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TMI Blog1964 (7) TMI 60X X X X Extracts X X X X X X X X Extracts X X X X ..... at Lahanu was murdered, and Shewanti wife of Sonaji, Dwarki wife of Lahanu, Sheikh Jumma, Sakharam son of Kisan and Sakharam son of Sonaji were involved in that murder. In order to obtain information from these persons with respect to the murder of Lahanu and for knowing where the corpse was, Atamaram kept these five persons in unauthorised custody from the 3rd of September 1962 till the 7th of September 1962 and also assaulted them. While she was in his custody, Atmaram also committed rape of Dwarki wife of Lahanu. The co-accused Uttam and Bhikaji also helped him in these illegal acts. Hence the prosecution under sections 330, 342, 343, 348 read with section 34 of the Indian Penal Code. (4) All the three appellants abjured the guilt. According to them, false charges were levelled against them due to enmity. (5) The Additional Sessions Judge, Khamgaon, found on facts that Atmaram had wrongfully confined Sheikh Jumma and had caused hurt to Sakharam son of Kisn, Sakharam son of Sonaji, Sheikh Jumma, Shewanti wife of Sonaji and Dwarki wife of Lahanu between the 3rd of September 1962 to the 7th of September 1962. He also found that Atmaram had confined the other four persons from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he aforesaid Supreme Court decision. Mr. Phadke also placed reliance on the order of the Division Bench in Criminal Appln. No. 6 of 1964, dated 31-3-1964, by which leave to appeal to the Supreme Court against the decision in Criminal Appeal No. 153 of 1963 was refused. (8) Mr. Palsikar, Honorary Assistant Government Pleader, contended that the impugned acts had no connection or nexus with the official duty which was assigned to the three accused, and, therefore, their act of wrongfully confining and assaulting the five persons cannot come within the ambit of section 161 of the Bombay Police Act. He was relying on the opinion of the Full Bench in Narayan v. Yeshwant 30 Bom LR 1018 : AIR 1928 Bom 352 in answer to the questions referred in First Appeal No. 346 of 1924 by Marten C.J. and Crump J. According to him, Virupaxappa's case AIR1963SC849 was not applicable to the facts of the present case and the principles laid down in State of Andhra Pradesh v. N. Venugopal [1964]3SCR742 would more appropriately apply to the facts of this case and would show that the impugned acts not being protected by any provision of law or authority would not give the protection of section 161 of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... act in the discharge of the official duty. It does not cover acts committed under colour of or in excess of the authority. Section 161(1) of the Bombay Police Act, however, covers cases of acts done under colour of office and/or in excess of any such duty or authority. It further covers offences in which it appears to the Court that the wrong done was of the aforesaid character, viz., under colour of office or in excess of the duty. In view of this difference in the language of the two sections, there can be no doubt that the provisions of section 161 of the Bombay Police Act are much wider than those of section 197 of the Code of Criminal Procedure. There is another important distinction also. Under section 197 of the Code of Criminal Procedure, the Government acts in an executive capacity and it is in the discretion of the Government whether to grant or withhold sanction under section 197 and the orders of the Government, either refusing or granting sanction under section 197, need not be based on legal evidence; vide In the Matter of Kalagava Bapiah, ILR 27 Mad 54. Unlike these provisions of section 197 of the Criminal Procedure Code with the Government can use in an executive ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent whom he is examining, though the examination itself may be such an act. The test may well be whether the public servant, if challenged, can reasonably claim that, what he does, he does in virtue of his office. This view was reiterated by their Lordships of the Privy Council in Albert West Meads v. The King. Their Lordships of the Supreme Court also followed these Privy Council decisions in Ronald Wood Mathams v. State of West Bengal AIR 1954 SC 455 for holding that no sanction was necessary under section 197 of the Criminal Procedure Code for offences under sections 120B and 161 of the Indian Penal Code. It would be seen from the aforesaid decisions that as pointed out by Varadachariar J. in AIR 1939 PC 43 the questions regarding whether the tests prescribed in those rulings were satisfied or not, was treated as a question of fact to be determined with reference to the facts of each case. (16) The matter again came up for discussion before the Supreme Court in In re Reference under s. 5 Court Fees Act, AIR1955Bom287 . The question was whether sanction was necessary for prosecuting the accused under section 409 of the Indian Penal Code and section 5(2) of the Prevention o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scope of the duties of a public servant, and, therefore, no sanction was necessary. While repelling this suggestion, their Lordships made the following observations: We are of opinion that this is too broad to statement of the legal position, and that the two decisions cited lend no support to it. In our judgment, even when the charge is one of misappropriation by a public servant, whether sanction is required under section 197(1) will depend upon the facts of each case. If the acts complained of are so integrally connected with the duties attaching to the office as to be inseparable from them, then sanction under section 197(1) would be necessary; but if there was no necessary connection between them and the performance of those duties, the