unlawful.
5. The plea of the accused that Nagiah, the police constable, allowed him to escape, cannot be entertained. Even when the escape is effected by the consent or with the knowledge of the person escorting the prisoner in custody, the accused is no less guilty. Such illegal consent does not absolve the accused from his duty to submit to the judgment of the law. Thus, the contention of the lower Court in this respect has no force.
6. The accused has declined to lead any evidence in his defence. Therefore, the record of the case is complete. We are, therefore, of the opinion, that the judgment and order of the lower Court must be set aside. We convict the accused under Section 224, I. P. C., and impose a punishment of one year's rigorous imprisonment under that section. The appeal is allowed, the judgment and order of the lower Court is set aside and the accused is sentenced to undergo rigorous imprisonment of one year.