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TMI Blog1962 (11) TMI 90X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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. 3. 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 false Panchnama were correctly prepared by him on February 23, 1954, and mention the true state of affairs. 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 commenced lon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xcess 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 act done under colour or in excess of any such duty or authority as aforesaid. It is not disputed that the preparation of a correct Panchnama and a true report as regards the seizure of 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 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 as are imposed upon him by any law for the time being in force. That the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 12. 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. 13. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ved 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 Police 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. 16. On the facts of that particular case the decision may well 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. 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 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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