Thursday, 2 June 2016

When police officer will not be said to have acted under "colour or in excess of duty or authority" vested in him?

Looking to the judgments referred, I would not
invoke the matter of “Satish Vishwanath” (supra) relied on by the
learned counsel for the respondents. In fact in the latest
judgment on this count is the matter of Manabai w/o Kashirao
Tandle Vs. Jagannath Ganpat Girhe & ors., reported in 2014 ALL
MR (Cri) 4564 passed by this Court, after referring to the case
law, it has been observed in para 14 as follows :
“14. It is thus clear that the act alleged must have

some nexus with the duty of police officer to have
protection of Section 161 of the Bombay Police Act.
Unless some nexus or connection between the duty of
the police officer and the alleged act is shown, the
protection under Section 161 of 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, the protection was
available to the police officer. As such no straight-jacket
formula can be laid down in respect of the provisions of
Section 161 of 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 under Section 161 of the Bombay
Police Act. Similar is the position with regard to the
protection claimed by virtue of Section 197 of the
Criminal Procedure Code.”
22. If the facts of the present matter are seen in this
context, it is quite clear that, after taking police custody,
although the police could have interrogated the complainant,
there was no right to beat her or commit acts outraging her
modesty. Instead of resorting to scientific methods of
questioning, such acts were resorted to. There is no material to
show that while interrogating the complainant, any female police
official was present. The acts cannot be treated as done under

“colour or in excess of duty or authority” vested in the police
officials. The impugned order is not at all maintainable and
deserves to be set aside.
 IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD

CRIMINAL APPEAL 382 OF 2002
The State of Maharashtra,

VERSUS
 Sheshrao s/o Dagaduji Thombre,

CORAM: A.I.S. CHEEMA, J.
DATED: 22nd January, 2015.
Citation: 2016 ALLMR(CRI)1213

1. Respondents No.1 and 2, A.S.I. and Police Constable
respectively, were facing trial for offence punishable under

Sections 330, 324, 323, 354, 166 read with Section 34 of the
Indian Penal Code in clubbed trial R.C.C. No.157/1998 before the
Chief Judicial Magistrate, Parbhani. In the prosecution of R.C.C.
No.157/1998 filed by Police Station, Basmatnagar, the complaint
filed by the Judicial Magistrate, First Class, R.C.C. No.424/1993
was merged, in which evidence before charge had been recorded
and charge was also framed. Thereafter, in R.C.C. No.157/1998,
respondents – accused No.1 and 2 filed application Exhibit 46
invoking Section 161 of the Bombay Police Act, 1951 (hereinafter
referred as “the Police Act” in brief), claiming that the complaint
filed by Magistrate as well as the charge sheet filed by the police
regarding the offence alleged was time barred as the incident
complained of that they had beaten complainant Shantabai and
her husband and outraged modesty of the lady while she was in
police custody, was beyond the period of six months from the
date of incident. The acts were under the colour of duty as
contemplated under Section 161 of the Police Act and the
prosecution filed was time barred.
2. The Chief Judicial Magistrate heard the respondents –
accused and the Public Prosecutor and held that Section 161
applied to the acts complained of and as the complaint filed by
Judicial Magistrate, First Class as well as the charge sheet filed

after taking sanction were beyond the periods of limitation
provided under Section 161, the application was allowed and it
was found that the prosecution was not maintainable and the
respondents – accused came to be acquitted. The present appeal
is filed against such acquittal. It would be appropriate to make a
brief reference to facts involved to understand the controversy.
3. One Shantabai Jalbaji Dhone (hereinafter referred to
as “complainant”) came to be arrested with reference to N.C.
Case No.54/1992 of Basmatnagar Police Station. After taking the
necessary permission for investigation, her police custody was
taken by the police between 11.7.1992 to 13.7.1992, which
police custody was extended to 18.7.1992. On 18.7.1992, when
the said Shantabai was produced before the Judicial Magistrate,
First Class, Basmatnagar, she complained of physical illtreatment
by the respondents – accused as well as made
allegations of outraging her modesty. It was found that, she had
13 injuries on her person. It appears that, she has claimed that
water mixed with chilly was poured in her vagina in order to
extract information from her. The offence related to Treasure
Trove Act and police wanted to recover gold coins found as
treasure. The then Judicial Magistrate, First Class reported the
matter to the Sessions Judge in view of para 3 of Chapter I of the

