Kalyan Dutta Sharma, C.J.
1. S.B. Criminal Revision No. 84 of 1977 filed by Bhopal Singh and Bachhu Khan and S.B. Criminal Revision No. 36 of 1977 filed by Swaroop Singh do arise out of one and the same judgment of the learned Sessions Judge Balotra, dated January 11, 1977, whereby the appeals filed by the aforesaid three petitioners against their convictions and sentences under Section 223, I.P.C. were partly accepted in as much as their convictions were maintained, but they were released on probation of good conduct under Section 4 of the Probation of Offenders Act. As both these revision petitions are directed against one and the same judgment of the Sessions Judge and as common questions of law and facts do arise in both of then, they are disposed of together by a single order of mine.
2. The prosecution case, in brief against the petitioners was that on October 8, 1973, the Idan accused was on undertrial prisoner in sub-Jail Balotra, as he was facing trial under Section 302, I.P.C. on that day Bachhu Khan was deputed to discharge the duties of lathi sentry while Bhopal Singh petitioner was deputed as a rifle sentry at the said sub jail. Swaroop Singh petitioner came to the sub-jail and told Bachhu Khan and Bhopal Singh, Petitioner, that Idan had been called for by the jailor for doing domestic work at this house as usual. Thereupon, Bhopal Singh petitioner opened the main gate of the sub-Jail and allowed Swaroop Singh petitioner to go inside and to open the lock put on the middle gate with the key in his possessions. Swaroop Singh then asked Bachhu Khan to bring Idan accused out of the barrack in which he was kept in confinement. Bachhu Khan opened the gate of the barrack in which Idan was confined and was taken out of it. Swaroop Singh took away Idan with him the Jailor's house where from Idan absconded and could not be arrested till October 15, 1973. On the facts mentioned above, all three petitioners were prosecuted under Section 225 - I.P.C. in the court of the Munsiff cum Judicial Magistrate. First class, Balotra. The learned Judicial Magistrate tried the petitioners for the aforesaid offence but found them guilty of the offence punishable under Section 223, I.P.C. only, he accordingly aqcuitted the petitioners of the charge punisable under Section 225 I.P.C. and convicted them undergo Section 223 I.P.C. & sentenced each of them to undergo simple imprisonment for a term of four weeks and to pay a fine of Rs. 400/-, and in default of payment of fine to further suffer simple imprisonment for two weeks.
3. Aggrieved by their conviction and sentences the petitioners preferred appeals in the Court of the Sessions Judge, Balotra, who, while maintaining their conviction under Section 223, I.P.C., released them on probation of good conduct under Section 4 of the Probation of Offenders Act, The petitioners have moved this Court in revision.
4. I have carefully perused the record and heard Mr. S.R. Singhvi and Mr. Calla for the petitioners and Mr. D.S. Shishodia, Public Prosecutor, for the State First I take up for discussion S.B. Criminal Revision No. 84 of 1977 filed by Bhopal Singh and Bachhu Khan. It has been contended on behalf of the petitioners that the prosecution could not prove that they were negligent in the performance of their duties and that the escape of Idan accused was due to their negligence. It was further urged that these two petitioners were labouring under a bonafide impression because the key of the lock of the middle gate was brought by Swaroop Singh from the Jailor's house and with it Swaroop Singh opened the middle gate of the Jail, facilitating thereby the exit of Idan. Mr. D.S. Shishodia, Public Prosecutor, on the other hand, concended that these two petitioners transferred the charge of Idan convict to Swaroop Singh in contravention of the jail rules, which were known to them and so they can safely be held to have suffered Idan to escape.
