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Mohan Mallu Rathod and ors. Vs. State of Maharashtra - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Case NumberCriminal Writ Petition No. 627 of 1984
Judge
Reported in1985(2)BomCR633
ActsCode of Criminal Procedure (CrPC) , 1973 - Sections 197, 197(1) 218 to 224 and 482; Criminal Law Amendment Act, 1952 - Sections 6 and 7; Bombay Police Act, 1951 - Sections 161 and 161(1); Prevention of Corruption Act, 1961 - Sections 6 and 6(1); Indian Penal Code (IPC), 1860 - Sections 161, 164 and 165
AppellantMohan Mallu Rathod and ors.
RespondentState of Maharashtra
Appellant AdvocateC.A. Phadkar, Adv.
Respondent AdvocateP.P. Hudalikar, P.P.
DispositionApplication rejected
Excerpt:
criminal - illegal acts - sections 5 (2), 5 (1) (c), 5 (1) (d), 6 (1), 161 and 165a of prevention of corruption act, 1947, sections 161 and 161 (1) of prevention of corruption act, 1961and sections 161, 164 and 165 of indian penal code, 1860 - petitioners (police officers) along with accused ordered raid in gaming house - allegation raised that they entered in criminal conspiracy to do illegal acts - sanction to prosecute petitioners and accused recorded by respondents - in preamble of sanction it was mentioned that petitioners committed offence under act of 1860 and 1947 - sanction accorded in respect of offences as specified in column 4 of schedule appended to sanction - charges restricted to offences specified in column 4 so far as offences mentioned in section 6 (1) act of 1947 - all.....m.s. jamdar, j.1. the petitioners have filed this petition under article 227 of the constitution of india and section 482 of the code of criminal procedure for quashing the orders passed by the special judge, kolhapur on five applications filed by the petitioners for various reliefs in special case no. 1 of 1983.2. petitioner nos 1 to 13 (original accused nos. 1 and 4 to 15 in special case no. 1 of 1983) are public servants being members of the police force. at the material time petitioner no. 1 was working as a sub-divisional police officer at the city sub-divisional of kolhapur city. petitioner nos. 3 to 8 who are police constables were attached to the laxmipuri police station at kolhapur. petitioner nos. 9, 10 and 13 were attached to police headquarters and petitioner nos. 11 and 12.....
Judgment:

M.S. Jamdar, J.

1. The petitioners have filed this petition under Article 227 of the Constitution of India and section 482 of the Code of Criminal Procedure for quashing the orders passed by the Special Judge, Kolhapur on five applications filed by the petitioners for various reliefs in Special Case No. 1 of 1983.

2. Petitioner Nos 1 to 13 (Original Accused Nos. 1 and 4 to 15 in Special Case No. 1 of 1983) are public servants being members of the Police force. At the material time petitioner No. 1 was working as a Sub-divisional Police Officer at the city sub-divisional of Kolhapur city. Petitioner Nos. 3 to 8 who are Police constables were attached to the Laxmipuri Police Station at Kolhapur. Petitioner Nos. 9, 10 and 13 were attached to Police headquarters and petitioner Nos. 11 and 12 were working as wireless operators at the Police Control Room at Kolhapur and petitioner Nos. 14 and 15 (original accused Nos. 15 and 17) are panch witnesses who attested the panchanama; alleged to be made in respect of the raid carried out on Parvez Mitra Seva Mandal, a common gaming house, on the night between 8th and 9th December, 1981. The raid in question was ordered by petitioner No. 1 and was carried out by original accused Nos. 2 and 3, the Police Officers who were attached to the Laxmipuri Police Station at Kolhapur, at the material time.

3. It is the case of the prosecution that petitioners and original accused Nos. 2 and 3 entered into a criminal conspiracy during 1st December, 1981 and 2nd January, 1982 to do certain illegal acts by illegal means, by raiding Parvez Mitra Seva Mandal, a common gaming house on the night between 19th and 20th December, 1981 with the ulterior motive of mis-appropriating the amount found there and for demanding and accepting illegal gratification and to let out the persons taken in custody at the gambling den and to accept illegal gratification for releasing the arrested persons on bail and to lodge first information report incorrectly and to carry out gambling raid without panchas and no in accordance with law and to prepare statements of witnesses without questioning them and to manipulate changes in the log sheets of the Police Control Room and to destroy original pages of the log sheet of the mobile police van and to intentionally aid the persons found in the common gaming house to escape and to direct the station house officers, Laxmipuri Police Station to adjust entries in the station diary and to make false entries in the station diary and temporarily misappropriate the amounts shown to have been attached in the common gaming house. It is further the prosecution case that in pursuance of the said criminal conspiracy the petitioners did various acts amounting to offences punishable under sections 161, 165A, 201, 218, 221 and 409 read with section 34 and section 109 I.P.C. and section 5(2) read with section 5(1)(c) and (d) of the Prevention of Corruption Act.

