The prosecution must establish that the public servant was legally bound as such to keep in confinement such a person as stated above, and there must be negligence on his part while suffering such person to escape.
There must naturally be a casual relationship between the negligence and the escape. The Patna High Court has held that ‘detention’ is not the same as ‘confinement’, and while the former may mean mere holding back or withhold or stopping, the latter means keeping within a limit or an enclosure. Therefore, since a check-post authority appointed under the Bihar Sales Tax Act, 1947 has only power to detain and not to confine a person, he cannot be held guilty under this section.
The Orissa High Court convicted a constable under this section because he allowed a prisoner under his custody to escape instead of taking him to court. The section has no application to a case of a person being arrested only under a civil process because he has not been in custody for an offence or committed to custody. Such a case may fall under section 225-A of the Code.
The offence under section 223 of the Code is non-cognizable, bailable and non- compoundable, and is triable by metropolitan magistrate or magistrate of the first or second class.