# Ana,.ga Bijo7 Miltro v. Tai. Tron & Stul C , Lid. DasGupto, I
- **Citation:** [1963] Supp. 2 S.C.R. 6
- **Court:** Supreme Court of India
- **Decided:** 1961-03-08
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ana-ga-bijo7-miltro-v-tai-tron-stul-c-lid-dasgupto-i-2798
- **Pages:** 11
## Headnote
1962
Ana,.ga Bijo7
Miltro
v.
Tai. Tron & Stul
C.., Lid.
DasGupto, I.
1962
6
SUPREME COURT REPORTS [1963) SUPP.
find out such user, it becomes clear that while a part
of the land was used for growing some guava trees
and some flowers, a pacca room was also erected on a
portion of the land. On a cousideration of all these
things we find ourselves in agreement with the High
Court that the purpose of the lease was not agricultural or horticultural.
We have, therefore, come to the conclusion that
the High Court was right in decreeing the plaintiff's
suit.
The appeal is accordingly dismissed with costs.
Appe,al dismissed.
VIRUPAXAPPA VEERAPPA KADAMPUR
ti.
THE STATE OF MYSORE
(S. J. IMAM, K. C. DAs GuPl'A and
RA.GHUBAR I)AYA.L, lJ.)
Oriminal Law-Police O.fliur preparing /aloe report-" Act
clone under colour of duty'', Meaning of-Statute provifta
Vn1oppa Ka'dampur
••
TM .~-tote of M,sor1
D11s Gupta, I
8
SUPREME COURT REPORTS [1963] SUPP.
1962. November 9. The Judgment of the Court
was ddiwred by
DAS GUP'l'A, .J.-Thc only question for decision in this appeal is whether the appellant's prosecution was barred by the special rule of limitation in
s. Hil( 1) of the Bombay Police Act,
## Text
1962
Ana,.ga Bijo7
Miltro
v.
Tai. Tron & Stul
C.., Lid.
DasGupto, I.
1962
6
SUPREME COURT REPORTS [1963) SUPP.
find out such user, it becomes clear that while a part
of the land was used for growing some guava trees
and some flowers, a pacca room was also erected on a
portion of the land. On a cousideration of all these
things we find ourselves in agreement with the High
Court that the purpose of the lease was not agricultural or horticultural.
We have, therefore, come to the conclusion that
the High Court was right in decreeing the plaintiff's
suit.
The appeal is accordingly dismissed with costs.
Appe,al dismissed.
VIRUPAXAPPA VEERAPPA KADAMPUR
ti.
THE STATE OF MYSORE
(S. J. IMAM, K. C. DAs GuPl'A and
RA.GHUBAR I)AYA.L, lJ.)
Oriminal Law-Police O.fliur preparing /aloe report-" Act
clone under colour of duty'', Meaning of-Statute provifta
Vn1oppa Ka'dampur
••
TM .~-tote of M,sor1
D11s Gupta, I
8
SUPREME COURT REPORTS [1963] SUPP.
1962. November 9. The Judgment of the Court
was ddiwred by
DAS GUP'l'A, .J.-Thc only question for decision in this appeal is whether the appellant's prosecution was barred by the special rule of limitation in
s. Hil( 1) of the Bombay Police Act, 1951.
In February 1954, the appellant was employed
as a Head Constable at the Kalkeri Outpost attached
to the Hippussagi Police Station. On February 23,
1954, the appellant went to Budhihal Road on receipt
of information about the smuggling of Ganja from
the then Hyderabad State to Kalkeri and at about 2
or 3 p.m. actually caught one Nabi Sab Kembhavi
with a bundle containing 15 packets of Ganja. These
15 packets of Ganja were seized and for this seizure
the appellant prepared a Panchnama in which however he incorrectly showed the seizure of 9 packets of
Ganja only.
On February 24, 1954, it is alleged, the
appellant had a new Panchnama prepared in which
it was falsely recited that a person who was coming
towards the village of Budhihal ran away on seeing the
Panchas and the Havaldar, after throwing away a
bundle and this bundle was fonnd to contain 9 packets
of Ganja weighing one tola each. The date in the
Panchnama was mentioned as February 23, 1954. A
report to the same dfect was also prepared. The
prosecution case is that no such thing happened on
February 24, 1954, or Ft!bruary 23, 1954, but that
this Panchnama and the report were falsely prepared
by the appellant with the dishonest intention of saving
Nabi Sab Kembhavi who had actually been caught
with Ganja from legal punishment.
