J.M. Sheth, J.
1. This appeal is directed against the judgment and decree passed by the learned judge of the city civil court, 5th court, Ahmedabad, in Civil Suit No. 1266 of 1965. The suit has been dismissed on a preliminary ground, that the suit is barred by limitation in view of the provisions of Section 161(1) of the Bombay police Act, 1951 (which will be hereinafter referred to the Act).
2. Plaintiff-appellant Fatehsinh Madhusinh Rathod was, at the relevant time, working as a police sub-inspector and was made a member of the prohibition and gambling squad consisting of himself, three head constables and nine constables. The task of the said special squad was to detect and investigate prohibition and gambling offences committed within the city of Ahmedabad. According to the instructions issued by the Commissioner of Police by notice dated 26-5- 1960, the charge-sheets in respect of offences detected and investigated by the special squad had to be prepared and submitted by the respective police stations within whose local limits the offences were committed. According to the plaintiff-appellant, it was the duty of the concerned police station to examine the muddamal articles pertaining to the case detected and investigated by the special squad. At the relevant and material time, Respondents Nos. 1 and 2, who were original defendants Nos. 3 and 4, were the commissioner of police and the deputy commissioner of police and also at the date of the suit, respectively. According to the appellant, both these police officers did not like his Activities and they had a personal grudge against him as he was taken to be a man of former police commissioner Mr. Niranjandas. Both of them, in view of their personal grudge, conspired to harass and ruin him, and in that process, served him with a false charge-sheet, suspended him and instituted departmental proceeding against him. In short, his case was, that really the mistake or mischief, was committed as regards the muddamal in two cases, one by Madhupura Police Station and one by Karanj Police Station, there was no fault on his part. These respondents knew about it very well. In spite of it, in respect of that mischief or mistake, departmental proceedings came to be started against him, which terminated in his favour. In short, his case was, that the departmental proceedings were started against him knowing fally well that he was not at fault and the fault lay with the concerned police stations. They had started departmental proceedings against him with malice.
3. It is an admitted position that if the period prescribed under Section 161(1) of the Act for filing a suit like the present suit governs the case, even on excluding the period of notice, the suit is time-barred.
4. The learned trial judge found that even though the averments made are, that the departmental proceedings were taken by these respondents on account of malice, taking those averments even to be true, the case will fall within the purview of Section 161(1) of the Act and consequently, the suit is time-barred.
5. Mr. M. D. Pandya, appearing for the appellant, has made the following submissions:
(1) If an Action is initiated out of spite and Actuated by personal malice and personal grudge, to adversely affect another and cause him seriously suffer in reputation, can it be said that while performing such an ac tion, person concerned was deciding a legal function of an obligatory nature and whether such an Action could be said to be an Act under the colour of office, on mere establishment of a fact that the person was an officer, otherwise entitled to do that Act.
(2) Only because some reasonable connection is established between the Act complained of and the duty, it by itself cannot invite application of Section 161 of the Act.
(3) Whether an Action was under the colour of office, would be a question of fact, depending upon the evidentiary material and it could not be decided merely on pleadings.
(4) Where a person wielding power exercises that power to achieve an object other than that for which he believes that power to have been conferred upon him, is a fraudulent exercise of power and so the Action will be ultra vires.
(5) Section 161 of the Act offends Article 14 of the constitution of India and must, therefore, be held to be invalid and ultra vires.
6. Submissions Nos. 1 to 4 are practically different facets of the question, whether Section 161(1) of the Act applies to such a case when the averment made in the plaint, to be assumed to be true for the purpose of deciding this question, as a preliminary point, is of malice.
7. To appreciate the rival contentions urged at the bar and to understand the legislative intent, it is necessary to read three relevant Sections 159, 160 and 161 of the Act together. They read:
159. No revenue commissioner, magistrate of police officer shall be liable to any penalty or to payment of damages on account of an Act done in good faith, in pursuance 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 therein.
160. No public servant or person duly appointed or authorised shall be liable to any penalty or to payment of any damages for giving effect in good faith to any such order or direction issued with apparent authority by the state Government or by a person empowered in that behalf under this Act or any rule, order or direction made or given thereunder.
