Rajasthan High Court - Jodhpur

Mushtaq Ali vs State on 17 June, 2025

Author: Farjand Ali

Bench: Farjand Ali

[2025:RJ-JD:25339]

      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                       JODHPUR
            S.B. Criminal Revision Petition No. 1106/2006

Mushtaq Ali S/o Fakir Ali Musalman, R/o Kanera, presently
residing at Nimbahera District Chittorgarh
                                                                   ----Petitioner
                                    Versus
State Of Rajasthan
                                                                 ----Respondent


For Petitioner(s)          :    Mr. Manish Pitaliya
For Respondent(s)          :    Mr S.S. Rathore, Dy.G.A.



                HON'BLE MR. JUSTICE FARJAND ALI

                                     Order

ORDER RESERVED ON                       :::                      21/05/2025
ORDER PRONOUNCED ON                     :::                      17/06/2025
REPORTABLE
BY THE COURT:-

1. The present revision petition has been filed challenging the

judgment of conviction and order of sentence dated 23.02.2006,

passed by the learned Civil Judge (Junior Division)-cum-Judicial

Magistrate, Chittorgarh in Criminal Case No. 15/1997. By the said

judgment, the petitioner was convicted for the offence under

Section 223 of the Indian Penal Code (IPC) and imposed a fine of

₹2,000/-, with a further direction that in default of payment of the

fine, he would undergo simple imprisonment. The said judgment

was upheld by the learned Appellate Court vide order dated

23.06.2006 passed in Criminal Appeal No. 20/2006.

2. The essential facts required for adjudication of the present

petition are as follows:

[2025:RJ-JD:25339] (2 of 7) [CRLR-1106/2006]

2.1. At the relevant time, the petitioner was serving as a police

constable at Police Station Chanderiya, Chittorgarh. He was

assigned guard duty and was also responsible for managing

wireless communication at the police station.

2.2. Two under-trial prisoners, namely Suresh Kumar and Rajak

Khan, were in lawful custody at the said police station. Due to the

absence of a designated lock-up facility, the accused were kept

handcuffed, and their shackles were tied to a table inside the

office of the Station House Officer (SHO).

2.3. During the intervening night of 20th and 21st June 1994, a

sudden power outage occurred. In the absence of electricity and

ventilation during peak summer conditions, the under-trial

prisoners began shouting for relief due to suffocation and

excessive heat. Acting out of humanitarian concern, and given the

extreme temperature and ventilation issues, the petitioner moved

the accused outside the SHO's office and secured their handcuffs

to a pillar in an open area.

2.4. Taking advantage of the darkness and the petitioner's limited

resources, the two accused managed to escape by freeing

themselves from the restraints. Since the petitioner was the

custodian of the accused and in possession of the keys to the

shackles, he was held accountable for the escape and was

subsequently charged with negligence under Section 223 IPC.

3. I have heard learned counsel for the parties and carefully

examined the record of the case.

[2025:RJ-JD:25339] (3 of 7) [CRLR-1106/2006]

3.1. Section 223 of the IPC pertains to escape from lawful

custody due to negligence by a public servant who is legally bound

to confine or guard a person. The primary requirement for

conviction under this provision is the establishment of "criminal

negligence" which directly results in the escape of the detainee.

3.2. The concept of criminal negligence, as contemplated under

Section 223 IPC, has been consistently interpreted by courts to

require a gross and culpable failure to exercise the degree of care

which an ordinarily prudent and reasonable person would exercise

in similar circumstances. Not every error in judgment, lapse, or

inadvertent act constitutes criminal negligence.

3.3. The Hon'ble Supreme Court in Jacob Mathew v. State of

Punjab, (2005) 6 SCC 1, observed that criminal negligence

involves:

• A legal duty owed to another person (such as by a police

officer toward detainees);

• A reckless disregard of foreseeable consequences;

• And an act or omission creating an obvious and serious risk

of harm that was both foreseeable and preventable.

