Ramesh Marutirao Jadhav vs The State Of Maharashtra And Anr
2016 Latest Caselaw 5606 Bom

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             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        BENCH AT AURANGABAD




                                               
                     CRIMINAL APPLICATION NO.3398/2016




                                              
     Ramesh Marutirao Jadhav
     Age: 61 Years, Occ: Pensioner,
     R/o: B/20, Avanti Nagar,




                                    
     Murarji Peth, Solapur.
     Tq. and Dist. Solapur.   ig                        - APPLICANT
                                                        (Orignal Accused)

                      VERSUS
                            
     1]       The State of Maharashtra
              Through Udgir (Rural) Police Station,
      


              Udgir, Dist. Latur.
   



              [Copy to be served on
              Public Prosecutor,
              High Court of Bombay, Bench at
              Aurangabad





     2]       Laxman Dnyanoba Kendre
              Age: 56 Years, Occ. Service
              ( the then Police Inspector)
              R/o: C/o. Aundha Nagnath





              Police Station, Tq. Aundha Nagnath
              Dist. Hingoli.431 705
                                                .. RESPONDENTS
                                           (R.No.2 Ori. Complainant.)


                                 -----
     Mr.Amol S. Sawant Advocate for applicant.
     Mrs. P.V. Diggikar, APP for Respondent-State
                                 -----


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                         CORAM :   A.V.NIRGUDE &




                                                                       
                                   V.L.ACHLIYA,JJ.

RESERVED ON : 25TH JULY, 2016

PRONOUNCED ON : 27TH SEPTEMBER,2016.

JUDGMENT [PER V.L.ACHLIYA,J.] :-

Rule. Rule returnable forthwith. By the consent of the

parties heard finally at the stage of admission.

2] The applicant herein has preferred this application under

Section 482 of Cr.P.C. for quashing Regular Criminal Case No.

38/2013 pending in the Court of Judicial Magistrate First Class,

Udgir, Dist.Latur on the ground that Section 161(1) of

Maharashtra Police Act operates as a bar to entertain the case

against the applicant.

3] Before appreciating the submissions advanced, it is

necessary to consider in brief the facts leading to filing of

charge-sheet against the applicant. On 03/01/2012 one

Laxman Kendre, Police Inspector attached to police station

Udgir, ( Rural) Tq. Udgir, Dist. Latur, filed complaint against the

applicant pursuant to the order dated 31/12/2011 received from

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Superintendent of Police, Latur. In the complaint filed, the

complainant has alleged that during the period 22/01/2009 to

09/11/2009 the applicant was posted as Police Inspector, Police

Station Udgir, Dist. Latur. During his tenure as Police Inspector

he was found to be indulged into commission of various illegal

acts amounting to offence. On receipt of the complaint

preliminary enquiry was conducted through Shri Ramesh

Kaltewar, the then Deputy Superintendent of Police, Udgir, who

has found prima facie substance in the allegations made in the

complaint. He submitted report to the Superintendent of Police,

Latur. On due consideration of the report of the preliminarily

enquiry, the Superintendent of Police Latur directed the

complainant to lodge complaint against the applicant. On the

basis of the complaint lodged the offence under Sections

201,213,409, 420, 467, 468, and 471 of IPC came to be

registered against the applicant vide crime no. 01/2012. After

the registration of the offence investigation was conducted.

During the course of investigation statements of various persons

were recorded which includes some of the police personnel

working with the police station Udgir, as well as Panchas whose

signatures were obtained in back date and few other persons.

All of them supported the allegations made in the complaint

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alleged against the applicant and disclosed various illegal acts

amounting to offence committed by applicant during his posting

as police station incharge of police station Udgir. On

completion of the investigation the charge sheet was prepared

and filed in the Court of JMFC. Being aggrieved the applicant

has preferred this application for quashing the criminal

proceedings mainly on the ground that the proceeding against

the applicant is not maintainable in law as the same is filed

beyond statutory period of 6 months as provided under Section

161 of Maharashtra Police Act.

4] Before filing the present application the applicant had

approached this Court under Section 482 of Cr.P.C. seeking

quashment of FIR vide Criminal Application No. 154/2012. The

said application was rejected by this Court vide order dated

03/04/2012. In the application filed the applicant had taken the

plea that complaint lodged against him is barred by limitation i.e.

limitation as provided under Section 161 of Maharashtra Police

Act, 1951. The application was rejected by observing that the

investigation can not be stalled in exercise of power under

Section 482 of Cr.P.C.