4. Sanction to prosecute the petitioners and accused Nos. 2 and 3 was accorded by the Government of Maharashtra in exercise of the powers conferred by Clause (b) of sub-section (1) and sub-section (3) of section 197 of the Code of Criminal Procedure, 1973, and section 6(1)(b) of the Prevention of Corruption Act. The first paragraph of the preamble of the sanction reads as follows :---

'Whereas it has been reported to the Government of Maharashtra that the following Police Officers and men (hereinafter referred to as the accused persons), whose names have been also specified in Column No. 2 of the schedule hereto (hereinafter refereed to as the said schedule) while posted at Kolhapur district in the posts mentioned against them during the month of December 1981 or thereabout committed offences as specified in Column No. 4 of the said schedule.'

5. The schedule has four columns. In the first column serial number of the accused is mentioned. In the second column particulars of the accused persons, their names, designations and addresses are mentioned. In the third column Police Station crime register number and the date of the offences complained of are mentioned, while in Column No. 4, which is material, criminal acts leading to the criminal misconduct attributed to the accused persons and the offences attributed to each of the accused are mentioned.

6. On 17th August, 1984 the Special Judge, Kolhapur framed charges against the accused on 78 counts. The case was then posted for hearing on 1st October, 1984. Before that on 24th September, 1984 the petitioners filed five applications at Exhibits 109, 110, 111, 114 and 131 for various reliefs. The learned Special Judge rejected all these applications and hence the present petition.

7. We would first deal with applications, Exhibits 109 and 114 (copies annexed to the petitioner at Exhibit D and F) as both these applications relate to jurisdiction of the Special Judge by try the concerned accused. The application, Exhibit 109 was filed by the petitioners Nos. 2 to 12 (original accused No. 4 to 14) while the application, Exhibit 114 was filed by the panch witnesses, present petitioners Nos. 14 and 15 (original accused Nos. 16 and 17). The jurisdiction of the Special Judge to try petitioners Nos. 2 to 12, (original accused Nos. 4 to 14) was challenged by them on the ground that as no sanction to prosecute them or any of the offences mentioned in section 6 of the Criminal Law Amendment Act nor any sanction for conspiracy under section 120B, I.P.C. to commit the offences mentioned in section 6 of the Criminal Law Amendment Act, 1932 was granted by the sanctioning authority, they cannot be tried by the Special Judge for any of the offences under the Indian Penal Code on the basis of the sanction accorded to prosecute them for the said offences under the Penal Code.

8. It will be seen from Column 4 of the schedule appended to the sanction that sanction to prosecute petitioners Nos. 2 to 12 (original accused Nos. 4 to 14) was accorded to prosecute them only for the offences under section 120B, 409, 218 and 221 read with section 34 and 109 of the I.P.C. No. sanction was accorded to prosecute any of these petitioners for any of the offences mentioned in section 6 of the Criminal Law Amendment Act nor any conspiracy to commit any of the said offences. It is, therefore, contended that as there is no sanction to prosecute accused Nos. 4 to 14 for any of the offences mentioned in section 6 of the Criminal Law Amendment Act of 1932 the Special Judge cannot try these accused only for the offences punishable under the Indian Penal Code. It is contended that section 7(3) of the Criminal Law Amendment Act is not attracted.

9. Petitioners 14 and 15 (original accused 16 and 17) challenged the jurisdiction of the Special Judge on the ground that they are not public servants and hence the Special Judge is not competent to try them. As mentioned above petitioners Nos. 14 and 15 allegedly signed a false panchanama on 22nd December, 81 purported to have been made on 20th December, 81 in respect of the raid that was carried out on the night between 19th and 20th December, 1981 and thus abetted the commission of the offence punishable under section 218 I.P.C. committed by accused Nos. 1 to 13 by making a false panchanama. They are also charged for abetment of the offence under section 221 committed by accused Nos. 1 to 15 in intentionally omitting to apprehend 27 persons and allowing four others to escape. It is also the prosecution case that they joined the criminal conspiracy hatched by accused Nos. 1 to 15. It is contended on their behalf that section 7(3) of the Criminal Law Amendment Act cannot be invoked to confer jurisdiction on the Special Judge to try the accused who are not public servants.

