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CASE NO.: Appeal (crl.)  501 of 2008

PETITIONER: Paul George

RESPONDENT: State  of N.C.T. of Delhi

DATE OF JUDGMENT: 14/03/2008

BENCH: S.B.SINHA & HARJIT SINGH BEDI

JUDGMENT: J U D G M E N T

CRIMINAL APPEAL NO. 501/2008 (arising out of SLP (Crl)  No. 40/2007)

HARJIT SINGH BEDI,J.

1.              Leave granted.

2.              This appeal by way of special leave is directed  against the judgment of the High Court of Delhi dated          30th May, 2006 confirming the judgment of the trial court and  the first appellate court convicting the appellant for offences  punishable under Sections 279 and 304-A of the IPC but  reducing the sentence imposed by the first two courts to 6  months imprisonment but retaining the fine as it is. 3.              The appellant who was working as a Head  Constable with the Delhi Police and posted at P.S. Kashmere  Gate was directed to go to the Police Headquarters at ITO to  convey an urgent message.  He left the Police Station driving  police Mini Truck No. DDL-6462.  As the vehicle reached  under the railway bridge on the Ring Road going towards  Jamuna Bazar it went over the road divider and hit a scooter  driven by Hans Kumar with his friend Atma Ram sitting on the  pillion seat.  Unnerved, the appellant attempted to steer the  truck back on the other side of the road but in doing so,  struck an electric pole and came to a halt.  The Police Control  Room was called and Atma Ram was taken to the Jai Prakash  Narain Hospital where he subsequently succumbed to injuries.   The appellant was accordingly tried and convicted under  sections 279 and 304-A of the IPC, as already mentioned  above.  The conviction and sentence was confirmed by the first  appellate court, by the High Court in revision and was further  challenged by way of a special leave petition in this Court.   4.      The primary plea raised at that stage was that the order  of the High Court dismissing the revision petition was a non- speaking one and as the main plea that the prosecution was  bad abinitio as being beyond limitation prescribed under  Section 140 of the Delhi Police Act, 1978 (hereinafter called  the \023Act\024) had not been dealt with as the appellant had been  acting under the colour of duty. This Court allowed the appeal  and remitted the case to the High Court.  It is in this  circumstance that a second round of litigation started before  the High Court.  Before the High Court, the learned counsel  appearing for the petitioner (the present appellant) conceded  that section 140 would not come into play but that sanction  had nevertheless to be taken under Section 197 of the Code of  Criminal Procedure as the appellant had been acting or  purporting to act in discharge of his police duty in driving an

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official vehicle when the accident had taken place.  The  learned counsel for the appellant placed reliance on Sankaran  Moitra Vs. Sadhna Das 2006 (3) SCALE 141.  The learned  counsel for the State, however, submitted that that no  sanction under section 197 was necessary inasmuch as there  was no connection between the duty of the appellant and his  rash and negligent act in crossing the road divider and hitting  a vehicle on the other side and as such the question of the  applicability of Section 197 of the Cr.P.C. did not arise.   Several judgments were cited by the learned counsel for this  proposition as well.  In addition, the State counsel urged   that  Section 197 of the Code was applicable only in a case where  the public servant concerned was not removable from service  save by or with the sanction of the Government and the  appellant, a mere Head Constable, did not fall in this exalted  category.  It was also urged that even assuming sanction was  required the trial would still not be vitiated and the proceeding  and the sentence could not be set aside because of a mere  irregularity more particularly as the non-obtaining of the  sanction had not in any way occasioned a failure of justice in  the trial. 5.              The High Court in the course of its judgment held  that as per the provisions of Section 465 of the Code a  irregularity in the sanction would not ipso-facto entitle a court  of appeal or revision to reverse an order of conviction unless it  could be established that such an error had resulted in a  failure of justice. The Court accordingly held that as the  appellant had not raised this issue before the trial court and  the first appellate court, it was unnecessary to examine as to  whether the sanction under Section 197 of the Code was  required or not. The revision petition was accordingly  dismissed, leading to this appeal. 6.       Before us the learned counsel for the appellant has  made a volte-face and has submitted that the prosecution  against the appellant was completely barred under section 140  (1) of the Delhi Police Act as it has not been initiated within 3  months from the date of incident.  This plea has been opposed  by the Government counsel, as being an after thought and not  even pressed earlier.  The matter must thus be examined.            Section 140 of Delhi Police Act is re-produced below: \023 Bar to suits and prosecutions.- (1) In  any case of alleged offence by a police  officer or other person, or of a wrong  alleged to have been done by such police  officer or other person, by any act done  under colour of duty or authority or in  excess of any such duty or authority, or  wherein it shall appear to the court that  the offence or wrong if committed or done  was of the character aforesaid, the  prosecution or suit shall not be  entertained and if entertained shall be  dismissed if it is instituted, more than  three months after the date of the act  complained of:

    Provided that any such prosecution  against a police officer or other person  may be entertained by the court, if  instituted with the previous sanction of  the Administrator, within one year from  the date of the offence.

(2)     In case of an intended suit on account of  such a wrong as aforesaid, the person

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intending to sue shall give to the alleged  wrongdoer not less than one month\022s  notice of the intended suit with sufficient  description of the wrong complained of,  and if no such notice has been given  before the institution of the suit, it shall  be dismissed.

(3)     The plaint shall set forth that a notice as  aforesaid has been served on the  defendant and the date of such service  and shall state what tender or amends, if  any, has been made by the defendant  and a copy of the said notice shall be  annexed to the plaint endorsed or  accompanied with a declaration by the  plaintiff of the time and manner of  service thereof\024.