On these allegations the appellant was tried by
the Additioual Sessions Judge, Bijapur, on a charge
under s. 218 of the Indian Penal Code.
He pleaded
not guilty and contended that the Panchnama and the
report which are challenged by the prosecution as a
. i
2 s.c.R..
SUPREME COURT REPORTS
9
false Panchnama were correctly prepared by him on
February 23, 1954, and mention the true state of
affairs. It was also pleaded that Ruic 542 of the
Bombay Police Manual barred his prosecution as
prior permission of the District Superintendent of
Police had not been taken.
A further defence was
raised that in any case as the prosecution was commenced long after six months had elapsed after the
alleged commission of the offence it was barred by
s. 161(1) of the Bombay Police Act.
The appellant was however convicted by the
Trial Court uncle~ ·s. 218 of the Indian Penal Code
and sentenced to rigorous imprisonment for a period
of one year .
Against that order, he appealed to the High
Court of Mysore.
The High Court agreed with the
Trial Court that an offence under s. 218 of the
Indian Penal Code had been made out. The· defence
under Rule 542 of the Bombay Police Manual was
also rejected on the ground that this Rule had no
statutory force.
As regards the plea of limitation
under s. 161(1) of the Bombay Police Act, 1951, the
High Court was of the opinion that on February 24,
1954, the appellant had no duty to p~rform in regard
to the crime detected on the 23rd and hence it was
not possible to hold tliat the preparation of a false
Panchnama and a false report "were acts done under
colour or in excess of any such duty or authority as
aforesaid" as found ins. 161(1) of the Bombay Police
Act. Accordingly, the High Court dismissed the
appeal.
Against that decision the present appeal has
been preferred by special leave granted by this Court
and the only question raised in the appeal is as
.regards the correctness of the High Court's conclusion
that the prosecution of the appellant was not barred
under s. 161(1) of the Bombay Police Act, 1951.
1962
VirMp.uto;{I•
V111appo 1r.umpor
••
Tiu Stoi. •f Mport
Das Gupta, J.
1962
Virofl.,•Pf>a
'I'm.pp. K•"""flu'
••
Thi Sla/1 of My,.,,
10
SUPREME COURT REPORTS [1963]SUPP.
Section 161 ( l) is in these words :-
" 161 ( l). 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."
•
In the present case, theprosecution was admittedly
instituted much more than six months after the date
of the act complained of. The allegation is that the
offence was committed by a police officer. If, therefore, it appears that the offence alleged to have been
committed "by any act done under colour or in excess
of any such duty or authority as aforesaid" within
the meaning of the above provision of law the prosecution was liable to be dismissed.
From what has
been said above a bout the prosecution allegations
it is clear that the offence is alleged to have been
committed by the preparation of a false Panchnama
and a false report on February 24, 1954. The question that falls for decision therefore is whether the
preparation of a Panchnama or a report was an "act
done under colour or in excess of any such duty or
authority as aforesaid."
It is not disputed that the
preparation of a correct Panchnarna and a true
report as regards the seizure of the Ganja was the
duty of the police officer. It is equally clear that
- -
such preparation was the duty of the police officer as
laid down in the Bombay Police Act.
For s. 64 of
the Act provides inter alia that it shall be the duty of
•·,.
••
2 S.C.R.
SUPREME COURT REPORTS
ll
every police officer "to lay such information and to
take such other steps consistent with law and with
the orders of his superiors as shall be best calculated
to bring offenders to justice''; (s. 64 (b)) and also "to
discharge such duties as are imposed upon him by
any law for the time being in force." That the
appellant was an officer authorised under the Bombay
Prohibition Act to seize the Ganja in the circums·
tances alleged is clear. In seizing it, he had necessarily to prepare a Panchnama, and tO submit a;rc·
port of the seizure.
