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2007 DIGILAW 328 (BOM)

State of Maharashtra v. Mahadeo Narayan Giri

2007-03-08

A.P.LAVANDE

body2007
JUDGMENT:- Heard Shri. T. A. Mirza, learned A.P.P. for the appellant, Shri. S. V. Manohar, learned counsel for respondent no.1 and Shri. V. M. Deshpande, learned counsel for Respondents 2 and 3. 2. By this revision, appellant-State of Maharashtra takes exception to the order dated 17th December, 2005 passed by the 4th Ad hoc Additional Sessions Judge, Amravati in Sessions Trial No.74/03 discharging the respondents for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code. 3. In nutshell, the facts relevant for disposal of the Revision Application are as under: The respondents who are police officers were working at Police Station, Nandgaon, District: Amravati in August, 1996. It is the case of the prosecution that one Vinayak Gangaram Sable was illegally arrested and brought into the Police Station and he was mercilessly beaten by the respondents with the help of kicks, blows, sticks and by butt of rifle. On account of multiple injuries suffered by Vinayak he died. The respondents registered accidental death of the deceased. Pursuant to report lodged by the wife and brother of the deceased with the Superintendent of Police, Amravati the First Information Report for the offence under Section 302 read with Section 34 of the Indian Penal Code was registered against the respondents vide Crime No.97/96 on 3-8-1996. The investigation was taken up. The post-mortem of the deceased disclose 17 injuries on the person of deceased Vinayak. The matter was investigated and sanction was sought from the State Government which was accorded on 4-9-2002. Thereafter, charge-sheet was filed on 3-3-2003 and the case was committed to the Sessions Court. In Sessions Trial No.74/03 before the 4th Ad hoc Additional Sessions Judge the respondents/accused filed an application for discharge under Section 227 of the Code of Criminal Procedure alleging that deceased Vinayak Sable had died on account of the accident and also on the ground that sanction was not obtained within two years as contemplated under Section 161 of the Bombay Police Act, 1951 (hereinafter referred to as 'the Act'). The learned Judge upheld the contentions and held that since the respondents had arrested deceased Vinayak while on duty and under colour of the duty they had assaulted him which led to his death they were entitled to the benefit under Section 161 of the Act. Consequently, respondents/accused were discharged of the offence alleged against them. 4. Mr. The learned Judge upheld the contentions and held that since the respondents had arrested deceased Vinayak while on duty and under colour of the duty they had assaulted him which led to his death they were entitled to the benefit under Section 161 of the Act. Consequently, respondents/accused were discharged of the offence alleged against them. 4. Mr. Mirza, learned A.P.P. appearing for the appellant submitted that the impugned order is patently illegal inasmuch as causing of death of Vinayak Sable by no stretch of imagination can be said to pursuant to the act done under colour of office or in excess of duty. He further urged that sanction under Section 161 of the Act though obtained by the State Government before prosecuting the respondents, the same is not required since the act of committing murder cannot be said to be an act done under the colour of office or in excess of duty so as to attract Section 161 of the Act. In support of his submissions, the learned A.P.P. relied upon the Judgment of the Apex Court in the case of State of Maharashtra Vs. Atma Ram and another (AIR 1966 Supreme Court 1786). 5. Per contra, Mr. Manohar, the learned counsel appearing for the respondents supported the impugned order and submitted that protection available under Section 161 of the Act is available to the respondents/accused. Mr. V. M. Deshpande, learned counsel appearing for respondents 2 and 3 adopted the submissions made by Mr. Manohar and placed reliance upon the judgment of this Court in Satish Vishwanath Palasdekar and others Vs. State of Maharashtra, ( 1999(1) Mh.L.J. 204 ). 6. Before appreciating the submissions made by the rival parties, it would be appropriate to quote Section 161 of the Act. Section 161 reads as under: "161. Manohar and placed reliance upon the judgment of this Court in Satish Vishwanath Palasdekar and others Vs. State of Maharashtra, ( 1999(1) Mh.L.J. 204 ). 6. Before appreciating the submissions made by the rival parties, it would be appropriate to quote Section 161 of the Act. Section 161 reads as under: "161. In any case of alleged offence by (the Revenue Commission, 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 : (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)." 7. From the bare perusal of Section 161 of the Act it is crystal clear that protection is available to a police officer in respect of an offence alleged by him by an act done under colour or in excess of such duty or authority. Proviso to the said section stipulates that the prosecution against a police officer may be entertained by the court if instituted with previous sanction of the State Government within two years from the date of the offence. 