http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6  

PETITIONER: VIRUPAXAPPA VEERAPPA KADAMPUR

       Vs.

RESPONDENT: THE STATE OF MYSORE

DATE OF JUDGMENT: 09/11/1962

BENCH: GUPTA, K.C. DAS BENCH: GUPTA, K.C. DAS IMAM, SYED JAFFER DAYAL, RAGHUBAR

CITATION:  1963 AIR  849            1963 SCR  Supl. (2)   6  CITATOR INFO :  R          1964 SC  33  (15)  D          1966 SC1783  (6)  D          1968 SC1323  (9)

ACT: Criminal  Law-Police  Officer preparing  false  report--"Act done  under  colour of duty", Meaning  of-Statute  providing time  limit for Prosecution--Validity  of  conviction-Indian penal Code. 1860 (Act 45 of 1860), s. 218-Bombay Police Act, 1951 (Bom. 22 of 1951), ss. 64, 161(1).

HEADNOTE: The appellant, a Head Constable, was charged with an offence under s. 218 of the Indian Penal Code.  The prosecution case was  that  on February 23, 1954, on receipt  of  information that  some  persons were attempting to  smuggle  Ganja,  the appellant  caught N with a bundle containing 15  packets  of Ganja and seized them, that he then prepared a Panchnama  in which  he  incorrectly showed the seizure of  9  packets  of Ganja only, and that on the next day he, however, prepared a new  report in which it was falsely recited that the  person with the bundle ran away on seeing the police after throwing away  the  bundle containing 9 packets of Ganja  only.   The allegation  against  the appellant was that  he  prepared  a false report with 7 the  dishonest intention of saving N who had  actually  been caught  with Ganja from legal punishment.  The  Trial  Court accepted  the prosecution case and convicted the  appellant. The  appellant challenged the legality of the conviction  on the  ground, inter alia, that the alleged offence  had  been committed  "by an act done under colour of dutv" within  the meaning  of s. 161 (I) of the Bombay Police Act , 1951,  and that,  therefore,  the  prosecution was  barred  under  that section  inasmuch as it was instituted admittedly more  than six months after the date of the act complained of. Held, that under s. 161 (1) of the Bombay Police Act,  1951, the, words "under colour of duty" have been used to  include acts done under the cloak of duty, even though not by virtue of  the  duty  ; that when the appellant  prepared  a  false report  he  was using the existence of his legal duty  as  a

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6  

cloak  for his corrupt action and that, therefore,  the  act thus  done in dereliction of his duty must be held  to  have been done "under colour of the duty." Madhav Ganpat Prasad v.Maihidkhan, (1917) I.L.R. 41  Bom.737 and  NarayanHari  v. Yeshwant Raoji, A.I.R. 1928  Bom.  352, approved. Observations  in Parbat Gopal Walekar v. Dinkar  S.  Shinde, (1960) 63 Bom.  L.R. 189; that "if the alleged act is  found to  have been done in gross violation of the duty,  then  it ceased to be an act done under colour of duty", disapproved. Held, further, that the word "offences" in s. 161 (1) of the Act refers to offences under any law, and is not  restricted to offences under the Act only.

JUDGMENT: CRIMINAL   APPELLATE JURISDiCTION : Criminal Appeal No.  144 of 1961. Appeal  by special leave from the judgmEnt and  order  dated March  8, 1961, of the Mysore High Court in Criminal  Appeal No. 362 of 1959. Anil Kumar Gupta and R. K. Gary, for the appellant. R.Gopalakrishnan and P. D. Menon, for the respondent. 8 1962’ November 9. The judgment of the Court was delivered by DAS GUPTA, J.-The only question for decision in this  appeal is  whether  the appellant’s prosecution was barred  by  the special rule of limitation in s.   161(1)   of  the   Bombay police Act, 1951. In  February  1954,  the appellant was employed  as  a  Head Constable at the Kalkeri Outpost attached to the  Hippussagi Police Station.  On February 23, 1954, the appellant went to Budhihal Road on receipt of information about the  smuggling of  Ganja  from the then Hyderabad State to Kalkeri  and  at about 2 or 3 p.m. actually caught one Nabi Sab Kembhavi with a  bundle containing 15 packets of Ganja.  These 15  packets of  Ganja  were seized and for this  seizure  the  appellant prepared a Panchnama in which however he incorrectly  showed the  seizure of 9 packets of Ganja only.  On.  February  24, 1954,  it  is  alleged, the appellant had  a  new  Panchnama prepared  in which it was falsely recited that a person  who was  coming  towards  the village of Budhihal  ran  away  on seeing  the Panchas and the Havaldar, after throwing away  a bundle  and  this bundle was found to contain 9  packets  of Ganja weighing one tola each.  The date in the Panchnama was mentioned as February 23, 1954.  A report to the same effect was  also  prepared.  The prosecution case is that  no  such thing  happened on February 24 , 1954, or February 23,  1954 but that this Panchnama and the report were falsely prepared by the appellant with the dishonest intention of saving Nabi Sab  Kembhavi who had actually been caught with  Ganja  from legal punishment. On  these  allegations  the  appellant  was  tried  by   the Additional Sessions judge, Bijapur, on a charge under s. 218 of  the  Indian  Penal  Code.  He  pleaded  not  guilty  and contended  that  the  Panchnama and  the  report  which  are challenged by the prosecution as a 9 false  Panchnama were correctly prepared by him on  February 23. 1954, and mention the true state of affairs is ; It  was also:  pleaded  that Rule 542 of the Bombay  Police   Manual barred  his prosecution as prior permission of the  District Superintendent  of  Police had not been  taken.   A  further defence  was raised that in any case as the prosecution  was