5. I have considered the rival contentions mentioned above. At the outset, I may observe that there is ample evidence on the record that these two petitioners were legally bound as public servents to keep in confinement Idan accused charged with the offence of murder. The prosecution has clearly established by cognet evidence that Bhopal Singh and Bachhu Khan were posted as rifie and lathi sentries respectively at the relevant time to guard the sub-jail and to keep in confinement Idan accused who was charged with the commission of the crime of murder. It is further proved by the prosecution that Bhopal Singh opened the main gate of the sub-Jail and Bachhu Khan opened the lock put to the barrack, in which Idan was confined in order to enable Idan accused to come out of the jail. It is immaterial whether these petitioners committed these illegal acts at the instance of Swaroop Singh or the Jailor, because they knew it well that the charge of Idan undertrail prisoner could not be transferred to Swaroop Singh in contravention of the Jail Rules. Bhopal Singh, petitioner, was not bound to open the main gate of the jail and likewise Bachhu Khan was not duty bonnd to open the lock put the barrack in which Idan accused was confined as under trial prisoner without orders of their superiors In writing, They further knew it well that under the Jail Rules, the jail for was not entitled to call for prisoners (undetrial or convicts as the case may be) from the sub-Jail to his house for the purpose of doing domestic work. Hence, the petitioners could not be heard to say that they had caused Idan to come out of the jail under the orders of the Jailor, because even if there were such orders, they were illegal and the petitioners were not bound to obey them. In this view of the matter, both the courts below committed no error in holding that Bhopal Singh and Bachhu Khan negligently suffered either Idan under trial prisoner to escape from the sub-Jail, Balotra.
6. Mr. Singhvi further contended that Bhopal Singh and Bachhu Khan handed over Idan accused to the custody of Swaroop Singh and so they can not be held to have negligent suffered Idan to escape because Idan, later on, had absconded from the house of the jailor. The above contention has no force, because these two petitioners transferred the charge of Idan to Swaroop Singh in contravention of the Jail rules, which were known to them. If they had not illegally transferred the charge of Idan to Swaroop Singh in contra-vent of the Jail rules, Idan would not have get on oppertunity to escape. Hence, the prosecution has shown that these two petitioners were guilty of negligent and the escape of Idan was the natural and probable consequance of their negligence.
7. An regards sentence, it may be observed that the learned Sessions Judge has already released them on probation of good conduct under Section 4 of the Probation of Offenders Act. Consequently, I do not find any substantial ground for interference with the findings of both the courts below as to the guilt of these two petitioners under Section 223, I.P.C.
8. Next I take up S.B. criminal Revision No. 36 of 1977 filed by Swaroop Singh. There is reliable evidence on the record that Swaroop Singh petitioner brought the key with him which the learned the middle state of the sub-Jail, Balotra, and asked Bhopal Singh and Bachhu Khan to facilitate the exit of Idan accused from the barrack in which he was confined as a undertrial prisoner. There is further proof on the record that Swaroop Singh took away Idan accused to the house of the Jailor where from Idan managed to escape. Swaroop Singh might have carried out the verbal orders of the Jailor in taking Idan accused out of the jail to the jailor's house for domestic work but, as stated earlier, the jailor was not entitled to call for any prisoner from the sub-jail to his house far the purpose of having domestic work done by him. Swaroop Singh cannot be heard to say that he was not legally bound as a public servent to keep in confinement Idan at that time, because under Explanation II to Section 21 the words 'public servent' includes a person who is in actual possession of the situation of a public servent whatever legal defect there may be in his right to hold that consideration. Swaroop Singh was actually discharging the duties of a public servant at the relevant time when the charge of Idan accused was transferred to him by Bhopal Singh and Bachhu Khan sentries and he took up the responsibility of carying Idan accused to the house of the jailor. In view of these facts, he was rightly held to be a public servant legally bound to keep Idan in confinement though he was not deputed to guard the sub-jail at that time. Both the courts below rightly held that Swaroop Singh was negligent in the performance of his duties and the escape of Idan was due to his neglience also. Hence, no interference is called for with the findings of both the courts as to his guilt under Section 223, I.P.C. Swaroop Singh has already been released on probation of good conduct under Section 4 of the Probation of Offenders Act and no question of reduction of his sentence arises.
9. The result of the above discussion is that S.B. Criminal Revision No. 84 of 1977 (Bhopal Singh and Anr. v. State of Rajasthan), and S.B. Criminal Revision No. 36 of 1977 (Swaroop Singh v. State of Rajasthan) have no force and are hereby dismissed.