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5] Mr. Amol Sawant the learned counsel for the applicant has

submitted that as per the FIR the first act which is alleged to be

an offence attributed against the applicant committed on

28/03/2009 and subsequent act alleged to be committed on

13/04/02009. Charge sheet has been filed on 01/02/2013 which

is beyond the statutory period of six months provided under

Section 161 of Maharashtra Police Act and therefore the

cognizance of offence ought not have been taken by the learned

Magistrate. He has further submitted that even no previous

sanction from the State Government was obtained for

entertaining the prosecution within extended period of 2 years

from the date of commission of offence as provided under

provisions to Section 161(1) of the said Act. He has further

submitted that the applicant was posted as police officer with

police station Udgir and the acts alleged amounting to criminal

offence referred in charge-sheet being very much connected

with discharge of his duty as a police officer the applicant is

entitled for protection under Section 161 of the Maharashtra

Police Act.

6] According to learned counsel, Section 161 of the said Act

lays down prohibition to entertain such prosecution instituted

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beyond six months of the act complained of. He has further

submitted that even no sanction to extend the period upto two

years to institute such criminal proceedings was obtained from

the State Government before lodging the prosecution against

the petitioner. In this back ground it is contended that the

prosecution as instituted against the applicant is not

maintainable and liable to be quashed. He has further submitted

that the applicant has retired from service in 2005 and

continuation of such criminal proceeding would lead to

humiliation and harassment to the applicant and it would

amount to gross abuse of process of Court.

7] On the other hand the learned APP for the State submitted

that protection under Section 161 of Maharashtra Police Act is

not available to the applicant. He has submitted that the offence

for which the applicant is charged can not be termed as act

committed in discharge of duty or as an authority as a

police officer. So also the offence as registered against the

applicant can not be termed as act under the colour or in

excesses of such duty or authority as police officer. It is

therefore contended that the application filed is without any

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basis and merits and liable to be rejected.

8] On appreciation of submissions advanced, the material

question which falls for our consideration is whether in the facts

of the present case protection of Section 161 (1) is available to

the applicant. Section 161 of the Maharashtra Police Act

(erstwhile known as Bombay Police Act, 1951) reads as under :

161. Suits or prosecutions in respect of acts

done under colour of duty as aforesaid not to be entertained, or to be dismissed if not instituted [within the prescribed period] (1) 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 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.] In suits as aforesaid one month's notice of suit to be given with sufficient description of wrong complained of

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(2) In the case of an intended suit on

account of such a wrong as aforesaid, the person intending to sue shall be bound to give to the alleged wrong-doer one month's notice

at least of the intended suit with sufficient description of the wrong complained of, failing which such suit shall be dismissed.

Plaint to set forth service of notice and

tender of amends (3) The plaint shall set forth that a notice as aforesaid has been served on the defendant and the date of such service, and

shall state whether any, and if any, what tender of amends has been made by the

defendant. A copy of the said notice shall be annexed to the plaint endorsed or accompanied with a declaration by the plaintiff

of the time and manner of service thereof.

9] Plain reading of Section 161 contemplates filing of suits or

prosecution in respect of acts done under colour or in excess of

any duty or authority conferred on the officers mentioned in the

said provision. If we consider the case, set out in the

application and the submissions advanced, it is the contention

of the applicant that as the applicant was posted as police

officer and acts alleged amounting to offence being committed

in discharge of the duties as a police officer the protection

under Section 161 is available to the applicant and the

prosecution instituted beyond the period of 6 months from

the commission of alleged act, the prosecution is not

maintainable. It is the contention of the applicant that Section

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161 of the said Act is a protective umbrella which prevents

police officers from facing unwarranted prosecution. The said

provision has been incorporated in the statute with paramount

consideration that police officer shall discharge their duty

without any fear. It is contended that it is nowhere the case of

the complainant that he has not registered the offence against

the accused persons, after the person was caught with charas.

So also it is nowhere the case of the prosecution that he has not

registered the case in respect of Sandal wood which was

seized. He has submitted that the owner of Sandal wood has

never made any grievance in respect of the genuineness of the

Sandal wood. The Sandal wood was released as per the order

passed by the Judicial Magistrate. There is no evidence to

show that amount of Rupees 60,000/- was found with the

accused and still same has not been recorded in the

panchanama.

10] In our view no case is made out to invoke powers

under Section 482 of Cr.P.C. to quash the proceedings. The

offence as registered against the applicant for which he is

charge sheeted have no nexus with the acts done in discharge

of duty or in the colour or in excess of any such duties of

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authority as a police officer.

