Acceptance of bribe is not an act done under colour of office or under colour of duty.

CHANDRACHUD J. -This appeal has been referred to the Division Bench by a learned single Judge for decision of the question whether the special rule of limitation contained in section 161 (1) of the Bombay Police Act applies to prosecutions under section 161 of the Indian Penal Code and under section 5 of the Prevention of Corruption Act. Paranjpe J. sitting on the Nagpur Bench has taken the view in Narharrao Madavrao Patil V. The State (1), that acceptance of bribe is an act done under colour of office and, therefore, the prosecution of a Police officer for bribery is barred unless it is instituted within six months of the date of the act complained of. The correctness of this view is in question before us.

2. The facts are few and what is necessary to know for the decision of the point is the nature of the act complained of, the date on which the bribe was taken and the date on which the prosecution was instituted. The bribe is alleged to have been taken by the appellant in March 1963 and the prosecution was instituted on November 11, that is, more than six: months thereafter. The appellant, a railway police constable, has been convicted by the learned Special Judge, Ahmednagar, under section 161 of the Indian Penal Code and Section 5 (1) (d) read with section 5 (2) of the Prevention of Corruption Act, on the charge that he accepted an illegal gratification of Rs. 50 from the complainant as a motive for releasing the complainants son, who was arrested by the appellant on the railway platform on suspicion that he was a pick -pocket. The appellant admitted that he received the amount, but contended that it Was paid to him not as illegal gratification/but by way of loan.

3. One of the grounds on which the conviction is challenged before us is that the prosecution is barred by limitation under section 161 (1) of the Bombay Police Act (Bombay Act No. XXII of 1951), not having been instituted within six months from the date on which the bribe is alleged to have been taken by the appellant. This point was not taken in the trial Court, but since the decision of the point does not require a fresh investigation into facts and as the point is likely to affect a large number of cases, we have permitted the appellant, to raise the point for the first time in this appeal.

4. Section 161 (1) of the Bombay Police Act (hereinafter called "the Act") contains a provision which is intended for the protection of certain officers from stale claims and accusations of a particular variety; In so far as criminal proceedings are concerned, it contains a special rule of limitation, generally Unknown to criminal law, that prosecutions must in certain circumstances be instituted within the stated period. Sub -section (1) of section 161 of the reads thus: -

"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 by 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 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 o