official status furnishing only the occasion or opportunity for the acts, then no sanction would be required. It would thus be seen that their Lordships liberalised the earlier view which appeared to be too rigid and stringent. (18) Mr. Mudholkar, Additional Government Pleader, then contended that the Supreme Court had again taken a narrower view on this point in Satwant Singh v. State of Punjab, [1960]2SCR89 by laying down the test ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the investigation in connection with a suspected murder case and were questioning the suspects for that purpose. In order to enable them to carry out this duty, they wrongfully detained these persons and even assaulted from for the purpose of extorting statements or confessions in the course of that investigation. When that duty of investigation, which was entrusted to them, is viewed in its proper perspective, it would appear that this act of wrongful restraint and detention of the suspects and of causing hurt to them was integrally connected with the duty of questioning those persons for the purpose of investigation and it would not appear possible to separate it from their duty of investigation which they were carrying on at that time. Therefore, even according to the view of the Supreme Court with respect to sanction under section 197 of the Criminal Procedure Code , the impugned acts would amount to offences performed while purporting to do the official duty and they would, therefore, necessarily fall under section 197 of the Criminal procedure Code for which a sanction would be necessary. (20) The three accused were not removable by the State or the Central Government, and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd whereabouts of the dead body and for getting information on these points he kept them under custody in the Baithak of the witness No. 15 (Police Patil Sheshrao) and after that assaulted them at the Gram Panchayat Sungaon. He obtained from them written confession under pressure of beating by the police; thereafter on 7-9-1962 while bringing back witnesses Nos. 2 to 5 to Sungaon assaulted them on the road. (Details of assault are mentioned). (22) In view of these recitals in the charge sheet Mr. Palsikar did not dispute that the investigation officer treated these acts as having been done while performing the official duties assigned to the accused, but he contended that the opinion of the investigating officer should not bind this Court and the matter should be decided independently. Mr. Palsikar was not right in saying that the Sub-Inspector had given his opinion in the charge-sheet. Under section 173(1) of the Criminal Procedure Code, he has to write the substance of the information on facts which he had gathered in the course of investigation. The criticism of Mr. Palsikar on this point was not tenable. (23) I have already indicated the difference in the language of sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... therefore, they will have to be treated as being within the meaning of section 161 of the Bombay Police Act. Mr. Palsikar contended on the other hand that there was no integral connection of these impugned acts with the duty of investigation, and wrongfully detaining persons or assaulting them was not their duty and consequently they would not come under the cloak of duty within the meaning of section 161 of the Bombay Police Act. (26) In making this submission Mr. Palsikar was treating the clause 'under the cloak of duty' as synonymous with by virtue of the duty . He did not show any authority to support that view. On the contrary, the observations from paragraph 10 in Virupaxappa's case, AIR1963SC849 quoted above, would show that the expression under cloak of duty is not equivalent to but is different from the expression by virtue of duty . Wrongfully detaining these persons and assaulting them was certainly not the duty assigned to these accused, but they committed these acts for the purpose of carrying out their duty of collecting information and confessions, if possible, from these persons. Consequently, it will have to be held that these impugned acts, thou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9 was modified and superseded by their later decision in [1964]3SCR742 was based on the assumption that the Supreme Court had interpreted section 161 of the Bombay Police Act differently in the later case but that assumption was unwarranted. A perusal of the later decision would show that their Lordships were interpreting would show that their Lordships were interpreting section 53 of the Madras District Police Act and not section 161 of the Bombay Police Act. That section 53 of the Madras District Police Act, as quoted in the aforesaid decision, is in the following terms: All actions and prosecutions against any person, which may be lawfully brought for anything done or intended to be done under the provisions of this Act or under the provisions of any other law for the time being in force conferring powers on the police shall be commenced within three months after the act complained of shall have been committed and not otherwise. A comparison of this provision with section 161(1) of the Bombay Police Act would show that the two are widely different. Since the two provisions are not in pari materia it would not be permissible to apply the interpretation of that section whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le to think that the legislature used the words 'under colour' in section 161(1) to include this sense. It is helpful to remember in this connection that the words 'colour of office' have been stated in many law lexicons to have the meaning just indicated above. In the face of that direct pronouncement, there was no substance in the contention that the section had not been interpreted by the Supreme