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6  

commenced  long  after  six months  had  elapsed  after  the alleged commission of the offence it was barred by  s.161(1) of the Bombay Police Act. The  appellant.  was however convicted by  the  Trial  Court under  s.  218  of the Indian Penal Code  and  sentenced  to rigorous imprisonment for a period of one year.  "  Against  that order,, he appealed to the High  Court  of Mysore.  The High Court agreed with the Trial Court that  an offence under s. 218 of the Indian Penal Code had been  made out.   The  defence under.  Rule 542 of  the  Bombay  Police Manual was also rejected on the ground that this Rule had no statutory force.  As regards the plea of limitation under s. 161(1) of the Bombay Police Act, 1951, the High Court was of the  opinion  that on February 24. 1954, the  appellant  had duty to perform in regard to the crime detected on the  23rd and  hence it was not possible to hold that the  preparation of  a  false panchnama and a false report  "were  acts  done under colour ’or in excess of any such duty or authority  as aforesaid" as found in.s. 161(1) of the’ Bombay Police  Act. Accordingly, the High Court dismissed the appeal. Against that decision the present appeal has been  preferred by special leave granted by this Court and the only question raised  in the appeal is as regards the correctness  of  the High   Court’s  conclusion  that  the  prosecution  of   the appellant  was  not barred under s. 161 (1)  of  the  Bombay Police Act, 1951. 10 Section 161(1) is in these words:- "161(1).   In  any case of alleged offence  by  the  Revenue Commissioner,,   the  Commissioner,  a  Magistrate,   Police Officer or other person, or of a wrong alleged to have  been done by 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 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." In   the  present  case,  the  prosecution  was   admittedly instituted  much more than six months after the date of  the act  complained of.  The allegation is that the offence  was committed  by a police officer.  If, there fore, it  appears that the offence alleged to have been committee "by any  act done under colour or in excess of any such duty or authority as  aforesaid" within the meaning of the above Provision  of law  the Prosecution was liable to be dismissed.  From  what has been said above about the prosecution allegations it  is clear that the offence is alleged to have been committed, by the  preparation of a False Panchnama and a false report  on February  24,  1954.  The question that falls  for  decision therefore  is whether’ the preparation of a Panchnama  or  a report  was- an ""AC done under colour or in excess  of  any such  ’duty or authority as aforesaid." It is  not  disputed that  die  preparation of a. correct Panchnama  and  a  true report  as, regards the seizure the Ganja was, the  duty  of the   police  officer.   It  is  equally  clear  that   such preparation was the duty of the police officer as laid  down in  the  Bombay Police Act.  For s. 64 of the  Act  provides inter alia that it shall be the duty of 11 every police officer, "to lay. such information and to  take such other steps consistent with law and with the orders  of his superiors as shall be best calculated to bring offenders to justice"; (s. 64 (b)) and also "to discharge such  duties

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6  

as  are  imposed upon him by any law for the time  being  in force."  That the appellant was an officer authorised  under the  Bombay  Prohibition  Act  to seize  the  Ganja  in  the circumstances,  alleged  is clear.  In seizing  it,  he  had necessarily  to prepare a Panchnama, and to submit a  report of the seizure. In view of these provisions of law it has not 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 "’under colour" or in excess of that duty. The expression "under colour of something" or "under  colour of duty", or "’under colour of office", 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 or 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 "under colour"  in s. 161(1) to include this sense.  It is helpful to  remember in  this  connection that the words "colour of  office"  has been  stated in many law lexicons- to have the meaning  just indicated  above.   Thus  in  Wharton’s  Law  Lexicon,  14th Edition, we find at p. 214 the following               "Colour of office"               "’When an act is unjustly done by the counten-               ancc   of  an  office,  being  grounded   upon               corruption, to which the office is as a shadow               and colour."               In Stroud’s judicial Dictionary, 3rd  Edition,               we find the following at p. 521 :-               Colour : "Colour of office" 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  ’by reason of the office’ and "by  virtue               of  the office’ are taken always in  the  best               part." 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 13

