Research › Browse › Judgment

Bombay High Court · body

1964 DIGILAW 36 (BOM)

Atmaram and Ors. v. The State of Maharashtra

1964-07-24

L.M.PARANJPE

body1964
JUDGMENT - (1) Three police officials, now under suspension, are challenging their convictions and sentences under sections 330, 342, 343 and 348 of the Indian Penal Code. (2) The appellants Atamaram and Uttam are Head Constables and the appellant Bhikaji is a police constable. All three of them were attached to the Jalgaon Police Station in Buldana District in September 1962. On 1st of September 1962, one Akaram went to that police station to report that his brother Lahanu had disappeared. He expressed a suspicion that Lahanu might have been murdered. The Sub-Inspector in charge of the police station recorded that information and ordered the appellant Atmaram to enquire into that report of Akaram. (3) The case for the prosecution was as follows :- From the report of Akaram, the appellant Atmaram suspected that Lahanu was murdered, and Shewanti wife of Sonaji, Dwarki wife of Lahanu, Sheikh Jumma, Sakharam son of Kisan and Sakharam son of Sonaji were involved in that murder. In order to obtain information from these persons with respect to the murder of Lahanu and for knowing where the corpse was, Atamaram kept these five persons in unauthorised custody from the 3rd of September 1962 till the 7th of September 1962 and also assaulted them. While she was in his custody, Atmaram also committed rape of Dwarki wife of Lahanu. The co-accused Uttam and Bhikaji also helped him in these illegal acts. Hence the prosecution under sections 330, 342, 343, 348 read with section 34 of the Indian Penal Code. (4) All the three appellants abjured the guilt. According to them, false charges were levelled against them due to enmity. (5) The Additional Sessions Judge, Khamgaon, found on facts that Atmaram had wrongfully confined Sheikh Jumma and had caused hurt to Sakharam son of Kisn, Sakharam son of Sonaji, Sheikh Jumma, Shewanti wife of Sonaji and Dwarki wife of Lahanu between the 3rd of September 1962 to the 7th of September 1962. He also found that Atmaram had confined the other four persons from the 3rd to the 7th of September 1962. According to him, the appellant No. 2 Uttam was guilty of causing hurt to Shewanti wife of Sonaji and Sheikh Jumma, and appellant No. 3 Bhikaji was guilty of causing hurt to Sakharam son of Kisan on the 7th of September 1962. According to him, the appellant No. 2 Uttam was guilty of causing hurt to Shewanti wife of Sonaji and Sheikh Jumma, and appellant No. 3 Bhikaji was guilty of causing hurt to Sakharam son of Kisan on the 7th of September 1962. He convicted the appellant No. 1 Atmaram under sections 330, 342, 343 and 348 of the Indian Penal Code and sentenced him to rigorous imprisonment for one year on each count, the sentences being concurrent. He convicted the appellant No. 2 Uttam and appellant No. 3 Bhikaji under section 330 of the Indian Penal Code only and sentenced each of them to rigorous imprisonment for six months. Those convictions and sentences are being challenged now. (6) Mr. M.N. Phadke, learned advocated for the three appellants pointed out that though the offences were committed between the 3rd and the 7th of September 1962 the charge sheet was not put up in the Court till the 15th of March, 1963, i.e., more than six months after the commission of the offences. According to him, section 161 of the Bombay Police Act precluded the Court from entertaining such a complaint or police report after the expiry of six months from the date of the offence and consequently the convictions and the sentences were bad in law. He also urged that the learned Additional Sessions Judge was in error in relying on the oral evidence which was interested and uncorroborated. I think it desirable to first consider the question of jurisdiction of the trial Court and then to proceed to discuss the evidence on merits if it were to be found that the trial was not vitiated by virtue of section 161 of the Bombay Police Act. (7) In support of his main contention, Mr. Phadke submitted that the three appellants were charged with the duty of investigating the offences of the alleged murder of Lahanu and they were performing that official duty of investigation and of questioning the suspects. According to him, the alleged wrongful detention and assault were made "under colour" or "in excess of" the duty or authority of investigation and, therefore, they were all protected by section 161(1) of the Bombay Police Act. He was relying on the decision of the Supreme Court in Virupaxappa v. State of Mysore, AIR 1963 Sc 849 and also in Criminal Appeals Nos. He was relying on the decision of the Supreme Court in Virupaxappa v. State of Mysore, AIR 1963 Sc 849 and also in Criminal Appeals Nos. 35 of 1963, dated 14-10-1963, and 153 of 1963, dated 11-11-1963, which I had decided on the authority of the aforesaid Supreme Court decision. Mr. Phadke also placed reliance on the order of the Division Bench in Criminal Appln. No. 6 of 1964, dated 31-3-1964, by which leave to appeal to the Supreme Court against the decision in