Bombay High CourtManabai W/O Kashirao Tondle vs Jagannath Ganpat Girhe on 10 June, 2013Author:M.L. TahaliyaniBench:M.L. Tahaliyani1                              appln3970.06.odt




                                                                          
                  
                     IN THE HIGH COURT OF JUDICATURE AT BOMBAY,




                                                  
                               NAGPUR BENCH, NAGPUR.


                        CRIMINAL APPLICATION NO.3970 OF 2006




                                                 
     Manabai w/o Kashirao Tondle,
     Aged about 75 years, 
     Occupation - Household work,




                                          
     R/o Village Anbhora, Tq. Murtizapur,
     District Akola.                               ....               APPLICANT
                         
                      VERSUS
                        
     1) Jagannath Ganpat Girhe,
         Aged Adult, Head Constable,
         B.No.1578, Police Station Akot,
      

         Tq. Akot, District Akola.
   



     2) Ramesh Shriram Rawade,
         Aged Adult, Police Constable,
         B.No.263, Police Station Akot,
         Tq. Akot, District Akola





     3) The State of Maharashtra, 
         through PSO, Murtizapur, 
         District Akola.                           ....      NON-APPLICANTS


     ___________________________________________________________________





                  Shri Rahul Dhande, Advocate for the applicant,
            Shri A.S. Mardikar, Advocate for non-applicant Nos.1 and 2,
                  Shri N.R. Rode, Addl.P.P. for non-applicant No.3.
     ___________________________________________________________________


                         CORAM : M.L. TAHALIYANI, J.
                          DATE OF RESERVING THE JUDGMENT        : 18-10-2012
                          DATE OF PRONOUNCING THE JUDGMENT : 10-06-2013




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     ORAL JUDGMENT :1.             Heard  learned  Counsel  Shri  Rahul  Dhande  for  the  applicant, 




                                                        
     learned   Counsel   Shri   A.S.   Mardikar   for   non-applicant   Nos.1   and   2   and 

     learned Additional Public Prosecutor Shri N.R. Rode for non-applicant No.3.2.             Non-applicant Nos.1 and 2 were facing trial before the learned 
                         
     Ad hoc Additional Sessions Judge, Akola for the offences punishable under 

     Sections 302, 304, 324, 325, 364, 365 read with Section 109 and Sections 
                        
     448, 294 and 201 read withSection 34of the Indian Penal Code.  Both the 

     non-applicant Nos.1 and 2 were working as Police Constables attached to 
      


     Akot Police Station, District Akola at the time of the alleged incident.  They 
   



     had allegedly committed murder of deceased Bhagwan Tondle.  It is alleged 

     that deceased Bhagwan Tondle was in police custody on 26-10-1989 and that 





     non-applicant Nos.1 and 2 had assaulted the deceased. He sustained severe 

     injuries at the hands of non-applicant Nos.1 and 2 and had succumbed to the 

     injuries.  It appears from the record and proceedings that there was a private 





     complaint as well as a charge-sheet and both the cases were amalgamated 

     and the case had been committed to the Court of Session.3.             The application underSection 227of the Criminal Procedure 

     Code was made for discharge on the ground that the alleged incident had 

     occurred   in   the   month   of   October   1989,   complaint   case   was   filed   on::: Downloaded on - 06/01/2014 03:40:46 :::3                                    appln3970.06.odt




                                                                                      
     21-2-1994 and charge-sheet was filed on 4-5-1993. In brief, it can be stated 




                                                              
     here  that the  protection was  sought by  non-applicant Nos.1  and  2  of  the 

     provisions ofSection 161of the Bombay Police Act.  Before I proceed further, 




                                                             
     it   will   be   convenient   to   reproduce   the   said   section   here,   which   runs   as 

     under :-"161.  Suits or prosecution 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 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:(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.)4.              It is admitted position that the complaint case and charge-sheet 

     were filed in the court of law after expiry of six months period stated inSection 161of the Bombay Police Act.  The protection was also sought underSection 197of the Criminal Procedure Code inasmuch as it was contended 

     before   the   learned   trial   Judge   that   a   sanction   of   the   Government   under::: Downloaded on - 06/01/2014 03:40:46 :::4                                     appln3970.06.odtSection 197of the Criminal Procedure Code was required for prosecuting 




                                                               
     non-applicant Nos.1 and 2 for the offences stated hereinabove.  The learned 

     trial Judge accepted the submissions made on behalf of non-applicant Nos.1 




                                                              
     and   2   and   passed   the   impugned   order   thereby   discharging   non-applicant 

     Nos.1 and 2 of all the charges leveled against them in a complaint case and 




                                                
     the police charge-sheet.  It is how Sessions Case No.54/2003 came to an end.5.
                            