10. Sub-section (1) of section 6 of the Criminal Law Amendment Act, 1952 which confers powers on the State Government to appoint the Special judge reads as follows :---

'6. Power to appoint Special Judges---

(1) The State Government may by notification in the Official Gazette appoint as many Special Judges as may be necessary for such area or areas as may be specified in the notification to try the following offences namely :---

(a) an offence punishable under section 161, section 162, section 163, section 164, section 165 or section 165A of the Indian Penal Code or section 5 of the Prevention of Corruption Act, 1947.

(b) any conspiracy to commit or any attempt to commit or any abetment of any of the offences specified in Clause (a).

11. Section 7 of the Criminal Law Amendment Act, 1952, which deals with jurisdiction of the Special Judge reads as follows :-

'7. Cases triable by Special Judges---

(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1898, or in any other law the offences specified in sub-section (1) of section 6 shall be triable by Special Judges only.

(2) Every offences specified in sub-section (1) of section (1) of section 6 shall be tried by the Special Judge for the area within which it was committed, or where there are more Special Judges than one for such area by such one of them as may be specified in this behalf by the State Government.

(3) When trying any case a Special Judge may also try any offence other than an offence specified in section 6 with which the accused may under the Code of Criminal Procedure, 1898, be charged at the same trial.

12. Shri Phadkar, the learned advocate for the petitioners laid emphasis on the word 'also' appearing in sub-section (3) of section 7 and contended that unless an accused is tried by the Special Judge for any of the offences specified in section 6 of the Criminal Law Amendment Act, 1952, he cannot be tried for any offence with which he may be charged at the same trial by virtue of the provisions contained in the Code of Criminal Procedure. He also contended that only the accused who can be tried by the Special Judge for any of the offences mentioned in section 6 of the Criminal Law Amendment Act, 1952 can be tried by the Special Judge for the offences with which the accused can be charged at the same trial under the provisions of the Code of Criminal Procedure. Thus an accused person who cannot be tried by the Special Judge of an offence specified in section 6 of the Criminal Law Amendment Act cannot be tried for any offence with which the accused can be charged under the Code of Criminal Procedure. It is difficult to accept this submission because there is no justification to put such a restricted interpretation on sub-section (3) of section 7. This provision makes application to trial before the Special Judge all the provisions contained in the Code of Criminal Procedure relating to joinder of charges. These provisions find place in sections 218 to 224 of the Code of Criminal Procedure, 1973. These provisions are analogous to sections 233 to 240 of the Code of Criminal Procedure, 1898. By making these provisions applicable to trials before the Special Judge the jurisdiction of the Special Judge is expanded not only viz-a-viz the offences which can be tried by the Special Judge but also in respect of the accused who can be tried by the Special Judge.

13. By virtue of section 219 of the Code of Criminal Procedure offences of the same kind committed within a space of 12 months can be tried together. Sub-section (1) of section 220 of the Code of Criminal Procedure lays down that if in one series of acts so connected together as to form the same transaction, more offences than one are committed by the same person he may be charged with and tried at one trial for every such offence. Sub-section (3) of the said section further provides that if the acts alleged constitute an offence falling within two or more separate definitions of any law in force for the time being by which offences are defined or punished, the person accused of them may be charged with, and tried at one trial for each of such offences. Sub-section (4) further provides that if several acts of which one or more than one would by itself or themselves constitute an offence, constitute when combined a different offence, the person accused of them may be charged with and tried at one trial for the offence committed by such acts when combined and for any offence constituted by any one or more of such acts. As laid down in section 221 of the Code of Criminal Procedure where it is doubtful what offence has been committed the accused may be charged in the alternative with having committed all or such offences and any number of such charged may be tried at once. By virtue of section 222 a person charged with a major offence can be convicted with a minor offence, where conditions requisite for initiation of proceedings in respect of the minor offence are satisfied. Clauses (a) to (g) of section 223 enumerate the cases in which several persons can be tried together. By virtue of Clause (a) of section 223 persons accused of the same offence committed in course of the same transaction can be charged and tried together. By virtue of Clause (b) of section 223 persons accused of an offence and person accused of abetment of or attempt to commit such offence can be tried together, and by virtue of Clause (d) of the said section persons accused of different offences committed in the course of the same transaction can be charged and tried together.

