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2015 DIGILAW 1380 (KER)

Sooppy v. State of Kerala

2015-10-05

P.D.RAJAN

body2015
ORDER : P.D. Rajan, J. 1. This Revision Petition is preferred against the judgment in Criminal Appeal No. 191/2004 of the Additional Sessions Judge, Adhoc-11, Kozhikode. The revision petitioner was convicted in S.T. No. 2575/2002 by the Judicial First Class Magistrate-11, Perambra for having committed an offence punishable u/s. 225B I.P.C. The allegation was that on 6.4.2001 at 2 p.m., the process server of the Munsiff Court, Perambra (hereinafter referred to as the Court) arrested the revision petitioner, who is the judgment debtor in E.P. No. 60/99 of the above Court, but he escaped from the lawful custody, thereby committed the offence. On the basis of the report of PW 1, the S.H.O., Meppayur registered a crime and after investigation, laid charge before Judicial First Class Magistrate-II, Perambra. During trial, prosecution examined 9 witnesses and marked Exts. P1 to P4 as documentary evidence. Accused examined DW 1 in support of his defence. The learned Magistrate convicted the accused u/s. 225B I.P.C. and sentenced to undergo simple imprisonment for three months u/S. 225B I.P.C. Against that, he preferred Criminal Appeal No. 191/2004 before Additional District and Sessions Court, Fast Track (Adhoc-11), Kozhikode in which the conviction was confirmed and the appeal was dismissed. Being aggrieved by that, he preferred this Revision Petition. 2. Heard both sides and perused the oral and documentary evidence for ascertaining any illegality and irregularity in the finding of the courts below. It appears that both courts have considered and appreciated the evidence properly. 3. According to S. 225B, if a person escapes from the custody, in which he is lawfully arrested, it is an offence. What is clear from the Section is that, whoever in any case not provided for in S. 224 or S. 225 or in any other law for the time being in force, intentionally offers any resistance or illegal obstruction to the lawful apprehension of himself or of any other person, or escapes or attempts to escape from any custody in which he is lawfully detained, or rescues or attempts to rescue any other person from any custody in which that person is lawfully detained, amounts resistance to law. A perusal of the ingredients of the Section quoted above would show that if the revision petitioner was apprehended by PW 1 and it was lawful, however it is an escape from the lawful custody. 4. A perusal of the ingredients of the Section quoted above would show that if the revision petitioner was apprehended by PW 1 and it was lawful, however it is an escape from the lawful custody. 4. The occurrence was narrated by PW 1, who was the process server of Munsiff Magistrate Court, Perambra. The evidence of PW 1 shows that on 6.4.2001 at 2 p.m. he approached the revision petitioner with the warrant in E.P. 60/99 of the above Court. PW 4, the employee of the bank identified the revision petitioner. PW 1 verified the address with warrant and informed the accused about the warrant and demanded to pay the decree debt mentioned in the warrant plus 10 rupees as cost, but he did not pay the amount. In the meantime PW 1 obtained the signature of the revision petitioner in the warrant and arrested him. Obeying the arrest revision petitioner accompanied PW 1 upto the waiting shed near Panchayat Office, Cheruvannur, thereafter he informed that he was not ready to accompany PW 1 to the Court and ran away from there. However PW 1 chased him, but he could not apprehend him. Subsequently, he filed Ext. P1 report before Court. PWs 2 and 4 supported the evidence of PW 1 and they identified their signature in the arrest warrant. While appreciating the above evidence against the accused, the prime duty of the Court is to ensure that the evidence is legally admissible and the witness who speak about is credible. The question of credibility can be decided by referring his oral evidence and answers in cross examination and the impression created by that evidence. 