                      This   order   is   challenged   in   the   present   proceedings   underSection 482of the Criminal Procedure Code by the applicant who is mother 

     of the deceased.   Learned Counsel Shri Rahul Dhande has submitted that a 
      

     protection   ofSection   161of   the   Bombay   Police   Act   was   not   available   to 
   



     non-applicant Nos.1 and 2.  It was further submitted thatSection 197of the 

     Criminal   Procedure   Code   also   does   not   extend   any   protection   to 

     non-applicant Nos.1 and 2.6.               As far asSection 161of the Bombay Police Act is concerned, 





     learned   Counsel   Shri   Rahul   Dhande   has   submitted   that   the   alleged   act 

     committed by  non-applicant Nos.1 and 2 was not done under the colour or 

     in   excess   of   any   duty   or   authority.     It   was   submitted   that   assaulting   the 

     person in custody was not part of the duty of non-applicant Nos.1 and 2.Therefore, it cannot be said that while assaulting the deceased, non-applicant 

     Nos.1 and 2 had exceeded their power or authority or had acted under the::: Downloaded on - 06/01/2014 03:40:46 :::5                                     appln3970.06.odt




                                                                                     
     colour of their office.7.             Learned   Counsel   Shri   Rahul   Dhande   has   relied   upon   the 




                                                            
     judgment of the Supreme Court in the case of  State of Maharashtra .vs.  

     Narhar Rao reported at 1964 AIR (SC) 1783.  My attention was invited to 




                                              
     Para 5 of the said judgment, which runs as under :-"5.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 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 ofS.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   underS.   161(1)of   the 
            Bombay Police Act.........."8.             My attention was also invited to Para 3 of the judgment in the 

     case ofState of Maharashtra .vs. Atma Ramreported at  1966 AIR (SC)  





     1786.  The relevant portion of the said paragraph is as under :-"THE   provisions   of   Ss.   161   and   163   of   theCriminal 
            Procedure Codeemphasize the fact that a police officer is 
            prohibited from beating or confining persons with a view to 
            induce them to make statements.   In view of the statutory 
            prohibition   it   cannot,   possibly,   be   said   that   the   acts 
            complained of, in this case, are acts done by the respondents 
            under the colour of their duty or authority.  In our opinion, 
            there   is   no   connection,   in   this   case   between   the   acts::: Downloaded on - 06/01/2014 03:40:46 :::6                                    appln3970.06.odt




                                                                                     
            complained   of   and   the   office   of   the   respondents   and   the 




                                                            
            duties   and   obligations   imposed   on   them   by   law.     On   the 
            other   hand,   the   alleged   acts   fall   completely   outside   the 
            scope   of   the   duties   of   the   respondents   and   they   are   not 
            entitled, therefore, to the mantle of protection conferred byS. 161(1)of the Bombay Police Act.  This view is borne out 
            by the decision of this court in State of Andhra Pradesh V.N.  
            Venugopal, AIR 1964 SC 33, in which the effect of S.53 of the 
            Madras District Police Act was construed by this court and it 
            was   held   that   the   protection   of   that   section   cannot   be 




                                              
            extended   to   police   officers   accused   of   beating   a   person 
            suspected   of   a   crime   or   confining   him   in   the   course   of 
                          
            investigation. ........."9.             Learned   Counsel   Shri   A.S.   Mardikar,   on   the   other   hand,   has 

     relied upon the judgment in the case ofK.K. Patel & another .vs. State of 
      

     Gujarat & anotherreported at 2000 Bom.CR (Cri.) 505 and has submitted 
   



     that   the   offence   allegedly   committed   by   non-applicant   Nos.1   and   2   was 

     during the course of their duty and it was under the colour of their office.  It 

     was submitted that non-applicant Nos.1 and 2 might have exceeded their 





     authority and therefore, the prosecution beyond the limitation period stated 

     inSection 161of the Bombay Police Act cannot be maintained.  At the same 





     time, it was also submitted that since the alleged offences were committed 

     while   non-applicant   Nos.1   and   2   were   in   the   employment   of   State   of 

     Maharashtra,   the   cognizance   of   the   offences   could   not   have   been   taken 

     without previous sanction of the State Government.  It was further submitted 

     that the act alleged to have been committed by non-applicant Nos.1 and 2 

     was allegedly committed by them while acting in discharge of their official::: Downloaded on - 06/01/2014 03:40:46 :::7                                 appln3970.06.odt




