N. H. BHATT, J. M. SHETH, J.

( 1 ) THIS appeal is directed against the judgment and decree passed by the learned Judge of the City Civil Court 5 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 sec. 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 Com- missioner 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 sec. 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 sec. 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 action 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 sec. 161 of the Act. (3) Whether an action was under the colour of office would be a ques- tion of fact depending upon the evidentiary material and it could not be decided merely on pleadings. (4) Where a person weilding power exercises that power to

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