BAIL SLIPThe v. The Inspector of Police,CB CID, Chennai

BAIL SLIPThe Petitioner Accused namely K.Balan was directed to be released onbail as per the order of this Honourable Court in Crl.M.P.No.9177/04 inCrl.R.C.No.1464/04 dated 31.8.2004.IN THE HIGH COURT OF JUDICATURE AT MADRASDATE : 06.06.2007CORAM:THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYANCrl.R.C.No.1464 of 2004K.Balan .. Petitionervs.The Inspector of Police,CB CID, Chennai. .. RespondentPrayer: This Revision petition has been preferred against judgment dated13.8.2003 made in C.A.No.114 of 2002 on the file of the AdditionalSessions Judge, (FTC-IV), Chennai, confirming the judgment in C.C.No.8430of 1995 on the file of the II Metropolitan Magistrate, Egmore, Chennai,dated 03.05.2002.For Petitioner : Mr.M.S.SoundararajanFor Respondent : Mr.V.R.Balasubramanian, Additional Public Prosecutor.JUDGMENTThis revision petition arises out of the judgment in C.A.No.114 of2003 on the file of the Additional Sessions Judge, (FTC-IV), Chennai,under which the judgment in C.C.No.8430 of 1995 on the file of theIInd Metropolitan Magistrate, Egmore, Chennai, was confirmed. Theaccused was charged under Section 120-B and 222(3) IPC along with sevenco-accused.2. The trial Court after taking cognizance of the charges levelledagainst the accused, furnished the copies to the accused under Section 207of Cr.P.C., on their appearance on summons. After framing charges whenquestioned, the accused pleaded not guilty. Before the trial Court P.W.1 https://hcservices.ecourts.gov.in/hcservices/ to P.W.26 were examined and Ex.P.1 to Ex.P.10 were exhibited.3. The case of the prosecution in brief is that in the month of August1990 this accused along with other co-accused conspired in assisting theaccused Shankar @ Auto Shanker (who was subsequently been executed) and A4to A8 who are the associates of the above said executed accused AutoShankar to make good their escape from the central prison and this accusedwho is ranked A5 an ex-employee of the central prison along with hiscolleagues A4 and A6 facilitated A1 to A3 to make good their escape fromthe central prison. Hence this accused was charged under Sections 120-Band 222(3) IPC along with the co-accused.4.P.W.1 is the then Superintendent of central prison, who would depsoethat on 20.8.1990 night about 5 inmates of the central prison, who werelodged in first block make good their escape from the prison with the helpof A5 to A7, the jail warders. 5.P.W.2, the then Additional Superintendent of Central Prison alsocorroborated the evidence of P.W.1. The specific averment against thisaccused/revision petitioner by P.W.2 is that this accused Balan(A5) wasincharge of supervising the lockup in which the escaped prisoners werelodged on the day of occurrence. He has also deposed to the effect thatwhen roll call was taken on 21.8.1990 at about 6.00 am it was brought tothe notice that A1, A2, Auto Shankar (deceased), Advocate Raja and SundalKumar had escaped from the jail and that he has informed this fact toP.W.1, who had preferred Ex.P.1-complaint with the Chindadaripet police.6.P.W.3 is the then warder of the central prison. He would deposethat except cell No.10 in the first block all the inmates of other cellsin the said block were present at the time of roll call and the lock ofthe 10th cell was found unlocked and five of the inmates from the saidcell were found missing.7.P.W.4 is then II grade warder of central prison, who has alsocorroborated the evidence of P.W.1 and P.W.2.8.P.W.5 is the then Grade-I Head Constable. According to him he wason guard duty in the central cell in which "Elam Liberation Tigers" werelodged from 6.00 pm to 9.00 pm on 20.8.1990 and that he left the prisonafter handing over the charge to his successor and he returned to dutyonly on 21.8.1990 in the morning and came to know that five of the inmatesfrom cell No.10 make good their escape from the prison.9.P.W.6 & P.W.7 have also corroborated the evidence of P.W.5.10.P.W.8 is the then Grade-I prison constable. According to him, hewas on duty from 11.00 pm on 20.8.1990 till 12.00 mid night. He hadlocked the locks in order to prevent political remand