14. It cannot be disputed and it is not, that all the acts attributed to various accused person in this case are so connected together as to form the same transaction and hence by virtue of sub-section (1) of section 220 read with Clauses (a) and (b) of section 223 read with sub-section (3) of section 7 of the Criminal Law Amendment Act, accused Nos. 4 to 14 can be charged and tried alongwith accused Nos. 1 to 3 and 15 for offences complained of against them, even though there is no sanction to prosecute them for any of the offences mentioned in section 6 of the Criminal Law Amendment Act. Similarly petitioners 14 and 15 (original accused Nos. 16 and 17) who allegedly abetted the offences under sections 218 and 221 I.P.C. can be charged and tried alongwith other accused by virtue of the provisions contained in Clauses (b) and (d) of section 223 of the Code of Criminal Procedure read with sub-section (3) of section 7 of the Criminal Law Amendment Act, 1952.

15. Objections similar to the ones raised by petitioners 14 and 15 in this case were considered by the Supreme Court in State of Andhra Pradesh v. Kandimalla Subbaiah, : 1961CriLJ302 . In that case the first accused was a public servant and the other accused were private individuals to whom the first accused was alleged to have sold transport permit books intended to be issued to Central Excise Officers for granting permits to person applying bona fide for licences to transport tobacco. This is what Their Lordships observed in respect of the charge framed in that case :---

'No doubt, the offence mentioned in Charge No. 1 is alleged to have been committed not by just one person but by all the accused and the question is whether all these persons can be jointly tried in respect of all these offences. To this kind of charge section 239 would apply.'

The Supreme Court also pointed out that

'Sub-section (3) of section 7 provides that when trying any case a Special Judge may also try any offence other than an offence specified in section 6 with which the accused may under the Code of Criminal Procedure, 1898 be charge at the same trial and clearly, therefore, accused No. 1 could be tried by the Special Judge for offences under section 120B read with sections 466, 467 and 420 I.P.C. and similarly the other accused who are said to have abetted these offences could also be tried by the Special Judge.'

16. This decision was followed by the Supreme Court in Union of India v. I.C. Lal and another, : [1973]3SCR818 . In that case two army officers and a businessman of Gauhatti were put up for trial before the Special Judge appointed under the Criminal Law Amendment Act, 1952. One charge which was common to all the three of them was that between June 62 and January 63 all of them agreed to commit or caused to be committed offences under section 5(2) of the Prevention of Corruption Act and of cheating punishable under section 420 of the Indian Penal Code and these offences having been committed in pursuance of a conspiracy were punishable under section 120B of the Indian Penal Code read with section 5(2) of the Prevention of Corruption Act and section 420 I.P.C. Mr. Gupta, the businessman was charged under section 420 I.P.C. as well as under section 420 I.P.C. The two Army Officers were also charged with the offence under section 420 read with the offence under section 420 read with section 5(1)(d) of the Prevention of Corruption Act. It was argued on behalf of Mr. Gupta that he cannot be tried alongwith the two Army Officers by the Special Judge. Negativing this contention Their Lordships observed as follows :

'Under section 6 of the Criminal Law Amendment Act, 1952 the Special Judge may try and conspiracy to commit or any attempt to commit or any abetment of any of the offences punishable under sections 161, 165 or 165A of the Indian Penal Code of sub-section (2) of section 5 of the Prevention of Corruption Act and further sub-section (3) of section 7 of the same Act a Special Judge when trying any case may also try offences other than an offence specified in section 6 with which the accused may under the Code of Criminal Procedure, 1898, be charged at the same trial. Under section 235 of the Code of Criminal Procedure if in one series of acts so connected together as to form the same transaction, more offences than one are committed by the same person he may be charged with and tried at one trial for every such offence and under section 239 persons accused of the same offence committed in the course of the same transaction as well as persons accused of an offence and persons accused of abetment or of an attempt to commit such offence may be charged and tried together.'

Sections 235 and 239 of the Code of Criminal Procedure, 1898 are analogous to sections 220 and 223 of the Code of Criminal Procedure, 1973. The application Exhibits 109 and 114 therefore, were rightly rejected by the learned Special Judge.

17. By the applications Exhibits 111 and 131 (Annexures E and G respectively to the petition) the petitioners pleaded bar of limitation under section 161(1) of the Bombay Police Act. Application Exhibit 111 was filed by petitioners 14 and 15. Sub-section (1) of section 161 of the Bombay Police Act which is invoked by the petitioners to plead bar of limitation read as follows :

'161(1) In any case of alleged 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.'

18. The alleged offences were committed in December 1981, whereas the charge-sheet was submitted on 6th April, 1983. As contemplated by sub-section (1) of section 161 of the Bombay Police Act ordinarily prosecutions for offences arising out of any act done under colour or in excess of any such duty or authority committed by persons mentioned in sub-section (1) must be lodged within the period of six months from the date of the act complained of. As the prosecution in this case was launched beyond the said period of six months, it is sought to be quashed by the petitioners.