161(1) in any case of alleged offences by the commissioner, a magistrate, police officer or other person, or of a wrong alleged to have been done by such 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 be not be entertained, or shall be dismissed, if instituted, more than six months after the date of the Act complained of.
(2) in the 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 months notice at least of the intended suit with sufficient description of the wrong complained of, failing which such suit shall be dismissed.
If we bear in mind the distinction that we find in the language used in Section 161(1) and that in Sections 159 and 160 of the Act, it is quite evident that Section 161(1) of the Act operates in a wider field.
8. Section 159 of the Act gives complete immunity from liability to revenue commissioner, magistrate or police officer, from any penalty or payment of damages on account of an Act done in good faith in pursuance 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 therein. It is, therefore, evident that for getting such complete immunity from such liability, it is to be shown that the Act done by such person was done in good faith and that appears to be the reason why there is clear mention of that expression in Section 159 of the Act.
9. Section 160 of the Act also gives such immunity to a public servant or person duly appointed or authorised, from any penalty or payment of any damages for giving effect in good faith to any such order or direction issued with apparent authority by the state Government or by a person empowered in that behalf under the Act or any rule, order or direction made or given thereunder.
10. The material part of Section 161(1) of the Act for our purposes is, that in any case of alleged offence by the commissioner, a magistrate, police officer or other person, or of a wrong alleged to have been done by such 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. The purpose of this Sub-section (1) of Section 161 of the Act is quite different from the purposes of Sections 159 and 160 of the Act. This Section 161(1) does not give complete immunity to the persons specified therein from liability to any penalty or to payment of any damages for the wrong alleged to have been done by them by any Act done under colour or in excess of any such duty or authority, as aforesaid, or where it appears to the court, that the wrong committed was of the character aforesaid. In that event, the suit is not to be entertained, and if instituted, it is to be dismissed, if it is instituted more than six months after the date of the Act complained of. It gives only a limited protection to the aforesaid persons by providing a shorter period of limitation in such cases then the period of limitation which would be available when the wrong-doer is a private person.
11. Mr. M.D. Pandya has vehemently contended before us, that the expression as aforesaid which follows the expression by any Act done under colour or in excess of any such duty or authority is used for the purpose of taking into its sweep the expression good faith used in Sections 159 and 160 of the Act. In our opinion, on a plain reading of the three relevant and material Sections 159, 160 and 161 of the Act, this argument does not appear to us to be well-founded. Expression as aforesaid is used only to specify the duty or authority which has been specified in two previous sections. Section 159 of the Act contemplates an Act done in pursuance or intended pursuance of any duty imposed or any authority conferred on him by any provision of the Act, or any other law for the time being in force or any rule, order or direction made or given therein. Similarly, Section 160 of the Act refers to an Act of giving effect to any such order or direction issued with apparent authority by the state Government or by a person empowered in that behalf under the Act or any rule, order of direction made or given thereunder. The use of the expression as aforesaid in Section 161(1) can never be interpreted as referring to the position that the legislature intended that the Act should be done in good faith for application of Section 161(1) of the Act.
12. Mr. Pandya has further submitted that the moment the averment is made in the plaint that the Act complained of, by the appellant was done out of malice, and the question regarding limitation is to be decided on the basis of the averment to be true, it can never be said that the Act complained of, which has been done on account of malice, knowing fully well that the fault did not lie at the end of the plaintiff but at the end of the police stations concerned, was done under colour or in excess of any such duty or authority as contemplated by earlier two Sections 159 and 160.
13. In support of his argument, Mr. Pandya has relied upon the decision of a division bench of the madras High Court in Pulavarti Lakshmanaswami v. Mohammad Gaiah Hussain Saheb Garu AIR 1937 Madras 382. It is observed therein:
An Act done by a police officer in the exercise of his police powers will not have the benefit of Section 53 of the Act (Madras district police Act (24 of 1859)) if it was done maliciously.
The relevant Section 53 of the Act quoted therein reads as follows:
All Actions and prosecutions against any person, which May be lawfully brought for anything done, or intended to be done, under the provisions of this Act, or under the general police powers hereby given, shall be commenced within three months after the Acts complained of shall have been committed and not otherwise.
