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Present : Pereira J.
JOHN t?. PERERA et al613 and 614—P. C. Negombo, 20,090.
Bios—Magistrate also Superintendent Of Prison—Trial of prison officerfor negligently suffering prisoner to escape—Mere fact of escape isinsufficient to give rise to presumption of negligence.
Observations on the inexpediency of the trial ot accused, whoare subordinate officers of a prison and are charged with negligentlysuffering a prisoner to escape, by a Magistrate who is also AssistantSuperintendent of the Prison, even though such trial is consentedto by the accused.
In order to sustain a charge against a jail overseer and a. jailguard of negligently suffering a prisoner in their custody to escape,it must be shown that the escape was directly due to some act ofnegligence on the part of the accused. The mere fact of escape isinsufficient to give rise to a presumption of negligence.
fjpHE facts appear from the judgment.
H. A. Jayewardem, for accused, appellants.
Garvin, Acting S.-Gr., for respondent.
Cur; adv. vult.
September 12, 1913. Psbbira J.—
In this case the two accused, who are an overseer and a guard,respectively, of the Negombo Jail, have been convicted of havingnegligently suffered to escape from confinement a person who hadbefen committed to their custody. It would have been well hadthe Police Magistrate who tried the accused abstained from doingso. He is the Assistant Superintendent of the Prison, and as such,I take it, is the official superior of the accused, interested undoubtedlyin seeing, that his subordinates are adequately punished if guilty
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of any dereliction of duty. The first accused does not appear tohave consented, to being tried summarily, but it appears that thesecond accused, when asked whether he had any objection to betried by the Magistrate, stated through his proctor that he hadnone. Naturally, a person in the position of the second accusedwould hesitate to give cause for any suspicion of lack of confidencein the impartiality of his superior by refusing to be tried by him,and consent given in the circumstances can hardly be said to bea justification for the trial. I do not, if I. may venture to' sayso, entertain any doubt that the verdict of the Magistrate was aconscientious verdict, but suspicion of bias may naturally lurk inthe mind of the accused, and that, as has been pointed out by thisCourt more than once, is in law to be deprecated.
Now, the evidence in this case establishes no more than that theprisoner in question was entrusted to the custody of the accusedto be taken from the Negombo Jail to Kurunegala and broughtback, and that on the return journey the prisoner escaped. TheMagistrate acquits the accused of dishonesty. The evidence showsthat the prisoner had experience of the process of escape fromcustody. He had often been in jail before; he had once beenconvicted of escaping from the Negombo Jail; and he had madean attempt at escape from the Welikada Jail. The evidence alsoshows that the first accused was suffering from a bad foot, and thatthe second accused had heavy boots on, to which apparently he wasunaccustomed, and which impeded his movements. In the circum-stances, would the mere fact that the prisoner escaped when inthe custody of the accused be sufficient to raise a presumption ofnegligence against the accused, even if such a presumption mayordinarily be said to arise from the mere facts of custody andescape ? So far as I can see .there- is not an iota of evidence of anomission on the part of the accused to take any precaution prescribedby prison regulations. It has been laid down that in order toconstitute negligently suffering an escape. 44 the escape must bedirectly due to some act of negligence '* (see Gout, 1877). What isthe act of negligence here complained of ? To say that becausethe prisoner escaped the accused are guilty of negligence is to assumethe very fact that has to be established by evidence as a fact towhich the escape is directly due. It is quite conceivable that aprisoner may so suddenly dart off as to escape vigilance of thehighest order and to baffle arrest, especially by persons so handi-capped by a b>d leg and heavy boots as the accused were. Thejailer's evidence implies that the prisoner might, according torules, have been put in chains. Knowing as he did the past history. of the man, why he did not adopt that precaution before he handedthe prisoner over to the accused is not explained. I set aside theconviction and acquit the accused.
JOHN v.PERERA et al