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CASE NO.: Special Leave Petition (crl.) 3774  of  1999

PETITIONER: K.K. PATEL AND ANR.

       Vs.

RESPONDENT: STATE OF GUJARAT AND ANR.

DATE OF JUDGMENT:       12/05/2000

BENCH: K.T. THOMAS &  D.P. MOHAPATRA

JUDGMENT:

Thomas J.

Leave granted. L...I...T.......T.......T.......T.......T.......T.......T..J     This  case is policeman versus policeman.  For six years now the case is still drifting in the first phase itself, as its  very  right of entry into the criminal court  is  under challenge.   The  Sessions Court in  revisional  proceedings upheld the objections raised by the accused that prosecution is  not maintainable but the High Court in a second revision held  that sessions court had transgressed the  jurisdiction as  no  revisional powers could have been exercised  by  the Sessions  Judge  at that stage.  It is the said decision  of the  Division  Bench of the High Court of Gujarat  which  is being challenged in this appeal.

   A  Deputy  Superintendent of Police (for convenience  he can  be  referred to hereinafter as  "the  respondent-police officer)   filed  a  complaint   before   the   Metropolitan Magistrate, Ahmedabad, against two other police officers one of  whom was a Superintendent of Police and the other was  a Deputy  Superintendent of Police.  (They will hereinafter be referred  to  as  "the appellants".)  The  offences  alleged against  the  appellants  in the complaint are  those  under Sections  166,  167,  176, 201, 219, 220, 342,  417  of  the Indian  Penal Code (IPC for short) read with Sections  120B, 34  and  109  of the same Code.  The offence  under  Section 147(G)  of  the  Bombay Police Act is also included  in  the complaint.

   A  brief account of the events which preceded the filing of  the  said  complaint is necessary.   On  24.8.1992,  one Jaffer  Khan lodged a complaint with the magistrate alleging that  his  brother  (Jahangir Khan) was  kidnapped  by  some persons  named  in the complaint.  The magistrate  forwarded the  said  complaint to the police for action under  Section 156(3)  of  the  Code  of  Criminal  Procedure  (hereinafter referred  to  as "the Code") and then FIR was registered  on its  basis.   The respondent-police officer was arrested  by the  appellants  on  28.8.1992, but  the  alleged  kidnapped person (Jahangir Khan) appeared before all people concerned.

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Respondent-police officer was later released on bail.  After investigation  the  police  submitted   "final  report"   on 3.3.1994  holding  that  the  accused  are  untraceable  and requested  the court to grant "A" Summary (which means  that the  complaint  could  not be substantiated due to  want  of proof).   But the court after hearing the  respondent-police officer  also  in the matter, passed an order  granting  "B" Summary,  (which means that the complaint was found  false). It  was  in the above background that the  respondent-police officer filed the present complaint on 25.7.1994.

   The present complaint runs into more than 70 typed pages and  has  been prepared in a flummoxed fashion.  It is  very clumsily  prepared.   It was difficult even for the  learned counsel  appearing  for  the  respondent-police  officer  to decipher  the  lengthy  sentences as well  as  circumlocuted paragraphs.   Nonetheless he found out the core  allegations in the complaint which is extracted below:

   "The  conspiracy has been made by making false complaint and I have illegally been arrested in which accused No.1 and 2  have  helped since they were in crime branch  since  long period     and     having       relation     with     Muslim politicians/leaders/anti  social  elements and  having  good relations  with them and to get their help in continuing  in the  crime branch and in view of their other weaknesses  and under political pressure to please the Muslim leaders and in doing so, getting benefit inter se, have played main role in arresting us and in making ex parte inquiry against me which would  become clear from perusal of all the aforesaid  facts and  the  grounds.  Investigating Officer cannot  make  such illegal  ex parte inquiry under political or other  pressure or  for any other cause for illegally arresting by  misusing the  power under the pretext of law and though the complaint was  going  to be proved wrong, ultimately, instead  of  "B" Summary,  "A" Summary has been prayed for and for preventing repetition  of such things in future, the accused should  be severely  dealt  with  to  set example in  the  interest  of justice  and I am filing this complaint only for the sake of justice  and  therefore,  it is prayed that the  accused  be strictly  and severally dealt with.  Otherwise, when a Class I Police Officer has been dealt with in this fashion and has been  arrested  in this manner, there would be nothing  like safety of any common subject or citizen."