It is thus evident that there is substantial difference in the language used in that section which the Division Bench of the madras High Court had to Consider and the language used in Section 161(1) of the Act which we are required to consider. It is further observed at pages 382 and 383:
The question is, whether the protection given by this section extends to Acts done by a police officer out of malice. The learned Government pleader contends that there is nothing to suggest that such Acts are excluded and that the words should receive their plain and natural meaning; it should be wrong, he maintains, to construe the section as if the words bona fide occurred before the words done or intended to be done. But the question is, whether upon a true construction of the section, a person who Acts maliciously can be said to Act under the provisions of the statute or the general powers conferred by it. There were numerous statutes in force in England, passed from time to time, with a view to afford protection to public authorities.
Relying upon the language used in several English Acts and the observations in English decisions, it is observed by the division bench of the Madras High Court:.if an Act is done maliciously, upon the construction uniformly adopted, it ceases to be an Act done or intended to be done under the provisions of the Act and that construction is not in the least affected by there being a reference, in some section of the enactment, to malicious Acts.
It is significant to note that on behalf of the Government, the decision in Koti Reddy v. Subbiah AIR 1918 Madras 62-(41 Madras 792) (F.B.), was relied upon. It is observed in that connection:
Then, as to 41 madras 792, it dealt with the construction of Section 80, civil procedure code, and the decision turned upon the words purporting to be done occurring there. That case has, therefore, no bearing on the point raised. In an Action for malicious prosecution, malice being requisite, Section 43 can have no application.
It is thus evident that the full bench decision of the madras High Court has been distinguished on the ground that in Section 80 of the civil procedure code, which the full bench has to deal with the words on which the decision turned were purporting to be done. In the instant case also, we have to deal with the words any Act done under colour or in excess of any such duty or authority as aforesaid.
14. Mr. Pandya has also invited our attention to the observations made by a division bench of this Court in Bhanuprasad Hariprasad Dave v. The State of Gujarat 6 Gujarat Law Reporter 958. At pages 970 & 971 it is observed:
There are three sections dealing with the protection of a police officer against civil and criminal proceedings. Section 159 which we have earlier quoted protects him from the liability to penalty or to payment of damages on account of an Act done in good faith in pursuance or intended pursuance of any duty imposed by or under the law mentioned therein. Section 160 protects him from the liability or payment of any damages for giving effect in good faith to any such order or direction issued with apparent authority by the state Government or by other competent authority. Sub-section (1) of Section (1) of Section 161 has been read. It protects him from prosecution after the time limit specified therein and the protection is with respect to prosecution in respect of the offences falling within the terms of that section. Sub-section (2) gives a similar protection in respect of civil proceedings arising out of such Acts as have been mentioned in sub-section (1). Reading these sections together it would appear that the protection given to the public servant concerned, here the police officer, has reference to the discharge of his functions as a public servant. The functions of which these sections speak are functions arising out of any duty imposed by or any authority conferred upon him by the provisions of this Act and any other law, rule or direction made in that regard, that is to say legal functions of an obligatory nature. This is the broad scope and the object underlying the protection to the public servant under these sections. Now, in the light of this position, we May turn to the precise content of the protection given by Sub-section (1) of Section 161 of the Bombay police Act, in so far as that protection relates to an Act done under colour of duty, that being the protection sought on behalf of the appellants in this case. Now an Act can be said to be under colour of duty, if there is some reasonable connection with the duty.
We are in respectful agreement with the aforesaid observations made. It is further observed:
Some connection must be there if the expression is to have any meaning and that connection must be reasonable if the legislative intent as disclosed by the scope and the object of the section is borne in mind. Whether in a particular case this minimum requirement is sufficient to invite the protection afforded by Sub-section (1) of Section 161 will depend upon the facts of that case but at least the existence of such a connection is implied in the expression under colour of.
Mr. Pandya has strongly relied upon these observations and has tried to urge before us that such an Act complained of, by the appellant, which according to the appellant, was done out of malice, will not be covered by the expression any Act done under colour of duty. In our opinion, such ratio cannot be culled out from the aforesaid observations made by the division bench of this court. At page 972, it has been made clear after referring to the meaning of the expression colour of office in Whartons Law Lexicon, 14th edition when an Act is unjustly done by the countenance of an office, being grounded upon corruption, to which the office is as a shadow and colour and the definition of it in strouds judicial dictionary, 3rd edition 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:
Therefore, to be under colour of office the Act must be by the countenance of office, that is to say, must seek the cover of the duties and rights of the office though the cover May be a false one. In short, even, according to these definitions to claim an Act to be under colour of duty there must be a reasonable connection between the Act and the duty.
