ORDER
G.D. Sharma, J.
1. These revision petitions have arisen out of order dated 31 -7-91 passed by the learned Sessions Judge, Jammu (in Appeal No. 15/88) whereby he altered the conviction and sentence of petitioner Harnam Singh for the commission of offence Under Section 222 to offence Under Section 223, RPC. Rigorous imprisonment awarded for two years and a fine of Rs. 500/- under Section 222, RPC was reduced to simple imprisonment for one year and fine of Rs. 200/- under Section 223, RPC. The conviction and sentence awarded to the petitioner Avtar Singh under Section 224, RPC was confirmed. The learned Chief Judicial Magistrate, Jammu had held the trial and vide his judgment and order dated 17-12-88 convicted and sentenced the petitioners as stated above.
2. The petitioner Harnam Singh has challenged his conviction and sentence on the grounds that petitioner Avtar Singh was never entrusted to him to be produced in custody in the Court. That he had been discharging the functions of a 'Moharar' in the Central Jail Jammu and never was deputed to take any prisoner including the petitioner herein in the Court. The escape- of the petitioner Avtar Singh from lawful custody has been denied by him and it is pleaded that a false case was foisted after fabricating the evidence.
3. The petitioner Avtar Singh (in Rev. Petition No. 43/91 (supra) has challenged his conviction and sentence on the ground that he had committed no offence but even then evidence was fabricated to implicate him. Both the above stated revision petitions are disposed of by this common order.
4. Mr. R. P. Bakshi has contended that the petitioner Harnam Singh undoubtedly was a public servant when the alleged offence was committed. He had done so while purporting to act in the discharge of his official duty. When this was the admitted position argues the learned counsel then sanction for prosecution as envisaged under Section 197, Cr. P. C. was required. In the instant case, there was non-compliance of the mandatory provisions of law so the abovesaid conviction and sentence is not in conformity with law. Mr. Kapoor, AAG has controverted this argument by stating that sanction for prosecution is required only in respect of those public servants who are not removable from their offices save by or with the sanction of the State Government or the Government of India. That the petitioner herein is only a 'Mohrar Constable' and is removable from the service either by the Jail Superintendent or by the concerned SSP. In his case, there is no requirement of law to obtain any prior sanction from the Government. A bare perusal of Section 197, Cr. P. C. makes it clear that the contention of Mr. Bakshi is not well founded as it is not in conformity to all intents and purposes of the law enshrined therein. The argument of Mr. Kapoor has its source from the decision of the Apex Court given in the case of K. Ch. Parshad v. J. Vanalatha Devi AIR 1987 SC 722 : 1987 Cri LJ 697. In the said case it is held that an employee of a nationalised bank does not hold a post where he could not be removed from service except by or with the sanction of the Government. Therefore, though he is a public servant still on his criminal prosecution provisions of Section 197 are not attracted at all.
5. At this stage, Mr. Sunil Sethi has contended that the petitioner herein was entitled to avail the salutory effect of the benion provisions of J. and K. Probation of Offenders Act (hereinafter to be referred as Offenders Act) because he was convicted and sentenced for one year Under Section 223, RPC and this offence is not punishable with imprisonment not more than two years or with fine or with both and as such Under Section 3 of the Offenders Act he should have been admonished. To buttress his contention, the learned counsel has cited the cases of Keshav Sitaram Sali v. State of Maharashtra AIR 1983 SC 291 : 1983 Cri LJ 436, Mohamed Aziz Mohamed Nasir v. State of Maharashtra AIR 1976 SC 730 : 1976 Cri LJ 583 and Ved Parkash v. State of Haryana AIR 1981 SC 643 : 1981 Cri LJ 161.
6. In the case of Ved Parkash v. State of Haryana (supra) the accused was less than 21 years of age and the offence for which he was convicted had attracted Section 360, Cr. P. C, or at any rate Probation of Offenders Act. The Apex Court had held that it was the duty of the sentencing Court to be activist enough to collect such facts as have a bearing on punishment with a rehabilitating slant. Furthermore, on facts the offender was found unsettled or restless in life and the report of Probation Officer indicated that he was an agricultural, pursuing a peaceful vocation. His parents were alive and he had a wife and children to maintain. On these views of the matter, the Apex Court instead of sentencing him had directed his release subject to certain conditions.
7. In the case of Mohd Aziz Mohamed Nasir v. State of Maharashtra 1976 Cri LJ 583 (SC) (supra), the benefit of Probation of Offenders Act was given in respect of an accused who was under 21 years. It was laid down that even in appeal the appellate Court was bound to take notice of the provisions of the Offenders Act as the circumstances of the case were such.
8. In the case of Keshav Sitaram Sali v. State of Maharashtra 1983 Cri LJ 436 (SC) (supra), the accused who was a Railway employee had abetted commission of theft of coal worth Rs. 8/- from railway goods wagon. The Apex Court had taken him into duty after his conviction by the High Court keeping in view his character and antecedents and the nature of the offence. The benefit of the provisions of Probation of Offenders Act was thus made available to him.
9. Adverting to the facts of the present case, it is found that the petitioner herein is not under 21 years of age. He is a warden in the Jail and is stated to have been performing the duties of a 'Mohrar Constable'. The two Courts on the basis of the evidence have concurrently held that he was legally bound as such public servant to keep in confinement petitioner Avtar Singh who was lawfully committed to custody but he not only negligently but intentionally suffered him to escape from confinement. It is also in the evidence that after perpetuating this crime when he returned to his office, he was so drunk as to be quite incoherent. He thus had conducted himself in a most depraved manner which was least expected from a member of a disciplined force. Such like characters can at times prove a threat even to the security of the State because hard-core militants or criminals while in custody can easily secure their escape by winning them to their side. Thus, by no strech of reasoning any leniency can be claimed under the provisions of the Offenders Act. Rather, the offence committed by the petitioner has such ramifications which can reverberate a sense of insecurity amongst the members of the society and consequently erosion in the majesty of the rule of law. In order to assuage the accusations that 'the fence has started eating up the crop' the appellate Court ought to have dealt with the petitioner with heavy hand and instead of showing clemency the nemesis were to be deterrent.
10. In this view of the matter, there is found no force in the revision petition which is accordingly dismissed.
11. Mr. D. S. Saini, the learned counsel appearing for the petitioner Avtar Singh in Revision Petition No. 43/91 has contended that the petitioner was arrested on 13-2-85 and he remained in the custody up to 14-9-85 when he was admitted to bail. In this way, he remained in custody for seven months whereas, he was convicted and sentenced for a total period of six months and he is thus entitled to put up a claim of set off. The learned counsel further contends that the revision petition has thus become infructuous and may be dismissed. The contention of the learned counsel is borne out from the record and prevails. The petitioner Avtar Singh is thus entitled to claim the period of detention as set off against his conviction and sentence. The petition in this way has become infructuous which is accordingly disposed of. The trial Magistrate is directed to give effect of these convictions and sentences in accordance with the directions given herein. The petitioners are directed to appear before the trial Magistrate on April 25, 1997 to serve the remaining sentences accordingly failing which the learned Magistrate will enforce their attendance by adopting all the coercive methods including the forfeiture of the surety and personal bonds. The office is directed to send the record immediately to the appellate Court as, well as to the trial Court.