Holding

The appellant's act was not done under colour of duty; consequently, Section 140's limitation does not apply and the prosecution is valid.

Summary

The appellant, a Head Constable, was tasked with delivering an urgent wireless message to the Police Headquarters and was driving an official police mini‑truck. While en route he crossed a road divider, collided with an on‑coming scooter, resulting in one death and injuries to another. He was convicted under IPC sections 279 and 304A. The appellant contended that the prosecution was barred by Section 140 of the Delhi Police Act, 1978 because it was not instituted within three months and he was acting "under colour of duty". The Supreme Court held that the act of crossing the divider and causing the accident was not performed in the discharge of his official duty and therefore did not fall within the protection of Section 140; the limitation period was inapplicable. The Court also noted that no sanction under Section 197 CrPC was required. The appeal was dismissed, but the appellant was ordered to be released on probation under Section 4 of the Probation of Offenders Act, 1958.

Issues considered

Whether the appellant's conduct was done "under colour of duty" within the meaning of Section 140 of the Delhi Police Act, 1978.
Whether the three‑month limitation under Section 140 bars the prosecution.
Whether a sanction under Section 197 of the Code of Criminal Procedure is required for prosecution of a police officer in such circumstances.
Whether the conviction under IPC sections 279 and 304A should stand.

Legislation cited

Subjects

colour of dutylimitation periodDelhi Police ActSection 140rash drivingnegligent homicideprobationpolice officer liabilitySection 197 CrPC

Judgment

[2008] 4 S.C.R. 1208

A PAUL GEORGE
V.
STATE OF N.C.T. OF DELHI
(Criminal Appeal No. 501 of 2008)
MARCH 14, 2008
B
[S.8. SINHA AND HARJIT SINGH BEDI, JJ.]

Delhi Police Act, 1978 - s.140 - Protection under - If
available - Appellant, Head Constable, entrusted with the task
l-
c of delivering an urgent wireless message to Police Head
Quarters - He Jeff the Police Station driving a Police Mini Truck
(official vehicle) - On way; he suddenly went over the road
divider separating the lanes and hit an oncoming scooter in
the opposite lane, which resulted in death of one person and
injuries to another - Conviction of Appellant under ss. 279 and
D
304A, /PC - Challenge to - Plea that Appellant had been
acting under the "colour of duty" and prosecution against him "
was completely barred under s. 140 as it was not initiated within
three months from date of incident - Tenability of - Held: Not
tenable - Though duty entrusted to appellant was in his
E capacity as a police officer, his act of jumping the road divider
and coming face on to the incoming traffic which caused the
accident was not a matter within "colour of duty" - Therefore,
case of Appellant not covered by s. 140 and initiation of
proceedings and prosecution beyond three months from date
F of accident not beyond limitation - However, in facts and
circumstances of the case and in the interest of justice, " '
J
Appellant directed to be released on probation - Penal Code,
1860 - ss. 279 and 304A - Probation of Offenders Act, 1958 -
s.4.
G
Appellant, Head Constable, was entrusted with the
task of delivering an urgent wireless message to the Police
Head Quarters. He left the Police Station driving a Police
Mini Truck (official vehicle). On way, he suddenly went over

H 1208
• PAUL GEORGE v. STATE OF N.C.T. OF DELHI
[HARJIT SINGH BEDI, J.]
1209

the road divider separating the lanes and hit an oncoming A
scooter in the opposite lane, which resulted in the death
of one person and injuries to another. Appellant was
convicted by the Courts be_low under s.279 and 304A, IPC.
The question which arose for consideration in the
present appeal is whether Appellant had been acting 8
under the "colour _of duty" and prosecution against him
was completely barred under s.140 of the Delhi Police Act,
1978 as it was not initiated within three months from the
date of the incident.
c
Disposing of the appeal, the Court
HELD:1.1. 5.140(1) of the Delhi Police Act, 1978
provides that any action against a wrongful act by a police
( officer done under the 'colour of duty' has to be initiated
within three months from the date of the act complained D
off and if this time limit is exceeded, it would bar the suit
or prosecution. [Para 7] [1213-E, Fl
1.2. What has to be seen on. the facts of the case is
the nature of the act and as to whether it fell within the
protection available to the appellant. The duty entrusted E
to the appellant to deliver the message to the Police Head
Quarters was in his capacity as a police officer and to that
extent and prima facie he would be protected by Section
140 of the Act. However, by jumping the road divider and
coming- face on to the incoming traffic was the factor F
which had caused the accident and was clearly not a
matter within the "colour of duty". Therefore, the case of
the appellant would not be covered by s.140 and that the
initiation of proceedings and the prosecution beyond
three months from the date of accident was not beyond G
limitation. [Para 8] [1215-G, H; 1216-A, 8, C, D]
1.3. This litigation has been going on for the last 20
years and has been fought tenaciously through various
courts. Also the appellant, who has had a good career
throughout but for this one aberration, has· since been H
1210 SUPREME COURT REPORTS [2008] 4 S.C.R.