7.        A bare perusal would show that sub-section (1) of  Section 140 provides that any action against a wrongful act by  a police officer done under the \021colour of duty\022 has to be  initiated within three months from the date of the act  complained off and if this time limit is exceeded, it would bar  the suit or prosecution.  The learned counsel for the appellant  has then argued that as the appellant was carrying an urgent  message from the Kashmere Gate Police Station to the Police  Head Quarters when the accident had taken place, he had  been acting under the colour of duty and was therefore  entitled to the benefit of sub section (1) of Section 140 of the  Act. It has also been pleaded that the term  \021offence\022 used in  the Section  ibid could not be confined only  to offences  committed under the Act but was applicable to offences under  the Penal Code and for both these propositions, the learned  counsel has placed reliance on judgment of this Court in   Virupaxappa Veerappa Kadampur  vs.  State of Mysore  AIR  1963 SC 849.  The cited case pertains to sub section (1) of  Section 161 of the Bombay Police Act which is a provision  analogous to Section 140 (1) of the Act and while explaining  this provision in the context of the facts of the case, this Court  observed that the Head Constable concerned had been found  remiss in recording a false panchnama with regard to the  recovery of ganja and as the preparation of panchnama was  within the exclusive purview of a police officer, the recording of  such panchnama could  be said to be under the colour of duty  and as such covered  by the limitation laid down in Section  161 of the Bombay Police Act.  This is what the Court had to  say:

  8. \023In view of these provisions of law it has  been seriously disputed before us that the  preparation of a correct panchnama and a  correct report as regards the seizure of ganja  was the duty of the appellant. This duty was,  on the prosecution allegation, not performed.  The act alleged to have been done, as already  stated, was the preparation of a false  panchnama and a false report. The question  still to be considered therefore is whether  when the preparation of a correct panchnama  and a true report as regards the seizure is the  duty of the police officer concerned, he  prepares instead a false panchnama and a  false report, that act is done by him \023under  colour\024 or in excess of that duty.

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          9. The expression \023under colour of  something\024 or \023under colour of duty\024, or  \023under colour of office\024, is not infrequently  used in law as well as in common parlance.  Thus in common parlance when a person is  entrusted with the duty of collecting funds for,  say, some charity and he uses that  opportunity to get money for himself, we say of  him that he is collecting money for himself  under colour of making collections for a  charity. Whether or not when the act bears the  true colour of the office or duty or right, the  act may be said to be done under colour of  that right, office or duty, it is clear that when  the colour is assumed as a cover or a cloak for  something which cannot properly be done in  performance of the duty or in exercise of the  right or office, the act is said to be done under  colour of the office or duty or right. It is  reasonable to think that the legislature used  the words \023under colour\024 in Section 161(1) to  include this sense. It is helpful to remember in  this connection that the words \023colour of  office\024 has been stated in many law lexicons to  have the meaning just indicated above. Thus  in Wharton\022s Law Lexicon, 14th Edn., we find  at p. 214 the following:        \023Colour of office\024            \023When an act is unjustly done by the  countenance of an office, being grounded upon  corruption, to which the office is as a shadow  and colour.\024            In Stroud\022s Judicial Dictionary, 3rd Edn.,  we find the following at p. 521.            Colour: \023\021Colour of office\022 is always taken  in the worst part, and signifies an act evil done  by the countenance of an office, and it bears a  dissembling face of the right of the office,  whereas the office is but a veil to the  falsehood, and the thing is grounded upon  vice, and the Office is as a shadow to it. But  \021by reason of the office\022 and \021by virtue of the  office\022 are taken always in the best part.\024            10. It appears to us that the words  \023under colour of duty\024 have been used in  section l61(1) to include acts done under the  cloak of duty, even though not by virtue of the  duty. When he (the police officer) prepares a  false panchnama or a false report he is clearly  using the existence of his legal duty as a cloak  for his corrupt action or to use the words in  Stroud\022s Dictionary \023as a veil to his falsehood\024.  The acts thus done in dereliction of his duty  must be held to have been done \023under colour  of the duty\024.             8.      It is therefore evident that what has to be seen on the

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facts of the case is the nature of act and as to whether it fell  within the protection available to the appellant.  The facts of  the present case show that the appellant, a Head Constable  Driver, was posted at Kashmere Gate Police Station had been  entrusted with the task of delivering a wireless message to the  Police Head Quarters at the ITO in New Delhi and while on his  way he had suddenly gone over the road divider which  separated the lanes and had hit the scooter which was  oncoming in the opposite lane.  It is this act, the appellant had  caused the death of one person and injuries to the other.   Undoubtedly the duty entrusted to the appellant to deliver the  message to the Police Head Quarters was in his capacity as a  police officer and to that extent and prima facie he would be  protected by Section 140 of the Act. We find however that by  jumping road divider and coming- face on the incoming traffic  was the factor which had caused the accident and was clearly  not a matter within the colour of duty.  We are, therefore, of  the opinion that the case of the appellant would not be covered  by Section 140 and that the initiation of proceedings and the  prosecution beyond three months from the date of accident  was not beyond limitation.  It is also evident from the above  discussion that the appellant\022s counsel in the various litigation  that had come up the hierarchy right up to the Supreme Court  had taken an ambivalent stand with regard to the sanction  required under Section 197 of the Code and to the limitation  imposed by sub-section (1) of Section 140 of the Act.  We now  come up to the sentence of the appellant. 9.      This litigation has been going on for the last 20 years and  has been fought tenaciously through various courts,  we are  also told that the appellant who has had a good career  throughout but for this one aberration has since been  dismissed from service on account of his conviction.  We,  therefore, while dismissing the appeal, feel that the ends of  justice would be met if we direct that the appellant be released  on probation under Section 4 of the Probation of Offenders  Act, 1958 on conditions to be imposed by the Trial Court.  The  appeal is disposed of in the above terms.