In view of these provisions of law it has not
been seriously disputed before us that the preparation
of a correct Panchnama and a correct report as re"
gards the seizure of Ganja was the duty. of the appe·
llant. This duty was, on the prosecution al1egation,
not performed. The act alleged to have been done,
as already stated, was the preparation of a false·
Panchnania 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 "under colour"
or in excess of that' duty.
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 ·~at . oppor¥ty to ~t
money for htmSelf, we say of him that he IS· collectmg
money for himself under colour of making collectiOns
for a charity. Whether or not when the act be~ die
true colour of the office or duty or right, the act ·may
be said to be done under oolour of that right, office
or duty, it is clear that when the colour is assumed
as a cover or a cloak for something which · cann<>t
1962
Yir.,.,,.pp.
Y11r<1p. Kad.,.,.,
••
n.s1ai.o/MJDol c;,;1., 1.
1962
Vi.1upatappa
VHrappa KadamJUr
••
T1" Stat1 of M:1so"
Dai Gupta, J.
i2
StJPREME COURT REPORTS [1963] SUPP.
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" ins. 161(1) to include this sense.
It is helpful to remember .in this connection that the
words "colour of office" has been stated in many law
lexicons to have the meaning just indicated above.
Thus in Wharton's Law Lexicon, 14th Edition, we
find atp. 214 the following:-
"Colour of office"
"When an act is unjustly done by the countenance of an office, being grounded upon corrupt-
tion, to which the office is as a shadow and
colour."
In Stroud's Judicial Dictionary, 3rd Edition, we find
the following at p. 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."
It appears to us that the words "under colour of
duty" have been used ins. 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 Die·
tionary "as a veil to his falsehood."
The acts thus
2 S.C.R.
SUPREME COURT REPORTS
13
done in dereliction of his duty must be held to have
been done "under colour of the duty."
We do not see how the fact that the seizure was
made on 23rd and the false report was prepared on
the 24th affects this position. Whether the false report was prepared on the 23rd or the 24th the fact
still remains that he prepared this under cover of his
duty to prepare a correct Panchnama and a correct
report and there is no escape from the conclusion that
the acts by which the offence under s. 218 of the
Indian Penal Code was aHeged to have been committed by the appellant were done by him under colour
of a duty laid upon him by the Bombay Police Act.
The interpretation of the words "under colour
of office" as used in s. 80, sub-s. 3 of the Bombay
District Police Act, 1890, which was in almost the
same words as the present 1. 161 (1) except that the
new section gives the protection also to the Revenue
Commissioner or the Commissioner, came up before
the Bombay High Court on several occasions. In
Madhav Gan.pat Pra._md v.
Maihidkhan (1)
the
complaint was that a Sub-Inspector of Police had
vexatiously seized the complainant's property and so
committed an offence punishable under s. 63 (b) of
the Bombay D.istrict Police Act, 1890. It was held
-or rather assumed-that the case fell within the
provisions of s. 80, sub-s. 3. The matter was considered by a Full Bench of the Bombay High Court
in Narayan Hari v. Yeshuxmt Raoji (').,There
the allegation against the police officer w3'_ that
while investigating a case he had deliberately t.aken
down the statement of a witness incorrectly. The
police officer was prosecuted under s. 167 and ~. 218
of the Indian Penal Code more than six montlls_
after the statement had been recorded. The guestion ·
raised was whether the complaint should be dismissed
under s. 80, sub-s. 3, on the ground that the act
complained of was done under colour of a duty. The
(I) [1917) l.L.ll, fl 8-. 717,
(2) A.I.It. Im ..... '51,
1962
Virop..appa
Vm•PIO KadOmpur
v.
Tiu .\~1•11 of Mtsor1
Das Gup1a, J.
1962
Yir.rxappa
Y11,.pp.· K•dam/NI
••
n.·s1011 ofMyso11
Do1Gwplo, J.
14
SUPREME COtJR.T REPORTS [1963] SUPP.
full Bench decided that even though the act was
done in deliberate disregard of his proper duty and
authority the act was one done under colour or in
excess of a duty imposed or an' authority conferred
on him by the Police Act. This view of the mean,
ing of the word under colour of duty was, in our
opinion, correct.
Learned Counsel drew our attention to another
decision of the Bombay High Court in Parbat Gopal
Walekar v.
