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PETITIONER: STATE OF MAHARASHTRA

       Vs.

RESPONDENT: NARHARRAO

DATE OF JUDGMENT: 14/03/1966

BENCH: RAMASWAMI, V. BENCH: RAMASWAMI, V. SUBBARAO, K. SHELAT, J.M.

CITATION:  1966 AIR 1783            1966 SCR  (3) 880  CITATOR INFO :  F          1966 SC1786  (3)

ACT: Bombay  Police Act (22 of 1951), s. 161(1)-"Under colour  or in excess of any such duty or authority", meaning of.

HEADNOTE: The respondent, a head constable, was charged under s.  161, Indian penal Code, and s. 5(1)(b) and (2) of the  Prevention of  Corruption  Act, for accepting a bribe for  weakening  a prosecution case.  He was convicted by the trial court,  but the  High Court allowed the appeal on the ground that  under s. 161(1) of the Bombay Police Act 1951, the prosecution was barred  having been launched more than six months after  the date of the alleged offence. In appeal to this Court, HELD : The High Court was in error, because, the benefit  of the  six months period of-limitation is available only  when the alleged act of the officer was one done under colour  of the  duty imposed or the authority conferred on him  by  any provision  of  law,  or  in  excess  of  any  such  duty  or authority.Unless  there is a reasonable  connection  between the  act  complained  of and the powers and  duties  of  the office,  it  cannot  be said that the act was  done  by  the accused officer under the colour of his office.[882 E; 883C] The State of Andhra Pradesh v. N. Venugopal and Ors., [1964] 3 S.C.R 742, followed. Virupaxappa  veerappa  KadamPur V. State of  Mysore,  (1963] Supp. 2 IC.R. 6, referred to.

JUDGMENT: CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 214 of 1964. Appeal  by special leave from the judgment and  order  dated the  November  11,  1963 of the Bombay  High  Court  (Nagpur Bench) at Nagpur in Criminal Appeal No. 153 of 1963. R.M. Hazarnavis, R. H. Dhebar and B. R. G. K. Achar, for the appellant. M. S. K. Sastri, for the respondent.

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The Judgment of the Court was delivered by Ramaswami, J. This appeal is brought, by special leave, from the  judgment  of the High Court of  Bombay,  Nagpur,  Bench dated November 11, 1963 in Criminal Appeal no. 153 of 1963. The  respondent  Narharrao,  a  police  Head  Constable  was attached  to  the Murtizapur Police  Station  in  September, 1962.  He was investigating offences under ss. 110, 102  and 117 of the 880 881 Bombay  Police  Act  against two persons,  viz.,  Onkar  and Harihar.   It is alleged that Onkar and  Harihar  approached Narharrao for showing them some favour.  The latter demanded Rs.  25 as a bribe for weakening the prosecution case  which was   to  be  launched  against  Onkar  and  Harihar.    The respondent  accepted Rs. 5 on or about October 14, 1962  and Rs.   10   on  or  about  October  19,   1962   as   illegal gratification.  The respondent was tried in the Court of the Special  Judge,  Akola  for accepting bribe  under  s.  161, Indian  Penal Code or alternatively for committing  criminal misconduct   in  the  discharge  of  his  duties  which   is punishable  under  s.  5(2)  read with  s.  5(1)(b)  of  the Prevention  of Corruption Act.  By this judgment dated  June 25,  1963, the Special Judge held the respondent  guilty  of both the offences and sentenced him to rigorous imprisonment for one year and also to pay a fine of Rs. 200 or in default to a rigorous imprisonment for a further period of 3 months. The  respondent  filed an appeal in the  High  Court,  being Criminal Appeal no. 153 of 1963.  The High Court allowed the appeal  on; the ground that s. 161 (1) of the Bombay  Police Act  was  a bar to the prosecution of the  respondent.   The High  Court  did not discuss in detail the  question  as  to whether  there  was  sufficient  evidence  to  support   the conviction of the respondent on merits but acquitted him  on the  technical ground that no prosecution could be  launched more than six months after the date of the alleged  offence, as required under 4 s. 1 6 1 (1) of the Bombay Police Act. The  question  of law presented for  determination  in  this appeal  is whether the alleged act of offence was  committed by  the  respondentdent " under colour or in excess  of  any such  duty or authority as aforesaid" within the meaning  of s. 161(1) of the Bombay Police:Act (Bombay Act 22 of 1951). Section 159 of this Act provides as follows               "159.  No Revenue Commissioner, Magistrate  or               Police Officer shall be liable to any  penalty               or to payment of damages on account of an  act               done  in good faith, in pursuance 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               therein."               Section 160 enacts :               "160.   No  public  servant  or  person   duly               appointed or authorised shall be liable to any               penalty  or  to  payment of  any  damages  for               giving effect in good faith to any such  order               or direction issued with apparent authority by               the State Government or by a person  empowered               in  that  behalf under this Act or  any  rule,               order or direction made or given thereunder."               882               Section 161(1) states as follows :               "161.  (1) In any case of alleged  offence  by               the Revenue Commissioner, the Commissioner,  a               Magistrate, Police Officer or other person, or

