Bombay High Court
Dnyaneshwar Shadeorao Kadu vs State Of Maharashtra Thr. Police ... on 11 March, 2016
Author: Z.A.Haq
Bench: Z.A.Haq
Judgment 1 apl44.13.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPLICATION (APL) NO. 44 OF 2013
Dnyaneshwar Shadeorao Kadu,
aged about 54 years, Occu.: Police
Inspector, Ner, Distt. Yavatmal.
.... APPLICANT.
ig // VERSUS //
1. State of Maharashtra,
through Police Station Officer,
Pusad, Distt. Yavatmal.
2. Anil Ramlochansing Thakur,
aged 45 years, Occu.: Business,
R/o. Devi Ward, Pusad, Tq. Pusad,
Distt. Yavatmal.
.... NON-APPLICANTS
.
______________________________________________________________
Shri A.S.Mardikar, Sr.Advocate a/b Shri S.G.Joshi, Adv. for Applicant.
Shri U.S.Dastane, Advocate for Non-applicant No.2.
Shri S.B.Bissa, A.P.P. for Non-applicant No.1.
______________________________________________________________
CORAM : Z.A.HAQ, J.
DATED : MARCH 11, 2016.
ORAL JUDGMENT :
1. Heard learned advocates for the respective parties.
2. RULE. Rule made returnable forthwith.
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3. The applicant has filed this application under Section 482 of the Code of Criminal Procedure read with Article 227 of the Constitution of India praying that the order passed by the Sessions Court maintaining the order passed by the learned Magistrate directing issuance of process for the offence punishable under Sections 326, 294, 506(II) of the Indian Penal Code be set aside and the complaint filed by the non-applicant No.2 registered as Regular Criminal Case No. 172 of 2011 be quashed.
4. According to the non-applicant No.2, he was member of "Shantata Committee" in 2009, that there were some altercations on 14th March, 2009 (Rangpanchami), that Pravin Bhimrao Duthade lodged report with Pusad City Police Station that Ansar and his brother Nisar had assaulted Pravin and on the basis of the report crime was registered for the offence punishable under Section 307 of the Indian Penal Code and the persons named in the F.I.R. were arrested. On 16th March, 2009 at about 5.00 p.m. it was noticed that the workers of Bajrang Dal were standing near the house of Sk. Nisar. The applicant was working as Police Inspector attached to Pusad City Police Station at that time and apprehending likelihood of breach of peace, the applicant and the staff accompanying him intervened and dispersed the mob.
::: Uploaded on - 01/04/2016 ::: Downloaded on - 31/07/2016 08:36:42 :::Judgment 3 apl44.13.odt Smt. Khajabee Sheikh Iftekhar lodged report against Smt. Asha Raju, Ramsingh Suryawanshi and Ranjit Karele at about 5.10 p.m. for the offence punishable under Section 504 of the Indian Penal Code. This report was filed without taking cognizance of it. Bhimrao Dhudhale filed complaint against Smt. Khajabee and Sk. Parvez Sk. Ahmed on 16th March, 2009. This report was also filed without taking cognizance. The proceedings under Section 107 and 116(3) of the Code of Criminal Procedure were taken up to avoid breach of piece.
Crime No.54 of 2009 was registered against Anilsingh Thakur, Govind Suryavanshi, Manoj Inkar, Vishal Pogade, Som Inkar and others. Crime No. 80 of 2009 was registered against Anil Thakur.
On 16th March, 2009 to defuse the situation, rival groups were called to the Police Station. A meeting of Peace Committee was convened and preventive action was proposed.
According to the non-applicant No.2 (complainant) when he went to the Police Station on being invited, he noticed that the applicant was abusing Ashabai Bhimrao Duthade and other ladies who accompanied her and was hurling abuses on the caste of ladies present in the Police Station. According to the non-applicant No.2 ::: Uploaded on - 01/04/2016 ::: Downloaded on - 31/07/2016 08:36:42 ::: Judgment 4 apl44.13.odt (complainant) he had reported the matter on 16th March, 2009 to Shri Kartik Oka who was working as Sub-Divisional Police Officer, Pusad, however, as he had not taken any action, complaint came to be filed before the Magistrate praying that the present applicant and Kartik Oka be punished for the offences punishable under Sections 326, 294 and 506-II of the Indian Penal Code.
