Virupaxappa Veerappa Kadampur Vs. The
State of Mysore  INSC 306 (9 November 1962)
09/11/1962 GUPTA, K.C. DAS GUPTA, K.C. DAS
IMAM, SYED JAFFER DAYAL, RAGHUBAR
CITATION: 1963 AIR 849 1963 SCR Supl. (2) 6
CITATOR INFO :
R 1964 SC 33 (15) D 1966 SC1783 (6) D 1968
Criminal Law-Police Officer preparing false
report--"Act done under colour of duty", Meaning of-Statute providing
time limit for Prosecution--Validity of conviction-Indian penal Code. 1860 (Act
45 of 1860), s. 218-Bombay Police Act, 1951 (Bom. 22 of 1951), ss. 64, 161(1).
The appellant, a Head Constable, was charged
with an offence under s. 218 of the Indian Penal Code. The prosecution case was
that on February 23, 1954, on receipt of information that some persons were
attempting to smuggle Ganja, the appellant caught N with a bundle containing 15
packets of Ganja and seized them, that he then prepared a Panchnama in which he
incorrectly showed the seizure of 9 packets of Ganja only, and that on the next
day he, however, prepared a new report in which it was falsely recited that the
person with the bundle ran away on seeing the police after throwing away the
bundle containing 9 packets of Ganja only. The allegation against the appellant
was that he prepared a false report with 7 the dishonest intention of saving N
who had actually been caught with Ganja from legal punishment. The Trial Court
accepted the prosecution case and convicted the appellant.
The appellant challenged the legality of the
conviction on the ground, inter alia, that the alleged offence had been
committed "by an act done under colour of dutv" within the meaning of
s. 161 (I) of the Bombay Police Act , 1951, and that, therefore, the
prosecution was barred under that section inasmuch as it was instituted
admittedly more than six months after the date of the act complained of.
Held, that under s. 161 (1) of the Bombay
Police Act, 1951, the, words "under colour of duty" have been used to
include acts done under the cloak of duty, even though not by virtue of the
duty ; that when the appellant prepared a false report he was using the
existence of his legal duty as a cloak for his corrupt action and that,
therefore, the act thus done in dereliction of his duty must be held to have
been done "under colour of the duty." Madhav Ganpat Prasad
v.Maihidkhan, (1917) I.L.R. 41 Bom.737 and NarayanHari v. Yeshwant Raoji,
A.I.R. 1928 Bom. 352, approved.
Observations in Parbat Gopal Walekar v.
Dinkar S. Shinde, (1960) 63 Bom. L.R. 189; that "if the alleged act is found
to have been done in gross violation of the duty, then it ceased to be an act
done under colour of duty", disapproved.
Held, further, that the word
"offences" in s. 161 (1) of the Act refers to offences under any law,
and is not restricted to offences under the Act only.
CRIMINAL APPELLATE JURISDiCTION : Criminal
Appeal No. 144 of 1961.
Appeal by special leave from the judgmEnt and
order dated March 8, 1961, of the Mysore High Court in Criminal Appeal No. 362
Anil Kumar Gupta and R. K. Gary, for the
R.Gopalakrishnan and P. D. Menon, for the
8 1962' November 9. The judgment of the Court
was delivered by DAS GUPTA, J.-The only question for decision in this appeal is
whether the appellant's prosecution was barred by the special rule of
limitation in s. 161(1) of the Bombay police Act, 1951.
In February 1954, the appellant was employed
as a Head Constable at the Kalkeri Outpost attached to the Hippussagi Police
Station. On February 23, 1954, the appellant went to Budhihal Road on receipt
of information about the smuggling of Ganja from the then Hyderabad State to
Kalkeri and at about 2 or 3 p.m. actually caught one Nabi Sab Kembhavi with a
bundle containing 15 packets of Ganja. These 15 packets of Ganja were seized
and for this seizure the appellant prepared a Panchnama in which however he
incorrectly showed the seizure of 9 packets of Ganja only. On. February 24,
1954, it is alleged, the appellant had a new Panchnama prepared in which it was
falsely recited that a person who was coming towards the village of Budhihal
ran away on seeing the Panchas and the Havaldar, after throwing away a bundle
and this bundle was found to contain 9 packets of Ganja weighing one tola each.
The date in the Panchnama was mentioned as February 23, 1954. A report to the
same effect was also prepared. The prosecution case is that no such thing
happened on February 24 , 1954, or February 23, 1954 but that this Panchnama
and the report were falsely prepared by the appellant with the dishonest intention
of saving Nabi Sab Kembhavi who had actually been caught with Ganja from legal
On these allegations the appellant was tried
by the Additional Sessions judge, Bijapur, on a charge under s. 218 of the
Indian Penal Code. He pleaded not guilty and contended that the Panchnama and
the report which are challenged by the prosecution as a 9 false Panchnama were
correctly prepared by him on February
23. 1954, and mention the true state of
affairs is ; It was also: pleaded that Rule 542 of the Bombay Police Manual
barred his prosecution as prior permission of the District Superintendent of
Police had not been taken. A further defence was raised that in any case as the
prosecution was commenced long after six months had elapsed after the alleged
commission of the offence it was barred by s.161(1) of the Bombay Police Act.