Criminal Appeal No. 153 of 1963 was refused. (8) Mr. Palsikar, Honorary Assistant Government Pleader, contended that the impugned acts had no connection or nexus with the official duty which was assigned to the three accused, and, therefore, their act of wrongfully confining and assaulting the five persons cannot come within the ambit of section 161 of the Bombay Police Act. He was relying on the opinion of the Full Bench in Narayan v. Yeshwant, 30 Bom LR 1018 in answer to the questions referred in First Appeal No. 346 of 1924 by Marten C.J. and Crump J. According to him, Virupaxappas case, AIR 1963 SC 849 was not applicable to the facts of the present case and the principles laid down in State of Andhra Pradesh v. N. Venugopal, AIR 1964 SC 33 would more appropriately apply to the facts of this case and would show that the impugned acts not being protected by any provision of law or authority would not give the protection of section 161 of the Bombay Police Act to the accused. (9) Section 161(1) of the Bombay Police Act on which both parties are relying is in the following 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 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." underlining (here into ...........is mine). (10) The relevant question to be decided would, therefore, be whether the offence does not or does not arise out of an act done under colour of office or in excess of such duty or authority or whether it does or does not appear to the Court that the act was of the character aforesaid. (11) Analogous provision with respect to acts done in the discharge of official duties has also been made in section 99 of the Indian Penal Code and in section 197 of the Code of Criminal Procedure. Section 99, I.P.C. protects acts of a public servant acting in good faith under colour of his office, though that act may not be strictly justifiable by law". It would, therefore, be clear that S. 99, Penal Code would countenance an act of an official if done in good faith even if it is not strictly justifiable by law by which he is governed. (12) The relevant provisions of section 197 of the Code of Criminal Procedure are in the following words: "197. (1) When ................a Judge ........ or any Magistrate or public servant......... is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction (of the prescribed authority)". (13) A comparison of S. 197 of the Code of Criminal Procedure with S. 161 of the Bombay Police Act would show that there is a considerable difference between them. Section 197(1)of the Code of Criminal Procedure is limited to offences committed while acting or purporting to act in the discharge of the official duty. It does not cover acts committed under colour of or in excess of the authority. Section 161(1) of the Bombay Police Act, however, covers cases of acts done under colour of office and/or in excess of any such duty or authority. It further covers offences in which it appears to the Court that the wrong done was of the aforesaid character, viz., under colour of office or in excess of the duty. In view of this difference in the language of the two sections, there can be no doubt that the provisions of section 161 of the Bombay Police Act are much wider than those of section 197 of the Code of Criminal Procedure. In view of this difference in the language of the two sections, there can be no doubt that the provisions of section 161 of the Bombay Police Act are much wider than those of section 197 of the Code of Criminal Procedure. There is another important distinction also. Under section 197 of the Code of Criminal Procedure, the Government acts in an executive capacity and it is in the discretion of the Government whether to grant or withhold sanction under section 197 and the orders of the Government, either refusing or granting sanction under section 197, need not be based on legal evidence; vide In the Matter of Kalagava Bapiah, ILR 27 Mad 54. Unlike these provisions of section 197 of the Criminal Procedure Code with the Government can use in an executive manner, the provisions of section 161(1) of the Bombay Police Act have to be interpreted by the Courts judicially on the basis of the evidence and materials on record. That would be another important distinction between these two provisions. (14) Before proceeding to consider how section 161 of the Bombay Police Act should be interpreted, I would think it necessary to review how the law regarding sanction under section 197, Criminal Procedure Code, had been applied. In the case of Hori Ram Singh v. Emperor, AIR 1939 FC 43 the accused, who was a Civil Surgeon in charge of a hospital, was convicted under sections 409 and 477A of the India Penal Code without sanction for his prosecution under section 197 of the Code of Criminal Procedure having been obtained. The case against him was that he had dishonestly removed certain medicines from the hospital and had converted them to his own use. It was held that the test for determining whether sanction for prosecution was or was not necessary, was whether the official capacity of the accused had been utilised or involved in the act which was