5. The learned Magistrate recorded statements of the complainant and his witnesses, examined documents filed on record and by the order dated 25th September, 2012, recorded that prima-
facie case was made out against the applicant for the offence punishable under Sections 326, 294, 506 of the Indian Penal Code and directed issuance of process against the applicant. The learned Magistrate recorded that prima-facie case was not made out against Kartik Oka and did not order issuance of process against him.
The applicant challenged the above order in revision which is dismissed by the learned Additional Sessions Judge by the impugned order. The applicant being aggrieved by the above orders has filed this application.
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6. Shri Anil Mardikar, learned Senior Advocate has submitted that the complainant has filed complaint on 18th July, 2011 alleging that the offence is committed on 16th March, 2009 and in view of Section 161 (1) of the Maharashtra Police Act, it is barred by limitation and therefore, cognizance cannot be taken of it. It is submitted that even on the basis of the facts and evidence on record, the impugned orders directing issuance of process against the applicant are unsustainable.
7. Shri Uday Dastane, advocate for the non-applicant No.2 has pointed out that the complaint was made to the Sub-Divisional Police Officer-Shri Kartik Oka on 16th March, 2009 itself making grievance against the applicant because of which the inquiry was also conducted. It is further submitted that the Sub-Divisional Police Officer, Pusad-Kartik Oka submitted his report dated 29th June, 2009 which shows the truthfulness of the accusations made by the non-
applicant No.2 against the applicant. It is submitted that as the further steps are not taken, the non-applicant No.2 is constrained to file the complaint before the learned Magistrate. The learned advocate for the non-applicant No.2 has submitted that the bar of Section 161(1) of the Maharashtra Police Act will not apply as the acts of the applicant, ::: Uploaded on - 01/04/2016 ::: Downloaded on - 31/07/2016 08:36:42 ::: Judgment 6 apl44.13.odt which constitute the offence of which the complaint is made, cannot be said to have been done in the course of his duty or in exercise of his authority. In support of this submission reliance is placed on the following judgments :
i) Judgment given by the Hon'ble Supreme Court in the case of Rizwan Ahmed Javed Shaikh Vs. Jammal Patel, reported in (2001) 5 SCC 7,
ii) Judgment given by this Court in the case of Kashinath Laxmanrao Marwalikar Vs. State of Maharashtra, reported in 2002 Bom.C.R. (Cri.) 338,
iii) Judgment given by this Court in the case of G.P.Pedke Vs. Syed Javed Ali, reported in 1991 CRI.L.J. 1481,
iv) Judgment given by the Hon'ble Supreme Court in the case of Pukhraj Vs. State of Rajasthan, reported in (1973) 2 SCC 701.
It is submitted that the learned Additional Sessions Judge has kept open the point raised by the applicant relying on the bar created by Section 161(1) of the Maharashtra Police Act, 1951 to be considered by the learned Magistrate at the appropriate stage. It is submitted that the learned Magistrate has applied his mind properly and has rightly concluded that the process is required to be issued ::: Uploaded on - 01/04/2016 ::: Downloaded on - 31/07/2016 08:36:42 ::: Judgment 7 apl44.13.odt against the applicant. It is submitted that the learned Additional Sessions Judge has appreciated the evidence on record properly and after independently considering the matter has rightly dismissed the revision application. It is submitted that there is neither illegality nor error of jurisdiction by the learned Magistrate or the Sessions Court which necessitates interference by this Court under Section 482 of the Code of Criminal Procedure or Article 227 of the Constitution of India.
It is prayed that the application be dismissed with costs.
8. The point which arises for consideration is whether the bar of limitation as per Section 161 (1) of the Maharashtra Police Act, 1951 is attracted.
The incident regarding which the complaint is made is undisputedly dated 16th March, 2009 and the complaint is filed on 18th July, 2011 i.e. the complaint is admittedly filed after a period of 2 years and 5 months. Section 161 (1) of the Maharashtra Police Act, 1951 reads as follows :
"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.::: Uploaded on - 01/04/2016 ::: Downloaded on - 31/07/2016 08:36:42 :::
Judgment 8 apl44.13.odt (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.]"
The submission on behalf of the non-applicant No.2 is that the acts committed by the applicant are not related to his duty and therefore, the provisions of Section 161(1) of the Maharashtra Police Act, 1951 will not be attracted. The intricacies of the issue are considered in the judgment given in the case of K.K. Patel vs. State of Gujarat, reported in AIR 2000 SC 3346. The relevant considerations are in the following paragraphs :
"16. A three Judge Bench of this Court in Virupaxappa Veerappa Kadampur vs. State of Mysore AIR 1963 SC 849 : (1963 (1) Cri.LJ 814) has considered the amplitude of the expression "under the colour of any duty or authority" as envisaged in the sub- section. After making reference to some of the earlier decisions rendered by the Bombay High Court ::: Uploaded on - 01/04/2016 ::: Downloaded on - 31/07/2016 08:36:42 ::: Judgment 9 apl44.13.odt and after noticing the meaning of the expression "colour of office" given in Law lexicons, learned Judges observed thus:
"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 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 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."