Dinkar & Shinde (') where the act of a
police constable in driving rashly and negligently
when driving a police jeep which was carrying a
Sub-Inspector of Police, was proceeding for an enquiry was held not be one "under colour or in
excess of the duty imposed upon him as a constabledriver." In the concluding portion of the judgment
the learned Judge has observed thus :-
"If the police are entitled to have the benefit
of a shorter period of limitation when they are
acting in pursuance of a duty imposed on them
by the Police Act or any other law in force or
any rule thereunder, . and if the act is alleged
to amount to an offence or a wrong, then if
it is found to have been done in gross violation
of their duty or in contravention of the limits
placed upon the performance of such duty by
the law itself or any rules framed thereunder,
the act would cease to be an act done under
colour or in excess of their duty."
On the facts of that particular case the decision
may well be justified on the ground that injuring a
person by rash and negligent driving had no relation
to the duty of the constable ' to drive the motor
vehicle. We think it right .however to point out that
the view that if the alleged act "is found to have
been done in gross violation of the duty" then it
ceased to be an act done under colour, is not correct.
(I) (1960) 6S Dom. L.R. 189.
2 S.C;R.
SUPREME COURT REPORTS
15
As we have pointed out above it is only when the
act' is in violation of the duty that the question of the
act being done under colour of the duty arises. The
fact that the Act has been done under gross violation
of the duty can be no reason to think that the act has
not been done under colour of the duty.
We have come to the conclusion that on a
proper interpretation of the words "under colour of
duty", the acts in respect of which the pto8ecution
was instituted were acts done under colour of duty
imposed upon him by the Police Act.
On behalf of the State it was contended next
thats. 161 (1) of the Bombay Police Act is limited
to offences against the Actand has no application to
offences under the Indian Penal Code. We can find
no substance in this contention. "Offence" has been
defined in the Bombay General Clauses Act to mean
any act or omission made punishable by any law for
the time being in force. On this definition the word
"offence" as used in s. 161 (1) clearly includes an
offence under the Indian Penal Code. If it was the
intention of the legislature to limit the application
of'· 161 (1) to offences under the Bombay Police Act
only that would have been clearly mentioned. It is
worth noticing in this connecticin the language used
in s. 150 of tfle Bombay Police Act. That section
ru1» thus -: -
"Offences against this Act, when the accused
pcnon or any one of the accused persons is a
police officer: above ·the rank of a constable,
ahall not be cognizable except by a Presidency
Magistrate or a Magistrate not lower than a
ltlCODd. cla11 Magistrate."
(f the legislature had intcllded to limit the
~Ji4a.tiQu,.¢:,1. 161 nl \<>- .off~cs under--tbc Police
Act. only, it would have instead of using the words
Ifft
v.:~
...
7ilSW.•fM,..,,
DolGuJto,. J.
1912
Vir•PtJJ<•PP•
Yur•P/NJ fi.idompur
v.
1 lu Sl•f1 of My1or1
Das GufJta, .f.
1962
Jt/nrtmbtr, 13.
16
SUPREME COURT REPORTS [1963] SUPP.
"in any case of alleged offences" used words like "in
any case of offences against this Act." It appears
clear that the lei(islature deliberately gave the pro·
tection of s. 16 I ( l) to offences against any law and
there is no justification for our limiting that pro.
tection to offences under the Police Act only.
It
must accordingly be held that the prosecution against
the appellant should have been 'dismissed in accordance with the provisions of s. Ill! ( l) of the Bombay
Police Act.
We accordingly allow the appeal, set aside the
order of conviction anrl sentence passed against the
'
appellant and order that the case against him be
dismissed.
Appeal allmnd.
FRENCH MOTOR CAR CO., LIMITED
v.
WORKMEN
(P. B. GA.TRNDRAG.\DKAR, A. K. SARKAR and
K. N. WANCHOO, JJ.)
lnd,1181rial
Di8pule-Fi.ration of wage sca/c-lnduslrJ•
C'U:1'n-rcgion baRis-Applica.tion-l .11 rge and rl-is.1Jimilar concerns,
1'f and ?f'lten can br tal.·en. for co1npari«1an-.-tr{ju.r.:tment-Pml'er
of Trlbu,nal.
'l'he three matters canvassed in this appeal from an award
of the Industrial Tribunal related to ( 1) wa'