(1) A complaint was filed against the respondent (accused) Sub Inspector of Police, Law and Order, Kengerigate Police Station, Bangalore-2, by the petitioner (complainant) in the Court of the Judicial Magistrate, first Class (I Court), Bangalore City, alleging that he had committed offences under Ss. 323, 324, 355, 426, 392 and 342 of the IPC. The accused raised an objection that the Court had no jurisdiction to take cognizance of the offences in view of the provisions of S. 170 of the Mysore Police act 1963, hereinafter referred to as the act. The learned Magistrate upheld the objection of the accused and rejected the complaint. That order is challenged by the complainant in this revision petition.

(2) THE only question for decision in this case is whether the prosecution of the accused is barred by the provisions of S. 170 of the Act.

(3) THE complainant stated in his complaint the circumstances which gave rise to the prosecution of the accused as follows: On 18-10-71 two police constables in uniform with one Lakshmegowda went to his saw Mill and informed him that the accused wanted him and so saying took him to the police station. The accused called the complainant near him and ascertained from him that he was a timber merchant and was running a Saw Mill. Suddenly the accused slapped him on his cheeks and when the complainant protested, the accused threatened him and again beat him and lacked "him with his shoes. Not being satisfied with that, the accused tore off the shirt of the complainant and took away Rs. 2000 winch the complainant had in his shirt pocket. Thereafter, according to the complainant, the accused took out a gun and hit him with its butt end. Later on, on the orders of the accused, the complainant was put behind the bars in the lock-up. At the instance of some persons, he was released some time later and at that time he asked the accused to give his shirt and the money back, but the accused refused.

(4) WHETHER on these facts, sanction of the Government is necessary before the accused is prosecuted for the alleged offences S. 170 (1) of the act provides as follows :

"in any case of alleged offense by the Commissioner, a Magistrate, police Officer or Reserve Police Officer or other person, or of a wrong alleged to have been done by such Commissioner, Magistrate, police Officer or Reserve Police Officer or other person, by any act done under colour or in excess of any tuch 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 except with the previous sanction of the Government. "

In order to claim protection under S. 170 (1) of the Act, the material point for consideration would be whether there is reasonable connection between the act and the official duty.

(5) MR. M. V. Devaraj, the learned Counsel for the accused relied upon a decision in Virupaxappa Veerappa Kadampur v. State of Mys. , AIR 1963 SC 849 [LQ/SC/1962/367] , and contended that the acts alleged against the accused, even if were true, they having been done in the course of his duty or under colour of his duty previous sanction of the Government was necessary to prosecute the accused. In Virupaxappas case (1) the facts were that a Head Constable on receipt of information about the smuggling of Ganja, went to a particular place and caught one person with a bundle containing Ganja. The Ganja was seized and for this seizure the Head Constable prepared a panchanama in which, however ; he incorrectly showed the seizure of 9 packets of Ganja only when in fact he seized 15 packets. On the following day, the Head Constable prepared a new panchnama in which it was falsely recited that a person who was coming to the village ran away on seeing the panchas and the Havaldar, after throwing away a bundle and that the said bundle consisted of 9 packets of Ganja weighing one tola each. The date of the panchanama was mentioned as February 23, 1954, though the panchanama was written on February 24, 1954. A report to the same effect was also prepared. The prosecution case was that no such thing happened on February 24, 1954 or on February 23, 1954 and the panchanama and the report were falsely prepared with the dishonest intention of saving the person, who had actually been caught with the ganja, from legal punishment. On these facts it was held by the Supreme court as follows :

"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 by virtue of the duty. When he (the police officer) prepares a false panchanama 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 Strouds Dictionary as a veil to his falsehood. The acts thus done in dereliction of his duty must be held to have been done under colour of the duty. "

Further it was held :"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 24th the fact still remains that he prepared this under cover of his duty to prepare a correst panchanama and a correct report and there is no escape from the conclusion that the acts by which the offence under s. 218 IPC was alleged 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 ratio of the above decision is not applicable to the present case. In that case, it was pointed out that n was the duty of the Police Head Constable to prepare a panchanama and the act of preparation of false panchanama was, therefore, done under the colour of his office. There was hence a nexus between the act complained of and the statutory duty that the Police Head Constable was to perform and the provisions of S 161 (1)of the Bombay Police Act were applicable. In the present case the material facts are quite different.