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6  

done  in dereliction of his duty must be held to  have  been done ""under colour of the duty We do not see how the fact that the seizure was made on 23rd and  the false report was prepared on the 24th affects  this position. Whether the false report was prepared on the  23rd or  the  24th the fact still remains that he  prepared  this under cover of his duty to prepare a correct Panchnama and a correct  report and there is no escape from  the  conclusion that  the  acts  by which the offence under s.  218  of  the Indian Penal Code was alleged to have been committed by  the appellant were done by him under colour of a duty laid  upon him by the Bombay Police Act. The interpretation of the words "’under colour of office" as used  in s. 80, sub-s. 3 of the Bombay District Police  Act, 1890,  which was in almost the same words as the present  s. 161  (1)  except that the new section gives  the  protection also  to the Revenue Commissioner or the Commissioner,  came up  before the Bombay High Court on several  occasions.   In Madhav  Ganpat  Prasad v. Maihidkhan (1) the  complaint  was that  a Sub-Inspector of Police had vexatiously  seized  the complainant’s   property   and  so  committed   an   offence punishable  under  s. 63 (b) of the Bombay  District  Police Act, 1890.  It was held or rather assumed-that the case fell within  the  provisions of s. 80, sub-s. 3. The  matter  was considered  by  a  Full Bench of the Bombay  High  Court  in Narayan  Hari  v. Yeswant Raoji (2) . There  the  allegation against  the police officer was that while  investigating  a case  he  had  deliberately taken down the  statement  of  a witness  incorrectly.   The police  officer  was  prosecuted under  s. 167 and s. 218 of the Indian Penal Code more  than six  months  after  the statement had  been  recorded.   The question   raised  was  whether  the  complaint  should   be dismissed under s’ 80, sub-s. 3, on the ground that the  act complained of was done under colour of a duty.  The (1) [1917] I.L.R. 41 Boat. 737. (2) A.I.R. 1928 Bom 352 14 full  Bench  decided that even though the act  was  done  in deliberate  disregard of his  proper duty and authority  the act  was  one  done under colour or ’in  excess  of  a  duty imposed or an authority conferred on him by the Police  Act. This  view of the meaning of the word under colour  of  duty was, in our opinion, correct. Learned  Counsel drew our attention to another  decision  of the  Bombay High Court in Parbat Gopal Walekar v.  Dinkar  & Shinde  (1) where the act of a police constable  in  driving rashly and negligently when driving a police jeep which  was carrying  a Sub-Inspector of Police, was proceeding  for  an enquiry  was held not be one "under colour or in  excess  of the  duty  imposed upon him as a constable driver."  In  the concluding  portion  of the judgment the learned  judge  has observed thus :-               "If  the  police  are  entitled  to  have  the               benefit of a shorter period of limitation when               they are acting in pursuance of a duty imposed               on them by the Po1ice Act or any other law  in               force  or any rule thereunder, and if the  act               is alleged to amount to an offence or a wrong,               then if it is found to have been done in gross               violation of their duty or in contravention of               the limits placed upon the performance of such               duty  by  the law itself or any  rules  framed               thereunder,  the act would cease to be an  act               done under colour or in excess of their duty." On  the facts of that particular cage the decision may  well

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6  

be  justified on the ground that injuring a person  by  rash and  negligent driving had no relation to. the duty  of  the constable  to  drive the motor vehicle.  We think  it  right however  to point out that the view that if the alleged  act "’is found to have been done in gross violation of the duty" then  it  ceased  to be an act done  under  colour,  is  not correct. .(1) (1960)63 Bom.  L.R. 189.  15 As  we have pointed out above it is only when the act is  in violation  of  the duty that the question of the  act  being done  under colour of the duty arises.  The  ’fact  that;the Act has been done under gross violation ’In of the duty  can be  no reason to think that the act has not been done  under colour of the duty. We   have   come  to  the  conclusion  that  on   a   proper interpretation  of  the words ""under colour of  duty",  the acts  in  respect of which the prosecution  was,  instituted were acts done under colour of duty imposed upon him by  the Police Act. On behalf of the State it was contended next that s. 161 (1) of the Bombay Police Act is limited to offences against  the Act  and  has no application to offences  under  the  Indian Penal  Code.  We can find no substance in  this  contention. "’Offence"  hag been defined in the Bombay  General  Clauses Act  to mean any act or omission made punishable by any  law for  the time being in force.  On this definition  the  word "’offence" as used in s. 161 (1) clearly includes an offence under the Indian Penal Code. if it was the intention of  the legislature  to  limit  the application of  s.  161  (1)  to offences  under the Bombay Police Act only that  would  have been  clearly  mentioned.   It is  worth  noticing  in  this connection the language used in s. 150 of the Bombay  Police Act.  That section runs thus :--               "Offences  against this Act, when the  accused               person or any one of the accused persons is  a               police officer above the rank of a  constable,               shall no be congnizable except by a Presidency               Magistrate  or a Magistrate not lower  than  a               second class magistrate. If the legislature had intended to limit the Application  of s. 161 (1) to. offences under the Police Act only, it  would have instead of using the words 16 ""in  any case of alleged offences" used words like "in  any case  of offences against this Act.," It appears clear  that the  legislature deliberately gave the protection of s.  161 (1)   to   offences  against  any  law  and  there   is   no justification  for our limiting that protection to  offences under the Police Act only.  It must accordingly be held that the  prosecution  against  the appellant  should  have  been dismissed in accordance with the provisions of s. 161 (1) of the Bombay Police Act. We  accordingly  allow  the  appeal,  set  aside  order   of conviction  and  sentence passed against the  appellant  and order that the case against him be dismissed. Appeal allowed.