A.D Mane, J.:— A short but important question of public importance is involved in this revision application:
2. The petitioner has been convicted under section 224, Indian Penal Code, on a charge that he escaped from the custody of Police Sub-Inspector of City Chowk Police Station, Aurangabad, when he was lawfully detained for offences under sections 147, 148 and 326 read with 149, I.P.C in C.R No. 315 of 1988. The petitioner challenged the order and judgment of his conviction and sentence for the said offence, made on 29-6-1989 by the Chief Judicial Magistrate, Aurangabad, in appeal. But the appeal came to be dismissed on 13-9-1990 against which the present revision application is filed.
3. The facts which are either admitted or not disputed are thus:
4. Crime at C.R No. 315 of 1988 was registered for offences under sections 147, 148 and 326 read with 149, I.P.C, at City Chowk police station Aurangabad. The Police Sub-Inspector Daima was incharge of the investigation of the said offences. On February 7, 1989, P.S.I Daima brought the petitioner to the police station for purpose of inquiry and interrogation. It is said that he could not complete interrogation as he was required to go to Jalna immediately for investigation into the crime. He directed police constable Pardeshi to keep watch on the petitioner by taking him to the guard.
5. It may be stated that P.S.I did not make any entry for the arrest of the petitioner in the register when the petitioner is said to have been confined in the lock up. Police Constable Pardeshi was relieved by Police Constable Pathan. At lunch hours the petitioner is said to have escaped from the custody of police. On receiving information from the Police. Station Officer, P.S.I Daima came and caused arrest of the petitioner on the following day.
6. The learned trial Magistrate as well as the learned Sessions Judge is of the view that ingredients of offence under section 224, I.P.C, were established and the petitioner was guilty.
7. The question arises as to whether, in the facts and circumstances of the case, offence punishable under section 224, I.P.C, can be said to have brought home to the petitioner accused.
8. It will be convenient to reproduce the section 224, I.P.C It reads as under:—
“224. Resistance or obstruction by a person to his lawful apprehension.— Whoever intentionally offers any resistance or illegal obstruction to the lawful apprehension of himself for any offence with which he is charged or of which he has been convicted, or escapes or attempts to escape from any custody in which he is lawfully detained for any such offence, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
Explanation.:—The punishment in this section is in addition to the punishment for which the person to be apprehended or detained in custody was liable for the offence with which he was charged, or of which he was convicted.”
9. It will be seen that the section deals with two kinds of acts; namely,
(a) resistance or obstruction by a person to his lawful apprehension for any offence with which he is charged, or
(b) escape or attempts to escape by a person from lawful custody for the offence with which he is charged or of which he has be convicted.
10. In the present case, the conviction of the petitioner was sought on an allegation that the petitioner escaped from the ‘lawful custody’ for the offence with which he is charged. New, in order to establish the ingredient of the offence, ‘escape’ must be from the custody in which the person escaping has been detained legally. In other words, it is only after a person has been ‘arrested’ that a question of custody arises. In the case at (Roshan Beevi v. Jt Secy., Govt. of T.N)1 1984 Cri. L.J 134, (F.B Madras) the words “custody” and “arrest” came to be interpreted. The Court laid down that:
The terms ‘custody’ and ‘arrest’ are not synonymous terms. It is true that in every arrest there is a custody, but not vice versa. A custody may amount to an arrest in certain cases, but not in all cases. The interpretation that the two terms ‘custody’ and ‘arrest’ are synonymous is an ultra legalist interpretation, which if accepted, and adopted would lead to a startling anomaly resulting in serious consequences.”
11. The evidence of P.S.I Daima shows that on February 7, 1989 he brought the petitioner to police station for purpose of inquiry (emphasis supplied). According to him, while he was to interrogate the petitioner, he was required to go to Jalna immediately for investigation of the crime. He stated that he had however, handed over the petitioner in the custody of guard before he left for Jalna. It is his further version that he had directed police constable Pardeshi to lock up the petitioner. He admitted that the lock up register, however, was not filed in. On next day, when he inquired with the guard about the petitioner, he was told that the petitioner had left the police station.
12. The aforesaid testimony of P.S.I Daima leaves no room for doubt that he did not ‘arrest’ the petitioner but he had merely brought the petitioner to police station for the enquiry. Though fee claims to have sent the petitioner in lock up under, the guard of police constables, admittedly, no entry in lock up register was made to that effect and, therefore, it is difficult to accept his version that the petitioner was, as a matter of fact, detained in the lock up. In this context regard may also be had to the ruling cited supra wherein the provisions of section 46 of the Code of Criminal Procedure have been considered. It has been observed that:
“In order to have the action to be in conformity with the legal and constitutional provisions, it must be an arrest properly and lawfully made in terms of the specified provisions of the Criminal Procedure Code. If it is the actual seizure or touching of a persons's body with a view to his arrest is not necessary, in order to make his arrest, but that the mere utterance of a guttural word or sound, a gesture of the index finger or hand, the sway of the head or even the flicker of an eye are enough to convey the meaning to the person concerned that he has lost his liberty and brought under arrest, then it win not only be in conflict with the modality of arrest presented in section 46 of the Cr. P.C but also will lead to a startling anomaly and cause serious consequences. Even in the case of a police officer or other officers empowered to arrest, the mere utterance of words or gesture or flickering of eyes etc., would never amount to an arrest, unless the person concerned submits to the custody of the arrester.”