A dismissed from service on account of his conviction.
Therefore, while dismissing the appeal, the ends of justice
would be met if the appellant is directed to be released on
probation under s.4 of the Probation of Offenders Act,
1958 on conditions to be imposed by the Trial Court.
B [Para 9] [1216-F, G]
Sankaran Moitra v. Sadhna Das (2006) 3 SCALE 141
and Virupaxappa Veerappa Kadampur v. State of Mysore AIR -L

(1963) SC 849 - referred to.

c CRIMINALAPPELLATE JURISDICTION: Criminal Appeal
No. 501 of 2008.
From the final Judgment and Order dated 30.5.2006 of
the High Court of Delhi at New Delhi in Crl. Revision (P) No.
555 of 2001. )

D
Romy Chacko for the Appellant.
A. Sharan, ASG, Rakesh Garg and D.S. Mahra for the "'
Respondent.
The Judgment of the Court was delivered by
E
HARJIT SINGH BEDI, J. 1. Leave granted.
2. This appeal by way of special leave is directed against
the judgment of the High Court of Delhi dated 30th May, 2006
confirming the judgment of the trial court and the first appellate
F court convicting the appellant for offences punishable under
"
Sections 279 and 304-A of the IPC but reducing the sentence
imposed by the first two courts to 6 months imprisonment but
.I
retaining the fine as it is.
3. The appellant who was working as a Head Constable
G
with the Delhi Police and posted at P.S. Kashmere Gate was
directed to go to the Police Headquarters at ITO to convey an
urgent message. He left the Police Station driving police Mini
Truck No. DDL-6462. As the vehicle reached under the railway
bridge on the Ring Road going towards Jamuna Bazar it went
H
•
e PAUL GEORGE v. STATE OF N.C.T. OF DELHI 1211
[HARJIT SINGH BEDI, J.]

J. over the road divider and hit a scooter driven by Hans Kumar A
with his friend Atma Ram sitting on the pillion seat. Unnerved,
the appellant attempted to steer the truck back on the other side
of the road but in doing so, struck an electric pole and came to
a halt. The Police Control Room was called and Atma Ram was
taken to the Jai Prakash Narain Hospital where he subsequently B
succumbed to injuries. The appellant was accordingly tried and
convicted under sections 279 and 304-A of the IPC, as already
mentioned above. The conviction and sentence was confirmed
by the first appellate court, by the High Court in revision and was
further challenged by way of a special leave petition in this Court. c,
4. The primary plea raised at that stage was that the order
of the High Court dismissing the revision petition was a non-
speaking one and as the main plea that the prosecution was
bad abinitio as being beyond limitation prescribed under Section
140 of the Delhi Police Act, 1978 (hereinafter called the "Act") D
had not been dealt with as the appellant had been acting under
the colour of duty. This Court allowed the appeal and remitted
the case to the High Court. It is in this circumstance that a second
round of litigation started before the High Court. Before the High
Court, the learned counsel appearing for the petitioner (the E
present appellant) conceded that section 140 would not come
into play but that sanction had nevertheless to be taken under
Section 197 of the Code of Criminal Procedure as the appellant
had been acting or purporting to act in discharge of his police
duty in driving an official v.ehicle when the accident had taken
F
"<' place. The learned counsel for the appellant placed reliance on
Sankaran Moitra Vs. Sadhna Das 2006 (3) SCALE 141. The
learned counsel for the State, however, submitted that that no
sanction under section 197 was necessary inasmuch as there
was no connection between the duty of the appellant and his
G
rash and negligent act in crossing the road divider and hitting a
vehicle on the other side and as such the question of the
applicability of Section 197 of the Cr.P.C. did not arise. Several
.....
judgments were cited by the learned counsel for this proposition
as well. In addition, the State counsel urged that
H
e
I

