Paul George Vs. State of
N.C.T. Of Delhi [2008] Insc 478 (14 March 2008)
S.B.Sinha & Harjit Singh
Bedi
CRIMINAL APPEAL NO. 501/2008 (arising out of SLP (Crl) No. 40/2007) HARJIT
SINGH BEDI,J.
1. Leave granted.
2. This appeal by way of special leave is directed against the judgment of
the High Court of Delhi dated 30th May, 2006 confirming the judgment of the
trial court and the first appellate court convicting the appellant for offences
punishable under Sections 279 and 304-A of the IPC but reducing the sentence
imposed by the first two courts to 6 months imprisonment but retaining the fine
as it is.
3. The appellant who was working as a Head Constable with the Delhi Police
and posted at P.S. Kashmere Gate was directed to go to the Police Headquarters
at ITO to convey an urgent message. He left the Police Station driving police
Mini Truck No. DDL-6462. As the vehicle reached under the railway bridge on the
Ring Road going towards Jamuna Bazar it went over the road divider and hit a
scooter driven by Hans Kumar with his friend Atma Ram sitting on the pillion
seat. Unnerved, the appellant attempted to steer the truck back on the other
side of the road but in doing so, struck an electric pole and came to a halt.
The Police Control Room was called and Atma Ram was taken to the Jai Prakash
Narain Hospital where he subsequently succumbed to injuries.
The appellant was accordingly tried and convicted under sections 279 and
304-A of the IPC, as already mentioned above. The conviction and sentence was
confirmed by the first appellate court, by the High Court in revision and was
further challenged by way of a special leave petition in this Court.
4. The primary plea raised at that stage was that the order of the High
Court dismissing the revision petition was a non- speaking one and as the main
plea that the prosecution was bad abinitio as being beyond limitation
prescribed under Section 140 of the Delhi Police Act, 1978 (hereinafter called
the Act) had not been dealt with as the appellant had been acting
under the colour of duty. This Court allowed the appeal and remitted the case
to the High Court. It is in this circumstance that a second round of litigation
started before the High Court. Before the High Court, the learned counsel
appearing for the petitioner (the present appellant) conceded that section 140
would not come into play but that sanction had nevertheless to be taken under
Section 197 of the Code of Criminal Procedure as the appellant had been acting
or purporting to act in discharge of his police duty in driving an official
vehicle when the accident had taken place. The learned counsel for the
appellant placed reliance on Sankaran counsel for the State, however, submitted
that that no sanction under section 197 was necessary inasmuch as there was no
connection between the duty of the appellant and his rash and negligent act in
crossing the road divider and hitting a vehicle on the other side and as such
the question of the applicability of Section 197 of the Cr.P.C. did not arise.
Several judgments were cited by the learned counsel for this proposition as
well. In addition, the State counsel urged that Section 197 of the Code was
applicable only in a case where the public servant concerned was not removable
from service save by or with the sanction of the Government and the appellant,
a mere Head Constable, did not fall in this exalted category. It was also urged
that even assuming sanction was required the trial would still not be vitiated
and the proceeding and the sentence could not be set aside because of a mere
irregularity more particularly as the non-obtaining of the sanction had not in
any way occasioned a failure of justice in the trial.
5. The High Court in the course of its judgment held that as per the
provisions of Section 465 of the Code a irregularity in the sanction would not
ipso-facto entitle a court of appeal or revision to reverse an order of
conviction unless it could be established that such an error had resulted in a
failure of justice. The Court accordingly held that as the appellant had not
raised this issue before the trial court and the first appellate court, it was
unnecessary to examine as to whether the sanction under Section 197 of the Code
was required or not. The revision petition was accordingly dismissed, leading
to this appeal.
6. Before us the learned counsel for the appellant has made a volte-face and
has submitted that the prosecution against the appellant was completely barred
under section 140 (1) of the Delhi Police Act
as it has not been initiated within 3 months from the date of incident. This
plea has been opposed by the Government counsel, as being an after thought and
not even pressed earlier. The matter must thus be examined.
Section 140 of Delhi Police Act
is re-produced below:
Bar to suits and prosecutions.- (1) In any case of alleged offence by
a police officer or other person, or of a wrong alleged to have been done by
such police officer or other person, by any act done under colour of duty or
authority or in excess of any such duty or authority, 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 and if
entertained shall be dismissed if it is instituted, more than three months
after the date of the act complained of:
Provided that any such prosecution against a police officer or other person
may be entertained by the court, if instituted with the previous sanction of
the Administrator, within one year from the date of the offence.
