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51. As to Section 80 of the Code of Civil Procedure, the words there used are, "any act purporting to be done by a public officer in his official capacity." That these defendants are public officers is plain, but it is in our judgment, assuming the facts alleged true, impossible to hold that the act done purported to be done by the defendants in their official capacity. The case was one of assault and battery in which damages were sought, and it would be absurd to suggest that a police-officer who has been guilty of assault and battery can say that he purported to commit that assault and battary in his official capacity. Therefore, the objection under Section 80 of the Civil Procedure Code must necessarily fail.

78. The questions referred in the second reference are as follows:

1. Were both or either of the defendants acting in the discharge of a duty imposed or in the exercise of an authority conferred by the Bombay District Police Act or by any rule or order or direction made under that Act ?

2. Can the alleged assault or battery be said to have been committed under colour or in excess of such duty or authority ?

79. In this appeal the plaintiff Annappa alleged that the appellant defendant Sub- Inspector having sent for him and questioned him in regard to offences of which two persons belonging to the criminal tribe (berads) were suspected, committed various acts of battery and assault on the plaintiff by himself and with the help of the police constable defendant-appellant No. 2. The defendants police-officers raised an issue that they were entitled to notice under Section 80 of the Civil Procedure Code and under Sub-section (4) of Section 80 of the Bombay District Police Act IV of 1890. The lower court held that they wee not entitled to such notice as the illegal acts complained of were not acts done under colour or in excess of the duty or authority. On the merits the Subordinate Court held that certain acts of assault were proved against defendant No. 1 who was the Police Sub-Inspector and awarded damages against each of the defendants. In appeal to this Court the two questions stated above have been referred to us.

88. In the second case, however, while the acts of the Sub-Inspector from the summoning of the plaintiff and questioning him also fell under colour of his duty or authority, by no process of reasoning can the alleged acts of battery and assault be said to fall under such colour or in excess of such duty or authority.

89. Hypothetical cases are better perhaps avoided. But in a case where a prisoner is being arrested or while under arrest is being taken to the lock-up and offers resistance, such acts of battery and assault, even if they are in excess of the force necessary to prevent escape, would probably require notice under Sub-section (3) of Section 80. There is no such allegation here. Even if the alleged acts of battery and assault took place, the simple fact that they were committed while the witness was being questioned or during the investigation of the cognizable offence, cannot., by mere proximity of time, make the act done under colour or in excess of the duty or authority of the police-officer. As regards the notice under Section 80, Civil Procedure Code, in the second reference, we entirely agree with the view of the Full a Bench in Koti Reddi v. Subbiah (1917) I.L.R. 41 Mad. 792 F.B. and the observations of Sada-shiv Ayyar and Spencer JJ. at pages 810 and 812. The nature of the act and how it is related to the duty or authority of the officer or if it could be said to be done under colour or in excess is one question. The question of the state of mind of the officer and his bonafides or mala fides is quite another. It would be difficult for the Courts to add the second element when the Legislature merely prescribes the first as necessary and sufficient for limitation under Sub-section (8) or notice under Sub-section (4) of Section 80 of the Bombay District Police Act or notice under Section 80 of the Code of Civil Procedure. We cannot agree with the view of Banerji J. in Muhammad Saddiq Ahmad v. Panna Lal (1903) I.L.R. 26 All. 220 and we prefer the view of the same Court in Mumtaz Husain v. Lewis (1910) 7 A.L.J. 301 where it was held that an Assistant Engineer of the P.W.D. assaulting or beating his subordinate was not entitled to the notice under Section 424 of the old Code of Civil Procedure of 1882.

102. The word 'colour' in its legal sense is defined in Webster's Dictionary (1927 Edn., p. 440 (14) as 'an appearance or semblance of a right, authority, office, or the like,' A police-officer who commits an assault or battery on a person he arrests for a cognizable offence, can no doubt in certain violent cases where the accused cannot be reasonably apprehended without resorting to those means be said to be acting within the scope of his duty or under colour of his duty or authority. An assault in the technical sense is implied in every arrest. Where there may appear to be no justification for the police-officer in effecting an arrest to commit a battery, he would still appear to be acting either in excess of his duty or authority or under colour of such duty or authority. In the second reference before us can it be said that the police-officers in committing the alleged acts of assault and battery were acting under colour of a duty imposed or an authority conferred by the Act or that they were merely acting in excess of such authority? The police-officers may have believed that if they beat the plaintiff he would be induced to give them the information they wanted with reference to the cognizable offence they were investigating. That in itself would not make the dealing of blows by them to the plaintiff a part of their duty or authority under the Act or something akin to but in excess of such duty or authority. Even supposing, what is not the case here, that they had represented to the plaintiff at the time they beat him, that as police-officers they were entitled to beat him until he disclosed to them what they believed he knew about the commission of the offence, such conduct would not, in itself, in my opinion, bring the act under one performed under the colour of duty imposed or authority conferred by the Act or in excess of such duty or authority. Section 51(1)(c) doss not authorize a police-officer to touch the body of any person in the course of obtaining intelligence. For a thing to be the 'colour" of another there must be some likeness or semblance between the two. There is no likeness or semblance between committing assault and battery on the one hand and obtaining intelligence on the other. When the Act authorizes the police-officer to obtain'intelligence the 'obtaining' it contemplates is by means which are lawful and not those which in the absence of a provision to the contrary in this or any other Act are forbidden by the general law of the country, Apart from a special provision to the contrary a police-officer is as much governed by the general law as any private citizen.