Neutral Citation No. - 2025:AHC:32971 Court No. - 77 Case :- APPLICATION U/S 482 No. - 13178 of 2019 Applicant :- Constable Moharrir Radhey Shyam Gupta Opposite Party :- State of U.P. and Another Counsel for Applicant :- Kaushal Kishore Mani Tripathi,Mirza Ali Zulfaqar Counsel for Opposite Party :- Ashutosh Pandey,G.A. Hon'ble Arun Kumar Singh Deshwal,J. 1. Rejoinder affidavit filed on behalf of the applicant is taken on record. 2. Heard Sri Kaushal Kishore Mani Tripathi, learned counsel for the applicant and Sri Rajeev Kumar Singh, learned A.G.A. for the State. 3. The present application has been filed to quash the entire proceedings of Case No. 157 of 2019 (State Vs. Constable Radhey Shyam Gupta) u/s 223 I.P.C. arising out of Case Crime No. 341 of 2018, Police Station- Dhan Ghata, District- Sant Kabir Nagar, as well as cognizance order dated 11.01.2019 pending before learned CJM, Sant Kabir Nagar. 4. Facts giving rise to the present controversy is that the applicant was posted as Head Constable in Police Station- Dhan Ghata, District- Sant Kabir Nagar in the year 2018. Accused Deepak Gaud was in police custody on the allegation of enticing of a woman. On 15.06.2018, Constable Suresh Kumar Yadav was on duty from 3 a.m. to 6 a.m. During that period, accused Deepak Gaud was allowed by Constable Suresh Kumar Yadav to attend nature's call but the accused Deepak Gaud after relieving himself, escaped from the police lockup after jumping over the boundary wall of the police station. Thereafter, a showcause notice was issued to all the policemen present at the police station including the applicant. The showcause notice dated 09.08.2018 issued to the applicant by S.P., Sant Kabir Nagar was replied by the applicant on 03.09.2018 which was duly considered by the S.P., Sant Kabir Nagar and notice was discharged finding the explanation of the applicant as satisfactory vide order dated 18.09.2018. Apart from the aforesaid proceedings, first information report dated 15.06.2018 in Case Crime No. 341 of 2018 was also lodged against the applicant and other policemen u/s 223, 224 I.P.C. in which the police had submitted charge-sheet against the applicant and other policemen on 04.12.2018 which is under challenge. 5. Contention of learned counsel for the applicant is that from the statement of co-accused, it is clear that the applicant was not on sentry duty during the period when the accused Deepak Gaud escaped from the police lockup of the Police Station- Dhan Ghata, District- Sant Kabir Nagar. It is also submitted by learned counsel for the applicant that though police department issued showcause notice to the applicant regarding the same incident but after receiving the reply of the applicant, it was withdrawn vide order dated 18.09.2018 by the S.P., Sant Kabir Nagar and no inquiry was conducted against the applicant. Therefore, no ground is made out to proceed against the applicant. Therefore, impugned proceeding including the charge-sheet deserves to be quashed. 6. Per contra, learned A.G.A. opposed the prayer and submitted that though the applicant was not on night duty of police lockup but he was present in the police station. Therefore, if an accused escaped from the police lockup then the applicant would also be liable along with other policemen present in the police station. 7. After hearing the submissions of learned counsel for the parties and on perusal of record, it appears that it is not in dispute that for the incident as mentioned in the F.I.R. in question, a showcause notice was issued to the applicant on 09.08.2018 which was discharged vide order dated 18.09.2018 after considering the reply of the applicant dated 03.09.2018. Even from the perusal of the statement of Constable Suresh Kumar Yadav who was on duty during the period the accused Deepak Gaud escaped from the police lockup, it is clear that no negligence can be assigned to the applicant as at that time, he was not in guard duty of police lockup and if the accused escaped from the police lockup then the primary duty cast upon the person who was on duty is to keep eyes on police lockup. It is also not in dispute that the department has not proceeded against the applicant considering his reply as satisfactory. As the impugned charge- sheet has been filed u/s 223 I.P.C., therefore, to attract liability u/s 223 I.P.C., necessary condition is that public servant must be incharge of or in lawful duty to keep watch over the confinement of any accused. Section 223 I.P.C. is being quoted as under :- Section 223 - Escape from confinement or custody negligently suffered by public servant Whoever, being a public servant legally bound as such public servant to keep in confinement any person charged with or convicted of any offence or lawfully committed to custody, negligently suffers such person to escape from confinement, shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both. 8. In the present case, it is not in dispute that the applicant was not on sentry duty to keep watch on police lockup. Even otherwise, it is not in dispute that the accused Deepak Gaud has escaped from police lockup not because of the negligence of the applicant but it was the negligence, if any, on the part of Constable Suresh Kumar Yadav who was on night duty and himself allowed the accused Deepak Gaud to attend nature's call but Deepak Gaud somehow escaped by jumping over the boundary wall of the police station in the presence of Constable Suresh Kumar Yadav. It is well settled law that criminal law should be interpreted strictly and the ingredients of any offence cannot be presumed merely on the basis of apprehension. There is no material against the applicant to sustain the impugned proceeding. Therefore, no offence u/s 223 I.P.C. is made out against the applicant. The police has incorrectly filed charge-sheet against the applicant. 9. Accordingly, the entire proceedings of Case No. 157 of 2019 (State Vs. Constable Radhey Shyam Gupta) u/s 223 I.P.C. arising out of Case Crime No. 341 of 2018, Police Station- Dhan Ghata, District- Sant Kabir Nagar, as well as cognizance order dated 11.01.2019 pending before learned CJM, Sant Kabir Nagar, is hereby quashed. 10. The writ petition is allowed. Order Date :- 6.3.2025 KS Digitally signed by :- KISHAN SINHA High Court of Judicature at Allahabad