13. In the case cited supra while considering the provisions contained in sections 107 and 108 of the Customs Act (52 of 1962), which are analogous to the provisions contained in section 160(1), Cr. P.C, in the light of Article 22(2) of the Constitution of India, the Court further laid down that person required or summoned for inquiry is not under arrest within the meaning of word ‘arrest’ when used in its legal sense. Their Lordships have also interpreted the word ‘arrest’ when used in legal sense as follows:
“The word ‘arrest’ when used in the legal sense in the procedure connected with criminal offences, an arrest consists in the taking into custody of another person under authority empowered by law, for the purpose of holding or detaining him to answer a criminal charge or of preventing the commission of a criminal offence. The essential elements to constitute an arrest are that there must be an intent to arrest under the authority, accompanied by a seizure or detention of the person in the manner known to law, which is so understood by the person arrested.”
14. Shri Choudhari, the learned Additional Public Prosecutor, relies on a decision in the case of (Kultej Singh v. Circle Inspector of Police)2, 1992 Cri. L.J page 1173, in support of his submission that mere keeping a person or confining him in police station or restricting his movements within precincts of a police station is enough for his arrest within the meaning of section 46(1) of the Criminal Procedure Code. I am, however, unable to accept this submission. In the case relied on by the Additional Public Prosecutor, no doubt, it has been observed that “mere keeping a person or confining him in police station or restricting his movements within precincts of a police station would amount to arrest” but, it would be appropriate to know the context in which the observations came to be made. In a petition under Article 226 of the Constitution of India the petitioner Kultej Singh, brother of Sri Hardeep Singh, sought for issuance of a writ in the nature of Habeas Corpus directing the Circle Inspector of Police to produce Sri Hardeep Singh. In reply affidavit filed by the respondents the averment made in the petition as to the arrest was denied. In the reply it was stated that Sri Hardeep Singh was arrested only on 28-9-1990 and he was produced before the J.M.F.C Savanur on 29-9-1990 without any loss of time. The Court, while dealing with the rival submissions as to the date of arrest and date of production before the Court, did not accept the case of the respondents. And it is in that context section 46 Cr. P.C came to be considered. It has been observed that:
“….. From a reading of sub-section (1) of section 46 of the Cr. P.C it is clear that a police officer while making arrest even if he actually touches the body of the person to be arrested, he can be said to have arrested the person. If a person is confined or kept in the police station or his movements are restricted within the precincts of a police station, it would undoubtedly be a case of arrest. In the instant case, the F.I.R specifically states that Hardeep Singh was kept in the police station from the morning of 27-9-1990. … Thus, respondents 1 and 2 were required to produce Hardeep Singh within 24 hours from the time he was kept in the police station at Savanur.
15. Therefore, the arrest preceded the detention of the person arrested. In other words, in that case factum of arrest was not in issue. Therefore, the case relied on by the learned Additional Public Prosecutor is distinguishable on facts and the same is not applicable on the question involved in the present case.
16. It is perfectly clear from the testimony of P.S.I Daima that the petitioner, as a suspect in a rioting case, was only brought to the police station for purpose of inquiry. He was not angled nor was he brought to the police station for keeping him in police custody. The evidence shows that the petitioner appears to have gone away from the police station without permission of the police constable. Thus, on the question whether the petitioner was really arrested in a legal sense and was kept under a lawful custody, the evidence of the P.S.I assumes importance. In view of the meaning of the word ‘arrest’ when used in legal sense, as hereinabove discussed, it is difficult to hold that the petitioner, as a suspect in a rioting case, was guilty of an offence under section 224, I.P.C, merely because he was brought to police station for the purpose of inquiry, without formerly arresting him, when he left the police station without previous permission from police on the P.S.I going out of the police station. The words “from lawful custody” as used in section 224, I.P.C must be read in context of the term “arrest” when used in its legal sense. In the facts and circumstances of the case, as spoken to by the P.S.I, it cannot be said that the custody of the petitioner would amount to arrest when used in its legal sense. It is, thus, clear that the ingredient of offence under section 224, I.P.C that escape or attempt to escape of a person from lawful custody for the offence with which he is charged is not at all proved. The conviction of the petitioner, in the circumstances of the case, cannot be sustained in law.
17. The revision application is, therefore, allowed. The impugned orders of the conviction and sentence passed against the petitioner are hereby set aside. The petitioner is acquitted of the offence charged with. Bail bond stands cancelled. Fine, if paid, be refunded. Rule is made absolute accordingly.
18. Application allowed.
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