complained of; if his office is involved, section 197 of the Criminal Procedure Code applies and want of sanction is fatal; otherwise sanction is not necessary. On applying this test it was further held that the act of the removal of stocks of medicine did not involve any official capacity but the act of falsification of records was in its very nature such that employment of the official capacity of the accused was necessarily involved in that act and, therefore, no sanction was required for the prosecution under section 409, but a sanction would be required for the prosecution under section 477A of the Indian Penal Code. (15) In H.H.B. Gill v. The King, AIR 1948 PC 128 the charge was under section 161 of the Indian Penal Code. Their Lordships made the following observations for holding that the offence of receiving a bribe did not require sanction under section 197, Criminal Procedure Code : "A public servant can only be said to act or to purport to act in the discharge of his official duty, if his act is such as to lie within the scope of his official duty. Thus a Judge neither acts nor purports to act as a Judge in receiving a bribe, though the judgment which he delivers may be such an act; nor does a Government medical officer act or purport to act as a public servant in picking the pocket of a patient whom he is examining, though the examination itself may be such an act. The test may well be whether the public servant, if challenged, can reasonably claim that, what he does, he does in virtue of his office." This view was reiterated by their Lordships of the Privy Council in Albert West Meads v. The King, AIR 1948 PC 156. Their Lordships of the Supreme Court also followed these Privy Council decisions in Ronald Wood Mathams v. State of West Bengal, AIR 1954 SC 455 for holding that no sanction was necessary under section 197 of the Criminal Procedure Code for offences under sections 120B and 161 of the Indian Penal Code. It would be seen from the aforesaid decisions that as pointed out by Varadachariar J. in AIR 1939 PC 43 at p. 56 the questions regarding whether the tests prescribed in those rulings were satisfied or not, was treated as a question of fact to be determined with reference to the facts of each case. It would be seen from the aforesaid decisions that as pointed out by Varadachariar J. in AIR 1939 PC 43 at p. 56 the questions regarding whether the tests prescribed in those rulings were satisfied or not, was treated as a question of fact to be determined with reference to the facts of each case. (16) The matter again came up for discussion before the Supreme Court in In re Reference under s. 5 Court Fees Act, AIR 1955 Bom 287. The question was whether sanction was necessary for prosecuting the accused under section 409 of the Indian Penal Code and section 5(2) of the Prevention of Corruption Act. Their Lordships made the following observations: "If section 197, Criminal Procedure Code, is construed too narrowly it can never be applied, for, of course, it is no part of an officials duty to commit an offence and never can be. But it is not the duty which the Courts have to examine so much as the act, because an official act can be performed in the discharge of official duty as well as in dereliction of it. The sanction (sic.) (section) has content and its language must be given meaning. the Courts have to concentrate on the word offence in the section. An offence seldom consists of a single act. It is usually composed of several elements and as a rule, a whole series of acts must be proved before it can be established. Where the elements alleged against the accused, a public servant in charge of Government stores, are first, that there was an entrustment and/or dominion, second, that the entrustment and/or dominion was in his capacity as a public servant;; third, that there was a disposal and fourth, that the disposal was dishonest, it is evident that the entrustment and/or dominion here were in an official capacity, and it is equally evident that there could in this case be no disposal, lawful or otherwise, save by an act done or purporting to be done in an official capacity. Therefore, the act complained of, namely the disposal, could not have been done in any other way. Therefore, the act complained of, namely the disposal, could not have been done in any other way. If it was innocent, it was an official act; if dishonest, it was the dishonest doing of an official act, but in either event the act was official because the accused could not dispose of the goods save by the doing of an official act, namely officially permitting their disposal. Therefore, whatever the intention or motive behind the act may have been, the physical part in the one case it was equally official in the other, and the only difference would lie in the intention with which it was done; in the one event, it would be done in the discharge of an official duty and in the other, in the purported discharge of it". (17) The matter again came up before their Lordships of the Supreme Court in Amrik Singh v. State of Pepsu, (S) AIR 1956 SC 309. Relying on the earlier decisions of the Federal