   The  Metropolitan  Magistrate  after  taking  the  sworn statement  of the respondent-police officer took  cognizance of  the  aforesaid  offences  and   issued  process  to  the appellants.    On   appearance   before   the   Metropolitan Magistrate  appellants filed a petition for discharging them on  the  premise that no sanction was obtained to  prosecute them.   The  Metropolitan  Magistrate   dismissed  the  said petition  on  17.5.1997  with  a  rider  that   "appropriate decision  regarding prior sanction shall be taken on  merits after  considering the evidence that may be produced by  the parties".   (The  Metropolitan Magistrate of  Ahmedabad  has written one of the lengthiest and tautologous orders running into  114  closely typed pages just for reaching  the  above conclusion.   We  are unable to appreciate how  the  heavily boarded courts like the Metropolitan Magistrate’s court or a city  court  could afford writing such fritteringly  lengthy orders  just for concluding that the questions raised can be considered at a later stage).

   Appellants  filed  a revision before the Sessions  Court

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and  in  the  revision  the   appellants  raised  one   more additional  point  based  on Section 161(1)  of  the  Bombay Police  Act  which  was  made applicable  to  the  State  of Gujarat.   As  per that section no complaint could be  filed after  one  year  of the date of the act  complained  of  in respect  of offences falling within the purview of that sub- section.   By  a  well considered order  learned  Additional Sessions  Judge  of  Ahmedabad  (V.N.   Yagnik)  upheld  the objections  on both counts, one based on Section 197 of  the Code  and  the other on Section 161(1) of the Bombay  Police Act.  Consequently the process issued by the trial court was quashed and the complaint itself stood dismissed.

   Learned  Single Judge of the High Curt of Gujarat in the revision  moved  by the respondent-police officer set  aside the  judgment of the Additional Sessions Judge mainly on the ground  that Sessions Court should not have entertained  the revision  at all as the order challenged before it was  only interlocutory.   What the learned Single Judge has stated on that point is the following:

   "The  order  dated  17th May 1997, made by  the  learned Magistrate did not conclude the issue raised before him and, therefore,  was necessarily an interlocutory order.  In view of  the  provisions  contained  in  Section  397(2)  CRPC  a revision  against the said order would not be  maintainable. In  my  view, therefore, the Revision Application  No.198/97 preferred  before the learned Additional Sessions Judge  was not maintainable.  The learned Additional Sessions Judge has thus  transgressed  her  jurisdiction  in  entertaining  and allowing the said Revision Application."

   However,   learned   Single  Judge   opined   that   the Metropolitan  Magistrate  was right in holding that  further evidence  is  required  to decide the question  relating  to Section 197 of the Code, regarding the objections pertaining to  Section  161(1) of the Bombay Police Act.   The  learned Single Judge made following observations:

   "The  question  of limitation under Section 161  of  the Bombay  Police  Act  was  never raised  before  the  learned Magistrate.   It was, therefore, not open to the accused  to raise  the  said  contention before the  learned  Additional Sessions  Judge and the learned Additional Sessions Judge in entertaining  and  deciding  the   said  issue  has  clearly transgressed her jurisdiction."

   Merely  because  the appellants did not raise the  legal points  based on Section 161 of the Bombay Police Act before the  Metropolitan  Magistrate  they are  not  estopped  from canvassing  on  that  additional  grounds  also  before  the Sessions  Court in revision as they were challenging therein the very issuance of process against them.  The position may be  different if the Sessions Judge had avoided dealing with the  contention  based on Section 161(1) of the said Act  on the  premise that it could be raised before the trial court. But  when  the  Sessions  Judge had opted to  go  into  that question  and  rendered  a decision on it on  merits  it  is difficult  to  concur with the reasoning of the  High  Court that  the  said  aspect would not be gone into by  the  High Court as the same was not raised before the trial court.