(6) IN State of Maharashtra v. Narhar Rao, AIR 1966 SC 1783 [LQ/SC/1966/85] , it was pointed out that the acceptance of bribe by the Police Officer with the object of weakening the prosecution against certain accused cannot be said to have been don,e by him under the colour of his office or done in excess of his duty or authority within the meaning of S. 161 (1) of the Bombay Police act. In State of Maharashtra v. Atma Ram, AIR 1966 SC 1786 [LQ/SC/1966/86] , the facts were that one akaram went to the police station reported that his brother Lahanu had disappeared. The Sub Inspector in charge of the police station recorded the information in the Station Diary and ordered Atmaram a Head Constable, to enquire into the matter and report. Atmaram sent for seme persons and made enquiries. They denied having any knowledge about Lahanu. They were assaulted by Atmaram and detained till evening and thereafter were taken by him to the office of the Gram Panchayat and he sent for more police help. After the arrival of one Head Constable and two more police constables Dwarki was detained in the office of the Gram panchayat and the other three persons, who had been detained, were taken out to at jungle and assaulted. On the way back, Jumma was stripped naked and kept hanging from a tree. On account of the ill-treatment meted out to them Shivanthi and Sukha Ham made false confessional statements involving Jumma for the murder of Lahanu. These statements were recorded by Atmaram. He submitted another report to the Station Officer incorporating the alleged confessions. On receipt of this report a case under S. 302 IPC was registered. The Police Officer, during the course of investigation, found that Lahanu was alive. Thereafter two complaints were filed one by Sukha Ram and the other by his brother. On the basis of these complaints a case for wrongful confinement and ill-treatment for extorting confession were registered against the accused. After investigation a charge sheet was filed under Ss. 330, 342, 343 and 348 IPC against Atmaram and others who were police officers. They were convicted by the Sessions Judge. On appeal by them, the High court took the view that the prosecution of them was barred under S. 161, (1) of the Bombay Police Act and accordingly allowed the appeal and quashed the convictions and sentences. On appeal by the State, the supreme Court held that in order to seek protection conferred by S. 161 (1)of the Bombay Police Act, there must be a reasonable connection or nexus between the alleged act of assault and confinement and the duty or authority imposed upon the officer under the Bombay Police Act or any other enactment conferring powers on the Police under the colour of which the act might be said to have been done and that unless there is a reasonable connection between the act complained of and the powers and duties of the office, it cannot be said that the act was done under the colour of the office. It was also pointed out that the alleged acts of beating and confinement fell completely outside the scope of the duties of the police officers and they were not, therefore, entitled to the mantle of protection conferred by S. 161 (1) of the Bombay Police Act.

(7) THE ratio of the above decision applies to the instant case on all fours. S. 170 (1) of the Act is similar to S. 161 (1) of the Bombay Police act. A police officer can only be said to actor purport to act in the discharge of his official duty, if his act is such as to lie within the scope of his official duty. The alleged acts of beating and removal of money by force by the accused in this case were neither part of his duty nor could it be said that they were done under colour of duty. Thus a Judge neither acts nor purports to act as a Judge in receiving a bribe, though the judgment which he delivers may be such an act; nor does a Government medical Officer act or purport to act as a public servant in picking the pocket 9f a patient whom he is examining, though the examination itself may be such an act. The test may well be whether the police officer, if challenged, can reasonably claim that, what he does, he does in virtue of his office or colour of his duty. Applying such a test to the present case, it is clear that the accused could not justify the acts, in respect of which he has been charged, as acts done by him under colour or in excess of any such duty or authority as provided in S. 170 (1) of the Act. Therefore, in my opinion, it is sufficient to say that no sanction under S. 170, (1) of the Act was needed.

(8) IN the result, I allow this petition, set aside the order of the court below and direct the Magistrate to take up the case on his file and dispose of the same according to law.