15. This very decision was the subject-matter of appeal in the Supreme Court. That decision of the Supreme Court is reported in 9 Gujarat Law Reporter 853. The Supreme Court has also observed:
When a police officer taking advantage of his position as a police officer coerces on a person to pay illegal gratification to him this cannot be said to have been done under colour of duty, so as to attract the period of limitation under Section 161(1) of the Bombay Police Act.
Earlier decision of the Supreme Court in Virupaxanna Veerappa Kedampur v. The State of Mysore : AIR1963SC849 , to which we will make reference at an appropriate stage, has been referred to therein and has been approved.
16. Mr. Pandya has also invited our attention to the decision of a division bench of the Bombay High Court in Gorakh Tulji Mahale v. The State of Maharashtra 66 Bombay Law Report 799. Chandrachud, J. (as he then was), speaking for the division bench, after referring to Section 161(1) of the Act, at page 800 observes:
In order that this sub-section May apply, it is necessary in so far as is material for this case that the alleged offence must have been committed by doing an Act under colour or in excess of any such duty or authority as aforesaid. The words such duty or authority as aforesaid are evidently referable to the description of duty or authority contained in Section 159 of the Act, which provides that a police officer, amongst others, shall not be liable to any penalty or to payment of damages on account of an Act done in good faith, ,in pursuance 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 therein.
It is clear from this provision that the rule of limitation contained in Section 161(1) of the Act can apply only if the Act complained of was done under colour of duty or in excess of duty imposed or authority conferred on the officer concerned by any provision of the Act or by any other law or by any rule, order or direction made or given under the Act or under any other law.
In our opinion, the aforesaid observations do not indicate that the words as aforesaid are referable to the Act to be done in good faith for the application of Section 161(1) of the Act. It is further observed at page 801:.Apart, however, from authority, it seems to us difficult to perceive how the Act of receiving a bribe can be said to be an Act done under colour of duty imposed by law. In order that an Act could be said to be done under colour of office or colour of duty, it would at least be necessary that there should be some relationship between the Act complained of and the duties appertaining to the office. The existence of such nexus is indispensable for proof that the Act is done under colour of office though in a conceivable class of cases, even such a nexus May not be adequate, in the light of other facts, for proving that the Act was done under colour of office. In cases where there is a reasonable connection between the Act complained of and the duties attaching to the office, the Act can be said to have been done under colour of office or under colour of duty because the Act has the external indicia of official Act, though in fact, it May have been influenced by an oblique motive.
If, for example, an officer has the power to make a panchnama or to record a statement and he introduces a false detail in it, it May be possible to say, that the Act is done under colour of office or under colour of duty imposed by law.
In our opinion, none of these observations made by Chandrachud, J., indicates that if the Act complained of, has been done maliciously using the office only as cloak, the period of limitation prescribed in Section 161-(1) of the Act, will not have application.
17. In State of Maharashtra v. Narhar Rao A.I.R. 1966 Supreme Court has observed:
In order to have the benefit of 6 months period mentioned in Section 161(1) of the Bombay police Act, it must appear to the court that (i) the offence was committed by the accused officer under colour of any duty imposed or under any authority conferred by any provision of the Act or any other law for the time being in force and (ii) the Act was done in excess of any such duty or authority. The lest to determine as to whether a particular Act complained of was done Under colour of the office or in excess the duty is to see that reasonable connection between the Act complained of and the powers and duties of the office exists. The Act cannot be said to have been done under coloar of office merely because the point of time at which it is done coincides with the point of time the accused officer is invested with the powers or duty of his office.
The acceptance of bribe by the police officer with the object of weakening the prosecution against certain accused cannot be said to have been done by him under the colour of his office or done in excess of his duty or authority within the meaning of Section 161(1) of the Bombay police Act and the limitation of six months duration is not amenable to such police officer.
In the same volume, at page, 1786, in State of Maharashtra v. Atma Ram, similar observations have been made by the Supreme Court. In our opinion, none of these decisions, on close scrutiny of them, supports the submission made by Mr. Pandya.
