JUDGMENT - JAMDAR M.S., J.: - (After narrating the fact and disposing of the contention as regards joint trial of all the accused by the Special Judge under the Criminal Law Amendment Act in paragraphs 1 to 16 the judgment proceeds). 17. By the applications Exhibits 111 and 131 (Annexure 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 1 to 13 while Exhibit 131 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 reads 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 office 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 61 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. Petitioner 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. 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. Petitioner 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 mention 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 in 'such as aforesaid'. By implication, therefore, the duty or authority contemplated one of which reference is made in earlier provisions of the Bombay Police Act. Sections 159 and 160 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 provision of the Act or any other law for the time being in force or any rule, order or 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 intelligence concerning the commission of cognizable offences or designs 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 duly 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 section 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 Phadkar, the learned Advocate for the petitioners 1 to 13 contended that no section 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 persecution 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 offence 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 committee 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). 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 prosecution were not launched within the prescribed period. Although the section is intended to 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 prosecution in respect of the acts done under colour or in excess of any duty or authority conferred on the officers mentioned in the said provision. 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 said which as Police Officers they were competent to carry out. 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 said 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 panchnama articles of 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 act 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)1, A.I.R. 1963 S.C. 849. 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 havildar, after throwing away the bundle which was found to contain 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 Lordships analysed the expression “under colour of office” and held that” when the colour is assumed as cover or cloak for something which cannot be done in performance of the duty nor 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 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 phase '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. Narher Rao)2, A.I.R. 1966 S.C. 1783 and (State of Maharashtra v. Atma Ram and others)3, 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 between the act alleged and the duty or authority imposed on the accused by the Bombay Police Act or other statutory enactment. To be able to say that the act was done under colour of office we must discover reasonable connection between the act alleged and the duty or authority imposed 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)4, A.I.R. 1968 S.C. 1323, Supreme Court took the same view of the matter and held that the Police Officer who was 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 Virupaxappa's case (supra) on fact. The position that emerges after analysing these 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 gambling house and from the persons found gambling in the 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. 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 Hudlikar, 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 those 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 Maharashtra)5, A.I.R. 1954 S.C. 2455. In that case the accused appellants before the Supreme Court were charged for conspiracy to cheat the Government and bribery. Appellant R.W. Mathanms 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)6, A.I.R. 1948 P.C. 128 and (Phanindra Chandra Negy v. The King)7, A.I.R. 1949 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. 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 the section 161 on the ground that it was not instituted within the period contemplated by sub-section (1). [Rest of the judgment not meant for reporting] No sanction necessary. -----