                                                                                
     duty.10.              Without   going   into   the   merits   of   the   issue   whether 




                                                       
     non-applicant Nos.1 and 2 were not removable from their office save by or 

     with the sanction of the Government, what is important to examine is that as 




                                            
     to whether the act allegedly committed by non-applicant Nos.1 and 2 was 
                          
     done while acting or purporting to act in discharging of their official duty.Shri Rahul Dhande has submitted that to beat the accused is not the official 
                         
     duty of any police  official and  that therefore, if the person dies in police 

     custody allegedly due to assault or beating by the police officer, it cannot be 
      

     said that the police officer is acting or purporting to act in discharge of his 
   



     duty.  It was submitted that beating or assaulting or using 'third degree' is not 

     the part of official duty.  Shri A.S. Mardikar has submitted that the protection 

     is available to the public servants for the alleged offences committed by them 





     while discharging their duty and while they were acting or purporting to act 

     in discharge of  their duty.   It was submitted  that if this protection is  not 





     available to the public servant, the public servant will not able to act and 

     work fearlessly and that the very purpose of introduction ofSection 197of 

     the Criminal Procedure Code andSection 161of the Bombay Police Act will 

     be frustrated.11.              I have anxiously considered the arguments submitted by both::: Downloaded on - 06/01/2014 03:40:46 :::8                                    appln3970.06.odt




                                                                                     
     the learned Counsel.   I have gone through the judgment cited by learned 




                                                            
     Counsel Shri A.S. Mardikar reported at  2000 Bom.CR (Cri.) 505.   In the 

     said case, it was alleged that the police officers had wrongfully arrested the 




                                                           
     complainant and had initiated wrongful enquiry against him.  In this regard, 

     it may be noted here that the police officers are empowered to arrest and 




                                              
     enquire into the allegations.  If there is unlawful arrest or unlawful enquiry, 
                          
     the prosecution against such police officers not lodged within the limitation 

     mentioned inSection 161of the Bombay Police Act probably may not be 
                         
     maintainable.   However, as stated by learned Counsel Shri Rahul Dhande, 

     assaulting or beating is not part of the duty and any assault or injury caused 
      

     by the police officer while on duty cannot be said to be done during the 
   



     course of his duty or while discharging his duty.   The limit and extent of 

     protection available to the public servant underSection 197of the Criminal 

     Procedure Code has been explained by this Court at para 9 in the case ofMary   Kutty   Thomas   &   others   .vs.   State   of   Maharashtrareported   at 

     1983(2) Bom.CR 73 as under."9.    The   said   provision   contained   in   section   197   of   the 
            Code   when   properly   dissected   in   split   up   into   different 
            clauses;   the   first   being   with   reference   to   such   person   as 
            placed in one of the categories of being a public servant who 
            is not removable from his office without the sanction of the 
            Government; the second clause pertains to the nature of the 
            accusation vis-a-vis the offence charged, and the third which 
            is integrated with the second clause indicates that the said 
            offence should have been committed by him while acting or 
            purporting to act in the discharge of his official duty.   It is::: Downloaded on - 06/01/2014 03:40:46 :::9                                     appln3970.06.odt




                                                                                    
           only   when   all   the   three   clauses   co-exist   that   the 




                                                            
           requirements of section 197 of the Code are fulfilled under 
           which the ban imposed on the court from taking cognizance 
           without a valid sanction from the concerned appointing or 
           dismissing  authority comes into operation.   This provision 




                                                           
           has   been   incorporated   with   an   obvious   object   to   afford 
           protection   to   public   servants   from   unjustified   and 
           unnecessary harassment on the basis of frivolous allegations 
           so   that   there   would   be   pre-screening   by   the   superior 
           authority   and   ultimately   it   would   be   discretion   after 




                                             
           examining   all   aspects   to   consider   whether   there   is   any 
           substance in the allegations and if so, whether it is expedient 
                         
           to prosecute the public servant in a Court of law or to deal 
           with him departmentally and if in his opinion the allegations 
           have   absolutely   no   substance   then   at   this   level   itself   the 
           public   servant   can   be   protected   from   the   prospective 
                        
           harassment so that launching of a complaint itself is barred. 
           This   object   no   doubt   is   quite   laudable,   still   under   the 
           scrutiny   of   the   nature   of   allegations   in   each   case,   the 
           foundation of the requirements of the said provisions must 
      

           be   properly   established.     What   has   been   emphasised 
           persistently pertains to the correct interpretation of the last 
   