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             of  a wrong alleged to have been done by  such               Revenue   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               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,  or shall  be  dismissed,  if               instituted,  more  than six months  after  the               date of the act complained of. It is manifest that in order that the accused person against whom a prosecution has been launched may get the benefit  of six  months period of limitation under the section, it  must appear to the Court (1) that the offence was committed under colour of any duty imposed or any authority conferred by any provisions of the Bombay Police Act or any other law for the time being in force, or (2) that the act was done in  excess of  any such duty or authority as aforesaid.   The  question arising in this case, therefore, is whether the alleged act of  the respondent in accepting bribe was an act done  under colour of the duty imposed or the authority conferred on the respondent by any provision of law or in excess of any  such duty or authority as aforesaid.  In examining this question it is necessary, in; the first place, to ascertain what  act is  complained of and then to see if there is any  provision of  the Bombay Police Act or any ,other law under  which  it may  be  said to have been done or purported  to  have  been done.  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. For  example,  if  a police officer  is  prosecuted  for  an offence  under s. 323 of the Indian Penal Code said to  have been  committed  in making an arrest, the  prosecution  must fail   unless  commenced  within  six  months  of  the   act complained of, as required by s. 161(1) of the Bombay Police Act.   Again, if the prosecution is for an offence  under:,. 304, Indian Penal Code said to have been com- 883 mitted  in  the process of dispersing an  unlawful  assembly under s. 128 of the Criminal Procedure Code, the  limitation provided  under  s.  161(1) of the Bombay  Police  Act  will apply.   Similarly,  if the prosecution is  for  an  offence under  s.  341 of the Indian Penal Code said  to  have  been committed  by the Act of closing a street or passage  in  or near which a fire is burning in exercise of the powers under s.  152 of the Criminal Procedure, Code, or for  an  offence under  s.  426 of the Indian Penal Code, said to  have  been committed by the pulling down of a house for the purpose  of extinguishing  a  fire,  the prosecution  must  fail  unless brought within the period prescribed under s. 161(1) of  the Bombay Police Act. But unless there is a reasonable connection between the  act complained  of and the powers and duties of the  office,  it cannot be said that the act was done by the accused  officer

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under  the colour of his office.  Applying this test to  the present  case,  we  are  of the  opinion  that  the  alleged acceptance  of bribe by the respondent was not an act  which could  be  said to have been done under the  colour  of  his office or done in excess of his duty or authority within the meaning of s. 161 (1) of the Bombay Police Act.  It follows, therefore, that the High Court was in error in holding  that the prosecution of the respondent was barred because of  the period  of  limitation  prescribed under s.  161(1)  of  the Bombay Police Act.  The view that we have expressed is borne out  by  the decision of this Court in The State  of  Andhra Pradesh  v. N. Venugopal and others (1) in which  the  Court had  construed the language of a similar provision of s.  53 of  the Madras District Police Act (Act of 24 of 1859).   It was  pointed  out in that case that the effect of s.  53  of that Act was that all prosecutions whether against a  police officer  or  a person other than a police  officer  (e.g.  a member  of  the  Madras Fire Service, above the  rank  of  a fireman  acting  under s. 42 of the Act) must  be  commenced within three months after the act complained of, if the  act is one which has been done or intended to be done under  any of  the  provisions of the Police Act.  In  that  case,  the accused  police officers were charged under ss. 348 and  331 of  the  Indian Penal Code for wrongly confining  a  suspect Arige Ramanna in the course of investigation and causing him injuries.  The accused were convicted by the Sessions  Judge under ss. 348 and 331 of the Indian Penal Code but in appeal the Andhra Pradesh High Court held that the bar under s.  53 of  the Police Act applied and the accused were entitled  to an acquittal.  It was, however, held by this Court that  the prosecution  was not barred under s. 53 of the  Police  Act, for  it  cannot be said that the acts of  beating  a  person suspected of a crime or confining him or sending him away in an injured condition by the police at a time when they  were engaged  in  investigation are acts done or intended  to  be done’ under the provisions of the Madras District Police Act or Criminal Procedure Code or any other law (1)  [1964] 3 S.C.R. 742. 884 conferring powers on the police.  The appeal was accordingly allowed  by this Court and the acquittal of  the  respondent set aside. On  behalf  of  the respondent reference  was  made  to  the decision  of this Court in Virupaxappa Veerappa Kadampur  v. State  of Mysore(1).  But the ratio of that decision is  not applicable  to  the present case.  In that  case,  a  police officer authorised under the Bombay Prohibition Act to seize smuggled  Ganja,  prepared  a false Panchnama  and  a  false report  as regards the seizure of the Ganja and it was  held by  this  Court  that the provisions of  s.  161(1)  of  the Bombay.   Police Act were applicable.  It is clear  that  in that  case it was the duty of the police Head  Constable  to prepare  a  Panchnama and the act of  preparation  of  false Panchnama  was,  therefore,  done under the  colour  of  his office.  There was hence a nexus between the act  complained of and the statutory duty that the police Head Constable was to  perform  and the provisions of s. 161(1) of  the  Bombay Police  Act  were  applicable.   In  the  present  case  the material-facts are quite different. For  the reasons expressed, we allow this appeal, set  aside the judgment of the High Court acquitting the respondent and order  that the appeal should go back in remand to the  High Court  for being re-heard and dealt with in accordance  with law.                                            Appeal allowed-

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(1)[1963] Supp. 2 S.C.R.6 885