prisoners fromentering into the said block and at that time when he took roll call ofthe political prisoners on the following morning at about 6.30 am he wasinformed that 5 inmates including Auto Shankar from cell No.10 had escaped https://hcservices.ecourts.gov.in/hcservices/ from the prison.11. P.W.9 is the Grade-II constable in the prison department, who on20.8.1990 was on duty from 12.00 mid night till 6.00 am in the morning onthe tower of the prison. According to him, since the outer gate of blockNo.I was kept under lock and key he could not enter into the block No.Iand only in the morning he came to know that the inmates from cell No.10in block No.1 have escaped from the cell. 12.P.W.10 would depose that on 20.8.1990 the outer gate in block No.Iwas locked as per the instructions of Chief Head warden Rahim Khan.13.P.W.11 is the then deputy warden of central prison. According tohim, he used to take roll call of the inmates of the prison andaccordingly on 20.8.1990 also at about 5.30 am he verified the inmates ofthe prison at block No.I and that he was on duty till 1.00 pm on 20.8.1990and when he came for the next shift at about 10.00 pm on the same day hefound the outer gate of the first block was kept under lock and key underthe instructions of the head warden Rahim Kahn and that his duty was overat about 12.00 mid night and till such time no untoward things hadhappened in the prison and only on 21.8.1990 morning he came to know that5 of the inmates from cell No.10 make good their escape from the prison. 14.P.W.12 was the then gate keeper of the central prison and that hewas on duty from 5.45 am to 10.00 pm on 20.8.1990 and only on the next dayi.e., on 21.8.1990 he came to know that 5 of the inmates of the prisonhave escaped. 15.P.W.13 to P.W.16 have not supported the case of the prosecution.Hence they were treated as hostile witnesses.16.P.W.17 would depose that 10 years ago the accused Venkatesan alongwhich his sister came to his house and stayed for the night.17.P.W.18 is the Sub-Inspector of Police of Orisa state. He woulddepose that during the month of October-1990 the Inspector of Police,CB CID, Madras had enquired him about the escape of one Auto Shankar @Gowri Shanker from the central prison, Chennai and as per the request ofthe Inspector of Police CB CID, he along with his senior Inspectorconducted a raid in the place where Auto Shankar was stayed with hismother (Gopavanthu Nagar). At that time the accused Auto Shankar was notthere and on 1.9.1990 at about 6.00 pm on the information from thereliable source he came to note that the said accused Auto Shankar hadcome to his father's house. Immediately he along with his senior Sub-Inspector Mr.Mishra along with his colleagues raided the place where AutoShankar was staying and caught hold of the accused Auto Shankar. At thattime Auto Shankar's wife Devi was also present along with her husband.Both of them were arrested by his senior Sub-Inspector Mr.Mishra. TheInspector of Police CB CID have also informed about the arrest of Auto https://hcservices.ecourts.gov.in/hcservices/ Shankar and his wife Devi. Both the accused were produced befrore theSub-Divisional Judicial Magistrate, Panpur, for judicial custody. Laterboth the accused were taken to Madras by the Madras Police.18.P.W.19 speaks about the arrest of the accused Srinivasan by CBCID Police at Bombay.19. P.W.20 is the proprietor of hotel viz Samrat at Pune, who woulddepose that during the month of April 1992 two persons calling themselvesas Divakar and Venkatesan approached in search of a job and that he hasoffered them the work of table boy and that both of them worked under himfor nearly three months and on one fine morning Tamil Nadu Police came tohis hotel and arrested both of them.20.P.W.21 is a retired railway employee. According to him, the accusedDivakar and Venkatesan were known to him and that in the year 1992 both A1and A8 were residing in his house as tenant for nearly three months andthat Tamil Nadu Police arrested both of them.21.P.W.22 is the Additional Superintendent of Police Tiruvanamalai.While he was working as an Inspector of Police CB CID on 25.1.1992 hewent to Pune along with his party on the information that the escapedinmates of central prison Mohan and Venkatesan were working in a hotel atPune, and arrested A1-Divakar @ Mohan and also Venkatesan (A8) andbrought them to Chennai and produced before the XIVth MetropolitanMagistrate for remand. 