Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 5
CASE NO.:
Appeal (crl.) 501 of 2008
PETITIONER:
Paul George
RESPONDENT:
State of N.C.T. of Delhi
DATE OF JUDGMENT: 14/03/2008
BENCH:
S.B.SINHA & HARJIT SINGH BEDI
JUDGMENT:
J U D G M E N T
CRIMINAL APPEAL NO. 501/2008
(arising out of SLP (Crl) No. 40/2007)
HARJIT SINGH BEDI,J.
1. Leave granted.
2. This appeal by way of special leave is directed
against the judgment of the High Court of Delhi dated
30th May, 2006 confirming the judgment of the trial court and
the first appellate court convicting the appellant for offences
punishable under Sections 279 and 304-A of the IPC but
reducing the sentence imposed by the first two courts to 6
months imprisonment but retaining the fine as it is.
3. The appellant who was working as a Head
Constable with the Delhi Police and posted at P.S. Kashmere
Gate was directed to go to the Police Headquarters at ITO to
convey an urgent message. He left the Police Station driving
police Mini Truck No. DDL-6462. As the vehicle reached
under the railway bridge on the Ring Road going towards
Jamuna Bazar it went over the road divider and hit a scooter
driven by Hans Kumar with his friend Atma Ram sitting on the
pillion seat. Unnerved, the appellant attempted to steer the
truck back on the other side of the road but in doing so,
struck an electric pole and came to a halt. The Police Control
Room was called and Atma Ram was taken to the Jai Prakash
Narain Hospital where he subsequently succumbed to injuries.
The appellant was accordingly tried and convicted under
sections 279 and 304-A of the IPC, as already mentioned
above. The conviction and sentence was confirmed by the first
appellate court, by the High Court in revision and was further
challenged by way of a special leave petition in this Court.
4. The primary plea raised at that stage was that the order
of the High Court dismissing the revision petition was a non-
speaking one and as the main plea that the prosecution was
bad abinitio as being beyond limitation prescribed under
Section 140 of the Delhi Police Act, 1978 (hereinafter called
the \023Act\024) had not been dealt with as the appellant had been
acting under the colour of duty. This Court allowed the appeal
and remitted the case to the High Court. It is in this
circumstance that a second round of litigation started before
the High Court. Before the High Court, the learned counsel
appearing for the petitioner (the present appellant) conceded
that section 140 would not come into play but that sanction
had nevertheless to be taken under Section 197 of the Code of
Criminal Procedure as the appellant had been acting or
purporting to act in discharge of his police duty in driving an
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 5
official vehicle when the accident had taken place. The
learned counsel for the appellant placed reliance on Sankaran
Moitra Vs. Sadhna Das 2006 (3) SCALE 141. The learned
counsel for the State, however, submitted that that no
sanction under section 197 was necessary inasmuch as there
was no connection between the duty of the appellant and his
rash and negligent act in crossing the road divider and hitting
a vehicle on the other side and as such the question of the
applicability of Section 197 of the Cr.P.C. did not arise.
Several judgments were cited by the learned counsel for this
proposition as well. In addition, the State counsel urged that
Section 197 of the Code was applicable only in a case where
the public servant concerned was not removable from service
save by or with the sanction of the Government and the
appellant, a mere Head Constable, did not fall in this exalted
category. It was also urged that even assuming sanction was
required the trial would still not be vitiated and the proceeding
and the sentence could not be set aside because of a mere
irregularity more particularly as the non-obtaining of the
sanction had not in any way occasioned a failure of justice in
the trial.
5. The High Court in the course of its judgment held
that as per the provisions of Section 465 of the Code a
irregularity in the sanction would not ipso-facto entitle a court
of appeal or revision to reverse an order of conviction unless it
could be established that such an error had resulted in a
failure of justice. The Court accordingly held that as the
appellant had not raised this issue before the trial court and
the first appellate court, it was unnecessary to examine as to
whether the sanction under Section 197 of the Code was
required or not. The revision petition was accordingly
dismissed, leading to this appeal.
6. Before us the learned counsel for the appellant has
made a volte-face and has submitted that the prosecution
against the appellant was completely barred under section 140
(1) of the Delhi Police Act as it has not been initiated within 3
months from the date of incident. This plea has been opposed
by the Government counsel, as being an after thought and not
even pressed earlier. The matter must thus be examined.
Section 140 of Delhi Police Act is re-produced below:
\023 Bar to suits and prosecutions.- (1) In
any case of alleged offence by a police
officer or other person, or of a wrong
alleged to have been done by such police
officer or other person, by any act done
under colour of duty or authority or in
excess of any such duty or authority, 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 and if entertained shall be
dismissed if it is instituted, more than
three months after the date of the act
complained of:
Provided that any such prosecution
against a police officer or other person
may be entertained by the court, if
instituted with the previous sanction of
the Administrator, within one year from
the date of the offence.
