Virupaxappa Veerappa Kadampur vs The State Of Mysore

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: supreme-court

Case Number: Criminal Appeal No. 144 of 1961

Decision Date: 9 November 1962

Coram: K.C. Das Gupta, Syed Jaffer Imam, Raghubar Dayal

In the matter titled Virupaxappa Veerappa Kadampur versus The State of Mysore, the Supreme Court of India delivered its judgment on 9 November 1962. The opinion was authored by Justice K.C. Das Gupta, who sat with Justices Syed Jaffer Imam and Raghubar Dayal. The case is reported in the 1963 volume of the All India Reporter at page 849 and also appears in the 1963 Supplement to the Supreme Court Reports, part 2, page 6, with subsequent citations in later reporters.

The petitioner, Virupaxappa Veerappa Kadampur, who held the rank of Head Constable, was charged under section 218 of the Indian Penal Code, 1860. The prosecution alleged that on 23 February 1954, after receiving a tip that individuals were attempting to smuggle ganja, the petitioner apprehended a person identified as “N” and seized a bundle that contained fifteen packets of the narcotic. The petitioner subsequently prepared a panchnama—a formal seizure report—in which he recorded that only nine packets had been seized, thereby omitting the existence of six additional packets.

The next day, the petitioner drafted a second report in which he falsely claimed that the individual with the bundle fled upon seeing the police, discarding the bundle that he alleged contained only nine packets of ganja. The prosecution contended that the petitioner deliberately manufactured this false report with the dishonest intention of shielding N, who had actually been caught with the full quantity of ganja, from legal punishment. The trial court accepted the prosecution’s version of events and convicted the petitioner under the aforementioned penal provision.

On appeal, the petitioner challenged the validity of the conviction on several grounds, one of which was that the alleged offence was committed “by an act done under colour of duty” as defined in section 161(1) of the Bombay Police Act, 1951. He argued that, because the prosecution was instituted more than six months after the purported act, the special limitation period prescribed by that section barred the proceeding. The petitioner further asserted that the language of the statute required the act to be performed in the exercise of official duty, which he claimed was not the case.

The Court held that the phrase “under colour of duty” in section 161(1) of the Bombay Police Act, 1951, is intended to encompass acts performed under the guise or cloak of official duty, even when the act itself is not authorized by that duty. Accordingly, when the petitioner prepared the false report, he used the authority of his official position as a shield for his corrupt conduct. The Court therefore concluded that the false report constituted an act “under colour of duty.” The Court relied upon the earlier decisions in Madhav Ganpat Prasad v. Maihidkhan (1917) ILR 41 Bombay 737 and Narayan Hari v. Yeshwant Raoji (1928) AIR Bombay 352, which endorsed this broader interpretation. The Court also noted observations from Parbat Gopal Walekar v. Dinkar S. Shinde (1960) 63 Bombay LR 189, emphasizing that an act found to be in gross violation of duty no longer qualifies as an act done under colour of duty.

The Court disapproved the view that the conduct no longer qualified as an act done under colour of duty. It further held that the expression “offences” in section 161(1) of the Bombay Police Act, 1951 embraces offences punishable under any law and is not confined to offences created by that Act alone. The matter before the Court was Criminal Appeal No. 144 of 1961, filed by special leave against the judgment and order dated 8 March 1961 of the Mysore High Court in Criminal Appeal No. 362 of 1959. Counsel for the appellant and counsel for the respondent were instructed. The judgment was delivered on 9 November 1962 by Justice Das Gupta. The sole question for decision was whether the appellant’s prosecution was barred by the special rule of limitation contained in section 161(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 23 February 1954, acting on information about the smuggling of ganja from the then Hyderabad State to Kalkeri, he proceeded to Budhihal Road at about two or three p.m. and actually apprehended a person identified as Nabi Sab Kembhavi, who was carrying a bundle containing fifteen packets of ganja. All fifteen packets were seized, and the appellant prepared a panchnama recording the seizure, but the document incorrectly stated that only nine packets had been seized. It is alleged that on 24 February 1954 the appellant caused a new panchnama to be prepared in which it was falsely narrated that a person approaching the village of Budhihal fled on seeing the panchnama and the havaldar, after discarding a bundle that was subsequently found to contain nine packets of ganja weighing one tola each. The date entered in this panchnama was 23 February 1954, and a report containing the same false account was also prepared. The prosecution contended that no such occurrence took place on either 23 or 24 February 1954 and that the panchnama and report were fabricated by the appellant with the dishonest intention of shielding Nabi Sab Kembhavi from legal punishment. Consequently, the appellant was tried before the Additional Sessions Judge, Bijapur, on a charge under section 218 of the Indian Penal Code. He pleaded not guilty, asserting that the panchnama and the accompanying report, which the prosecution described as false, had in fact been correctly prepared by him on 23 February 1954 and reflected the true facts. He also contended that Rule 542 of the Bombay Police Manual barred his prosecution because prior permission of the District Superintendent of Police had not been obtained, and he further raised the defence that the prosecution was barred by section 161(1) of the Bombay Police Act since it had been instituted more than six months after the alleged offence. Despite these contentions, the appellant was convicted by the trial court.