Criminal Manual and on directions of the Sessions Judge, Joint
Judicial Magistrate, First Class, Basmatnagar enquired into the
complaint. He sent report to the sessions Judge, Parbhani and
on subsequent directions, Judicial Magistrate, First Class,
Basmatnagar filed the R.C.C. No.424/1993 on 29.5.1993 under
sections 323, 324, 330, 504, 354, 166 read with Section 34 of
the Indian Penal Code.
4. In the meanwhile, complainant Shantabai filed F.I.R.
No.98/1992 with the Basmatnagar Police Station on 25.7.1992
regarding the torture to her while she was in police custody. It
appears that, sanction of the competent authority was sought
and it was received on 7.5.1994 and thereafter the charge sheet
came to be filed on 4.8.1994 under Sections 330, 323 read with
Section 34 of the Indian Penal Code.
5. The learned A.P.P. has argued that, there is medical
evidence available and even evidence before charge was
recorded and it discloses that the complainant Shantabai had as
many as 11 injuries which were inflicted on her while she was in
police custody by the respondents No.1 and 2. It has been
argued that, the complaint of Shantabai is that, in order to
extract information from her, she was given third degree

treatment which included beating by belt as well as the accused
standing on her thighs wearing boots and pouring water mixed
with chilly in her vagina. According to the A.P.P., the acts of
accused could not have been passed of as acts committed in
discharge of duty or under the colour of duty.
6. Against this, learned counsel for the respondents –
accused submitted that the trial Court has considered the dates
of complaint and found that the complaint made by the Judicial
Magistrate, First Class as well as the charge sheet after taking
sanction, were barred in view of provisions of Section 161 of the
Police Act. It has been argued that, the learned Chief Judicial
Magistrate, while passing the impugned order, has considered
the judgments as referred in the trial Court judgment and rightly
concluded that the prosecution was not maintainable.
7. Before discussing the matter further, it would be
appropriate to refer to the concerned Sections as well as relevant
part of Section 161 of the Bombay Police Act. Sections 159, 160
and relevant part of Section 161 read as under :
“159. No Magistrate or Police Officer to be liable to
penalty or damage for act done in good faith in
pursuance of duty :-

No Revenue Commissioner, Magistrate
or Police Officer shall be liable to any 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
provision of this Act or any other law for the
time being in force or any rule, order or
direction made or given therein.
160. No public servant liable as aforesaid
for giving effect in good faith to any rule,
order or direction issued with apparent
authority :-
No public servant or person duly
appointed or authorised shall be liable to any
penalty or to payment of any damages for
giving effect in good faith to any such order or
direction issued with apparent authority by the
State Government or by a person empowered
in that behalf under this Act or any rule, order
or direction made or given thereunder.
161. Suits or prosecutions in respect of
acts done under colour of duty as
aforesaid not to be entertained, or to be
dismissed if not instituted within the
prescribed period :-
(1) In any case of alleged offence by the
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, any
act done under colour or in excess of any such
duty or authority as aforesadid, 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.”
(2) . . . . . . . .
(emphasis supplied)
8. Learned counsel for the respondents relied on the
case of Virupaxappa Veerappa Kadampur Vs. State of Mysore,
reported in AIR 1963 SC 849, in which the Hon'ble Supreme
Court considered the above words “under colour of duty”. In
para 10, it was observed as under : counsel
10. It appears to us that the words “under colour of
duty” have been used in S.161(1) to include acts done
under the cloak of duty, even though not by virtue of the
duty. When he (the police officer) prepares a false
Panchnama or a false report he is clearly using the
existence of his legal duty as a cloak for his corrupt
action or to use the words in Stroud's Dictionary “as a
veil to his falsehood”. The acts thus done in dereliction
of his duty must be held to have been done “under
colour of the duty”.
9. Reliance was placed by the learned counsel for the
respondents on the case of Satish Vishwanath Palasdekar & ors.
Vs. State of Maharashtra, reported in [1999 (1) Mh.L.J.204 to
submit that even if it was alleged that, force was used agianst
the complainant, the acts would be protected. In that matter, in
spite of offence under Section 304-A of I.P.C., benefit of Section
161(1) of Police Act was given. The Counsel has further, relying

on the case of State Vs. Atmaram Mahadeo Ghosale, reported in
[1964 Mh.L.J. 471] submitted that the present prosecution must
be treated as barred by limitation.
10. The above three judgments relied on by the learned
counsel were referred to and relied on by the trial Court also
while acquitting the accused.
11. With reference to the interpretation of the words
“under colour of duty”, relying on the above four judgments, the
learned counsel for respondents vehemently submitted that the
acts complained of in the present matter must be treated as
“under colour of duty” or at the most in excess of duty or
authority and so, Section 161 applies.
12. There is no dispute regarding the fact that the police
custody of Shanbtabai was extended from 13.7.1992 till
18.7.1992 and on 18.7.1992, she made complaint that during
the course of her police custody, she had been given illtreatment
and claimed that her modesty had been outraged. The
Judicial Magistrate, First Class, after following the necessary
procedure under Criminal Manual, filed the complaint on
29.5.1993, which was admittedly beyond six months of even

