The Court upheld that the petitioners' misconduct was not protected under the colour of duty, confirming the Magistrate's right to proceed with charges despite limitations under the Bombay Police Act.

JUDGEMENT

Heard the learned advocates.

This Revision Application preferred under Section 397 read with Section 401 CrPC arises from the judgment and order dated 21st September, 2000 passed by the learned Judicial Magistrate, First Class, Chanasma below Application Exh. 30 in Criminal Case No.95 of 1999. The petitioners before this Court are four of the accused i.e., the accused nos. 1 to 4 in the said Criminal Case No.95 of 1999. All the four petitioners are Police Officers as defined in Section 2 (11) of the Bombay Police Act , 1951. The accused are alleged to have committed offence punishable under Sections 120-B , 193, 196, 199, 200, 201, 203, 217, 218, 221, 465, 471, 504 and 506 (1) IPC.

It is alleged that on 28th August, 1991, the petitioner no. 1, then a Police Sub-Inspector, Harij Police Station was driving a motor cycle at around 11 o'clock at night bearing no. GJ-2-4955 rashly and negligently. At that time he hit the door of a stationary car parked on the road side. On account of the said accident, one Police Head Constable Shri Ram Dayal (PW-4) received grievous injuries. The motor cycle was also thrown off. The driver-the petitioner no. 1 and the pillion rider, PW-9 were thrown off and were injured. Shri Ram Dayal (PW-4) was taken to Patan Hospital and was admitted as an Indoor patient. At the time, the then Sub-Divisional Police Officer, the petitioner no. 2 approached the said Shri Ram Dayal in the hospital and instructed him not to file complaint in respect of the said accident and the injuries received by him. The petitioner no. 2 also informed that a complaint was already registered in Chanasma Police Station. It is alleged that a false complaint was lodged against the accused no. 7 (a private individual). The matter was brought before the learned Magistrate, Chanasma. The accused no.7 had pleaded guilty. He was convicted and fined. Thus, the petitioners are alleged to have given wrong information to the learned Magistrate, kept back the correct number of the motor cycle involved in the accident and concealed the true facts from the Court. On an application made by PW-4 Shri Ram Dayal investigation was made by C.I.D Crime, Gandhinagar and the complaint in this respect was lodged in the Gandhinagar Zone Police Station on 10th February,

1994. The offence has been registered in the Court of learned Judicial Magistrate, First Class, Chanasma, as abovereferred Criminal Case No. 95 of 1999. Pending the said proceeding, the present petitioners-the accused nos.

1 to 4 respectively made application Exh. 30 seeking discharge on the ground that the learned Magistrate was barred from taking cognizance of the said offence under Section 195 CrPC and Section 161 of the Bombay Police Act , 1951. The learned Magistrate under his judgment and order dated 21st September, 2000 was pleased to reject the said application. Feeling aggrieved, the said accused have preferred the present revision application.

Mr. Pardiwala has submitted that indisputably the offences in question have been alleged to have been committed in relation to the criminal proceedings lodged against the accused nos. 6 and 7 wherein the said accused had pleaded guilty. The offence alleged to have been committed being punishable under Section 193 CrPC, the learned Magistrate was barred under Section 195 CrPC from taking cognizance thereof unless the complaint were lodged by the concerned Court or by the Court to which the said court is subordinate. He has also submitted that all the four petitioners are police officers who are alleged to have done wrong by an act done in colour of their duty, no prosecution, therefore, could have been lodged against the petitioners after the expiry of period of one year from the date of the act complained off.

Section 161 of the Bombay Police Act , 1951 expressly bars entertainm