22.P.W.23 is the Additional Superintendent of State Crime Branch, whohad registered the case under Cr.No.138 & 139 of 2000 of ChindadaripetPolice Station under Section 222, 224 & 225 IPC. He has also received theother co-accused viz., Auto Shankar and his wife Devi from Rupkela Policeand produced them before the XIVth Metropolitan Magistrate for the purposeof remand. 23.P.W.24 is the successor of P.W.23 who took up the investigation inthis case and examined the witness and recorded their statements. 24.P.W.25 had continued the investigation after P.W.24 and examinedthe other witnesses and recorded their statements.25.P.W.26 is the successor of P.W.25, who had examined the remainingwitnesses and recorded their statements and after completing theinvestigation has filed the charge sheet against the accused on 28.12.1994.26. When incriminating circumstances were put to the accused underSection 313 of Cr.P.C., they denied their complicity with the crime. Onthe basis of the available oral and documentary evidence the learned trialjudge has come to the conclusion that the guilt against the accused hasbeen proved beyond any reasonable doubt and accordingly convicted and https://hcservices.ecourts.gov.in/hcservices/ sentenced to undergo 6 months RI under Section 120-B IPC and another 6months RI under Section 222(3) IPC with a direction that both thesentences shall run concurrently.27. Aggrieved by the findings of the learned trial Judge, the accused-5 has preferred an appeal in C.A.No.114 of 2002 before the AdditionalDistrict & Sessions Judge, (FTC-IV), Coimbatore, who after carefulconsideration of the available evidence both oral and documentary and alsoafter going through the judgment of the learned trial Judge, has held thatthere is no reason to interfere with the findings of the learned trialjudge and accordingly dismissed the appeal thereby confirmed the judgmentof the trial Court, which necessitated the accused(A5) to prefer thisrevision petition.28.Now the point for determination in this revision petition iswhether the judgments of the Courts below holding that the accused isguilty under Section 120-B and 222(3) IPC is liable to be set aside forthe reasons stated in the memorandum of revision?29.The Point:- 29(a) The learned counsel for the revision petitioner wouldcontend that after the occurrence the government have appointed an EnquiryCommission and the learned Judge who presided over the commission hasfiled a report holding that this accused Thiru.Balan is no way connectedwith the occurrence. But the said report of the enquiry commission was notfiled before the trial Court. Only an extract of the report of theEnquiry Commission relating to A6 was filed along with the type set ofpapers. In this regard it should be remembered that a document which wasnot produced before the trial Court cannot be looked into by this Court.Even the original of the enquiry report was not produced before thisCourt. 29(b) The specific charge against this revision petitioner/A5 is thathe had not properly discharged his duty while he was on duty on 20.8.1990and he has failed to lock the door of the cell No.10 where the escapeeaccused/under trial prisoners were lodged. In this regard the evidence ofP.W.2 Thiru.Munivelu, then Additional Superintendent of Prison, isrelevant to be noted. In specific terms P.W.2 has deposed that thisrevision petitioner Balan was entrusted with the duty of checking thelockup in which the escapee accused were lodged on the day of occurrence.It is pertinent to note that P.W.2 Thiru.Munevelu was not cross-examinedby this revision petitioner before the trial Court. Under suchcircumstances, the evidence of P.W.2 against his accused remainsunchallanged. 