The appellant. was however convicted by the
Trial Court under s. 218 of the Indian Penal Code and sentenced to rigorous
imprisonment for a period of one year.
" Against that order,, he appealed to
the High Court of Mysore. The High Court agreed with the Trial Court that an
offence under s. 218 of the Indian Penal Code had been made out. The defence
under. Rule 542 of the Bombay Police Manual was also rejected on the ground
that this Rule had no statutory force. As regards the plea of limitation under
s. 161(1) of the Bombay Police Act, 1951, the High Court was of the opinion
that on February 24. 1954, the appellant had duty to perform in regard to the
crime detected on the 23rd and hence it was not possible to hold that the
preparation of a false panchnama and a false report "were acts done under
colour 'or in excess of any such duty or authority as aforesaid" as found
in.s. 161(1) of the' Bombay Police Act.
Accordingly, the High Court dismissed the
Against that decision the present appeal has
been preferred by special leave granted by this Court and the only question
raised in the appeal is as regards the correctness of the High Court's
conclusion that the prosecution of the appellant was not barred under s. 161
(1) of the Bombay Police Act, 1951.
10 Section 161(1) is in these words:-
"161(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
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." In the present case, the prosecution
was admittedly instituted much more than six months after the date of the act
complained of. The allegation is that the offence was committed by a police
officer. If, there fore, it appears that the offence alleged to have been
committee "by any act done under colour or in excess of any such duty or
authority as aforesaid" within the meaning of the above Provision of law
the Prosecution was liable to be dismissed. From what has been said above about
the prosecution allegations it is clear that the offence is alleged to have
been committed, by the preparation of a False Panchnama and a false report on
February 24, 1954. The question that falls for decision therefore is whether'
the preparation of a Panchnama or a report was- an ""AC done under colour
or in excess of any such 'duty or authority as aforesaid." It is not
disputed that die preparation of a. correct Panchnama and a true report as,
regards the seizure the Ganja was, the duty of the police officer. It is
equally clear that such preparation was the duty of the police officer as laid
down in the Bombay Police Act. For s. 64 of the Act provides inter alia that it
shall be the duty of 11 every police officer, "to lay. such information
and to take such other steps consistent with law and with the orders of his
superiors as shall be best calculated to bring offenders to justice"; (s.
64 (b)) and also "to discharge such duties as are imposed upon him by any
law for the time being in force." That the appellant was an officer
authorised under the Bombay Prohibition Act to seize the Ganja in the
circumstances, alleged is clear. In seizing it, he had necessarily to prepare a
Panchnama, and to submit a report of the seizure.
In view of these provisions of law it has not
been seriously disputed before us that the preparation of a correct Panchnama
and a correct report as regards the seizure of Ganja was the duty of the
appellant. This duty was, on the prosecution allegation, not performed. The act
alleged to have been done, as already stated, was the preparation of a false
Panchnama and a false report : The question still to be considered therefore is
whether when the preparation of a correct Panchnama and a true report as
regards the seizure is the duty of the police officer concerned, he prepares
instead a false Panchnama and a false report, that act is done by him
"'under colour" or in excess of that duty.
The expression "under colour of
something" or "under colour of duty", or "'under colour of
office", is not infrequently used in law as well as in common parlance.
Thus in common parlance when a person is entrusted with the duty of collecting
funds for, say, some charity and he uses that opportunity to get money for
himself, we say of him that he is collecting money for himself under colour of
making collections or a charity. 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 is helpful to remember in this connection that the
words "colour of office" has been stated in many law lexicons- to
have the meaning just indicated above. Thus in Wharton's Law Lexicon, 14th
Edition, we find at p. 214 the following "Colour of office"
"'When an act is unjustly done by the counten- ancc of an office, being
grounded upon corruption, to which the office is as a shadow and colour."
In Stroud's judicial Dictionary, 3rd Edition, we find the following at p. 521
:- Colour : "Colour of office" is always taken in the worst part, and
signifies an act evil done by the countenance of an office, and it bears a
dissembling face of the right of the office, whereas the office is but a veil
to the falsehood, and the thing is grounded upon Vice, and the Office is as a
shadow to it.
But 'by reason of the office' and "by
virtue of the office' are taken always in the best part." 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 13 done in dereliction of his duty must be held
to have been done ""under colour of the duty We do not see how the
fact that the seizure was made on 23rd and the false report was prepared on the
24th affects this position. Whether the false report was prepared on the 23rd
or the 24th the fact still remains that he prepared this under cover of his
duty to prepare a correct Panchnama and a correct report and there is no escape
from the conclusion that the acts by which the offence under s. 218 of the
Indian Penal Code was alleged to have been committed by the appellant were done
by him under colour of a duty laid upon him by the Bombay Police Act.
