JUDGMENT

Jai Lal, J. - These are two petitions in revision of the order dated 12th August 1927 of the Sessions Judge of Ambala whereby he upheld the conviction of the petitioners under Section 29, Police Act, and sentenced each to a penalty of two months' pay. The petitioners are two constables of police in the District of Ambala. Muhammad Ali petitioner was directed by the Sub-Inspector to arrest one Qutbu who had been suspected of theft and to produce him before the Sub-Inspector. Muhammad Ali arrested the suspect and obtained the assistance of Wali Muhammad constable at the thana of Bilaspur, and was escorting him to the place where he expected to find the Sub-Inspector. He was, it appears, riding a mare while the constable Wali Muhammad was actually holding the handcuffs of Qutbu. There were some other persons with this party who apparently had been deputed to accompany these constables by a lambardar at their request. In the way the prisoner escaped.

2. The petitioners were sent up for trial and were found by the Magistrate guilty of having intentionally allowed Qutbu, to escape. On appeal the Sessions Judges has disbelieved the testimony of the prosecution witnesses and has acquitted the petitioners of the offence of having intentionally allowed the prisoner to escape. He has, however, convicted them of being guilty of "violation of duty" inasmuch as, according to him, they were guilty of negligence in permitting the prisoner to escape. The following extract from the judgment of the learned Sessions Judge is an indication of what facts he was prepared to find:

In my view the only important ground of appeal is the 5th, that there is no evidence on the record to prove that the escape of Qutbu Was due either to the negligence or intention on the part of the appellants. The chamar witnesses gave a story which appears to me improbable.... In my opinion this evidence is clearly false and the chamars have concealed the true facts or else did not accompany the party at all. Had the appellants' intended to permit Qutbu to escape it is most improbable that they would have asked Gadi lambardar to furnish three chamars to accompany them...I can only conclude therefore that the appellants never intended to allow Qutbu to escape. The question remains whether they permitted him to escape negligently. As already stated there is no evidence at all of the actual manner of escape, but the chamars have said that Muhammad Ali was riding a horse and Wali Muhammad was holding the handcuffs, In default of any explanation by the appellants as to the actual manner of escape I think it should be held that the escape was due to the negligence of the two appellants, for had Muhammad Ali been on the look out he could have chased, he being on horseback and had Wali Muhammad been on the look out he would not have lost hold of the handcuffs.

3. The learned Judge then discusses the question whether "negligent sufferance of escape "is an offence under Section 29, Police Act, and after answering it in the affirmative on the ground that it fell within the expression "violation of duty" as used in that section upheld the conviction.

4. Now I have carefully considered the question of interpretation of the expression "violation of duty" as used in Section 29, Police Act, and am of opinion that it connotes something more than mere non-performance of duty. The word "violation" implies something more than mere omission to perform a duty. It may under certain circumstances include "illegal omission," but such omission must be of some positive duty imposed by law and it is the duty of the prosecution affirmatively to prove what under the circumstances disclosed a person who is alleged to have been guilty of violation of duty should have done and that he wilfully failed to do that. In this case the learned Sessions Judge has convicted the petitioners merely on what appears to me to be an assumption that it was for them to establish the circumstances under which Qutbu esc