           clause viz. as, 

           "........ offence alleged to have been committed by him while 
           acting  or  purporting  to  act in the  discharge of  his official 
           duty....."Inthe   said   judgment,   this   Court   has   said   at   Para   No.13   as 

     under :"13. Applying   these   tests,   though   ostensibly   containing 
           different shades, have practically the common foundation. 
           The   facts   of   the   case   at   hand   would   hardly   require   any 
           comments to arrive at a firm and rational conclusion that 
           the   acts   complained   of   as   alleged   in   the   complaint   can 
           hardly be covered under the said clause of section 197 of 
           the Code.   To put it in other form, it is inconceivable even 
           inferentially that the acts alleged have any relation or nexus 
           with the official duty of the said Police Officer or has some 
           thing to do with his office as a public servant or that if he is::: Downloaded on - 06/01/2014 03:40:46 :::10                                    appln3970.06.odt




                                                                                      
            apprehended and questioned while indulging in such act he 




                                                              
            could   satisfy   the   people   at   large   that   what   he   was   really 
            doing was nothing but an official act.   It was neither the 
            discharge of is official duty nor was it a purported discharge 
            of   the   same,   as   for   both   these   items   the   undercurrent   is 




                                                             
            always about existence of a right to do certain act in the 
            official capacity and it is only thereafter that it would have 
            to be considered whether it is done honestly or dishonestly, 
            when in the former case it is in the discharge of the duty 
            while   in   the   latter,   it   is   the   purported   discharge.Nonetheless basically there would be a right or the authority 
            to do the said act.   Further elaboration, in my opinion, is 
                          
            unnecessary.  Suffice it to observe that the gravamen of the 
            allegations which are reproduced in detail at the threshold 
            as reflected in the complaint, unmistakably take the case out 
            of the purview of the provisions of section 197 of the Code 
                         
            since one will proceed only on the basis of the recitals of the 
            allegations in the complaint.   Even the said public servant 
            can never dare even to suggest that causing voluntary hurt 
            or levelling serous threat to the life of a citizen form part of 
      

            his  duty.    This  would  be  notwithstanding   that  the   person 
            concerned, who accuses the public servant, might have been 
   



            arrested by the said public servant in his official capacity.
            ......"12.In another judgment of this Court in the case ofNandkumar S.  

     Kale   .vs.   Bhaurao   Chandrabhanji   Tidke&   anr.  reported   at  2008(S)  

     Bom.CR 161, it is said at para 5 as under;"5.  ......Obviously therefore if there is a reasonable connection of act 
            done with discharge of his duty it must be held to be official 
            duty.     In   the   present   case   what   is   alleged   against   the 
            applicant   is   that   although   witness   Deepak   never   gave   a 
            statement to the police a statement said to be given by him 
            in   his   name   was   made   part   of   investigation.     Obviously 
            Deepak   had   not   appeared   before   the   investigating   officer 
            and   he   had   not   recorded   any   statement   of   Deepak.     The::: Downloaded on - 06/01/2014 03:40:46 :::11                                    appln3970.06.odt




                                                                                     
           statement   said   to   be   that   of   Deepak   is   therefore,   not   a 




                                                             
           statement   and   therefore   the   said   statement   which   is   on 
           record can in no case be said to be recorded in discharge of 
           the   official   duty.     In   fact   this   is   therefore   a   case   of 
           preparation of false record of investigation and preparation 




                                                            
           of false record of investigation cannot be a part of the duty 
           and it cannot be said to be done in discharge of the duty.  If 
           that is so treated then perhaps a police officer can show the 
           investigation having been carried out even sitting at home."13.
                         
                   This   Court   in   another   judgment   in   the   case   ofState   of  

     Maharashtra .vs. Mahadeo Narayan Giri & Ors.reported at 2007 All MR 
                        
     (CRI) 2330, while dealing with the provisions ofSection 161of the Bombay 

     Police Act has said at Para Nos.7 & 8 as under :"7.     From the bare perusal ofSection 161of the Act it is 
           crystal clear that protection is available to a police officer in 
           respect of an offence alleged by him by an act done under 
           colour or in excess of such duty or authority.  Proviso to the 
           said section stipulates that the prosecution against a police 





           officer   may   be   entertained   by   the   court   if   instituted   with 
           previous sanction of the State Government within two years 
           from the date of the offence.8.      In view ofSection 161of the Act quoted above, in a 





           case where prosecution has been launched after two years 
           from the date of the offence and protection is claimed under 
           the   proviso   toSection   161of   the   Act   it   would   be   first 
           necessary to find out if the offence alleged against the police 
           officer was committed pursuant to an act done under the 
           colour  or  in excess of any such duty or  authority.   In my 
           opinion,   commission   of   murder   by   a   police   officer   of   an 
           accused in lock up and that too by merciless beating cannot 
           be said to be referable to an act done under colour or in 
           excess of duty or authority.   Therefore, prima facie I am of 
           the opinion that sanction in terms of proviso toSection 161of the Act is not required to prosecute a police officer who is::: Downloaded on - 06/01/2014 03:40:46 :::12                                   appln3970.06.odt