(2) In case of an intended suit on account of such a wrong as aforesaid, the
person intending to sue shall give to the alleged wrongdoer not less than one
months notice of the intended suit with sufficient description of the
wrong complained of, and if no such notice has been given before the
institution of the suit, it shall be dismissed.
(3) The plaint shall set forth that a notice as aforesaid has been served on
the defendant and the date of such service and shall state what tender or
amends, if any, has been made by the defendant and a copy of the said notice
shall be annexed to the plaint endorsed or accompanied with a declaration by
the plaintiff of the time and manner of service thereof.
7. A bare perusal would show that sub-section (1) of Section 140 provides
that any action against a wrongful act by a police officer done under the
colour of duty has to be initiated within three months from the date
of the act complained off and if this time limit is exceeded, it would bar the
suit or prosecution. The learned counsel for the appellant has then argued that
as the appellant was carrying an urgent message from the Kashmere Gate Police
Station to the Police Head Quarters when the accident had taken place, he had
been acting under the colour of duty and was therefore entitled to the benefit
of sub section (1) of Section 140 of the Act. It has also been pleaded that the
term offence used in the Section ibid could not be confined only to
offences committed under the Act but was applicable to offences under the Penal
Code and for both these propositions, the learned counsel has placed reliance
on judgment of this Court in Virupaxappa Veerappa Kadampur vs. State of Mysore
AIR 1963 SC 849. The cited case pertains to sub section (1) of Section 161 of
the Bombay Police Act which is a provision analogous to Section 140 (1) of the
Act and while explaining this provision in the context of the facts of the
case, this Court observed that the Head Constable concerned had been found
remiss in recording a false panchnama with regard to the recovery of ganja and
as the preparation of panchnama was within the exclusive purview of a police
officer, the recording of such panchnama could be said to be under the colour
of duty and as such covered by the limitation laid down in Section 161 of the
Bombay Police Act. This is what the Court had to say:
8. In view of these provisions of law it has 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.
9. 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 for 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 Section
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 Whartons Law Lexicon, 14th
Edn., we find at p. 214 the following:
Colour of office When an act is unjustly done by the
countenance of an office, being grounded upon corruption, to which the office
is as a shadow and colour. In Strouds Judicial Dictionary, 3rd Edn.,
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.
10. It appears to us that the words under colour of duty have been
used in section l61(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 Strouds
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.
8. It is therefore evident that what has to be seen on the facts of the case
is the nature of act and as to whether it fell within the protection available
to the appellant. The facts of the present case show that the appellant, a Head
Constable Driver, was posted at Kashmere Gate Police Station had been entrusted
with the task of delivering a wireless message to the Police Head Quarters at
the ITO in New Delhi and while on his way he had suddenly gone over the road
divider which separated the lanes and had hit the scooter which was oncoming in
the opposite lane. It is this act, the appellant had caused the death of one
person and injuries to the other.
Undoubtedly the duty entrusted to the appellant to deliver the message to
the Police Head Quarters was in his capacity as a police officer and to that
extent and prima facie he would be protected by Section 140 of the Act. We find
however that by jumping road divider and coming- face on the incoming traffic
was the factor which had caused the accident and was clearly not a matter
within the colour of duty. We are, therefore, of the opinion that the case of
the appellant would not be covered by Section 140 and that the initiation of
proceedings and the prosecution beyond three months from the date of accident
was not beyond limitation. It is also evident from the above discussion that
the appellants counsel in the various litigation that had come up the
hierarchy right up to the Supreme Court had taken an ambivalent stand with
regard to the sanction required under Section 197 of the Code and to the
limitation imposed by sub-section (1) of Section 140 of the Act. We now come up
to the sentence of the appellant.
9. This litigation has been going on for the last 20 years and has been
fought tenaciously through various courts, we are also told that the appellant
who has had a good career throughout but for this one aberration has since been
dismissed from service on account of his conviction. We, therefore, while
dismissing the appeal, feel that the ends of justice would be met if we direct
that the appellant be released on probation under Section 4 of the Probation of
Offenders Act,
1958 on conditions to be imposed by the Trial Court. The appeal is disposed
of in the above terms.
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