11] Charge-sheet filed against the applicant reflects that it is

transpired during the investigation that on 28/03/2009 three

persons namely Sohel Shaikh Bablu Baig and Nabi Baig were

found near Nalegaon Naka at Udgir by the Police panchas

headed by applicant. Out of those three persons one person by

name Sohel Shaikh was found to be carrying one bag in which 1

Kg. 200 Grams of charas was found. During his personal

search one mobile, currency notes of denomination of 500 to

the tune of Rupees 60,000/- to 70,000/- recovered. From the

other accused person Bablu Shakil Mirza one bag containing

400 Grams of charas was found. In the personal search of

other accused Nabi Shaikh 400 Gram of charas was found. The

applicant has kept cash amount recovered from Sohel Shaikh

with him. He has not shown the same in panchnama nor

deposited the same in police station. There are statements

made to this effect made by the police personnel against the

applicant, who were members of police accompanied with

applicant and present at the time of personal search and

seizure. Similarly it is transpired during the course of

investigation that on 13/04/2009 one Scorpio jeep with two

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persons which was intercepted, was brought to police station

in which the Sandal wood was lying. Out of those two persons

one Dadarao Dande the person indulged into smuggling of

Sandal wood was handcuffed and detained at police station for

two days. It was revealed that the applicant has sold the

original sandal wood and replaced the quantity by depositing

fake Sandal wood. He kept the muddemal property with him for

a period of 16 days.

ig Though the property was seized on

13/04/2009, it was physically given in possession of concerned

official on 30/04/2009 that too by replacing the original by fake

one. It was further revealed that pursuant to Court order the

person who approached to take the property in possession

refused to accept the same for the reason that Sandal wood

which was lying at police station was not the Sandal wood

which was stolen from his field. There are number of witnesses

examined during the course of investigation who have

supported the allegations. Therefore the question before us

whether the allegations as made against the applicant and the

offences registered can be termed as acts as contemplated

under Section 161 of the Maharashtra Police Act. The meaning

of the expression " in the colour of any duty or authority as

envisaged in Section 161 (1) of the Maharashtra Police Act has

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been considered and interpreted by the Apex Court in the case

of Virupaxappa Veerappa Kadampur v/s State of Mysore

reported in AIR 1963 SC 849. In para 9 and 10 the Apex Court

has observed as under :

(9) The expression "under colour of something" or "under colour of duty" or

"under colour of office" is not infrequently used in law as well as in common parlance.

Thus in common parlance when a person is entrusted with the duty of collecting funds for, say, some charity and he uses that

opportunity to get money for himself, we say of him that he is collecting money for himself under colour of making collections for a charity. Whether or not when the act bears

the true colour of the office or duty or right, the act may be said to be done under colour

of that right, office or duty, it is clear that when the colour of the office or duty or right, the act may be said to be done under colour of that right, office or duty it is clear that

when the colour is assumed as a cover or a cloak for something which cannot properly be done in performance of the duty or in exercise of the right or office, the act is said to be done under colour of the office or duty

or right. It is reasonable to think that the legislature used the words " under colour" in S. 161 (1) to include this sense. It is helpful to remember in this connection that the words "colour of office" have been stated in many law lexicons to have the meaning just indicated above. Thus in Wharton's Law Lexicon, 14 th Edition, we find at page 214 the following:

"Colour of office"

" When an act is unjustly done by the

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countenance of an office, being grounded

upon corruption, to which the office is as a shadow and colour."

In Stround's Judicial Dictionary, 3 rd Edition,

we find the following at page 521:

Colour : " 'Colour of office' is always taken in the worst part, and signifies an act evil done by the countenance of an office,

and it bears a dissembling face of the right of the office, whereas the office, is but a veil to the falsehood, and the thing is grounded upon Vice, and the Office is as a shadow to

it. But 'by reason of the office' and 'by virtue of the office' are taken always in the best

part."

(10) It appears to us that the words "

under colour of duty" have been used in S.161 (1) to include acts done under the cloak of duty, even though not by virtue of the duty. When he ( the police officer)

prepares a false Panchnama or a false report he is clearly using the existence of his

legal duty as a cloak for his corrupt action or to use the words in Stroud's Dictionary " as a veil to his falsehood." The acts thus done in dereliction of his duty must be held to have

been done "under colour of the duty".

12] We have discussed in the foregoing paras the offences

alleged against the applicant. The applicant is alleged to have

misappropriated the cash amount to the tune of Rs.60,000/- to

70,000/- recovered from the accused during the search. It is

further alleged that huge quantity of Sandal wood i.e. to the tune

of 5 to 6 quintal worth about 5 to 6 lacks was seized from the

accused persons involved in the case. The applicant has

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illegally kept the custody of Sandal wood with him for 16 days.

He replaced the original Sandal wood with a fake one. It is also

revealed during the investigation that he has sold the Sandal

wood which was seized, to some persons and replaced the

same by fake one. The person from whose field the Sandal

wood was cut and stolen and obtained the order from the Court

of Magistrate, refused to take custody as same was found to be

different than the Sandal wood which was stolen from his field.