   That  apart, the view of the learned Single Judge of the High  Court that no revision was maintainable on account  of

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the  bar contained in Section 397(2) of the Code, is clearly erroneous.   It  is now well neigh settled that in  deciding whether  an order challenged is interlocutory or not as  for Section  397(2)  of the Code, the sole test is  not  whether such  order was passed during the interim stage.  {vide Amar Nath  vs.  State of Haryana (1977 4 SCC 137);  Madhu  Limaye vs.   State  of Maharashtra (1977 4 SCC 551);  V.C.   Shukla vs.  State through CBI (1980 2 SCR 380);  and Rajendra Kumar Sitaram  Pande  vs.  Uttam(1999 3 SCC 134)}.   The  feasible test  is  whether  by upholding the objections raised  by  a party, would it result in culminating the proceedings, if so any  order  passed  on such objections would not  be  merely interlocutory  in  nature as envisaged in Section 397(2)  of the  Code.  In the present case, if the objection raised  by the  appellants  were  upheld  by   the  court  the   entire prosecution  proceedings would have been terminated.  Hence, as per the said standard, the order was revisable.

   Therefore, the High Court went wrong in holding that the order  impugned before the Sessions Court was not  revisable in view of the bar contained in Section 397(2) of the Code.

   Though learned counsel for the appellants endeavoured to contend  that  want of sanction of the Government is  a  bar under  Section 197 of the Code for taking cognizance of  the offences, we do not consider it necessary to delve into that part  of the contention in view of our conclusion  regarding Section  161(1)  of  the  Bombay   Police  Act.   The   said sub-section is extracted below:

   "161.   Suits  or prosecutions in respect of  acts  done under  colour of duty as aforesaid - not to be  entertained, or  to be dismissed if not instituted within the  prescribed period.-  (1)  In  any  case  of  alleged  offence  by   the Commissioner,  the Revenue Commissioner, the Commissioner, a Magistrate,  Police  officer or other person, or of a  wrong alleged to have been done by such Commissioner, such Revenue Commissioner,  Commissioner,  Magistrate, Police officer  or other  person  by any act done under colour or in excess  of any such duty or authority as aforesaid or wherein, it shall appeal  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, or shall be  dismissed,  if instituted,  more  than one year after the date of  the  act complained of.

   Provided  that,  any such prosecution against  a  Police Officer  may be entertained by the Court, if instituted with the  previous  sanction of the State Government  within  two years from the date of the offence."

   The  sub-section  imposed  a  ban   on  the  court  from entertaining a prosecution for an offence falling within the purview  of  the sub-section and was committed by  a  police officer,  if  the prosecution was instituted more  than  one year  after  the  date of the act complained of.   The  only exception  to  the  said  ban is, if  the  complainant  gets sanction  from the State Government to prosecute the  police officer  the aforesaid period of one year would get enlarged to  two  years.  Offences falling within the purview of  the sub-section  relate to those acts done "under the colour  or in  excess of any duty or authority as aforesaid".  The sub- section  then  widens the net a little further  by  bringing within  its sweep those offences committed through any  acts done which are "of the character aforesaid".  The expression

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"aforesaid"  in the sub-section is evidently with  reference to  what  is mentioned in Sections 159 and 160 of  the  same enactment.   Those provisions afford an absolute immunity to a  public  servant  from  any penalty or  liability  to  pay damages  in  respect  of  any "act done in  good  faith"  in pursuance  of or intended pursuance of "any duty imposed  or any  authority conferred on him by any provision of this Act or  any  other law for the time being in force or any  rule, order or direction made or given thereunder".  Such absolute immunity  is not afforded in respect of any offence or wrong alleged  to have been done by such public servant, if it was done  "under  colour  or  in  excess of  any  such  duty  or authority  as aforesaid".  Nonetheless the said statute  has fixed a time limit for initiation of prosecution proceedings in  such  cases against the public servant.  If  prosecution

proceedings  were not initiated within such time limit, they cannot be commenced thereafter.

   A  three  Judge  Bench  of  this  Court  in  Virupaxappa Veerappa Kadampur vs.  State of Mysore (AIR 1963 SC 849) has considered the amplitude of the expression "under the colour of  any duty or authority" as envisaged in the sub- section. After  making  reference  to some of the  earlier  decisions rendered  by  the Bombay High Court and after  noticing  the meaning  of  the expression "colour of office" given in  Law lexicons, learned Judges observed thus:

   "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  ‘under  colour’  in S.161(1) to include  this  sense. .......   It  appears to us that the words ‘under colour  of duty’  have been used in S.161(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’s  Dictionary ‘as a veil to his  falsehood.’  The acts  thus  done in dereliction of his duty must be held  to have been done under colour of the duty."