Court or that that decision of the supreme Court was not applicable to the facts of the present case. (32) Mr. Phadke was right in pointing out that their Lordships of the supreme Court had not explained the expression in excess of any such duty or authority as appearing in section 161 in their decision in Virupaxappa's case, AIR1963SC849 as that was not necessary for the decision of the facts therein. The provisions of section 161 of the Bombay Police Act, 1951 are analogous to the provisions of section 80 of the Bombay District Police Act, 1890. The question whether the acts of an investigating officer in deliberately taking down the statement of a witness incorrectly come within the expression 'done under colour or in excess of a duty imposed or any a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and his assistant were engaged in investigating into certain charges of criminal offences committed by two members of the criminal tribe. It had been alleged that the plaintiff was harbouring these two persons and some offenders connected with them. One morning, the plaintiff happened to be passing by the office of the Sub-Inspector and he was called into the office. The Sub-Inspector, with the help of his assistant, then proceeded to question him as regards the two members of the criminal tribe, who were then in the office and put to him certain questions. The plaintiff denied any knowledge of the two persons in question, whereupon the Sub-Inspector accused him of telling lies. Afterwards, getting angry, the Sub-Inspector seized him by the moustache and pulled him into an upright position. Then the defendant No. 2 at the instigation of the defendant No. 1 beat him. The plaintiff then left the office and was again called back and was further threatened by the Sub-Inspector. On these facts two questions were referred to the Full Bench. Mr. Palshikar was relying only on the second question and the answer thereto. That question was in the following words:- Can the alleged assault ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (34) In support of his contention, Mr. Palshikar was contending that the Full Bench had not given their opinion with reference to the particular facts and even if they had given the opinion with reference to the facts of the case, the opinion of the Full Bench must be treated in the abstract without considering the facts on which it was based. Mr. Palshikar was obviously not right in saying that the opinion was not given on the facts of that particular case. In the order of reference, the facts were quoted and they were also considered by the Full Bench while delivering their opinion. The second question, which I have quoted above had referred to the 'alleged assault and battery . That would necessarily mean that the question was only with reference to the facts of that case and was not meant or intended to be a general question without reference to facts . When an opinion was given on the particular facts placed before the Full Bench, it would not be permissible to say that the opinion, merely because it came from the Full Bench, should be considered in abstract without considering the facts giving rise to the reference or the facts of the case to be decided. This opinion was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the State as it does not refer to the State either expressly or by necessary implication, with the result that the police prosecution filed after six months would not be barred under section 161. Since the point was of considerable importance, Mr. Justice Chitale referred it to the Division Bench. The decision of the Division Bench is reported in Atmaram v. State AIR1965Bom9 . The Supreme Court decision in AIR1963SC849 was referred. The learned Additional Government Pleader was challenged the ration decidendi of the Supreme Court decision on the ground that the decision might have been different if arguments were addressed on the point raised by him. The Division Bench pointed out that the ration decidendi of the case decided by the Supreme Court could not be challenged on that ground. The Division Bench after considering the law on the question held that the word prosecution in section 161(1) necessarily implied that the State is referred to in that provision, and that every prosecution for an offence, whether initiated on the complaint or a police report will come under the mischief of that provision. That Division Bench decision will also repel the contention raised before me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Police Act had made an invidious distinction between police officers and persons other than police officers who commit such offences. I do not think that it would be correct to say that any such invidious distinction had been made in favour of police officers by enacting S. 161. That enactment was based on a reasonable classification by giving protection to police officers so that they may not be harassed by such prosecutions, if they are made after a long lapse of time. It was also contended that interpreting S. 161 of the Bombay Police Act by giving protection to police officers would result in allowing several police officers to escape the clutches of law if only they can succeed in covering their offences for a period of six months or in managing to get the investigation delayed for more than six months. The idea of that provision is not to allow delinquent police officers to escape punishment for offences but to ensure that such police officers are not required to face prosecutions after a long lapse of time and are promptly brought to book. It was contended that the prosecution frequently find it difficult to complete the investigation within a period of six months and to pu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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