19. Petitions Nos. 14 and 15 are panch witnesses who allegedly signed a false panchanama on 22nd December, 1981 purported to have been made on 28th December, 1981 in respect of the raid in question. According to them as they are 'other persons' mentioned in sub-section (1) of section 161 limitation for their prosecution is six months and hence the prosecution is barred by limitation being launched beyond the said period. It was contended that as petitioner Nos. 14 and 15 were duty bound to act as panchas the acts attributed to them were done under the colour or in excess of such duty. It was pointed out that sub-section (8) of section 100 of the Criminal Procedure Code enjoins a duty on every person, if called upon to do so by a Police Officer to witness a search contemplated by section 100 of the Criminal Procedure Code and that refusal to act as panch witness amounts to an offence within the meaning of section 167 of the Indian Penal Code.

20. Sub-section (1) of section 161 does not specifically mentioned the duty or authority under colour or in excess of which the act complained of is committed but lays down that duty or authority contemplated is 'such as aforesaid'. By implication, therefore, the duty or authority contemplated is one to which reference is made in earlier provisions of the Bombay Police Act. Sections 159 and 169 protect public servants acting under the Bombay Police Act from prosecutions and civil suits arising on account of the implementation of the act or rules thereunder done in good faith. Section 159 lays down that no revenue Commissioner. Magistrate or Police Officer shall be liable to pay penalty or to payment of damages on account of an act done in good faith in pursuance or intended pursuance of any duty imposed or any authority conferred on him by any provisions of the Act or any other law for the time being in force or any rule, order of direction made or given therein. Section 160 affords immunity from action to public servants or persons duly appointed or authorised under the Bombay Police Act for giving effect in good faith to any such order or direction issued with the apparent authority by the State Government or of persons empowered in that behalf by the Act or any rule, order or direction made or given thereunder. As laid down in Clause (b) of section 64 of the Bombay Police Act, it shall be the duty of every Police Officer to the best of his ability to obtain to commit such offences, and 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 or to prevent the commission of cognizable and within his view of non-cognizable offences. Such Police Officer while carrying out search of a place is competent to direct persons to act as panch witnesses. Persons acting as panch witnesses in pursuance to such directions, therefore, would be the persons duty authorised to act as panchas and thus to carry out directions given to them by the Police Officer under the provisions of the Bombay Police Act. Petitioner Nos. 14 and 15 who acted as panch witnesses are, therefore, other persons mentioned in sub-section (1) of section 161 of the Bombay Police Act.

21. Petitioners 1 to 13 are the Police Officers and they are governed by the proviso to sub-section (1) of section 161. A prosecution against them can be entertained by the Court if instituted with the previous sanction of the State Government within two years from the date of the offence. Shri Phadkar, the learned Advocate for the petitioners 1 to 13 contended that no sanction as contemplated by the proviso to sub-section (1) of section 161 was accorded by the State Government and hence the limitation prescribed by sub-section (1) of section 161 is not extended in their case. Shri Hudlikar, the learned Public Prosecutor however tried to contend that proviso to sub-section (1) of section 161 does not contemplate of any separate sanction and as valid sanction has been accorded under Clause (b) of sub-section (1) and sub-section (3) of section 197 of the Criminal Procedure Code, 1973 and also under Clause (b) of sub-section (1) of section 6 of the Prevention of Corruption Act, the prosecution launched against petitioners 1 to 13 within two years from the date of the acts complained of is not barred by limitation. We are, however, unable to accept this submission because not only the scope but also the purpose of these three provisions is materially different.

22. Section 197 of the Code of Criminal Procedure contemplates previous sanction for prosecution of a Judge or a Magistrate or a public servant, accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty. The previous sanction under section 6 of the Prevention of Corruption Act is necessary only for the offences punishable under section 161 or section 164 or section 165 of the Indian Penal Code or under sub-section (2) of section 5 of the Prevention of Corruption Act alleged to have been committed by public servants, while sanction contemplated by proviso to section 161 relates to prosecution against a Police Officer for offences alleged to have been committed by such Police Officer by any act done under the colour or in excess of any such duty imposed or any authority conferred on him by any provision of the Bombay Police Act or any other law for the time being in force or any rules, orders or directions made or given therein.