8. In view of Section 161 of the Act quoted above, in a case where prosecution has been launched after two years from the date of the offence and protection is claimed under the proviso to Section 161 of the Act it would be first necessary to find out if the offence alleged against the police officer was committed pursuant to an act done under colour or in excess of any such duty or authority. In my opinion, commission of murder by a police officer of an accused in lock up and that too by merciless beating cannot be said to be referable to an act done under colour or in excess of duty or authority. In my opinion, commission of murder by a police officer of an accused in lock up and that too by merciless beating cannot be said to be referable to an act done under colour or in excess of duty or authority. Therefore, prima facie I am of the opinion that sanction in terms of proviso to Section 161 of the Act is not required to prosecute a police officer who is accused of an offence committed by him pursuant to an act which cannot be said to have been done under colour or in excess of duty or authority. The charge-sheet discloses that the respondents herein committed murder of Vinayak Gangaram Sable by brutally beating him with the help of kicks. blows, sticks and by butt of rifle. Although the prosecution has chosen to obtain sanction from the State Government which has been granted almost after a period of six years that by itself is not sufficient to hold that at this stage sanction in terms of Section 161 of the Act is required in the present case. The issue involved in the present case is squarely covered by the Judgment of the Apex Court in State of Maharashtra Vs. Atma Ram and others (AIR 1966 Supreme Court 1786). In the said judgment, the three Judge Bench of the Apex Court while setting aside the Judgment of this Court acquitting the accused for the offence of murder held that the police officer who is accused of beating and illegal confinement of the deceased is not entitled to the protection under Section 161 of the Act. The Apex Court held that in order to claim benefit of Section 161 of the Act there must be a reasonable connection or nexus between the alleged act and duty or authority imposed upon the office under the Act or any other enactment conferring powers on the police under the colour of which the act may be said to have been done. The Apex Court further observed that unless there is reasonable connection between the act complained of and the powers and duties of the office it was difficult to say that the act was done under the colour of office. The Apex Court further observed that unless there is reasonable connection between the act complained of and the powers and duties of the office it was difficult to say that the act was done under the colour of office. Although the Supreme Court was dealing with the acquittal by the High Court on the ground of want of sanction under Section 161 of the Act, the ratio laid down is squarely applicable in the present case although the order was passed pursuant to an application under Section 227 of the Code of Criminal Procedure. In view of the clear ratio laid down by the Apex Court in the above Judgment I am unable to place any reliance upon the Judgment of the learned Judge of this Court in Satish Palasdekar's case (supra) relied upon the by the respondents. 9. In view of the above discussion, the impugned order dated 17-12-2005 passed by the 4th Ad hoc Additional Sessions Judge, Amravati is liable to be set aside. It is made clear that I have recorded the finding that sanction under Section 161 of the Act was not required to prosecute the respondents on the basis of the charge-sheet filed. It would, therefore, be permissible to the respondents to raise the issue of sanction at the end of the trial on the basis of the evidence that may be brought on record either in the cross-examination of the prosecution witnesses or by leading defence evidence. 10. For the reasons aforesaid, the impugned order dated 17-12-2005 passed by the 4th Ad hoc Additional Sessions Judge, Amravati in Sessions Trial No.74/2003 is quashed and set aside and the mater is remanded back to the 4th Ad hoc Additional Sessions Judge, Amravati who shall frame charge against the respondents for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code and proceed with the trial in accordance with law. The respondents shall appear before the trial court on 28-3-2007 at 11.00 a.m. for further directions. . 11. Since the offence is of the year 1996, Sessions Trial No.74/2003 is expedited. I have been informed that the prosecution has cited over fifty witnesses in the charge-sheet. The learned Judge shall hold the trial and conclude the same expeditiously and in any case on or before 29th February, 2008. The Revision Application is disposed of accordingly.