                                                                                     
            accused of an offence committed by him pursuant to an act 




                                                             
            which cannot be said to have been done under colour or in 
            excess of duty or authority.  The charge-sheet discloses that 
            the   respondents   herein   committed   murder   of   Vinayak 
            Gangaram Sable by brutally beating him with the help of 




                                                            
            kicks,   blows,   sticks   and   by   butt   of   rifle.     Although   the 
            prosecution   has   chosen   to   obtain   sanction   from   the   State 
            Government which has been granted almost after a period 
            of six years that by itself is not sufficient to hold that at this 
            stage sanction in terms ofSection 161of the Act is required 




                                               
            in the present case.  ....."14.
                          
                    It is thus clear that the act alleged must have some nexus with 
                         
     the duty of police officer to have protection ofSection 161of the Bombay 

     Police Act.  Unless some nexus or connection between the duty of the police 
      

     officer and the alleged act is shown, the protection underSection 161of the 
   



     Bombay Police Act will not be available.  To put it in other words or by way 

     of  example   it  can  be  said  that if  the   police   officer   who  is  empowered  to 

     prepare   panchanama   and   while   acting   as   such   police   officer   introduced 





     something wrong in the panchanama, it can probably be argued that the act 

     was committed under the colour of office.  However, if a police officer while 





     arresting accused assaults him or beats him without there being any reason 

     for the same, it cannot be said that the offence of assault or causing hurt or 

     grievous hurt, as the case may be, was committed under the colour of office.Similarly if the person dies in police custody due to assault on the part of 

     police officer, it cannot be said that the accused was being interrogated in a 

     police custody and he died during the course of interrogation and therefore,::: Downloaded on - 06/01/2014 03:40:46 :::13                                   appln3970.06.odt




                                                                                       
     the protection was available to the police officer.  As such no straight-jacket 




                                                               
     formula can belaid down inrespect of the provisions ofSection 161of the 

     Bombay Police Act.  Suffice it to say that some nexus or connection between 




                                                              
     the alleged act and the duty of the police officer is to be established to see 

     the protection underSection 161of the Bombay Police Act.   Similar is the 




                                                 
     position with regard to the protection claimed by virtue ofSection 197of the 
                           
     Criminal Procedure Code.15.             In the present case, non-applicant Nos.1 and 2 had allegedly 

     assaulted the son of the applicant who was in police custody.  Assaulting the 
      

     accused in police custody is not part of the duty of police officer.  Therefore, 
   



     it cannot be said that there was any nexus or connection between the assault 

     and the authority of non-applicant Nos.1 and 2.  In my considered opinion, 

     the learned Ad hoc Additional Sessions Judge has grossly erred in taking the 





     view that the protection underSection 161of the Bombay Police Act was 

     available to non-applicant Nos.1 and 2. Similarly the act done or purported 





     to be done by non-applicant Nos.1 and 2 was not in discharge of their duty.The   non-applicant   Nos.1   and   2   cannot   claim   benefit   of   Section   197   of 

     Criminal procedure Code simply because they were on duty at the time of 

     alleged   assault   on   their   part   which   resulted   into   death   of   son   of   the 

     applicant.     Therefore,   in   my   opinion,   this   is   not   a   case   where   the   prior 

     sanction for prosecution was needed.  The order passed by the sessions court::: Downloaded on - 06/01/2014 03:40:46 :::14                                  appln3970.06.odt




                                                                                  
     is absolutely wrong and needs to be set aside.   Hence, I pass the following 




                                                         
     order.The application is allowed.The   order   passed   by  the   learned   Ad   hoc   Additional   Sessions 

     Judge, Akola on 1-8-2006 in Sessions Trial No.54/2003 below Exh.4 is set 




                                             
     aside.  The trial to proceed according to law.Since this application was pending in this Court for more than 

     seven years, it will be just and proper to direct the trial court to hear the 
                       
     matter as expeditiously as possible and to decide the same within a period of 

     seven months from the date of receipt of this order. order accordingly.JUDGE.pma::: Downloaded on - 06/01/2014 03:40:46 :::