18. Full bench of the Bombay High Court, in Narayan Hah Tarkhande v. Yeshwant Raoji Naik 30 Bombay Law Reporter 1018, has considered this question specifically. It had to consider the provisions of Section 80 of the Bombay District Police Act (Bom. IV of 1890) which was in pan materia with Sections 159, 160 and 161 of the Act. That section read as follows:
(1) no commissioner, magistrate or police-officer shall be liable to any penalty or to payment of damages on account of any Act done in good faith in pursuance or intended pursuance of any duty imposed or any authority conferred on him by any provision of this Act or of any rule, order or direction lawfully made or given thereunder.
(2) no public servant or person duly appointed or authorised shall be liable as aforesaid for giving effect in good faith to any such order or direction issued with apparent authority by Government or by a person empowered in that behalf under this Act or any rule made under any provision thereof.
(3) in any case of an alleged offence by magistrate, police-officer or other person, or of a wrong alleged to have been done by such magistrate, police-officer or other persons, 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.
(4) In the 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 months notice at least of the intended suit with a sufficient description of the wrong complained of, failing which such suit shall be dismissed.
(5) the plaint shall set forth that a notice as aforesaid has 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.
The question referred to the full bench under the criminal revision application was:
Where an investigating police officer reduces a statement of a witness to writing, and deliberately takes down the statement of such witness incorrectly, is his Act one done under colour or in excess of a duty imposed, or an authority conferred, on him by any provision of the Bombay District Police Act, 1890?
This will include the question whether an Act done mala fide and in deliberate disregard of his proper duty or authority, falls under Sub-section (3) of Section 80, if the full bench sees fit to go into that question.
At pages 1043 and 1044, Madgavkar, J., has observed:
Turning to the second point, namely, how far the two particular Acts were done under colour or in excess of such duty or authority, and how far mala fide excludes limitation or notice, the intention of Section 80 and of Sub-section (3) and (4) is not, in our opinion, doubtful. Sub-sections (1) and (2) enact good faith in pursuance or intended pursuance of any duty imposed or any authority conferred as a good defence against any penalty or damages. And the policy of Sub-section (3) is that wrongs alleged by any Acts done under colour or in excess of duty or authority should be brought before the courts with as little delay as possible. Clearly not every Act because it is done by a magistrate or police officer is thereby necessarily an Act having any relation to his duty or authority, and whether prima facie the Act alleged was so done is a question on the facts in each case which ordinarily should not be difficult to answer....
In the two cases now under consideration the recording of the statements of the two witnesses was an Act which the accused sub-inspector could not have performed except under colour of his duty or authority, and whether the record of these statements was accurate or inaccurate and in the latter case whether the inaccuracy was inadvertent or deliberate, and in the last case whether there was in fact mala fides in law, are all, in our opinion, questions which are irrelevant to the question of limitation of six months, so long as the Act itself was an Act done under colour of his duty, as it was in the first case.
These observations made by the full bench of the Bombay High Court are a complete answer to the argument advanced by Mr. Pandya before us. At page 1045, it is further observed:
As regards the notice under Section 80, civil procedure code, in the second reference, we entirely agree with the view of the full bench in Kotl Reddi v. Subbiah (1917) I.L.R. 41 Madras 792, and the observations of Sadashiv Ayyar and Spencer, JJ. At pages 810 and 812.
At this stage, it is significant to note that the decision of the Madras High Court relied upon by Mr. Pandya had distinguished that case in view of the language used in the Act which the full bench of the madras High Court had to deal with, viz. Act purporting to be done in the discharge of duty. It is further observed:
The nature of the Act and how it is related to the duty or authority of the officer or if it could be said to be done under colour or in excess is one question. The question of the state of mind of the officer and his bona fides or mala fides is quite another. It would be difficult for the courts to add the second element when the legislature merely prescribes the first as necessary and sufficient for limitation under sub-section (3) or notice under sub-section (4) of Section 80 of the Bombay District Police Act or notice under Section 80 of the code of civil procedure.