In this case, there is no scope for contending that the offences alleged would not fall within the purview of "acts done under the colour or in excess of duty or authority" of such police officer. Even the very reading of the ingredients for the offences alleged would show that such offences could not be committed without being in the cloak of a public servant nor could they be committed unless the public servant was at least under the colour of his office. Section 166 of the Indian Penal Code which is one of the offences alleged against the complainant is extracted below:
"166.Public servant disobeying law, with intent to cause injury to any person.- Whoever, being a public servant, knowingly disobeys any direction of the law as to the way in which he is to conduct himself as such public servant, intending to cause, or knowing it to be likely that he will, by such disobedience, cause ::: Uploaded on - 01/04/2016 ::: Downloaded on - 31/07/2016 08:36:42 ::: Judgment 10 apl44.13.odt injury to any person, shall be punished with simple imprisonment for a term which may extend to one year, or with fine, or with both.
The indispensable ingredient of the said offence is that the offender should have done the act "being a public servant". The next ingredient close to its heels is that such public servant has acted in disobedience of any legal direction concerning the way in which he should have conducted as such public servant. For the offences under Sections 167 and 219 of IPC the pivotal ingredient is the same as for the offence under Section 166 of IPC. The remaining offences alleged in the complaint, in the light of the averments made therein, are ancillary offences to the above and all the offences are parts of the same transaction. They could not have been committed without there being at least the colour of the office or authority which appellants held."
Relying on the proposition deduced from the judgment given in the case of Virupaxappa Vs. State of Mysore, reported in AIR 1963 SC 849 and in the judgment given in the case of K.K. Patel (supra) it has to be held that the bar created by Section 161(1) of the Maharashtra Police Act, 1951 is attracted and the complaint filed by the non-applicant No.2 cannot be entertained, being barred by limitation.
9. The submissions made on behalf of the non-applicant No.2 relying on the judgment given in the case of Rizwan Ahmed Javed Shaikh Vs. Jammal Patel, reported in 2001(5) SCC 7 and the judgment given in the case of Pukhraj Vs. State of Rajasthan, reported in (1973) 2 ::: Uploaded on - 01/04/2016 ::: Downloaded on - 31/07/2016 08:36:42 ::: Judgment 11 apl44.13.odt SCC 701 cannot be accepted, as in this judgment provisions of Section 197 of the Code of Criminal Procedure are considered which, in my view, are not in strict sense pari-materia with the provisions of Section 161 of the Maharashtra Police Act, 1951.
In the judgment given in the case of Kashinath Laxmanrao Marwalikar Vs. State of Maharashtra, reported in 2002 Bom. C.R. (Cri.) 338, similarly in the order passed by this Court in the case of B.P. Pedke Vs. Syed Javed Ali, reported in 1991 CRI.L.J. 1481 the provisions of Section 197 of the Code of Criminal Procedure are considered. In the judgment given in the case of Kashinath Laxmanrao (supra) the proposition laid down by the Hon'ble Supreme Court in the judgment given in the case of K.K. Patel (supra) and in the judgment given in the case of Virupaxappa (supra) has not been noticed.
10. In view of the above, it has to be held that the complaint filed by the non-applicant No.2 after 2 years and 5 months of the alleged incident is barred by limitation in view of Section 161 of the Maharashtra Police Act, 1951 and the learned Magistrate has committed an error in directing issuance of process against the applicant.
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11. Hence, the following order :
i) The order passed by learned Judicial Magistrate First
Class, Pusad, on 25th September, 2012 in Regular Criminal Case No.172 of 2011, is set aside.
ii) The order passed by the learned Additional Sessions Judge in Criminal Revision No. 41 of 2012 on 27th December, 2012 is set aside.
iii) The complaint filed by the non-applicant No.2 for punishing the applicant for the offence punishable under Sections 326, 294 and 506(2) of the Indian Penal Code is dismissed.
Rule is made absolute in the above terms. In the circumstances, the parties to bear their own costs.
JUDGE RRaut..
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