A person cannot be said to be in lawful custody unless the police officer has complied with the procedure laid down in Section 56 of the Code of Criminal Procedure.

G. C. DAS, J.

( 1 ) THIS is an appeal by the State of Orissa against an order of Shri T. Misra, Magistrate 1st Class, Baudh, acquitting the respondent, Indra Padhan of a charge under Section 224, Indian Penal Code. The fact giving rise to the present appeal are these :

( 2 ) THERE was a case of theft in village Mohakudpali as a result of which certain properties belonging to one Krutartha Meher were stolen which were found the following morning in possession of the respondent in village Karadi within the Police station of Boudh. The villagers of Karadi detained the respondent in their village and sent information to the Police Station of Boudh. The Officer-in harge of the Boudh Police Station being otherwise busy, deputed P. W. 1, Arikhit Behera, constable No. 242 to village Karadi on September 28, 1957. P. W. 1 on his arrival took charge of the respondent along with another accused, Raghunath Behera then in custody of the Chowkidars P. Ws. 3 and 6. P. W. 1 with P. Ws. 3 and 6 thereafter started for the Police Station taking the respondent with them. At the Karadi Dak Bunglow they decided to take rest for the night and allowed the respondent to sleep on the verandah of the said Dak Bunglow along with others. P. W. 1, the two choukidars and P. W. 4 kept watch over the respondent. Sometime during the night P. W. 1 went to sleep leaving the respondent in charge of P. Ws. 3 and 6. Early next morning it was discovered that the respondent had escaped from custody. Since there was another accused, P. W. 1 kept watch over him and deputed the Chowkidar to search for the respondent. He did not send any information to the Police Station since he was expecting the Sub-Inspector anytime there. At about ten o'clock however, the A. S. I, arrived on the spot and the constable, P. W. 1 lodged the first information report, Ext. 1. Thereafter the officer-in-charge of the Boudh Police Station (P. W. 10) came there and took over the investigation.

( 3 ) THE learned Magistrate on a careful consideration of the evidence on record came to the conclusion that P. W. 1 never arrested the respondent and hence when under Section 66 of the Criminal Procedure Code a particular procedure has been laid down for the subordinate officers when deputed by superior officers is not complied with the respondent cannot be said to be in lawful custody of P. W. 1. Accordingly a conviction under Section 224 is not warranted. In the result he acquitted the respondent.

( 4 ) THE main question for consideration in this case is whether the respondent escaped from any custody in which he was lawfully detained. Further, in order to convict the respondent under Section 224, I. P. C. the prosecution must prove that there was a lawful arrest within the meaning of Section 54 or Section 56 of the Code of Criminal Procedure.

( 5 ) MR. G. Rath, learned Standing Counsel, on behalf of the State of Orissa, contended that since it was not the case that the Constable, P. W. 1, was sent to effect the arrest of the respondent by his superior officer, the failure to produce the command certificate is not fatal to the prosecution. He, however, rested his argument on pure question of law. According to him the respondent was legally arrested by the villagers under the provisions of Section 59 of the Code. He urged that Section 56 does not apply to the present case. P. W. 1 being a Police Officer had the independent power under Section 54 to effect the arrest since the villagers had arrested the respondent earlier under Section 59 and handed him over to P. W. 1. The question of following the procedure as laid down in Section 56 does not apply at all. Thus, his whole contention was that the learned Magistrate was wrong in acquitting the respondent of the charge under Section 224, Indian Penal Code.

( 6 ) SECTION 54 lays down the procedure as to when the Police may arrest without warrant. Clause (1) of Section 54 provides that any Police Officer may, without an order from a Magistrate and wi