5. It may be further elaborated on the basis of the evidence of the Junior Superintendent. The issuance of warrant has been proved by PW 3, the Junior Superintendent, Munsiff-Magistrate Court, Perambra. His evidence shows that he signed in Ext. P2 warrant as directed by the Court and the Deputy Nazir entrusted the warrant to PW 1. Analyzing this evidence, it is clear that Junior Superintendent signed the warrant and Deputy Nazir entrusted it to PW 1. Their direct evidence is believable and accepted by both the courts. PW 6 registered the above case and Ext. P4 is the FIR. PW 5 attested Ext. P3 scene mahazar. PW 7 conducted investigation and PW 8, laid charge before Court. Their direct evidence is believable and accepted by both the courts. PW 6 registered the above case and Ext. P4 is the FIR. PW 5 attested Ext. P3 scene mahazar. PW 7 conducted investigation and PW 8, laid charge before Court. Even though these witnesses were cross examined by the defence counsel, no material contradictions were found in their evidence and it is believable. High Court of Madras in Mammed Beary v. State ( AIR 1955 Mad. 157 ) held as follows: "The warrant having been duly signed on authorization of the District Munsiff, the only other question is whether on the facts as contended by the learned Counsel for the petitioner, the offence under S. 225-B, I.P.C., has been made out or not. The facts, as already stated, are that after arrest, the petitioner refused to accompany the process server. The process server afterwards went away to court. Whether mere refusal to accompany the process server will amount to escape or attempt to escape from lawful custody is the question--'Santa Singh v. Emperor' (AIR 1933 Lah. 128(1) (A) is relied on by the learned counsel for the petitioner where it has been held that refusal to accompany would not amount to escape or attempt to escape. With respect to the learned Judges, I am unable to agree with their opinion giving the natural meaning to the word "escape" which means getting free, getting clear away from prison or person, the act of the petitioner would undoubtedly, in my opinion, fall within the clause "attempt to escape". His refusal to accompany him necessarily means that he will not go with him and that the process server will have to leave him and go unless force is used. It is, in my opinion, an attempt to escape within the meaning of S. 225-B. Though the charge is only for escape, I find him guilty of attempt to escape. But this alteration in the conviction does not in any way affect the conviction of the petitioner under S. 225-B, I.P.C. In the result, the petitioner will be convicted for the offence under S. 225-Bnot for escape, but for attempt to escape." The warrant was read over and explained to the revision petitioner and PW 1 touched the body of the accused as a part of arrest which was not disputed by him. The warrant had been duly signed on authorization of Munsiff which was admitted by the Junior Superintendent attached to Munsiff-Magistrate Court, Perambra, who deposed that Deputy Nazir entrusted the warrant to PW 1. Both courts found that the refusal to accompany the process server amounts to an offence to escape within the meaning of S.225B. 6. When an offence is punishable with imprisonment the policy of law is that the court has given its own discretion in awarding suitable sentence. While exercising this discretion the court has to take into account several factors such as the nature of the offence, age, character of the offender, his antecedents and the circumstance under which it was committed, etc. In this case, the accused is a judgment debtor, who failed to pay the decree amount. In view of the decision in Mammed Beary's case (supra), I am of the view that the revision petitioner's refusal to accompany the process server necessarily means that he will not go with PW 1 and that the process server will have to leave him and go unless force is used. It is an attempt to escape by the revision petitioner within the meaning of S. 225B. 7. The technicality of escape from lawful custody and its impact on sentence was considered by the Madras High Court in Public Prosecutor v. Nellore Audinarayana Reddi (AIR 1933 Mad. 278), in which it is held that where a judgment debtor who was left in the custody of the process server on his payment of detention batta for two days did not follow the process server but made an escape though he appeared in Court in the third day, the offence was of escape from lawful custody and that the fact that there was no order in writing for detention was immaterial but the offence being only a technical one, a nominal punishment would meet the ends of justice. Considering the facts and circumstances of the case and the character of the offender, I am of the opinion that sentence of fine is sufficient to meet the ends of justice and I modify the sentence as follows: The revision petitioner is sentenced to pay a fine of Rs.5,000/- for offence punishable u/s. 225B I.P.C., in default of payment of fine, simple imprisonment for two months. He is directed to surrender in the Judicial Magistrate of First Class-11, Perambra to undergo the modified sentence, failing which, the learned Magistrate shall issue non bailable warrant forthwith against him. The Criminal Revision Petition is partly allowed.