The answer to the reference in criminal revision, therefore, was as under:
Where an investigating police-officer reduces a statement of a witness to writing his Act is one done under colour or in excess of a duty imposed or an authority conferred on him by Section 51(1), Clause (b) of the Bombay District Police Act, whether he Acts bona fide or otherwise, and even if he Acts mala fide and in deliberate disregard of his proper duty or authority and deliberately takes down the statement of such witnesses incorrectly.
Mirza, J., at pages 1048, and 1049, observes:
The object of the Bombay District Police Act, in any opinion, is not to create a droit administrate if in favour of police and other officers whose conduct to a very large extent it regulates. Section 80, Sub-section (1) confers on such officers complete immunity in respect of Acts done in good faith in the performance of duties imposed by the Act. Sub-section (3) (which is equivalent to Section 161(1) of the Bombay Police Act, 1951) has no reference to Acts done in good faith. It would suffice if the Act done is or appears to be within the scope of the officers duty or is even in excess of the authority vested in him by the Act. The period of six months laid down in the sub-section is intended to protect, in my opinion, the police-officer as well as Government who May become liable for damages in respect of an alleged tort the police-officer might commit in the course of his employment.
At page 1050, Mirza, J. observes:
In the first reference before us it is contended that as the Act of the accused was done mala fide it does not fall under Section 80, Sub-section (3). It is urged that colour of duty or authority must be held to mean that the semblance of duty or authority is a reasonable one. It is contended that where mala fides are alleged there is no room for a reasonable semblance. I fail to seethe force of the argument. An Act Maybe done by the police-officer mala fide and yet it May appear to be done under the semblance of a duty imposed or authority conferred by the Act. If the legislature wanted the protection of Section 80 Sub-section (3) to be restricted to bona fide Acts they would have inserted in its appropriate place in this sub-section, the words in good faith as they have done in the previous sub-sections.
We are entirely in respectful agreement with the aforesaid observations made by Mirza, J. That appears to be the legislative intent if we analyse the scheme of these three Sections 159, 160 and 161 of the Act. This decision of the Bombay High Court, given prior to the date of bifurcation of the bigger billingual Bombay state is binding on us. Apart from it, in our opinion, this decision lays down the correct position of law in this behalf. Apart from it, the ratio of that decision has been approved by the Supreme Court in Virupaxanna Veerappa Kadampur v. State of Mysore : AIR1963SC849 , it is observed:
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 that opportunity to get money for himself, we say of him that he is collecting money for himself under the colour of making collections for a charity.
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. It is reason able to think that the legislature used the words under colour in Section 161(1) include this sense.
After referring to the meaning of that expression in several dictionaries, at page 852, in para 10, it is observed:
It appears to us that the words under colour of duty have been used in Section 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 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.
It is thus evident that the Supreme Court, even though found that the parichnatm or the report was made falsely by a Police-officer, using the existence of his legal duty as a cloak, and that was done dishonestly, viz. That his Action was corrupt, it was found that it will be covered within the expression under colour of duty. In the instant case, instead of corrupt motive, the motive is, that the Action is said to have been taken, out of malice against the appellant. In terms the Supreme Court has approved the ratio of the full bench decision of the Bombay High Court in Naraycm Hari Tarkhandes case (supra). It is significant to note that in para 13, at page 852, the Supreme Court has referred to another decision of the Bombay High Court in Parbat Gopal Walekar v. Dinkar v. Slrinde 63 Bombay Law Reporter 189, wherein the observations made were:
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.
It is pertinent to note the criticism levelled by the Supreme Court in regard to the aforesaid observations made by the Bombay High Court. It is:
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. 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.
This decision of the Supreme Court is a complete answer to the submission made by Mr. Pandya. We are therefore, of the opinion that, there is no substance in the aforesaid submission made by Mr. Pandya.
19. In para 13 of his judgment, the learned trial judge has dealt with the relevant sections under which these officers were entitled to take departmental proceedings. He has referred to the rules for holding departmental inquiries found in Rule 441 of the Bombay police manual, volume 1, 1959 edition, and has also referred to Section 25 of the Act. As this finding has not been challenged before us by Mr. Pandya, we do not see any necessity to refer to the relevant provisions in that connection.