23. As rightly contended by Shri Phadkar, the purpose of the sanction contemplated by proviso to sub-section (1) of section 161 is not to sanction a prosecution but to extend the period of limitation stipulated by sub-section (1). In support of this submission Shri Phadkar made a reference to the statement of objects and reasons for introducing the Bill by which the Bombay Police Act was amended so as to incorporate the proviso to sub-section (1) of section 161. Para 5 of the Statement of Objects and Reasons reads as follows :---

'In view of section 161(1) prosecutions in respect of acts done by certain officers under colour of duty cannot be entertained and are required to be dismissed, if not instituted within six months. There have been cases where Police Officers, although found guilty of serious offences, had to be let off, because the prosecutions were not launched within the prescribed period although the section is intended for protecting the officers from vexatious prosecutions, the present limitation period is too short. It is proposed to extend this period to two years in the case of Police Officers who are mainly concerned with the safeguard that the prosecution can be launched within the extended period only with the previous sanction of the State Government.'

The wording of the proviso is also not capable of any other interpretation. It is clear from the said provision that sanction contemplated by it is for extending the period of limitation. The proviso to section 161 contemplates a separate sanction which it is necessary to accord if the prosecution against a Police Officer is to be launched for any offence contemplated by sub-section (1) of section 161 beyond the period of six months.

24. Material question however is whether in the present case section 161(1) is attracted. Section 161 contemplates suits or prosecutions in respect of the acts done under colour or in excess of any duty or authority conferred on the officers mentioned in the said provisions. It was contended by Shri Phadkar that the offences complained of arose out of the acts done by the petitioners under the colour of office while conducting or in respect of the raid which as Police Officers they were competent to carry out. A Police Officer carrying out a raid on a common gaming house is competent to attach under panchanama articles go gaming including the amounts recovered from the gambling den or from the gamblers present in the gaming house to release persons who are not concerned with the gambling and to release the arrested accused on bail. These acts were, therefore, within the competence of the Police Officers who directed and carried out the raid and those policemen and the panch witnesses who helped them in carrying it out. In support of this proposition Shri Phadkar placed reliance on the decision of the Supreme Court in Virupaxappa v. State of Mysore A.I.R. 1963 S.C. 839. In that case the appellant Police Head Constable went to Budhihal Road on receipt of information about smuggling of ganja from the then Hyderabad State to Kalkeri and actually caught one Nabi Sab Kambhavi with a bundle containing 15 packets of ganja on 23rd February, 1954 and seized the said contraband articles under seizure panchanama. However on the next day i.e. on February 24, he made a new panchanama in which it was wrongly recited that the person who was coming from the village Budhihal ran away on seeing the panchas and the havaldar, after throwing away the bundle which was found to cotton in 9 packets of ganja. The panchanama was ante-dated and the date in that panchanama was mentioned as February 23, 1954. The appellant Head Constable was prosecuted and charged under section 218 of the Indian Penal Code and was convicted by the trial Court for the said offence rejecting appellant's contention that the prosecution was barred by section 161(1) of the Bombay Police Act. His appeal to the High Court failed, the High Court inter alia holding that on February 24, 1954 the appellant had no duty to perform in regard to the crime detected on 23rd and hence it was not possible to hold that preparation of a false panchanama and a false report were the acts done under colour or in excess of any such duty or authority contemplated by section 161(1) of the Bombay Police Act. In the appeal preferred by Head Constable Virupaxappa to the Supreme Court their 1/2 lordships analysed the expression 'under colour of office' and held that 'when the colour is assumed as cover or cloak for sometime which cannot be done in performance of the duty or in exercise of the right of office, the act is said to be done under colour of office or duty or right 'and that' it is reasonable to think that the legislature used the words 'under colour' in section 161(1) to include this sense' Their lordships also observed as follows in para 10 of the judgment :---

'It appears to us that the words 'under colour of duty' have been used in section 161(1) to include acts done under the cloak of duty, even though not by virtue of duty. When he (the Police Officer) prepares a false report of duty. When he prepares a false panchanama 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 Shroud'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'.'

25. The phrase 'under colour of office' used in section 161(1) of the Bombay Police Act was interpreted by the Supreme Court in State of Maharashtra v. Narhar Rao, : 1966CriLJ1495 and State of Maharashtra v. Atma Ram and others A.I.R. 1966 S.C. 1786. In Narhar Rao's case their Lordships laid down the test to determine whether a particular act was done under colour of office or in excess of the duty and observed as follows in para 3 of the judgment :---

'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 power or duty of office. To be able to say that the act was done under colour of office we must discover reasonable connection on the accused by the Bombay Police Act or other statutory enactment. Unless there is reasonable connection between the act complained of and the power and duties of office, it is difficult to say that the act was done by the accused officer under colour of office.'