   In  this case, there is no scope for contending that the offences  alleged would not fall within the purview of "acts done  under the colour or in excess of duty or authority" of such  police  officer.   Even  the   very  reading  of   the ingredients  for  the offences alleged would show that  such offences  could not be committed without being in the  cloak of  a public servant nor could they be committed unless  the public  servant was at least under the colour of his office. Section  166  of the Indian Penal Code which is one  of  the offences alleged against the complainant is extracted below:

   "166.Public servant disobeying law, with intent to cause injury  to  any  person.- Whoever, being a  public  servant, knowingly disobeys any direction of the law as to the way in which  he  is  to conduct himself as  such  public  servant, intending to cause, or knowing it to be likely that he will, by  such disobedience, cause injury to any person, shall  be punished  with  simple  imprisonment for a  term  which  may

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extend to one year, or with fine, or with both."

   The indispensable ingredient of the said offence is that the  offender  should  have  done the act  "being  a  public servant".   The  next ingredient close to its heels is  that such  public servant has acted in disobedience of any  legal direction  concerning  the  way  in  which  he  should  have conducted  as  such public servant.  For the offences  under Sections  167  and 219 of IPC the pivotal ingredient is  the same  as  for  the offence under Section 166  of  IPC.   The remaining offences alleged in the complaint, in the light of the  averments  made therein, are ancillary offences to  the above   and  all  the  offences   are  parts  of  the   same transaction.   They  could not have been  committed  without there  being at least the colour of the office or  authority which appellants held.

   Shri  S.K.   Dholakia,  learned senior counsel  for  the State  of Gujarat invited our attention to the decisions  of this Court in State of Maharashtra vs.  Narhar Rao (AIR 1966 SC  1783)  and State of Maharashtra vs.  Ram and Ors.   (AIR 1966  SC 1786).  Both the decisions dealt with the scope  of Section  161  of  the Bombay Police Act.  In the  former,  a Police  Head  Constable  was  tried for  the  offence  under Section  5(2) of the Prevention of Corruption Act 1947,  for accepting  bribe  in the course of investigating a  criminal case.   Though the trial court convicted him of the  offence the  High  Court acquitted him in appeal on the ground  that prosecution  was barred under Section 161(1) of the Act.   A three  Judge  Bench of this Court has held that the  act  of accepting  bribe  is  not an act done in the colour  of  his office.   The  following observations in that  decision  are apposite in the context.

   "In this connection, it is important to remember that an act is not done under colour of an office merely because the point  of time at which it is done coincides with the  point of  time the accused is invested with the powers or duty  of the  office.   To be able to say that an act was done  under the  colour  of  an office one must  discover  a  reasonable connection between the act alleged and the duty or authority imposed  on  the accused by the Bombay Police Act  or  other statutory   enactment.   Unless  there   is   a   reasonable connection  between the act complained of and the powers and duties  of  the office, it is difficult to say that the  act was  done  by  the accused officer under the colour  of  his office."

   In  the  latter  decision the same  three  Judges  Bench considered  the case of two Police Head Constables who  were prosecuted  for  certain  offences and they  were  convicted under  Section  330 of the IPC.  There also the  High  Court took the view, in the appeal filed by them, that prosecution was barred under Section 161(1) of the Act.  On the facts of that  case  learned  Judges held that the  offence  was  not relating  to an act done in the colour of office.  The  said decision  confined to the fact situation which arose in that case.

   We  may observe that neither of the above decisions  has changed  the  legal position laid down by the  three  Judges Bench in Virupaxappa Veerappa Kadampur (supra).

   In  the  present case, it is the admitted fact that  the complaint  was filed only long after the period indicated in

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Section  161  of  the Act was over, either with  or  without sanction   from  the  State   Government.   Therefore,   the complaint is irretrievably barred under the said provision.

   In view of this conclusion of ours it is unnecessary for us  to  consider  the next question whether  sanction  under Section  397 of the Code is necessary to take cognizance  of the offences alleged.

   We,  therefore,  allow  this appeal and  set  aside  the judgment under challenge and restore the order passed by the Sessions Judge dismissing the complaint.