20. We are, therefore, of the opinion, that even in a case where malice has been alleged, provisions of Section 161(1) of the Act will be attracted if the conditions referred to, therein are satisfied. In the instant case, these two officers were Acting under the colour of office. It May be, that they have taken these departmental proceedings and held inquiry out of malice, as has been alleged by the appellant. That fact has to be assumed, as we are deciding the question on the basis of the averments made in the plaint. Submissions made by Mr. Pandya in this behalf, therefore, fail. There is no question of any fraudulent exercise of power and action to be ultra vires on that basis. There is no such averment made in the plaint. Apart from that, even if such proceedings have been taken out of malice, knowing fully well that there was no mistake or mischief on the part of the appellant, on account of personal grudge against him, even then it will be covered by Section 161(1) of the Act, and will also be covered by the full bench decision of the Bombay High Court as well as Virupaxanna Veerappa Kadampurs case (supra).
21. Coming next to the last submission made by Mr. Pandya, that Section 161 of the Act offends Article 14 of the constitution of India and must be held to be invalid and ultra vires, in our opinion, it is devoid of any merits. Submissions in that behalf made by Mr. Pandya were;
(1) The provisions of Section 161 of the Act single out the persons contemplated therein from other persons, similarly situated and provide differential treatment between such persons.
(2) Persons contemplated by Section 161(1) of the Act are more favourably treated than those others without any rational basis for such discrimination.
(3) There is no rational basis for the classification and no nexus between the deferential treatment and the objects to be achieved, and thereby the guarantee of equality before law and equal protection of law enshrined under Article 14 of the constitution is violated.
(4) Section 161 of the Act provides to treat differently similar persons who are aggrieved by identical wrongs depending upon, who the wrong-doer is.
(5) Classification is, therefore, arbitrary and has no rational basis and no nexus with any object to be achieved.
22. In our opinion, none of these submissions is well-founded. In our opinion, this section has been engrafted for the purpose of protection to the persons who have to do the statutory duty imposed under the Act or the regulations or has to discharge certain functions in view of the authority conferred upon them by the Act or the regulations or any other law. There is, in our opinion, a rational classification. It is only for protecting such persons, that shorter period of limitation has been prescribed under Section 161(1) of the Act. Sub-section (2) of it provides that prior to instituting a suit, notice has to be given and that is obviously with a view that there can be an opportunity to make amends. It is significant to note that this protection is afforded to these persons who are required to perform statutory duties or to discharge certain functions assigned to them under the Act. They can, therefore, be separately classified from other private individuals who may do similar wrongs by their own Acts which they are not required to do under any statute or regulation. It is significant to note that by this section, right to sue has not been taken away. Only a shorter period of limitation has been provided. It is significant to note that such persons have to perform such functions or to discharge their duties in several cases in the course of their duties. It is, therefore, quite legitimate to see that such claims do not become stale and if any such Action has to be taken, it is taken as quickly as possible.
23. In this connection we would like to repeat the observations made by the full bench of the Bombay High Court in Narayan Hari Tarkhandes case (supra) at page 1049:.Sub-section (3) has no reference to Acts done in good faith. It would suffice if the Act done is or appears to be within the scope of the officers duty or is even in excess of the authority vested in him by the Act. The period of six months laid down in the sub-section is intended to protect, in my opinion, the police-officer as well as Government who May become liable for damages in respect of an alleged tort the police-officer might commit in the course of his employment.
24. In State of Madras (now Andhra) v. Chitturi Venkata Durga Prasad Rao A.I.R. 1957 Andhra Pradesh 675, at page 679, it is observed:
The argument of the 1st respondents counsel based on Article 14 of the constitution need not detain us longer. What is contended for is that an invidious distinction was introduced in the code between ordinary litigants and officers of the Government for which there is no justification. That it is permissible notwithstanding Article 14 to enact a piece of legislation based on reasonable classification to achieve a particular object has now been well established by decision. We do not propose to cover the same ground once again as the matter was exhaustively dealt with by the learned chief justice and my learned brother Bhimasankaram, J., in writ appeal No. 1 of 1955.
In view of the above principles, in our opinion, Section 80 was based upon a reasonable classification for the protection of the interests of the Government and its officers to enable them to have sufficient time to take legal advice and to adjust the matter if possible without the necessity of a suit.