It was also revealed during the course of investigation that one

of the accused who was caught with the Sandal wood and

detained at police station for 2 days, later on allowed to go to his

house by accepting Rs.40,000/- as bribe. There is a statement

to this effect made by the person who has paid the amount to

the applicant. There are number of police personnel who have

deposed against the applicant about various misconducts and

activities of the applicant including preparation of false

panchanama, changing the panchanama, creating panchanama

in back date and forcing the subordinates to change the

documents. Therefore, the offences alleged against the

applicant cannot be termed as an act falling within the scope of

Section 161 of Maharashtra Police Act. The act of cheating,

fabrication of record, misappropriation of property alleged

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against the applicant cannot be termed as an act for which

protection under Section 161 of the Act can be claimed. The act

alleged against the applicant cannot be termed as act done

under colour or in excess duty or authority as a police officer.

13] Mr.Amol Sawant, learned counsel for the applicant has

referred and relied upon the decision of the Apex Court in the

case of K.K.Patel and another V/s State of Gujarat and

another reported in 2000 Bom.C.R.(Cri.) 505 in support of the

submission that protection under Section 161 (1) of the

Maharashtra Police Act is available to the petitioner. In our view

the decision in said case have no bearing upon the facts of the

present case. The facts of the present case are altogether

different than the facts of the case relied by the learned counsel.

We have already discussed in the foregoing paras that the acts

alleged against the applicant noway relates to discharge of the

duty as a police officer or remotely connected with the authority

as a police officer.

14] The Apex Court in the case of State of Maharashtra V/s

Narhar Rao reported in AIR 1966, S.C. 1783 has considered

the purport of expression "Act done under the colour of office"

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and also discussed the test to be applied to determine as to

whether any such acts fall within the scope of protection

available under Section 161 of Bombay Police Act 1951 (now

renamed as Maharashtra Police Act). The Apex Court has

observed In para (3) as under :

3] ......................

ig It is manifest that in order that the accused person against whom a prosecution has been launched may get the benefit of six months period of limitation under the Section,

it must appear to the Court (1) that the offence was committed under colour of any duty imposed or any authority conferred by any provisions of the Bombay Police Act or

any other law for the time being in force, or (2) that the act was done in excess of any

such duty or authority as aforesaid. The question arising in this case, therefore, is whether the alleged act of the respondent in accepting bribe was an act done under colour

of the duty imposed or the authority conferred on the respondent by any provision of law or in excess of any such duty or authority as aforesaid. In examining this question it is necessary, in the first place, to ascertain what

act is complained of any then to see if there is any provision of the Bombay Police Act or any other law under which it may be said to have been done or purported to have been done. In this connection, it is important to remember that an act is not done under colour of an office merely because the point of time at which it is done coincides with the point of time the accused is invested with the powers or duty of the office. To be able to say that an act was done under the colour of an office

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one must discover a reasonable connection

between the act alleged and the duty or authority imposed on the accused by the Bombay Police Act or other statutory

enactment. Unless there is a reasonable connection between the act complained of and the powers and duties of the office, it is difficult to say that the act was done by the

accused officer under the colour of his office."

15] Applying the above quoted test laid down by the Apex

Court, in the instant case, we have no hesitation to observed

that the acts alleged against the applicant have no reasonable

connection with the act complained of and the powers and

duties of the office as of applicant as police officer. The acts of

misappropriation, cheating, fabrication or false reasons cannot

be termed as an act done in discharge of duty or in colour of

office or in excess of any such duty.

16] It is quite settled position in law that the exercise of

powers under Section 482 of Cr.P.C. are to be used sparingly. It

envisages three circumstances under which inherent jurisdiction

may be exercised namely (I) to give effect to order under the

Court, (II) to prevent the abuse of the process of Court and (III)

to otherwise secure ends of justice. While exercising powers

under Section 482 of Cr.P.C. the Court does not function as a

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Court of appeal or revision. It is also settled law that though no

straight jacket formula can be laid down as to exercise of

powers under Section 482 of Cr.P.C. but same has to be

exercised sparingly, carefully and with due caution and that too

when such exercise is justified to prevent the abuse of process

of Court or it is expedient to do so to meet the ends of justice.

The case in hand is not of such nature wherein the inherent

powers under Section 482 of Cr.P.C. requires to be exercised.

As observed, there is no nexus between the acts alleged

against the applicant in discharge of duties as police officer and

more particularly covered by acts referred in Section 161(1) of

the Maharashtra Police Act.

17] In this view the institution of criminal case against

applicant cannot be termed as an abuse of process of law to call

for exercise of inherent powers under Section 482 of Cr.P.C. to

quash the prosecution. Hence the application deserves to be

rejected. Accordingly application is rejected. Rule discharged.

              (V.L.ACHLIYA,J.)             (A.V.NIRGUDE,J.)
     umg/