Heard Shri. T. A. Mirza, learned A.P.P. for the appellant, Shri. S. V. Manohar, learned counsel for respondent no.1 and Shri. V. M. Deshpande, learned counsel for Respondents 2 and 3.

2. By this revision, appellant-State of Maharashtra takes exception to the order dated 17th December, 2005 passed by the 4th Ad hoc Additional Sessions Judge, Amravati in Sessions Trial No.74/03 discharging the respondents for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code.

3. In nutshell, the facts relevant for disposal of the Revision Application are as under:

The respondents who are police officers were working at Police Station, Nandgaon, District: Amravati in August, 1996. It is the case of the prosecution that one Vinayak Gangaram Sable was illegally arrested and brought into the Police Station and he was mercilessly beaten by the respondents with the help of kicks, blows, sticks and by butt of rifle.

On account of multiple injuries suffered by Vinayak he died. The respondents registered accidental death of the deceased. Pursuant to report lodged by the wife and brother of the deceased with the Superintendent of Police, Amravati the First Information Report for the offence under Section 302 read with Section 34 of the Indian Penal Code was registered against the respondents vide Crime No.97/96 on 3-8-1996. The investigation was taken up. The post-mortem of the deceased disclose 17 injuries on the person of deceased Vinayak. The matter was investigated and sanction was sought from the State Government which was accorded on 4-9-2002. Thereafter, charge-sheet was filed on 3-3-2003 and the case was committed to the Sessions Court. In Sessions Trial No.74/03 before the 4th Ad hoc Additional Sessions Judge the respondents/accused filed an application for discharge under Section 227 of the Code of Criminal Procedure alleging that deceased Vinayak Sable had died on account of the accident and also on the ground that sanction was not obtained within two years as contemplated under Section 161 of the Bombay Police Act, 1951 (hereinafter referred to as 'the Act'). The learned Judge upheld the contentions and held that since the respondents had arrested deceased Vinayak while on duty and under colour of the duty they had assaulted him which led to his death they were entitled to the benefit under Section 161 of the Act.

Consequently, respondents/accused were discharged of the offence alleged against them.

4. Mr. Mirza, learned A.P.P. appearing for the appellant submitted that the impugned order is patently illegal inasmuch as causing of death of Vinayak Sable by no stretch of imagination can be said to pursuant to the act done under colour of office or in excess of duty. He further urged that sanction under Section 161 of the Act though obtained by the State Government before prosecuting the respondents, the same is not required since the act of committing murder cannot be said to be an act done under the colour of office or in excess of duty so as to attract Section 161 of the Act. In support of his submissions, the learned A.P.P. relied upon the Judgment of the Apex Court in the case of State of Maharashtra Vs. Atma Ram and another (AIR 1966 Supreme Court 1786).

5. Per contra, Mr. Manohar, the learned counsel appearing for the respondents supported the impugned order and submitted that protection available under Section 161 of the Act is available to the respondents/accused.

Mr. V. M. Deshpande, learned counsel appearing for respondents 2 and 3 adopted the submissions made by Mr. Manohar and placed reliance upon the judgment of this Court in Satish Vishwanath Palasdekar and others Vs. State of Maharashtra, (1999(1) Mh.L.J. 204).

6. Before appreciating the submissions made by the rival parties, it would be appropriate to quote Section 161 of the Act.

Section 161 reads as under:

"161. In any case of alleged offence by (the Revenue Commission, the Commissioner), a Magistrate, Police Officer or other person, or of