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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.