29(c) The learned counsel for the revision petitioner relying on theevidence of P.W.3 would contend that the block No.1 which comprises cellNO.10 in which the escapee prisoners were lodged itself was locked as perthe instructions of the Head Warden Rahim Kahan (A7). But P.W.3 himself https://hcservices.ecourts.gov.in/hcservices/ would depose that cell NO.10 was found open on 21.8.1990 at about6.00 am. Even though this accused is not in-charge of the other cells itis in evidence that he was incharge of cell No.10 where the escapeeaccused were lodged on the previous night to the occurrence day. It is inevidence that from 5.30 am to 1.00 pm and 3.30 pm to 10.30 pm on 20.8.1990this accused on duty. 29(d) When the incriminating circumstances were put to the accusedunder Section 313 of Cr.P.C., he had denied his complicity with the crimeand has examined himself as D.W.1. The revision petitioner as D.W.1 wouldadmit in the cross-examination that he was on duty till 9.30 pm on20.8.1990 and that 5 prisoners were lockedup in cell NO.10 at about 8.45pm on the same day in his presence. He would further admit that on thenext day morning he came to know that the above said 5 prisonerssuccessfully escaped from the prison. He has not deposed before theCourt that before he left the duty he checked the lock of the cell No.10to ensure that 5 inmates of cell No.10 were safely lodged under lock. Inthe cross-examination he will go to the extent of saying that he does notknow whether 5 inmates who were lodged in prison in his presence, weremurder case accused or not. In defence the revision petitioner has notlet in any evidence to show that at the time when he left his duty, cellNo.10 was safely locked with 5 inmates therein. It is not the case of theprosecution that on the morning on 21.8.1990 the lock of cell No.10 wasfound broken. But it is the case of the prosecution that lock of cellNO.10 was not properly locked. Only under such circumstances, both theCourts below have come to the conclusion that only due to the negligentact of the revision petitioner the lock of cell No.10 was not keptproperly locked, which enabled the inmates of cell No.10 to escape fromthe prison on the early morning of 21.8.1990. Out of 5 escapee prisoners3 of them including Auto Shankar were executed. 29(e) The learned counsel for the revision petitioner relying onEx.D.1-orders of the prison authorities would contend that the revisionpetitioner was allowed to retire even after this occurrence with out anydepartmental enquiry. But that is not the ground to acquit the accusedfrom the charges levelled against him. So I am of the view that there isno reason to interfere with the will considered judgments of the Courtbelow for coming to the conclusion that the charges under Section 120-Band 222(3) IPC have been proved against this accused beyond any reasonabledoubt. At this juncture the learned counsel for the revision petitionerwould contend that now the revision petitioner is aged 72 years and it isnot fair to send him to the prison once again. The learned AdditionalPublic Prosecutor would represent that the accused was in jail for nearlyone months during remand period and also after the conviction by the trialCourt. So taking into consideration the age factor of the revisionpetitioner I am of the view that instead of sending the revisionpetitioner to prison, it will be sufficient that the sentence alone can bemodified to that of the period already undergone instead of 6 months RI.Point is answered accordingly. https://hcservices.ecourts.gov.in/hcservices/

30. In the result, the revision petition is dismissed confirming theconviction rendered by the first appellate Court in C.A.No.114 of 2002on the file of the Additional District & Sessions Judge, (FTC-IV),Chennai, but the sentence alone is modified to that of the period alreadyundergone instead of 6 months RI.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.ssvTo,1.The II Metropolitan Magistrate, Egmore, Chennai.2.-do- through The Chief Metropolitan Magistrate, Egmore, Chennai.3.The Additional District and Sessions Judge, (FTC.IV), Chennai.4.-do- through The Principal Sessions Judge, Chennai.5.The Inspector of Police, CB CID, Chennai.6.The Superintendent of Police, Central Prison, Vellore.7.The Public Prosecutor, High Court, Madras.Crl.R.C.No.1464 of 2004nsm[co]Gp/15.6