The interpretation of the words "'under
colour of office" as used in s. 80, sub-s. 3 of the Bombay District Police
Act, 1890, which was in almost the same words as the present s. 161 (1) except
that the new section gives the protection also to the Revenue Commissioner or
the Commissioner, came up before the Bombay High Court on several occasions. In
Madhav Ganpat Prasad v. Maihidkhan (1) the complaint was that a Sub-Inspector
of Police had vexatiously seized the complainant's property and so committed an
offence punishable under s. 63 (b) of the Bombay District Police Act, 1890. It
was held or rather assumed-that the case fell within the provisions of s. 80,
sub-s. 3. The matter was considered by a Full Bench of the Bombay High Court in
Narayan Hari v. Yeswant Raoji (2) . There the allegation against the police
officer was that while investigating a case he had deliberately taken down the
statement of a witness incorrectly. The police officer was prosecuted under s.
167 and s. 218 of the Indian Penal Code more than six months after the
statement had been recorded. The question raised was whether the complaint
should be dismissed under s' 80, sub-s. 3, on the ground that the act
complained of was done under colour of a duty. The (1)  I.L.R. 41 Boat.
(2) A.I.R. 1928 Bom 352 14 full Bench decided
that even though the act was done in deliberate disregard of his proper duty
and authority the act was one done under colour or 'in excess of a duty imposed
or an authority conferred on him by the Police Act.
This view of the meaning of the word under
colour of duty was, in our opinion, correct.
Learned Counsel drew our attention to another
decision of the Bombay High Court in Parbat Gopal Walekar v. Dinkar &
Shinde (1) where the act of a police constable in driving rashly and
negligently when driving a police jeep which was carrying a Sub-Inspector of
Police, was proceeding for an enquiry was held not be one "under colour or
in excess of the duty imposed upon him as a constable driver." In the
concluding portion of the judgment the learned judge has observed thus :-
"If the police are entitled to have the benefit of a shorter period of
limitation when they are acting in pursuance of a duty imposed on them by the
Po1ice Act or any other law in force or any rule thereunder, and if the act is
alleged to amount to an offence or a wrong, then if it is found to have been
done in gross violation of their duty or in contravention of the limits placed
upon the performance of such duty by the law itself or any rules framed
thereunder, the act would cease to be an act done under colour or in excess of
their duty." On the facts of that particular cage the decision may well be
justified on the ground that injuring a person by rash and negligent driving
had no relation to. the duty of the constable to drive the motor vehicle. We think
it right however to point out that the view that if the alleged act "'is
found to have been done in gross violation of the duty" then it ceased to
be an act done under colour, is not correct.
.(1) (1960)63 Bom. L.R. 189.
15 As we have pointed out above it is only
when the act is in violation of the duty that the question of the act being
done under colour of the duty arises. The 'fact that;the Act has been done
under gross violation 'In of the duty can be no reason to think that the act
has not been done under colour of the duty.
We have come to the conclusion that on a
proper interpretation of the words ""under colour of duty", the
acts in respect of which the prosecution was, instituted were acts done under
colour of duty imposed upon him by the Police Act.
On behalf of the State it was contended next
that s. 161 (1) of the Bombay Police Act is limited to offences against the Act
and has no application to offences under the Indian Penal Code. We can find no
substance in this contention.
"'Offence" hag been defined in the
Bombay General Clauses Act to mean any act or omission made punishable by any
law for the time being in force. On this definition the word
"'offence" as used in s. 161 (1) clearly includes an offence under
the Indian Penal Code. if it was the intention of the legislature to limit the
application of s. 161 (1) to offences under the Bombay Police Act only that
would have been clearly mentioned. It is worth noticing in this connection the
language used in s. 150 of the Bombay Police Act. That section runs thus :--
"Offences against this Act, when the accused person or any one of the
accused persons is a police officer above the rank of a constable, shall no be
congnizable except by a Presidency Magistrate or a Magistrate not lower than a
second class magistrate.
If the legislature had intended to limit the
Application of s. 161 (1) to. offences under the Police Act only, it would have
instead of using the words 16 ""in any case of alleged offences"
used words like "in any case of offences against this Act.," It
appears clear that the legislature deliberately gave the protection of s. 161
(1) to offences against any law and there is no justification for our limiting
that protection to offences under the Police Act only. It must accordingly be
held that the prosecution against the appellant should have been dismissed in
accordance with the provisions of s. 161 (1) of the Bombay Police Act.
We accordingly allow the appeal, set aside
order of conviction and sentence passed against the appellant and order that
the case against him be dismissed.