18.7.1992 when the grievance of ill-treatment was made. The
offence took place between 13.7.1992 to 18.7.1992. It appears
that, the competent authority gave sanction on 7.5.1994, but
somehow the police station went slow and instead of filing the
charge sheet, before expiry of two years of the incident, the
same was filed on 4.8.1992. Whatever it may be, the fact
remains that, if Section 161 was to be invoked, the prosecution
would not be liable to be entertained. However the question is
whether the acts complained of could be covered under Section
161 as is being argued by the learned counsel for respondents
relying on the interpretation of Section 161 and judgments
referred above.
13. Coming to the judgment of “Virupaxappa” (supra), it
was a case where the appellant Head Constable caught one Nabi
Sab on 23.2.1954 with bundle containing 15 packets of Ganja.
However, he prepared panchanama incorrectly showing seizure
of only 9 packets. On 24.2.1954, it was alleged that the Head
Constable prepared new panchanama falsely reciting that a
person coming towards village Budhihal ran away after throwing
away a bundle and the said bundle contained 9 packets of Ganja.
The Head Constable was prosecuted as it was alleged that the
panchanama and the report prepared by him were with dishonest

intention of saving Nabi Sab from legal punishment. It was in
this context that the Hon'ble Supreme Court, in para 11,
observed as under :
“11. 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 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.”
14. Coming to the case of “Atmaram Mahadeo” (supra)
relied on by the the trial Court, it simply referred to Head Note
(b) without going into the judgment. Para 3 of that judgment
shows that, what was being looked into by the Hon'ble High
Court was the question raised whether Section161 refers to
private complaint or to State. It was argued that, prosecution
launched by police report would not be affected. It was,
however, held in para 13 of the judgment as under :-
13. Since all prosecutions are really prosecutions on
behalf of the State, it is not possible to accept the
argument that prosecutions which are intended by the
Legislature to be covered by Section 161 of the Bombay
Police Act are prosecutions initiated on private
complaints and not prosecutions initiated on police
reports. The use of the word “prosecution” in Section

161(1) necessarily implies that the State is referred to in
that provision, and it must, therefore follow that every
prosecution for an offence specified in Section 161(1) will
come under the mischief of that provision irrespective of
whether it is initiated on a private complaint or a police
report.”
The matter was then referred back for decision to the
Single Judge.
 Thus, the facts of these judgments relied on by
respondents – accused were different.
15. Question is whether it is permissible for the police to
beat a person in custody to extract information. Whether such
act could be treated as act done under colour or in excess of duty
or authority vested in the police. Section 161 of the Police Act,
while referring to the act, refers to “any such duty or authority as
aforesaid”. Thus, the Section has to be read in context of
Sections 159 and 160 reproduced above. Section 159 and
section 160 show that the act done has to be an act done in good
faith and in pursuance or intended pursuance of any duty
imposed or authority conferred on the police officer. As per
Section 52 of the IPC, nothing is said to be done in good faith
which is done without due care and caution.

16. In this regard one of the old judgments is in the
matter of Narayan Hari Tarkhande Vs. Yeshwant Raoji Naik etc.,
reported in AIR 1928 Bombay 352. This judgment was by the
Full Bench. Facts of that matter show that, Sub-Inspector of
Police, while investigating a cognizable offence against two
berads called for the plaintiff to question him. When the plaintiff
disclaimed of knowledge about the bearads, the Sub-Inspector
got angry and abused the plaintiff and pulled him by his
moustache. It was alleged that, the plaintiff was beaten. The
plaintiff filed suit for recovery of damages. The matter was
considered in the context of Bombay District Police Act and
Section 80 of the Code of Civil Procedure as was then applicable.
The observations in the judgment (Page 358) show that even at
that time, it was observed that :
“The case was one of assault and battery in which
damages were sought and it would be absurd to suggest
that a police officer who has been guilty of assault and
battery can say that he purported to commit that assault
and battery in his official capacity.”
While answering the reference, it was held (at Page
362) that the alleged assault or battery cannot be said to have
been committed under colour or in excess of such duty or
authority.

