Case Note & Summary
The applicant, Manabai w/o Kashirao Tondle, filed a criminal application under Section 227 of the Code of Criminal Procedure, 1973, seeking discharge of non-applicant Nos.1 and 2, who were police constables, from a trial for offences including murder under Sections 302, 304, 324, 325, 364, 365 read with Section 109 and Sections 448, 294 and 201 read with Section 34 of the Indian Penal Code. The incident occurred in October 1989 when the deceased Bhagwan Tondle was in police custody and allegedly assaulted by the constables, leading to his death. A private complaint was filed on 21-2-1994 and a chargesheet on 4-5-1993, both after the six-month period prescribed under Section 161 of the Bombay Police Act, 1951. The non-applicants sought discharge on the ground that the prosecution was barred by limitation under Section 161. The court held that Section 161 applies only to acts done under colour of duty or in excess of such duty, and offences like murder and custodial violence are not within its ambit. The court also noted that the application under Section 227 was premature as the trial court had not yet framed charges. The application was dismissed, and the trial was directed to proceed.
Headnote
A) Criminal Procedure Code - Discharge under Section 227 - Scope - The court at the stage of framing of charge is to consider whether there is sufficient ground for proceeding against the accused, not to weigh evidence meticulously - Held that the application for discharge was premature and the trial court had not yet framed charges (Paras 1-4). B) Bombay Police Act - Section 161 - Limitation for prosecution - The protection under Section 161 is available only for acts done under colour of duty or in excess of such duty - Offences like murder, custodial violence, and offences under Sections 302, 304, 324, 325, 364, 365, 448, 294, 201 IPC are not acts done under colour of duty - Held that the limitation period of six months does not apply to such serious offences (Paras 3-4). C) Criminal Procedure Code - Section 227 - Discharge - The accused cannot seek discharge on the ground of limitation under Section 161 of the Bombay Police Act when the alleged acts are not within the scope of that section - Held that the application was misconceived and dismissed (Para 4).
Issue of Consideration
Whether the prosecution against police constables for murder and other offences is barred by limitation under Section 161 of the Bombay Police Act, 1951, and whether the accused are entitled to discharge under Section 227 of the Code of Criminal Procedure, 1973.
Final Decision
The application for discharge filed by the accused police constables was dismissed. The trial court was directed to proceed with the trial in accordance with law.
Law Points
- Section 161 Bombay Police Act does not apply to offences like murder
- custodial violence
- or offences under Indian Penal Code that are not done under colour of duty
- Section 227 CrPC discharge not automatic
- limitation period under Section 161 is not a bar for serious offences