3.4. The doctrine of criminal negligence, particularly in the context

of custodial responsibility under Section 223 IPC, demands a

calibrated understanding of the threshold of culpability

distinguishable from mere civil or administrative lapses. It is not

every deviation from ideal conduct or lapse in vigilance that

attracts penal consequences; rather, the law mandates a

[2025:RJ-JD:25339] (4 of 7) [CRLR-1106/2006]

demonstration of such a degree of recklessness or gross

dereliction of duty that it evidences a conscious disregard for the

foreseeable consequences of one's omission. The jurisprudential

distinction between civil and criminal negligence lies primarily in

the presence of mens rea in the latter -- an element of moral

blameworthiness or at the very least, a recklessly indifferent

attitude towards the duty imposed by law. In the case of a police

official tasked with dual and simultaneous responsibilities -- such

as guarding under-trial prisoners while also attending to wireless

operations in emergency-like conditions -- the expectations of

flawless, uninterrupted supervision must be weighed against the

practical limitations of manpower and infrastructure. Criminal

negligence cannot be predicated on errors of judgment or bona

fide acts taken under emergent circumstances, particularly when

driven by humanitarian considerations and lacking any element of

intent or recklessness. Further, the application of criminal law

must be tempered with a contextual and fact-sensitive inquiry:

whether the accused acted in a manner that an ordinarily prudent

officer, faced with similar constraints, would regard as palpably

indefensible. When viewed through this prism, the act of

momentarily relocating the detainees to an open space, while

retaining their handcuffs, amid a power outage and oppressive

summer heat, cannot be readily equated with the grave dereliction

that Section 223 IPC seeks to penalize. Indeed, the standard is

not one of perfect foresight or hypothetical diligence, but of

reasonableness under prevailing circumstances. The petitioner's

[2025:RJ-JD:25339] (5 of 7) [CRLR-1106/2006]

conduct, however ill-fated in its consequence, does not rise to the

level of culpable indifference or reckless disregard that the penal

statute contemplates. It is well settled that penal provisions must

be construed strictly, and in cases of doubtful culpability, the

benefit must enure to the accused. Thus, in absence of proof

establishing that the petitioner's act was so grossly negligent as to

manifest a departure from the expected norms of custodial care,

the invocation of Section 223 IPC cannot be sustained.

4. In the present case, it is evident from the record that the

escape of the accused was not the result of any wilful, deliberate,

or grossly negligent act on the part of the petitioner. Rather, it

arose from a convergence of extraordinary and unforeseen

circumstances, including:

• A sudden and unanticipated power failure;

• The absence of a designated lock-up facility at the police

station;

• The unbearable heat and lack of ventilation during peak

summer;

• And the petitioner's simultaneous responsibility for wireless

communication duties.

4.1. The petitioner had kept the accused handcuffed and under

watch. In response to the distress of the detainees due to extreme

weather conditions, he relocated them to a relatively open and

breathable space while continuing to keep them restrained. This

[2025:RJ-JD:25339] (6 of 7) [CRLR-1106/2006]

act appears to have been driven by humane considerations, rather

than any intent or recklessness to facilitate an escape.

4.2. Upon careful consideration of the facts, the following

observations emerge:

• The petitioner was performing dual duties, both as guard and

wireless operator, which diluted his ability to maintain

uninterrupted physical supervision.

• There was no lock-up facility available, and the accused were

already handcuffed and tethered inside the SHO's office.

• In response to the deteriorating physical condition of the

detainees caused by the power outage and heat, the

petitioner took a pragmatic and compassionate step to shift

them to an open area while still restraining them.

• The escape occurred despite the continued application of

restraints and was not directly facilitated by any grossly

negligent conduct.

• The prosecution failed to establish, beyond reasonable doubt,

that the petitioner's conduct amounted to criminal negligence

within the meaning of Section 223 IPC.

4.3. It is well established in law that criminal negligence involves a

substantial deviation from the standard of care expected of a

reasonable person. Mere errors in judgment or omissions in the

face of difficult circumstances do not constitute such culpability.

[2025:RJ-JD:25339] (7 of 7) [CRLR-1106/2006]

5. This Court is of the considered opinion that the findings

recorded by the Trial Court, as well as the Appellate Court, suffer

from legal and factual infirmities. The essential ingredients of the

offence under Section 223 IPC have not been proved against the

petitioner.

6. Accordingly, the revision petition is allowed. The judgments

dated 23.02.2006 and 23.06.2006 passed by the learned Civil

Judge (jr. Dn.) cum Judicial Magistrate, Chittorgarh in Cr. Case

No.15/1997 and learned Addl. Sessions Judge No.1, Chittorgarh in

Cr. Appeal No.20/2006 are hereby quashed and set aside. The

petitioner is acquitted of all charges. His bail bonds stand