(2) In case of an intended suit on account of
such a wrong as aforesaid, the person
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 5
intending to sue shall give to the alleged
wrongdoer not less than one month\022s
notice of the intended suit with sufficient
description of the wrong complained of,
and if no such notice has been given
before the institution of the suit, it shall
be dismissed.
(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 what tender or amends, if
any, has been made by the defendant
and 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\024.
7. A bare perusal would show that sub-section (1) of
Section 140 provides that any action against a wrongful act by
a police officer done under the \021colour of duty\022 has to be
initiated within three months from the date of the act
complained off and if this time limit is exceeded, it would bar
the suit or prosecution. The learned counsel for the appellant
has then argued that as the appellant was carrying an urgent
message from the Kashmere Gate Police Station to the Police
Head Quarters when the accident had taken place, he had
been acting under the colour of duty and was therefore
entitled to the benefit of sub section (1) of Section 140 of the
Act. It has also been pleaded that the term \021offence\022 used in
the Section ibid could not be confined only to offences
committed under the Act but was applicable to offences under
the Penal Code and for both these propositions, the learned
counsel has placed reliance on judgment of this Court in
Virupaxappa Veerappa Kadampur vs. State of Mysore AIR
1963 SC 849. The cited case pertains to sub section (1) of
Section 161 of the Bombay Police Act which is a provision
analogous to Section 140 (1) of the Act and while explaining
this provision in the context of the facts of the case, this Court
observed that the Head Constable concerned had been found
remiss in recording a false panchnama with regard to the
recovery of ganja and as the preparation of panchnama was
within the exclusive purview of a police officer, the recording of
such panchnama could be said to be under the colour of duty
and as such covered by the limitation laid down in Section
161 of the Bombay Police Act. This is what the Court had to
say:
8. \023In view of these provisions of law it has
been seriously disputed before us that the
preparation of a correct panchnama and a
correct report as regards the seizure of ganja
was the duty of the appellant. This duty was,
on the prosecution allegation, not performed.
The act alleged to have been done, as already
stated, was the preparation of a false
panchnama and a false report. The question
still to be considered therefore is whether
when the preparation of a correct panchnama
and a true report as regards the seizure is the
duty of the police officer concerned, he
prepares instead a false panchnama and a
false report, that act is done by him \023under
colour\024 or in excess of that duty.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 5
9. The expression \023under colour of
something\024 or \023under colour of duty\024, or
\023under colour of office\024, 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 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 \023under colour\024 in Section 161(1) to
include this sense. It is helpful to remember in
this connection that the words \023colour of
office\024 has been stated in many law lexicons to
have the meaning just indicated above. Thus
in Wharton\022s Law Lexicon, 14th Edn., we find
at p. 214 the following:
\023Colour of office\024
\023When an act is unjustly done by the
countenance of an office, being grounded upon
corruption, to which the office is as a shadow
and colour.\024
In Stroud\022s Judicial Dictionary, 3rd Edn.,
we find the following at p. 521.
Colour: \023\021Colour of office\022 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
\021by reason of the office\022 and \021by virtue of the
office\022 are taken always in the best part.\024
10. It appears to us that the words
\023under colour of duty\024 have been used in
section l61(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\022s Dictionary \023as a veil to his falsehood\024.
The acts thus done in dereliction of his duty
must be held to have been done \023under colour
of the duty\024.
8. It is therefore evident that what has to be seen on the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 5
facts of the case is the nature of act and as to whether it fell
within the protection available to the appellant. The facts of
the present case show that the appellant, a Head Constable
Driver, was posted at Kashmere Gate Police Station had been
entrusted with the task of delivering a wireless message to the
Police Head Quarters at the ITO in New Delhi and while on his
way he had suddenly gone over the road divider which
separated the lanes and had hit the scooter which was
oncoming in the opposite lane. It is this act, the appellant had
caused the death of one person and injuries to the other.
Undoubtedly the duty entrusted to the appellant to deliver the
message to the Police Head Quarters was in his capacity as a
police officer and to that extent and prima facie he would be
protected by Section 140 of the Act. We find however that by
jumping road divider and coming- face on the incoming traffic
was the factor which had caused the accident and was clearly
not a matter within the colour of duty. We are, therefore, of
the opinion that the case of the appellant would not be covered
by Section 140 and that the initiation of proceedings and the
prosecution beyond three months from the date of accident
was not beyond limitation. It is also evident from the above
discussion that the appellant\022s counsel in the various litigation
that had come up the hierarchy right up to the Supreme Court
had taken an ambivalent stand with regard to the sanction
required under Section 197 of the Code and to the limitation
imposed by sub-section (1) of Section 140 of the Act. We now
come up to the sentence of the appellant.
9. This litigation has been going on for the last 20 years and
has been fought tenaciously through various courts, we are
also told that the appellant who has had a good career
throughout but for this one aberration has since been
dismissed from service on account of his conviction. We,
therefore, while dismissing the appeal, feel that the ends of
justice would be met if we direct that the appellant be released
on probation under Section 4 of the Probation of Offenders
Act, 1958 on conditions to be imposed by the Trial Court. The
appeal is disposed of in the above terms.