Panchapakesa Ayyar, J.
1. This is a revision case by the Madras State to revise the orders of the District Magistrate, Turunelveli, dated 16-1-51 and 15-2-51.
2. The facts are briefly these. The accused in R.C. No. 4 of 1950 filed a petition before the District Magistrate of Tirunelveli for transferring the 'four approvers' in that case from tlie sub jail Tuticorin to either the sub jail, Kokkarakulam, or to any central jail. R.C. No. 4 of 1950 is a big conspiracy case involving some 97 accused. The main evidence in the case is going to be that of these four approvers. The accused apprehended that if these approvers were lodged in the sub jail, Tuticorin, which is located in the same building as the police station of Tuticorin and is guarded by a police guard, the approvers might be influenced by the police guard or other police officers to give a story unfavourable to the accused and so prayed that the approvers might be removed to the Central Jail beyond all reach of police influence, and in sole control of the jail authorities. The learned District Magistrate found, in his order dated 16-1-51, that there were 'absolutely no materials' from which it could be inferred that the police were exercising any unwholesome influence on the approvers lodged in Tuticorin sub jail, and also found that the approvers were only in 'judicial custody' in Tuticorin sub jail. But he thought that 'it was possible to argue' that the police, if inclined that way, could get at the approvers and advise and persuade them to give evidence against the accused. So he considered it advisable to have these approvers transferred from the Tuticorin sub jail and detained in the Kokkarakulam sub jail or in any central jail according to the convenience of the jail authorities, making provision also for 'communists' not to get at and persuade the approvers to give evidence the other way, and ordered accordingly. The Public Prosecutor, Tirunelveli, put in C. R. P 1 of 1951 in R.C. No. 4 of 1950 for revising, vacating and canceling the order dated 16-1-1951. The learned District Magistrate, by his order dated 15-2-1951, found that he had no jurisdiction to revise, vacate or cancel his own order dated 16-1-1951 and found further that, even if he had jurisdiction, he would not have revised, vacated and cancelled the prior order, as sufficient reason was not shown for doing so. Hence this revision case here.
3. I have perused the relevant records and heard the learned Public Prosecutor for the state and the learned counsel for the accused. The position in law is clear. A sub jail is in the custody of a Sub Magistrate, a judicial officer, who is the sub jail officer under the rules, and any person kept in a sub jail is in 'judicial custody, and 'not' in police custody. No doubt, there will be a 'police guard' for the sub jail. But the 'police are not in control of the sub jail'. The 'Sub Magistrate' is in control. The mere fact that police constables are guarding the sub jail means little. So also that it is located in the same compound as the police station. Often, judicial officers and Courts have police constables for guard duty. Even in the High Court sessions, constables come and guard the accused persons. Daily, constables are in attendance in the High Court compound to preserve order, regulate traffic, etc. Even in the most democratic condition this is inevitable. No country can do without the police or the army for at least a hundred years to come. Nor do I see any harm in the police guards, escorts etc. If the police guard, or other police officers talk to the approvers about the case, or tutor them, that is a different matter. That is not the case here. Nor have the approvers complained of ill treatment, threat, questioning, coaching or tutoring. Any complaint of misbehaviour by the police in this matter may be brought to the notice of the Sub Magistrate (Sub jail officer) who will doubtless take prompt action. To say that he will be afraid of the police guard is incredible, as, even in the wildest democracy, the dog wags the tail, and not the tail the dog. But, if it is proved that the Sub Magistrate is really afraid to do his duty, from pusillanimous fear of the police, that may be alleged and proved before the proper authorities. I see no reason to transfer the approvers to a Central jail on any such unproved and theoritical apprehension, as it will undoubtedly entail, unnecessary waste of public time, money and energy. Doubtless, the District Magistrate and other authorities will have the power to order the transfer of approvers to a central jail, even at the cost of public, time, money and energy if it is really proved that the approvers are being tutored or influenced by the police officers acting as guard in that sub jay, and if it is impossible to prevent this kind of thing even by transferring the approvers to another sub jail. One should not confess defeat before trying the matter out, and I am not hopeless about sub jail officers and Sub Magistrates ensuring that approvers are free from such police persuasion or coercion in any sub jails under their control. As the learned District Magistrate has not stated that there was any such attempt by the police guard or other police officers to influence the approvers, and, indeed, says, that there were absolutely no materials from which it could be inferred that the police were exercising any unwholesome influence on the approvers, it Is clear to me that his order directing the transfer of the approvers to a Central Jail or to Kokkarakulam Sub jail, which is, I understand from the learned Public Prosecutor, congested and has no cells to spare for lodging these people is incorrect, especially as it is hedged about with somewhat unworkable directions, like keeping the accused 'free from communists influence' also. The learned District Magistrate seems to have been obsessed by theoretical fears of the police, on the one side, against the accused, and of the communists, on the other side, for the accused, and, so, has passed a somewhat unworkable order in an attempt to steer clear of the scylla and the charybdis.
4. A far easier course is indicated in this case to solve all difficulties. The Tuticorin sub jail is too distant and too inconvenient for lodging these approvers, and the enquiry commences at Tinnevelly on 30-4-51. The learned Public Prosecutor admits that 'Srivaikuddam sub jail' is only 14 miles from Tirunelveli. It is thus much nearer, and has got ample accommodation for these approvers, and these approvers can be kept there under the sole charge and custody of a non-police warder and guard', the sub jail officer of that Jail getting if necessary, non-police warder and guard for that purpose. So these four approvers are directed to be kept in Srivaikuntam sub jail, in 'two separate cells', under the sole control and custody of a non-police warder and guard, and the sub jail officer, Srivaikuntam sub jail, is directed to pay his personal attention to this matter and see that no police officers ever get tit the approvers or try to persuade them to depose against the accused. I understand from the learned Public prosecutor that the enquiry by a Special First Class Magistrate is to begin on the 30th April positively at Tirunelveli. So, Srivaikuntam sub jail will suit excellently and all the four approvers will be transferred to it 'at once', and kept there as directed above. The learned counsel for the accused also agree to this. Of course for the purpose of escorting the approvers to Court, reserve constables or other constables may be used, as is usual even in the High Court, but except for this, and for the necessary guard duty in Court, the police should have nothing to do with these approvers.
5. I may add finally, that it is very difficult tolay down a hard and fast rule regarding such matters applicable to all cases. Each case has to bedealt with on its own merits, in order to see thatjustice is not only done but appears to one andall to be done. District Magistrates and otherswill have undoubted power to order approvers to beconfined in a central jail if that course is in evitable and is necessitated by the police getting at theapprovers In other jails, and the impossibility ofpreventing that. But till such a state of thingsarises there is no need to waste public time, moneyand energy unnecessarily on any such general detention of approvers in central Jails alone.