1212 SUPREME COURT REPORTS [2008] 4 S.C.R.

A Section 197 of the Code was applicable only in a case l.
where the public servant concerned was not removable from
service save by or with the sanction of the Government and the
appellant, a mere Head Constable, did not fall in this exalted.
category. It was also urged that even assuming sanction was
B required the trial would still not be vitiated and the proceeding
and the sentence could not be set aside because of a mere
irregularity more particularly as the non-obtaining of the sanction
had not in any way occasioned a failure of justice in the trial.
5. The High Court in the course of its judgment held that as
C per the provisions of Section 465 of the Code a irregularity in
the sanction would not ipso-facto entitle a court of appeal or
revision to reverse an order of conviction unless it could be
establjshed that such an error had resulted in a failure of justice.
The Court accordingly held that as the appellant had not raised
D this issue before the trial court and the first appellate court, it
was unnecessary to examine as to whether the sanction under
Section 197 of the Code was required or not. The revision
petition was accordingly dismissed, leading to this appeal.
6. Before us the learned counsel for the appellant has
E made a volte-face and has submitted that the prosecution
against the appellant was completely barred under section 140
(1) of the Delhi Police Act as it has not been initiated within 3
months from the date of incident. This plea has been opposed
by the Government counsel, as being an after thought and not
F even,pressed earlier. The matter m.ust thus be examined.
'r

Section 140 of Delhi Police Act is re-produced below:
"Bar to suits and prosecutions.- (1) In any case of
alleged offence by a police officer or other person, or of
G a wrong alleged to have been done by such police officer
or other person, by any act done under colour of duty or
authority or in excess of any such duty or authority, or
wherein it shall appear to the court that the offence or
wrong if committed or done was of the character aforesaid,
H the prosecution or suit shall not be entertained and if
• PAUL GEORGE v. STATE OF N.C.T. OF DELHI
[HARJIT SINGH BEDI, J.]

entertained shall be dismissed if it is instituted, more
1213

A
.(

than three months after the date of the act complained
of:
Provided that any such prosecution against a police officer
or other person may be entertained by the court, if instituted
with the previous sanction of the Administrator, within one B
year from the date of the offence.
(2) In case of an intended suit on account of such a
wrong as aforesaid, the person intending to sue shall
give to the alleged wrongdoer not less than one c
month's notice of the intended suit with sufficient
description of the wrong complained of, and if no
such notice has been given before the institution of
the suit, it shall be dismissed.
(3) The plaint shall set forth that a notice as aforesaid D
has been served on the defendant and the date of
such service and shall state what tender or amends,
if any, has been made by the defendant and a copy
of the said notice shall be annexed to the plaint
endorsed or accompanied with a declaration by the E
plaintiff of the time and manner of service thereof'.
7. A bare perusal would show that sub-section (1) of
Section 140 provides that any action against a wrongful act by
a police officer done under the 'colour of duty' has to be initiated
within three months from the date of the act complained off and F
~
if this time limit is exceeded, it would barthe suit or prosecution.
The learned counsel for the appellant has then argued that as
the appellant was carrying an urgent message from the
Kashmere Gate Police Station to the Police Head Quarters when
the accident had taken place, he had been acting under the G
colour of duty and was therefore entitled to the benefit of sub
section ( 1) of Section 140 of the Act. It has also been pleaded
that the term 'offence' used in the Section ibid could not be
confined only to offences committed under the Act but was
applicable to offences under the Penal Code and for both these H
1214 SUPREME COURT REPORTS [2008] 4 S.C.R.

