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8. In view of Section 161 of the Act quoted above, in a case where prosecution has been launched after two years from the date of the offence and protection is claimed under the proviso to Section 161 of the Act it would be first necessary to find out if the offence alleged against the police officer was committed pursuant to an act done under the colour or in excess of any such duty or authority. In my opinion, commission of murder by a police officer of an accused in lock up and that too by merciless beating cannot be said to be referable to an act done under colour or in excess of duty or authority. Therefore, prima facie I am of the opinion that sanction in terms of proviso to Section 161 of the Act is not required to prosecute a police officer who is 12 appln3970.06.odt accused of an offence committed by him pursuant to an act which cannot be said to have been done under colour or in excess of duty or authority. The charge-sheet discloses that the respondents herein committed murder of Vinayak Gangaram Sable by brutally beating him with the help of kicks, blows, sticks and by butt of rifle. Although the prosecution has chosen to obtain sanction from the State Government which has been granted almost after a period of six years that by itself is not sufficient to hold that at this stage sanction in terms of Section 161 of the Act is required in the present case. ....."

14. It is thus clear that the act alleged must have some nexus with the duty of police officer to have protection of Section 161 of the Bombay Police Act. Unless some nexus or connection between the duty of the police officer and the alleged act is shown, the protection under Section 161 of the Bombay Police Act will not be available. To put it in other words or by way of example it can be said that if the police officer who is empowered to prepare panchanama and while acting as such police officer introduced something wrong in the panchanama, it can probably be argued that the act was committed under the colour of office. However, if a police officer while arresting accused assaults him or beats him without there being any reason for the same, it cannot be said that the offence of assault or causing hurt or grievous hurt, as the case may be, was committed under the colour of office.

Similarly if the person dies in police custody due to assault on the part of police officer, it cannot be said that the accused was being interrogated in a police custody and he died during the course of interrogation and therefore, 13 appln3970.06.odt the protection was available to the police officer. As such no straight-jacket formula can be laid down in respect of the provisions of Section 161 of the Bombay Police Act. Suffice it to say that some nexus or connection between the alleged act and the duty of the police officer is to be established to see the protection under Section 161 of the Bombay Police Act. Similar is the position with regard to the protection claimed by virtue of Section 197 of the Criminal Procedure Code.

15. In the present case, non-applicant Nos.1 and 2 had allegedly assaulted the son of the applicant who was in police custody. Assaulting the accused in police custody is not part of the duty of police officer. Therefore, it cannot be said that there was any nexus or connection between the assault and the authority of non-applicant Nos.1 and 2. In my considered opinion, the learned Ad hoc Additional Sessions Judge has grossly erred in taking the view that the protection under Section 161 of the Bombay Police Act was available to non-applicant Nos.1 and 2. Similarly the act done or purported to be done by non-applicant Nos.1 and 2 was not in discharge of their duty.