The trial court convicted the appellant under section 218 of the Indian Penal Code and imposed a rigorous imprisonment of one year. Following that judgment, the appellant filed an appeal before the High Court of Mysore. The High Court affirmed the trial court’s finding that an offence under section 218 of the Indian Penal Code had been established. It also rejected the defence based on Rule 542 of the Bombay Police Manual, holding that the Rule possessed no statutory authority. Regarding the plea of limitation under section 161(1) of the Bombay Police Act, 1951, the High Court observed that on 24 February 1954 the appellant was required to perform a duty in relation to the crime detected on the 23rd. Consequently, the Court concluded that the alleged preparation of a false panchnama and a false report could not be described as acts done “under colour or in excess of any such duty or authority” as contemplated by section 161(1) of the Bombay Police Act. Accordingly, the High Court dismissed the appeal.

The present appeal, which has been permitted by special leave granted by this Court, raises solely the question of whether the High Court correctly held that the prosecution was not barred by section 161(1) of the Bombay Police Act, 1951. Section 161(1) reads as follows: “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 matter, the prosecution was undeniably instituted well beyond six months from the date of the alleged act. The allegation is that the offence was committed by a police officer. If it is shown that the alleged offence was committed by an act done “under colour or in excess of any such duty or authority” as defined in the provision, the prosecution must be dismissed. The allegations indicate that the offence consisted of preparing a false panchnama and a false report on 24 February 1954. Therefore, the decisive issue is whether the preparation of a panchnama or a report falls within the meaning of an act done “under colour or in excess of any such duty or authority.” It is not contested that the preparation of a correct panchnama and a true report concerning the seizure of the ganja formed part of the police officer’s duty.

It was held that preparing a true report concerning the seizure of ganja was a duty imposed on a police officer. The duty to make such a report and the related record, known as a Panchnama, was expressly laid down in the Bombay Police Act. Section 64 of that Act provides, inter alia, that every police officer shall have the duty “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” (section 64(b)) and also that the officer must “discharge such duties as are imposed upon him by any law for the time being in force.” It was undisputed that the appellant was an officer authorized under the Bombay Prohibition Act to seize ganja in the circumstances alleged. In order to effect such a seizure, the officer necessarily had to prepare a Panchnama and to submit a report of the seizure. In view of the statutory provisions, the Court found that there was no serious dispute that the preparation of a correct Panchnama and a correct report about the ganja seizure constituted the appellant’s legal duty. The prosecution, however, alleged that the appellant failed to perform that duty and instead prepared a false Panchnama and a false report. The remaining question, therefore, was whether the making of a false Panchnama and a false report, when the officer’s duty was to make a correct one, amounted to an act done “under colour” of his duty or in excess of that duty. The expression “under colour of something,” “under colour of duty,” or “under colour of office” is commonly used both in legal discourse and in everyday language. For example, when a person entrusted with collecting charitable donations instead uses the opportunity to obtain money for himself, it is said that he is collecting money “under colour” of charity. The crucial idea is that even if an act appears to be performed under the true colour of an office, duty, or right, the phrase is applied when the colour serves as a cover or a cloak for conduct that cannot properly be carried out in the performance of the duty or the exercise of the right. It is reasonable to conclude that the legislature employed the words “under colour” in section 161(1) to include this meaning. Legal dictionaries confirm that “colour of office” signifies an act that is masked by the appearance of official authority while actually constituting an abuse of that authority. Consequently, when a police officer prepares a false Panchnama or a false report, he is clearly using the existence of his legal duty as a façade for dishonest conduct, and such conduct falls within the ambit of an act done “under colour of duty.”

In this case the Court examined the meaning of the expression “colour of office” as it appears in legal dictionaries. The Court quoted Wharton’s Law Lexicon, 14th edition, page 214, which defines “colour of office” as an act unjustly performed by virtue of an office, grounded on corruption, where the office serves as a shadow and colour. The Court also referred to Stroud’s Judicial Dictionary, third edition, page 521, which describes “colour of office” in the worst sense, indicating an evil act performed under the appearance of an office, where the office acts as a veil for falsehood and is based on vice, whereas expressions such as “by reason of the office” and “by virtue of the office” are taken in a favourable sense. From these definitions the Court observed that the words “under colour of duty” used in section 161(1) are intended to include acts committed under the cover of duty even when they are not performed by virtue of that duty. The Court illustrated this principle by noting that when a police officer prepares a false Panchnama or a false report he is clearly using his legal duty as a cloak for a corrupt act, employing the language from Stroud’s dictionary that the office becomes a veil for falsehood. Consequently, such derelict acts must be regarded as done “under colour of the duty.” The Court further stated that it saw no relevance in the fact that the seizure occurred on the twenty‑third and the false report was prepared on the twenty‑fourth. Whether the false report was prepared on the twenty‑third or the twenty‑fourth, the essential point remained that it was prepared under the cover of the officer’s duty to make a correct Panchnama and report. There was therefore no escape from the conclusion that the acts alleged to constitute an offence under section 218 of the Indian Penal Code were performed by the appellant under colour of a duty imposed upon him by the Bombay Police Act.