26. In the first case the act complained of was that the accused respondent Narhar Rao had accepted bribe. In the second case the Police Officer wrongfully confined and ill-treated some persons for extorting confessions. In both these cases their lordships held that the alleged acts had no connection with the duty cast on the concerned officers and hence the bar of limitation imposed by section 161(1) of the Bombay Police Act was not attracted. In Bhanuprasad Hariprasad Dave v. State of Gujarat, the Supreme Court took the same view of the matter and held that the Police Officer who taking advantage of his position coerces a person for obtaining illegal gratification does not do the act under colour of duty and hence his prosecution for the offence under section 5-A of the Prevention of Corruption Act and 161 of the I.P.C. instituted more than six months after obtaining illegal gratification was not barred. In all these cases the Supreme Court distinguished Viruppaxapa's case, A.I.R. 1983 S.C. 849 on facts. The position that emerges after analysing there decisions of the Supreme Court is that unless there is reasonable connection between the act complained of and the powers and duties of the office, the act cannot be said to have been done under colour of office.

27. In the present case the acts complained of are that the Police Officers who carried out the raid, did not take panchas with them, they let off certain persons who were found gambling, accepted illegal gratification for releasing persons arrested on bail, misappropriated large amounts of money attached in the gaming house and from the persons found gambling in that house and made false and ante-dated panchanama on the next day with the assistance of panch witnesses. Shri Phadkar, the learned Counsel for the petitioners urged that all these acts had reasonable connection with the powers and duties of the concerned Police Officers. It is pertinent to note that according to the prosecution all these acts were committed in pursuance to a conspiracy. Shri Hudikar, the learned Additional Public Prosecutor rightly urged that conspiracy to commit an offence is itself an offence and hence can never be done under colour of office or in excess of office contemplated by section 161(1) of the Bombay Police Act or by virtue of office as contemplated by section 197(1) of the Criminal Procedure Code. Anything done in pursuance of such conspiracy cannot also be said to have been done under colour of office or by virtue of office. Even though these acts simpliciter may be covered by either or both the clauses. Moreover accepting illegal gratification or misappropriating attached property cannot be said to have been done under colour of office or by virtue of office. There cannot be reasonable connection between such acts and the powers and duties of the Police Officers empowered to carry out gambling raids. This is also the ratio of the decision of the Supreme Court in Ronald Wood Mathams and others v. State of MaharashtraA.I.R. 1954 S.C. 455. In that case the accused appellants before the Supreme Court were charged for conspiracy to cheat the Government and bribery. Appellant R.W. Mathams inter alia contended that the proceedings against him were bad for want of sanction under section 197 of the Criminal Procedure Code. Their Lordships held that the question whether sanction under section 197 was necessary for instituting the proceedings against the appellants on charges of conspiracy and of bribery was concluded by the decisions of the Judicial Committee in H.H.B. Gill and another v. The King A.I.R. 48 P.C. 128 and Phanindra Chandra Neogy v. The King A.I.R. 49 P.C. 117 and must be answered in the negative. Rightly the learned trial Judge held that section 161(1) of the Bombay Police Act is not attracted and hence prosecution of petitioner Nos. 14 and 15 which was instituted after the expiry of six months from the date of the act complained of, is not barred by limitation under sub-section (1) of section 161 nor is the prosecution of petitioners 1 to 13 is barred for want of sanction contemplated by the proviso to sub-section (1) of section 161 on the ground that it was not instituted within the period contemplated by sub-section (1).

28. This brings us to the application, Exhibit 110 filed by petitioners 1 to 13 for quashing the charges for offences for which no specific sanction is accorded either under Clause (b) of sub-section (1) and sub-section (3) of section 197 of the Code of Criminal Procedure or under section 6(1) of the Prevention of Corruption Act. We have already held above that as the acts attributed to these petitioners were committed in pursuance to a conspiracy, no sanction under section 197 of the Code of Criminal Procedure is necessary to prosecute them or under proviso to section 161(1) of the Bombay Police Act for extending the period of limitation provided by sub-section (1). Hence so far as the offence of conspiracy and offences under the Indian Penal Code, to which section 6 of the Prevention of Corruption Act is not applicable, are concerned, no sanction is necessary to prosecute petitioners 1 to 13.