Court and the Privy Council, it was apparently urged that under no circumstances could it be said that misappropriation was within the scope of the duties of a public servant, and, therefore, no sanction was necessary. While repelling this suggestion, their Lordships made the following observations: "We are of opinion that this is too broad to statement of the legal position, and that the two decisions cited lend no support to it. In our judgment, even when the charge is one of misappropriation by a public servant, whether sanction is required under section 197(1) will depend upon the facts of each case. If the acts complained of are so integrally connected with the duties attaching to the office as to be inseparable from them, then sanction under section 197(1) would be necessary; but if there was no necessary connection between them and the performance of those duties, the official status furnishing only the occasion or opportunity for the acts, then no sanction would be required." It would thus be seen that their Lordships liberalised the earlier view which appeared to be too rigid and stringent. (18) Mr. (18) Mr. Mudholkar, Additional Government Pleader, then contended that the Supreme Court had again taken a narrower view on this point in Satwant Singh v. State of Punjab, AIR 1960 SC 266 by laying down the test that the act must bear such relation to the duty that the public servant could lay a reasonable but not a pretended or fanciful claim, that he did it in the course of the performance of his duty. I am afraid this would not be a correct interpretation of that decision. While dealing with the question of the necessity or otherwise of a sanction under section 197 for an offence of cheating, their Lordships more or less summarised the views of that Court on this point. In paragraph 16 they made the following observations: "We have no hesitation in saying that where a public servant commits the offence of cheating or abets another so to cheat, the offence committed by him is not one while he is acting or purporting to act in the discharge of his official duty, as such offences have no necessary connection between them and the performance of the duties of a public servant, the official status furnishing only the occasion or opportunity for the commission of the offences (vide 1955-1 SCR 1302. The act of cheating or abetment thereof has no reasonable connection with the discharge of official duty. The act must bear such relation to the duty that the public servant could lay a reasonable but not a pretended or fanciful claim, that he did it in the course of the performance of his duty (vide Matajog Dobey v. H.C. Bhari, 1955-2 SCR 925" It was clear that their Lordships had not narrowed down the scope of their observations in the earlier case of Amrik Singh on a part of which they were again relying, in the above quotation. It appears that their Lordships summarised the view taken in the two cases mentioned therein without amending or overriding their earlier decision in Amrik Singhs case, (S) AIR 1955 SC 309 which lays down, as indicated above, that the question would depend upon the facts of each case. This decision in AIR 1960 SC 266 cannot, therefore, amount to narrowing the view of the question as was suggested on behalf of the State. This decision in AIR 1960 SC 266 cannot, therefore, amount to narrowing the view of the question as was suggested on behalf of the State. (19) On applying the test laid down by the Supreme Court as indicated above, the question to be determined even for the purpose of section 197 of the Criminal Procedure Code would be whether the acts complained of are "so integrally connected with the duties attaching to the offence as to be inseparable from them". As I will show in greater detail in the sequel, the three accused were charged with the duty of proceeding with the investigation in connection with a suspected murder case and were questioning the suspects for that purpose. In order to enable them to carry out this duty, they wrongfully detained these persons and even assaulted from for the purpose of extorting statements or confessions in the course of that investigation. When that duty of investigation, which was entrusted to them, is viewed in its proper perspective, it would appear that this act of wrongful restraint and detention of the suspects and of causing hurt to them was integrally connected with the duty of questioning those persons for the purpose of investigation and it would not appear possible to separate it from their duty of investigation which they were carrying on at that time. Therefore, even according to the view of the Supreme Court with respect to sanction under section 197 of the Criminal Procedure Code , the impugned acts would amount to offences performed while purporting to do the official duty and they would, therefore, necessarily fall under section 197 of the Criminal procedure Code for which a sanction would be necessary. (20) The three accused were not removable by the State or the Central Government, and, therefore, no sanction for their prosecution was necessary under section 197 of the Code of