ATMARAM MAHADEO GHOSALE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE question for the decision of which this appeal has been referred to the Division Bench is whether a prosecution launched on a Police report against some members of the police force for an offence alleged to have been committed by them by acting under colour or in excess of their authority is barred under section 161 (I) of the Bombay Police Act if the prosecution were instituted more than six months after the date of the alleged offence. Sub-section (I) of section 161 of the Bombay Police Act, 1951, is in the following terms :-"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 an 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. " the duty or authority which has been referred to in this provision has been specified earlier in section 159 of the Act as, "any duty imposed or any authority conferred. . . 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. "

(2.) THE few facts in the context of which the above question arises in this case are these : one Vijaykumar was at the material time the District Superintendent of Police at Ratnagiri. In the beginning of June 1061, he went for the inspection of the Guhagar Police station which was in charge of Sub Inspector Kamat. On 5th June 1961, in a fit of anger, Vijaykumar threw some heavy substance at the head of Sub-Inspector Kamat with the result that Kamat received a fatal injury and died. Accused No. 1 in the present case was the orderly of Sub-Inspector Kamat. Accused No. 2 was the Jamadar, and accused No. 3 the Writer Police Head Constable, at the Guhagar Police station. Accused No. 4 was the Office-peon of the District Superintendent of Police, Ratnagiri. According to the prosecution, accused Nos. 1 to 4 carried the dead body of Sub-Inspector Kamat from the Police Station to the sea-shore and took steps to make it appear that Kamat had committed suicide by drowning. It was further the case of the prosecution that accused Nos. 2 and 3 prepared a false inquest panchanama in an effort to show that Sub-Inspector Kamat had committed suicide by drowning, sent a false report to the Medical Officer, made false entries in the case diary, and made in incorrect entry in the Muddemal Register at the Guhagar Police Station. After the facts of this case came to light, the said Vijaykumar committed suicide. On the above facts, the four accused were tried in the Court of the Sessions Judge, Ratnagiri. The learned Sessions Judge found accused Nos. 1 to 4 guilty under Section 201 read with Section 34, I. P. C. for causing disappearance of the evidence of Vijaykumar's offence and knowingly giving false information in relation thereto. He also convicted accused No. 2 and 3 under Section 218 read with Section 34, I. P. C. on the ground that these accused while being in charges of the preparation of the record of the case relating to the death of Sub-Inspector Kamat framed as incorrect report in order to save the said Vijaykumar from legal punishment by preparing a false inquest panchanama, a false report to the Medical Officer, a false case diary, and an incorrect entry in the Muddemal Register.

(3.) FROM the order of conviction and the sentence imposed upon them, the accused filed the present appeal which initially came for bearing before Mr. Justice Chitale. Mr. Kode, who appeared on behalf of the accused, argued before Mr. Justice Chitale that as far as the conviction of accused Nos. 2 and 3 under Section 218 read with had by virtue of Section 161 of the Bombay Police Act, because the alleged offence consisted of acts done by accused Nos. 2 and 3 under colour of their duty or authority, and the prosecution was instituted more than six months after the acts complained of. On behalf of the State, the Additional Government Pleader did not dispute that the alleged acts, which constituted the offence of accused Nos. 2 and 3 under Section 218 read with Section 34, I. P. C. , were done under colour of their duty or authority and that the charge sheet on which the prosecution the alleged acts. The learned Additional Government Pleader, however, argued that Section 161 does not affect the State as it does not refer to the State either expressly or by necessary implication with the result that whereas a private case filed on a complaint against the officer mentioned in Section 161 might be barred under that section, a prosecution launched on a police report will not be affected in any way. Being of the view that the point raised by the learned Additional Government Pleader was of some importance, Mr. Justice Chitale, referred the appeal to the Division Bench.