29. The offences to which section 6 of the Prevention of Corruption Act is applicable, however, stand on a different footing. Section 6(1) of the Prevention of Corruption Act lays down that no Court shall take cognizance of offences punishable under section 161 or section 164 or section 165 of the Indian Penal Code or under sub-section (2) or sub-section (3-A) of section 5 of the Prevention of Corruption Act alleged to have been committed by a public servants except with the previous sanction of the authorities mentioned in Clauses (a) to (c) of the said sub-section (1) of section 6. Sub-section (2) of section 5 makes punishable criminal conduct of a public servant, as described in Clauses (c) or (d) of sub-section (1) of section 5. While sub-section (3-A) of section 5 makes punishable an attempt to commit offences referred to in Clauses (c) or (d) of sub-section (1) of section 5. Hence where a public servant is to be prosecuted for the aforesaid offences sanction under section 6(1) of the Prevention of Corruption Act is a must. Petitioners 1 to 13, therefore, cannot be charged for any of the aforesaid offences without specific sanction under sub- section (1) of section 6. No sanction however is necessary under sub-section (1) of section 6 for the offence of conspiracy to commit any of these offences.

30. Relying on the schedule appended to the sanction petitioners 1 to 13 sought to quash some of the charges for offences not specifically mentioned in the said schedule. The learned trial Judge rejected this contention on the grounds that the sanction letter must be read as a whole and that the charge is to be framed on the basis of the police papers and not on the basis of the sanction. This is what he observed in para 23 of his order below application Exhibit 110:

'It appears that the learned defence Counsel has put too much reliance on the schedule of the sanction. I have already said that the sanction letter is to be read as whole. If the sanction is read as a whole, it is abundantly clear that all the sections are enumerated in the sanction letter and as per these sections, the charges have been framed. Not a single different offences are also mentioned in the body of the sanction. Charge is to be framed on the basis of Police papers and not on the basis of sanction.'

31. No doubt in para 2 of the preamble of the sanction it is specifically mentioned that the petitioners committed offences punishable under sections 120B, 201, 218, 221, 409, 161, 165A, 34 and 109 of I.P.C. and under section 5(2) read with section (1)(c) & (d) of the Prevention of Corruption Act. 1947, and in the operative part of the sanction it is mentioned that sanction is accorded to prosecution against the petitioners for the said offences. Shri Hudlikar, learned Addl. Public Prosecutor laid emphasis on these averments in order to support the conclusion of the learned trial Judge that sanction is accorded in respect of all these offences and that specific charges can be legitimately framed in respect of the acts detailed in the police papers. He wants us to ignore the schedule as is done by the learned trial Judge according to whom it is just illustrative of the acts attributed to various accused. This submission, however, must be rejected because in the first paragraph of the preamble the Government of Maharashtra while according sanction acted on the report that the petitioner committed offences as specified in column 4 of the schedule. It cannot be said that the acts enumerated against respective accused are just illustrative and do not restrict the sanction only to those offences nor limits the power of the trial Judge to frame charges on the basis of the police papers. Reading the sanction as a whole it is clear to us that the sanction is accorded in respect of the offences as specified in column 4 of the schedule appended to the sanction. It, therefore, follows as a logical corollary of this conclusion that so far as the offences mentioned in sub-section (1) of section 6 of the Prevention of Corruption Act are concerned charges must be restricted to the offences specified in column 4 of the schedule appended to the sanction-order. So far as the offences under sections 161, 165A and under section 5(2) read with sections 5(1)(c) & (d) of the Prevention of Corruption Act, 1947 are concerned, the charges must be restricted to the distinct acts attributable to the respective petitioners as enumerated in column 4 of the schedule appended to the sanction. Consequently all the charges for offences under these provisions viz. sections 161, 165A Indian Penal Code and section 5(2) read with section 5(1)(c) & (d) of the Prevention of Corruption Act for which no specific sanction is given will have to be deleted and quashed. We have already held that no sanction is necessary for the offence of conspiracy or for other offences under the Indian Penal Code. We, therefore, pass the following order :---

32. The orders passed by the Special Judge, Kolhapur on the applications Exhibits 109, 111, 114 and 131 rejecting them are maintained.

33. The order passed by the Special Judge on the application Exh. 110 is modified.

1. Charges in paragraph Nos. 1 to 5, 13 to 16, 23, 27, 30 to 32, 35, 36, 47, 55, 56, 71 and 73 to 78 are retained.

2. The remaining charges are quashed and directed to be reframed as follows :

(a) No charge for any of the offences under sections 161, 165, 165A, Indian Penal Code and 5(2) r/w 5(1)(c) & (d) of the Prevention of Corruption Act should be framed either simplicitor r/w section 120B or section 34 or section 109 Indian Penal Code against petitioner Nos. 2 to 12 (original accused Nos. 4 to 14)

(b) that charges against petitioner Nos. 1 and 15 for the aforesaid offences should be restricted only on the specific acts mentioned in Column No. 4 of the sanction.

Mr. Phadkar makes an oral application for a certificate under Article 134 of the Constitution. Application is rejected.


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