TMI Blog2000 (5) TMI 1086X X X X Extracts X X X X X X X X Extracts X X X X ..... Superintendent of Police and the other was a Deputy Superintendent of Police. (They will hereinafter be referred to as the appellants .) The offences alleged against the appellants in the complaint are those under Sections 166, 167, 176, 201, 219, 220, 342. 417 of the Indian Penal Code (IPC for short) read with Sections 120B, 34 and 109 of the same Code. The offence under Section 147(G) of the Bombay Police Act is also included in the complaint. 4. A brief account of the events which preceded the filing of the said complaint is necessary. On 24-8-1992, one Jaffer Khan lodged a complaint with the magistrate alleging that his brother (Jahangir Khan) was kidnapped by some persons named in the complaint. The magistrate forwarded the said complaint to the police for action under Section 156(3) of the CrPC (hereinafter referred to as the Code ) and then FIR was registered on its basis. The respondent-police officer was arrested by the appellants on 28-8-1992, but the alleged kidnapped person (Jahangir Khan) appeared before all people concerned. Respondent-police officer was later released on bail. After investigation the police submitted final report on 3-3-1994 holding that the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... process to the appellants. On appearance before the Metropolitan Magistrate appellants filed a petition for discharging them on the premise that no sanction was obtained to prosecute them. 7. The Metropolitan Magistrate dismissed the said petition on 17-5-1997 with a rider that appropriate decision regarding prior sanction shall be taken on merits after considering the evidence that may be produced by the parties . The Metropolitan Magistrate of Ahmedabad has written one of the lengthiest and tautologous orders running into 114 closely typed pages just for reaching the above conclusion. We are unable to appreciate how the heavily boarded Courts like the Metropolitan Magistrate's Court or a city Court could afford writing such frittering lengthy orders Just for concluding that the questions raised can be considered at a later stage). 8. Appellants filed a revision before the Sessions Court and in the revision the appellants raised one more additional point based on Section 161(1) of the Bombay Police Act which was made applicable to the State of Gujarat. As per that section no complaint could be filed after one year of the date of the act complained of in respect of offen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Judge had avoided dealing with the contention based on Section 161(1) of the said Act on the premise that it could be raised before the trial Court. But when the Sessions Judge had opted to go into that question and rendered a decision on it on merits it is difficult to concur with the reasoning of the High Court that the said aspect would not be gone into by the High Court as the same was not raised before the trial Court. 12. That apart, the view of the learned single Judge of the High Court that no revision was maintainable on account of the bar contained in Section 397(2) of the Code, is clearly erroneous. is now well neigh settled that in deciding whether an order challenged is interlocutory or not as for Section 397(2) of the Code, the sole test is not whether such order was passed during the interim stage, (vide Amar Nath v. State of Haryana: 1977CriLJ1891 ; Madhu Limaye v. State of Maharashtra: 1978CriLJ165 ; V.C. Shukla v. State through CBI : 1980CriLJ690 ; and Rajendra Kumar Sitaram Pande v. Uttam: 1999CriLJ1620 . The feasible test is whether by upholding the objections raised by a party, would it result in culminating the proceedings, if so any order passed on suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the purview of the subsection relate to those acts done under the color or In excess of any duty or authority as aforesaid . The sub-section then widens the net a little further by bringing within its sweep those offences committed through any acts done which are of the character aforesaid . The expression aforesaid in the subsection is evidently with reference to what Is mentioned in Sections 159 and 160 of the same enactment. Those provisions 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 in pursuance of or intended pursuance of any duty Imposed or any authority conferred on him by any provision of this Act or any other law for the time being in force or any rule, order or direction made or given thereunder . Such absolute Immunity is not afforded in respect of any offence or wrong alleged to have been done by such public servant, if it was done under color or In excess of any such duty or authority as aforesaid . Nonetheless the said statute has fixed a time limit for initiation of prosecution proceedings in such cases against the public servant. If prosecution proceedings were not i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o cause, or knowing It to be likely that he will, by such disobedience, cause injury to any person, shall be punished with simple Imprisonment for a term which may extend to one year, or with fine, or with both. 18. The indispensable ingredient of the said offence is that the offender should have done the act being a public servant . The next ingredient close to its heels is that such public servant has acted in disobedience of any legal direction concerning the way in which he should have conducted as such public servant. For the offences under Sections 167 and 219 of IPC the pivotal ingredient is the same as for the offence under Section 166 of IPC. The remaining offences alleged in the complaint, in the light of the averments made therein, are ancillary offences to the above and all the offences are parts of the same transaction. They could not have been committed without there being at least the color of the office or authority which appellants held. 19. Shri S.K. Dholakia, learned senior counsel for the State of Gujarat invited our attention to the decisions of this Court In State of Maharashtra v. Narhar Rao: 1966CriLJ1495 and State of Maharashtra v. Atma Ram AIR 1966 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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