The Court noted that the interpretation of the words “under colour of office” in section 80, sub‑section 3 of the Bombay District Police Act, 1890—language almost identical to that of the present section 161(1) except that the newer provision also extends protection to the Revenue Commissioner or the Commissioner—had been considered by the Bombay High Court on several occasions. In Madhav Ganpat Prasad v. Mainikhan the complaint alleged that a Sub‑Inspector of Police had vexatiously seized the complainant’s property, thereby committing an offence punishable under section 63(b) of the Bombay District Police Act, 1890. The High Court assumed that the case fell within the ambit of section 80, sub‑section 3. The matter was later examined by a Full Bench of the Bombay High Court in Narayan Hari v. Yeswant Raoji. In that case the allegation against the police officer was that, while investigating a case, he deliberately recorded a witness’s statement incorrectly. The Full Bench held that even though the officer acted in deliberate disregard of his proper duty and authority, the act was nonetheless performed under colour of, or in excess of, a duty imposed or an authority conferred on him by the Police Act. The Court affirmed that this view of the meaning of the phrase “under colour of duty” was correct.

In the case under consideration, the accused had been prosecuted under sections 167 and 218 of the Indian Penal Code more than six months after a statement had been recorded. The central issue was whether the complaint should have been dismissed under section 80, sub‑section 3 of the Bombay District Police Act on the ground that the alleged act was performed “under colour of a duty.” A full bench of the Bombay High Court had earlier examined a similar question. In that earlier decision, the bench held that even when a police officer acted with deliberate disregard for his proper duty and authority, the act was still regarded as performed “under colour of” or “in excess of” a duty imposed or an authority conferred on him by the Police Act. The present Court agreed with that interpretation of the phrase “under colour of duty.” Counsel for the State then drew the Court’s attention to another Bombay High Court decision, namely Parbat Gopal Walekar v. Dinkar & Shinde. In that case, a police constable who drove a police jeep rashly and negligently while transporting a Sub‑Inspector for an enquiry was found not to have acted “under colour of or in excess of the duty imposed upon him as a constable driver.” The judge concluded that if police enjoy a shorter limitation period when acting in pursuance of a duty imposed by the Police Act or any other law, and if the act alleged to be an offence is shown to have been committed in gross violation of that duty or in contravention of the limits placed on the performance of the duty by law, then the act would cease to be an act done under colour of duty. On the facts of that particular case, the decision could be justified because the injury caused by rash and negligent driving had no relation to the constable’s duty to drive the vehicle. However, the present Court considered that the view that an act performed in gross violation of duty ceases to be “under colour of duty” was not correct. The Court explained that it is only when an act violates the duty that the question of whether it was done “under colour of duty” arises, and the fact that the act involved a gross violation does not mean it was not performed under colour of the duty. After a proper interpretation of the words “under colour of duty,” the Court concluded that the acts for which the prosecution had been instituted were indeed acts done under colour of duty imposed upon the officer by the Police Act.

In this case, the Court observed that the alleged conduct was performed under the colour of duty imposed upon the accused by the Police Act. The State then argued that section 161(1) of the Bombay Police Act applied only to offences against that Act and could not be invoked for offences punishable under the Indian Penal Code. The Court found no merit in that submission. It noted that the term “offence” is defined in the Bombay General Clauses Act as any act or omission made punishable by any law that is in force at the relevant time. Accordingly, the word “offence” in section 161(1) inevitably embraces offences that fall under the Indian Penal Code. The Court added that, had the legislature intended to restrict the operation of section 161(1) solely to offences under the Bombay Police Act, such a restriction would have been expressed expressly in the provision. The Court further examined the language of section 150 of the Bombay Police Act, which provides that offences against the Act, when the accused is a police officer above the rank of constable, may be tried only by a Presidency Magistrate or by a magistrate not lower than a second‑class magistrate. The Court reasoned that if the legislature had wished to limit the application of section 161(1) to offences against the Police Act, the wording would have mirrored that of section 150, using phrases such as “offences against this Act” rather than the broader “any case of alleged offences.” The Court concluded that the legislature deliberately extended the protection of section 161(1) to cover alleged offences against any law, and there is no basis for limiting that protection to offences solely under the Police Act. Consequently, the Court held that the prosecution against the appellant could not stand under section 161(1) of the Bombay Police Act. The appeal was allowed, the conviction and sentence imposed on the appellant were set aside, and the case against him was ordered to be dismissed.