17. In the matter of The State of Andhra Pradesh Vs. N.
Venugopal & ors., reported in AIR 1964 SC 33, three Judge
Bench of Hon'ble Supreme Court was considering provisions of
the Code of Criminal Procedure, 1898 and the provisions of
Madras District Police Act. The observations in para 16 of the
judgment show that the Supreme Court found that the provisions
of the Cr.P.C. do not authorise the police officers to beat or to
confine the person with a view to induce him to make a
statement.
18. In the matter of State of Maharashtra Vs. Narhar
Rao, reported in AIR 1966 SC 1783, observations of the Hon'ble
Supreme Court show that police officer accepting bribe to
weaken case of prosecution against accused cannot be said to be
committing acts under the colour of office or act done in excess
of duty or authority within the meaning of Section 161 of the
Bombay Police Act. It found that the limitation of six months did
not apply to such police officers. In the same report, in the
matter of State of Maharashtra Vs. Atma Ram & ors., reported in
AIR 1966 SC 1786, it was held that :-
“The provisions of Ss. 161 and 163 of the Criminal
Procedure Code emphasize 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 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 by S. 161(1) of the
Bombay Police Act.”
(Position cannot be said to have changed after
Cr.P.C. of 1973 came into force)
19. In the matter of Ashok s/o Bhikaji Pawar Vs. Pralhad
s/o Namdeo Edke & anr., reported in 1988(1) Bom.C.R. 219, the
police person had dragged the complainant from the Ota of his
house to the police station and assaulted him throughout the
way. It was found by this Court that the defence of immunity
from legal action sought under Section 159 would not be
available as there was no basis to infer that the complainant was
evading arrest or that he had put up any resistence to the so
called arrest.
20. In the matter of D.K. Basu Vs. State of W.B. etc.,
reported in (1997) 1 Supreme Court Cases 416, Hon'ble
Supreme Court extensively dealt with custodial violence, torture
etc. in police custody or lock up. Observations in para 28 of the
judgment are as under :

“28. Police is, no doubt, under a legal duty and has
legitimate right to arrest a criminal and to interrogate him
during the investigation of an offence but it must be
remembered that the law does not permit use of third
degree methods, or torture of accused in custody during
interrogation and investigation with a view to solve the
crime. End cannot justify the means. The interrogation
and investigation into a crime should be in true sense
purposeful to make the investigation effective. By
torturing a person and using third-degree methods, the
police would be accomplishing behind the closed doors
what the demands of our legal order forbid. No society
can permit it.”
 In para 35 of the judgment, the Hon'ble Supreme
Court has given certain directions as preventive measures in this
context. Keeping this judgment of the Hon'ble Supreme Court in
view, it cannot be said that custodial violence can be permitted in
civilized society.
21. Looking to the judgments referred, I would not
invoke the matter of “Satish Vishwanath” (supra) relied on by the
learned counsel for the respondents. In fact in the latest
judgment on this count is the matter of Manabai w/o Kashirao
Tandle Vs. Jagannath Ganpat Girhe & ors., reported in 2014 ALL
MR (Cri) 4564 passed by this Court, after referring to the case
law, it has been observed in para 14 as follows :
“14. It is thus clear that the act alleged must have

some nexus with the duty of police officer to have
protection of Section 161 of the Bombay Police Act.
Unless some nexus or connection between the duty of
the police officer and the alleged act is shown, the
protection under Section 161 of 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, the protection was
available to the police officer. As such no straight-jacket
formula can be laid down in respect of the provisions of
Section 161 of 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 under Section 161 of the Bombay
Police Act. Similar is the position with regard to the
protection claimed by virtue of Section 197 of the
Criminal Procedure Code.”
22. If the facts of the present matter are seen in this
context, it is quite clear that, after taking police custody,
although the police could have interrogated the complainant,
there was no right to beat her or commit acts outraging her
modesty. Instead of resorting to scientific methods of
questioning, such acts were resorted to. There is no material to
show that while interrogating the complainant, any female police
official was present. The acts cannot be treated as done under

“colour or in excess of duty or authority” vested in the police
officials. The impugned order is not at all maintainable and
deserves to be set aside.
O R D E R
(I) The order of the Chief Judicial Magistrate, Parbhani,
dated 11.10.2001, passed in R.C.C. No.157/1998,
acquitting the respondents – accused is quashed and
set aside. The criminal prosecution is restored to its
original number. The trial shall now proceed further
according to law.
(II) Looking to the fact that it is an old case, the same is
expedited. The Chief Judicial Magistrate, Parbhani shall
try to dispose the case within six months. Respondents
– accused are directed to appear before the trial Court
on 16th February 2015.
(III) Observations made in this judgment regarding facts are
limited for taking decision in this appeal and shall not
affect the trial which is yet to be completed.
Appeal stands disposed accordingly.
(A.I.S. CHEEMA, J.)

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