EMPEROR Vs. UMAKANT BALVANT

JUDGEMENT

(1.) The accused in this case has been convicted of abetting the personation of one Balkrishna as a person holding the office of Kulkarni. But the fact of personation alone, as found by the Magistrate, would be insufficient to justify conviction under Section 170, Indian Penal Code. That section further rcquires that the offender should be shown to have attempted to do or to have done in such assumed character some act under colour of such office. The phrase "an act under colour of such office," we think, points to acts which could not have been done without assuming official authority or responsibility and would not connote acts of a ministerial or mechanical character, which might be done without requiring the justification of office in the person doing them. It appears from the evidence that it is customary for certain functions performable by the Kulkarni to be performed by his relatives and that there is no objection to that course, when they involve no exercise of powers vested only in the official. The question is whether the acts or work which the accused requested Balkrishuato perform and which the accused must have known could be performed on that request, were acts which required the exercise of official authority or the assumption of official responsibility and this point has not been made clear.

(2.) We cannot support the conviction without further evidence. We, therefore, send the case back, that evidence may be taken on that point and also that evidence may be recorded, if adduced, as to the authority and instructions given by the accused to Balkrishna.

(3.) It will also be open to the accused to lead such evidence as he may be advised to lead.