STATE OF MAHARASHTRA Vs. GORAKH FULAJI MAHALE

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 under 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 another case 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. This bribe is alleged to have been taken by the appellant in March 1963 and the prosecution was instituted on the 11th November, that is, more than six months thereafter. The appellants, a railway police constable, has been convicted by the learned Special Judge, Ahmednager, 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 complaint 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.) ONE of the grounds on which the conviction is challenged before us is that the prosecution is barred by limitation under section 161 (1) of the Bombay Police Act (Bombay Act No. XXII of 1951), not having been instituted within six months from the date on which the bribe is alleged to have been taken by the appellant. This point was not been taken by the appellant. This point was not taken in the trial Court; but since the decision of the point does not require a fresh investigation into facts and as the point is likely to affect a large number of cases, we have permitted the appellant to raise the point for the first time in this appeal.