25. Mr. J.U. Mehta, learned assistant Government pleader, appearing for the respondents, has invited our attention to the decision of the Supreme Court in Matajog Dobey v. H.C. Bhari : [1955]28ITR941(SC) :
Article 14 does not render Section 197, Criminal P.C. ultra vires as the discrimination is based upon a rational classification.
Public servants have to be protected from harassment in the discharge of official duties while ordinary citizens not so engaged do not require this safeguard.
26. In Nov Rattammal v. State of Rajasthan : [1962]2SCR324 it is observed:
It remains to deal only with the contention that the claim is barred by limitation under Article 83 of the limitation Act on the plea that Article 149 of the limitation Act which fixes a period of 60 years for suits by the Government is unconstitutional as violating Article 14 of the constitution. It is urged that there is no rational basis for treating claims by Government differently from those of private individuals in the matter of the time within which they could be enforced by suit.
It is further observed in para 9:
In considering this matter two points have to be kept separate: (1) whether distinction could be drawn or a classification supported between the provision of any variation in the time that should be available for enforcing claims by private individuals and claims by the state, (2) whether, if such a classification were good, the period of 60 years provided by Article 149 of the Indian limitation Act is such a long period of time as to be unreasonable. We are drawing attention to the distinction between these two points because Learned Counsel laid much stress on the fact that the period of limitation fixed by Article 149 was 60 years and that this was an unreasonably long period of time. If Learned Counsel is right in his submission that there is no rational basis for placing private individuals and the Government in different classes while framing a legislation providing for limitation for Actions he might succeed; but if he is wrong there and the correct view is that there is a rational basis of classification, then the period that should be allowed to the Government to file a suit would be a matter of legislative policy and could not be brought within the scope or purview of a challenge under Article 14 or indeed of any other article in the constitution. It is sufficient therefore if we confine ourselves to the first point, viz. Whether there is a rational basis for treating the Government differently as regards the period within which claims might be out in suit between the Government on the one hand and private individuals on the other.
It is further observed in para 10:.it is with this background that the question of the special provision contained in Article 149 of the Act has to be viewed. First, we have the fact that in the case of the Government if a claim becomes barred by limitation, the loss falls on the public, i.e.; on the community in general and to the benefit of the private individual who derives advantage by the lapse of time. This itself would appear to indicate a sufficient ground for differentiating between the claims of an individual and the claims of the community at large. Next, it May be mentioned that in the case of Governmental machinery, it is a known fact that it does not move as quickly as in the case of individuals.
It has also referred to the earlier decisions of the Supreme Court where the vires of certain revenue Acts were challenged. In that connection it is observed:
These matters apart, the ratio underlying the special provisions for summary recovery of amounts due to Government without resort to suits by a procedure not available for enforcing the dues of private individuals, like the revenue recovery Acts and public demands recovery Acts which have been on the statute book for over a century is also similar, viz., the interest of the public and of the community in realising what is due to it expeditiously; and the constitutional validity of such provisions have been sustained by this court.
27. In the same volume, in Manna Lai v. Collector of Jhalawar : [1961]2SCR962 , it is observed:
It was contended that in so far as the Rajasthan Act 5 of 1952 enables moneys due to the Government in respect of its trading Activities (example, as a banker) to be recovered by way of public demand, it offends Article 14 of the constitution. It was said that the Act makes a distinction between other bankers and the Government as a banker, in respect of the recovery of moneys due.
It was held that the Goveven as a banker, can be legitimately put in a separate class. The dues of the Government of a state are the dues of the entire people of the state. This being the position, a law giving special facility for the recovery of such dues cannot in any event, be said to offend Article 14 of the constitution.
28. Keeping the tests in mind, we are of the opinion, that in the instant case, there is rational basis for classification. There is relationship to the object to be achieved. Persons who have to perform such duties in view statute or regulations, are sought to be protected. They are to be encouraged to do their duty independently and fearlessly. Harassment to them is to be avoided as far as possible. To achieve that object reasonable classification has been made. We are, therefore, of the opinion, that Section 161 of the Act does not offend Article 14 of the Constitution of India. It is significant to note that in the written-statement no such plea was taken, and in the trial court no such submission was also made, and so no notice was also issued to the advocate general. As such a question was agitated before us by Mr. Pandya, we have dealt with it and we find no substance in that last submission of his also. The result is, that the appeal fails. Appeal is dismissed with costs.