GORAKH TULJI MAHALE Vs. THE STATE OF MAHARASHTRA

JUDGEMENT

(1.) THIS appeal has been referred to the Division Bench by a learned Single Judge for decision of the question whether the special rule of limitation contained in Section 161(1) of the Bombay Police Act applies to prosecutions udder Section 161 of the Indian Penal Code and under Section 5 of the Prevention of Corruption Act. Paranjpe J. sitting on the Nagpur Bench has taken the view in Narharrao Madavrao Patil v. The State (1963) Criminal Appeal No. 153 of 1963 that acceptance of bribe is an act done under colour of office and, therefore, the prosecution of a Police officer for bribery is barred unless it is instituted within six months of the date of the act complained of. The correctness of this view is in question before us.

(2.) THE facts are few and what is necessary to know for the decision of the point is the nature of the act complained of, the date on which the bribe was taken and the date on which the prosecution was instituted. The bribe is alleged to have been taken by the appellant in March 1963 and the prosecution was instituted on November 11, that is, more than six months thereafter. The appellant, a railway police constable, has been convicted by the learned Special Judge, Ahmednagar, under Section 161 of the Indian Penal Code and Section 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act, on the charge that he accepted an illegal gratification of Rs. 50 from the complainant as a motive for releasing the complainant's son, who was arrested by the appellant on the railway platform on suspicion that he was a pick -pocket. The appellant admitted that he received the amount, but contended that it was paid to him not as illegal gratification but by way of loan.

(3.) SECTION 161(1) of the Bombay Police Act (hereinafter called "the Act") contains a provision which is intended for the protection of certain officers from stale claims and accusations of a particular variety. In so far as criminal proceedings are concerned, it contains a special rule of limitation, generally unknown to criminal law, that prosecutions must in certain circumstances be instituted within the stated period. Sub -section (1) of Section 161 of the Act reads thus: