1 Cri Application No. 4742 of 2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATIION NO. 4742 OF 2010 Sayyad Azim s/o Sayyad Rahim, Aged 58 years, Occupation Service, Resident of Aref Colony, Plot No. 178/B, Teen Mandir, Aurangabad, Taluka and District Aurangabad Applicant V E R S U S The State of Maharashtra and another Respondents Smt. S.S. Jadhav, Advocate for the applicant Mr. S.G. Nandedkar, APP for the respondents / State CORAM : A.V. NIRGUDE, J. DATED : 3rd December, 2010 PER COURT : 1. This is second application filed by the applicant for seeking anticipatory bail in Crime No. 172 of 2010, registered at Bhagyanagar Police Station, Nanded, for the offences punishable under Sections 109, 118, 120-B, 217, 218, 219, 212, 465, 466 of the Indian Penal Code. 2. The application is entertained because a new ground is raised now which is found to be quite important. The applicant is challenging the registration of the offence saying that the offence could not be registered against him in view of Section 161 of the Bombay Police Act. This point was not discussed while the application was decided previously. I am, therefore, allowing the application to be pressed on all grounds. This time I got able assistance from both the sides. Not only this, but the Investigating Officer Smt. Geeta Chavan, Deputy Superintendent of Police, Nanded is also present before the Court 2 Cri Application No. 4742 of 2010 with all the papers, which I perused while the case was heard. The facts leading to the allegations against the applicant, in short, can be stated as under : 3. On 28th August, 2006, one person by name Faisal and others allegedly committed murder at broad day light at about 04.00 – 04.30 p.m. at Nanded near a Petrol-pump. The present applicant was at that time working as Police Inspector of Bhagyanagar Police Station Nanded. The other accused Shri Rathod a police constable was at the relevaqnt time was the Police Station Officer of Bhagyanagar Police Station Nanded. 4. It is now alleged that after Faisal committed the offence, he rushed to Bhagyanagar Police Station Nanded. Thereafter, the present applicant, Faisal and the other accused Rathod conspired to make a false entry in the police station diary. The entry was made by the Police Station Officer Rathod. The entry stated that at 04.30 pm. on that day, Faisal had arrived at the police station and made a complaint in writing against three persons, saying that those persons had assaulted Faisal and tried to take him away forcibly. The entry further mentioned that the complaint was treated as a non-cognizable offence. It is alleged that the applicant and others in this manner tried to create an alibi to Faisal. 5. During the investigation of the present case, the Investigating Officer recorded statements of various police constables who were then working at Bhagyanagar Police Station Nanded and who knew as to what had happened on that day between Faisal, the present applicant, Rathod and others. They sufficiently threw light through their statements that the applicant and Rathod took a false entry in order to protect Faisal from the murder case. 6. Nonetheless, the other factual aspect is quite damaging to the present case. It so happened that Faisal was prosecuted for the murder which he allegedly committed on 28th August, 2006. Faisal all 3 Cri Application No. 4742 of 2010 along took up a defence that at the relevant time he was not present at the scene of occurrence, but was at Bhagyanagar Police Station. During the investigation, it was pointed out to the police that Faisal was being protected by the present applicant and the constable Rathod. It is also common ground that the Superintendent of Police Nanded then initiated inquiry into the truthfulness of the police diary entry in question. (This inquiry admittedly remained pending for last four years and I am told by the learned APP that recently this inquiry was concluded. He said, thereafter, the complainant in the murder case, lodged the present complaint.) 7. It is also an admitted fact that the complaint lodged by Faisal, a mention of which is made above, which was initially treated as ‘non- cognizable case’, was subsequently treated by the police of Bhagyanagar Police Station Nanded as ‘cognizable case’. It is also an admitted fact that the investigation was conducted in the case and a charge-sheet was also filed against the three persons who are named in Faisal’s complaint. These circumstances would clearly suggest that the police did not believe that the police diary entry in question taken by constable Rathod was a false one. Admittedly, during the investigation of the murder case, the present applicant and constable Rathod were not made accused. In other words, till recently and at the time of filing of the charge-sheet against Faisal in that murder case, the police practically had given a clean cheat to the present applicant and the constable Rathod. 8. In this background, one must appreciate the efficacy of the complaint recently lodged against the present applicant and constable Rathod. It is quite surprising that this time the police believed the allegation made against the present applicant and constable Rathod and ignoring the earlier developments, thought it fit to register the offence. This factual aspect of this case really weakens the allegations made against the applicant. On this factual aspect, I think, 4 Cri Application No. 4742 of 2010 the applicant deserves protection of anticipatory bail, mainly because there is inordinate delay in taking cognizance of the so called offence allegedly committed by the applicant, and also, because there is practically no reason for the police to put the applicant behind the bar for the purpose of custodial interrogation. His statement can easily be recorded without causing his formal arrest or putting him in police custody. 9. The objection based on Section 161 of the Bombay Police Act is also very pertinent. Section 161 of the Bombay Police Act reads as under : 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 prescribed period. (1) In any case of alleged offence by the [Revenue Commissioner] a Magistrate, Police officer or other person, or of a wrong alleged to have been done by such [Revenue 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 suit shal1 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 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]. (2) In suits as aforesaid one month's notice of suit to be given with sufficient description of wrong complained of. In this case of an intended suit on account of such a wrong as aforesaid, the person intending to sue shall be bound to give to the alleged wrong doer one month's notice at least of the intended suit with sufficient description of the wrong complained of, failing which such suit shall be dismissed. (3) Plaint to set forth service of notice and tender of amend. The plaint shall set forth that a notice as aforesaid bas been served on the defendant and the date of such service, and shall state whether any, and if any, what tender of amends has been made by the defendant. 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. 5 Cri Application No. 4742 of 2010 10. This Section has to be read conjointly with Section 159 and 160 of the same enactment. Section 161 clearly imposes a ban on the Court from entertaining a prosecution for an offence falling within the purview of this Section if it is committed by a Police Officer etc and if the prosecution is instituted more than six months after the date of the act complained of. The other exception to the said ban is, if the complainant gets sanction from the State Government to prosecute the police officer, the period of six months would get enlarged to two years. Section 159 and 160 of the Bombay Police Act afford an absolute immunity to a public servant from any penalty or liability to pay damages in respect of any act done in good faith etc. Such absolute immunity is not given in respect of any offence or wrong allegedly done by such public servant if it was done under colour or in excess of any such duty or authority as aforesaid. The Supreme Court in the case of Virupaxappa Veerappa Kadampur v. State of Mysore (AIR 1963 SC 849) considered the amplitude of the expression “under the colour of any duty or authority” as envisaged in Section 161. The Supreme Court in that Judgment observed as under : “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. Itis 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 be 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. 6 Cri Application No. 4742 of 2010 ‘The acts thus done in dereliction of his duty must be held to have been done under colour of the duty.” In this case also, the applicant was a public servant at the relevant time and had committed corrupt act under the cloak of duty. So, apparently the bar of Section 161 would apply to the present case. Therefore, the applicant deserves anticipatory bail. ORDER 1. The application is allowed. 2. In the event of applicant’s arrest in Crime No. 172 of 2010, registered at Bhagyanagar Police Station, Nanded, for the offences punishable under Sections 109, 118, 120-B, 217, 218, 219, 212, 465, 466 of the Indian Penal Code, he shall be released on bail of Rs. 10,000/- (Rupees Ten Thousand) with one surety in the like amount. 3. The observations made in this order are only for the purpose of deciding the bail application and shall not influence the lower Court in any other proceeding. 4. The parties shall act upon the copy duly authenticated by Shirastedar of this Court. ( A.V. NIRGUDE, J. ) SRM/criapln/4742/10/3/12/10/ok