Criminal Procedure. However, the District Superintendent of Police had accorded his sanction as per Exh. 77 which is on page 262, of the paper book. It was not dispute that this sanction was meant or intended to be under section 197 of the Code of Criminal Procedure. There was nothing in the record to support the contention of Mr. However, the District Superintendent of Police had accorded his sanction as per Exh. 77 which is on page 262, of the paper book. It was not dispute that this sanction was meant or intended to be under section 197 of the Code of Criminal Procedure. There was nothing in the record to support the contention of Mr. Palshikar that this sanction was given by the District Superintendent would not have proceeded to grant the sanction by way of abundant caution, if he had not considered it necessary. This sanction did not even mention the provision of law under which it was given or the grounds or reasons for which it was given. When there was so much lack of care in the matter of preparing that small sanction, it does not seem probable that it was given by way of abundant caution. This fact that the District Superintendent proceeded to accord a sanction apparently under Section 197, Code of Criminal Procedure, would necessarily mean that he considered that the impugned conduct of the accused was in purported discharge of their duties. This view of the immediate superior of the accused would discount the contention of Mr. Palshikar that the impugned acts were not in the purported discharge of their duty. (21) There is one other important indication in the record to show that the three accused were acting or purporting to act in discharge of the duties which were assigned to them. After completing the investigation against the three accused, the police put up the charge sheet which contains the following recitals: "The case for the prosecution is that on 1-9-1962 witness No. 1 (Akaram) gave a report to the police station Jalgaon about the sudden suspicious disappearance of his brother Lahanu. That is registered in the Station Diary at Serial No. 5, dated 1-9-1962, and witness No. 22 (P.S.I.Dhoke) entrusted the enquiry into that application to the accused No. 1 (Atmaram). Accordingly, accused No. 1 made an enquiry and, on his entertaining a strong suspicion as assault of the enquiry that the witnesses Nos. 2 to ... That is registered in the Station Diary at Serial No. 5, dated 1-9-1962, and witness No. 22 (P.S.I.Dhoke) entrusted the enquiry into that application to the accused No. 1 (Atmaram). Accordingly, accused No. 1 made an enquiry and, on his entertaining a strong suspicion as assault of the enquiry that the witnesses Nos. 2 to ... (Shevanti, Dwarki, Sheikh Jumma and Sakharam) were involved in the crime, he kept them under enquiry from the 3rd till the 4th of September 1962, in order to obtain real information about the murder of Lahanu and about the place of murder and whereabouts of the dead body and for getting information on these points he kept them under custody in the Baithak of the witness No. 15 (Police Patil Sheshrao) and after that assaulted them at the Gram Panchayat Sungaon. He obtained from them written confession under pressure of beating by the police; thereafter on 7-9-1962 while bringing back witnesses Nos. 2 to 5 to Sungaon assaulted them on the road." (Details of assault are mentioned). (22) In view of these recitals in the charge sheet Mr. Palsikar did not dispute that the investigation officer treated these acts as having been done while performing the official duties assigned to the accused, but he contended that the opinion of the investigating officer should not bind this Court and the matter should be decided independently. Mr. Palsikar was not right in saying that the Sub-Inspector had given his opinion in the charge-sheet. Under section 173(1) of the Criminal Procedure Code, he has to write the substance of the information on facts which he had gathered in the course of investigation. The criticism of Mr. Palsikar on this point was not tenable. (23) I have already indicated the difference in the language of section 197, Criminal Procedure Code, and section 161 of the Bombay Police Act. Under the latter provision with which I am concerned in this appeal, it has to be found whether the impugned acts were committed under colour of office or in excess of the duty or whether it appears to the Court that they were committed under the character of colour of duty or authority. The word "colour" in its legal sense is defined in Websters Dictionary as "an appearance or semblance of a right, authority, office or the like". The word "colour" in its legal sense is defined in Websters Dictionary as "an appearance or semblance of a right, authority, office or the like". In Whartons Law Lexicon, 14th Edition, page 214, "colour of office" is defined as follows: "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 Strounds Judicial Dictionary, 3rd Edition, the word "colour" has been defined at page 521 as follows: " Colour of office always taken in the worst part, and signifies on 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."