propositions, the learned counsel has placed reliance on
• •

I'
A .). J,
judgment of this Court in Virupaxappa Veerappa Kadampur
vs. State of Mysore AIR 1963 SC 849. The cited case pertains
to sub section (1) of Section 161 of the Bombay Police Act which
is a provision analogous to Section 140 (1) of the Act and while
B explaining this provision in the context of the facts of the case,
this Court observed that the Head Constable concerned had r
...
been found remiss in recording a false panchnama with regard
.J.
to the recovery of ganja and as the preparation of panchnama
was within the exclusive purview of a police officer, the recording.
c of such panchnama could be said to be under the colour of
duty and as such covered by the limitation laid down in S~ction
161 of the Bombay Police Act. This is what the Court had to, say:
8. "In view of these provisions of law it has been seriously
disputed before us that the preparation of a correct
D panchnama and a correct report as regards the seizure of
ganja was the duty of the appellant. This duty was, on the
prosecution allegation, not performed. The act alleged to
have been done, as already stated, was the preparation
of a false panchnama and a false report. The question still
E to be considered therefore is whether when the
preparation of a correct panchnama and a true report as
regards the seizure is the duty of the police officer
concerned, he prepares instead a false panchnama and
a false report, that act is done by him "under colour" or in
excess of that duty.
F
9. 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
co·mmon parlance when a person is entrusted with the
G . 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 unr:ler 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
H act may be said to be done under colour of that right,
PAUL GEORG.E v. STATE OF N.C.T. OF DELHI 1215
fHARJIT SINGH BED!, J.] ·
:';t:.

office or duty, it is clear that when the colour is assumed A
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 reasonable to think that the
legislature used the words "under colour" in Section 161 (1) 8
to include this sense. It is helpful to remember in this
connection that the words "colour of office" has been stated
in many law lexicons to have the meaning just indicated
above. Thus in Wharton's Law Lexicon, 14th Edn., we
find at p. 214 the following:
c
"Colour of office"
.iWhen 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."
D
In Stroud's Judicial Dictionary, 3rd Edn., we find the
following at p. 521.
Colour. '"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 E
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. But 'by reason of the office' and 'by virtue
of the office' are taken always in the best part."
10. It appears to us that the words "under colour of duty" F
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 G
or to use the words in Stroud's Dictionary "as a veil to his
falsehood". The acts thus done in dereliction of his .duty
must be ~eld to have been done "under col.our of the duty".
8. It is therefore evident that what has to be seen on the
facts of the case is the nature of act and as to whether it fell H
1216 SUPREME COURT 'REPORTS [2008) 4 S.C.R.

A _within the protection available to the appellant. The facts of the
-
present case show that the appellant, a Head Constable Driver, . J.
was posted at Kashmere Gate Police Station had been
entrusted with the task of delivering a wireless message to the
Police Head Quarters at the ITO in New Delhi and while on his
B way he had suddenly gone over the road divider which separated
the lanes and had hit the scooter which was oncoming in the
opposite lane. It is this act, of the appellant which had caused
the death of one person and injuries to the other. Undoubtedly
the duty entrusted to the appellant to deliver the message to the
C Police Head Quarters was in his capacity as a police officer
and to that extent and prima facie he would be protected by
Section 140 of the Act. We find, however, that by jumping the
road divider and coming- face on to the incoming traffic was
the factor which had caused the accident and was clearly not a
matter within the Colourofduty. We are, therefore, of the opinion
D thatthe case of the appellant would not be covered by Section
140 and that the initiation of proceedings and the prosecution
beyond three months from the date of accident was not beyond
limitation. It is also evident from the above discussion that the
appellant's counsel in the various litigation that had come up
E · the hierarchy right up to the Supreme Court had taken an
ambivalent stand with regard to the sanction required under
Section 197 of the Code and to the limitation imposed by sub-
section (1) of Section 140 of the Act. We now come up to the
sentence of the appellant.
F 9. This litigation has been going on for the last 20 years
and has been fought tenaciously through various courts. We are
also told that the appellant who has had a good career
throughout but for this one aberration has since been dismissed
from service on account of his conviction. We, therefore, while
G dismissing the appeal, feel that the ends of justice would be
met if we direct that the appellant be released on probation under
Section 4 of the Probation of Offenders Act, 1958 on conditions
to be imposed by the Trial Court. The appeal is disposed of in
the above terms.
H 8.8.8. Appeal disposed of.