K.K. PATEL AND ANR. versus STATE OF GUJARAT AND ANR.

Citation: [2000] SUPP. 1 S.C.R. 312 · Decided: 12-05-2000 · Supreme Court of India · Bench: K.T. THOMAS · Disposal: Appeal(s) allowed

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Judgment (excerpt)

A 
B 
c 
K.K. PATEL AND ANR. 
v. 
STATE OF GUJARAT AND ANR. 
MAY 12, 2000 
[K.T. THOMAS AND D.P. MOHAPATRA, JJ.] 
Criminal Law : 
Criminal Procedure Code, 1973: 
Section 399-Sessions Court-Revision before Additional point Raising 
of issue of process-Challenge of-A point regarding non-filing of complaint 
within the prescribed period under S 161(1) of the Bombay Police Act was 
raised in revision-Such a point not raised before the trial court-
Permissibility of-Held: it is permissible to raise such a point as the very 
D issuance of process is being challenged 
Section 407-High Court-Revision before-Scope of-Additional 
ground was considered and decided on merits by the Sessions Court·High 
Court, in revision, refused to go into that aspect since it was not raised 
before the trial court-Correctness of-Held : High Court erred in refusing 
E to do so. 
Section 397(2)-lnterlocutory order-Revision against-Exercising of 
-Tests to determine Magistrate took cognizance of complaint and issued 
process-Objection that complaint was barred by limitation under S.161{!) 
of the Bombay Police Act was taken in revision-Enertaining of-Held, the 
F sole test is not whether the order is passed during the interim stage-The 
feasible test is whether the proceedings would culminate if the objection were 
upheld-If so any order passed on such objection does not amount to 
interlocutory order-Jn the circumstances of the case if the objection were 
upheld the entire prosecution proceedings would have terminated-Hence 
G the Magistrate's order is not interlocutory and therefore revisable. Bombay 
Police Act, 1961, Section 161(1). 
"Colour of duty"-Acts done under-Meaning of-Complaint filed for 
commission of offences under S 166, 167, 219 !PC etc.-Objection was taken 
that it was filed beyond the prescribed period under S. 161 (I )-Sustainability 
H of-Held: The words' under colour of duty' include acts done under the cloak 
312 
K.K. PATEL v. STATE OF GUJARAT 
313 
of duty-Ingredient of offence under S.161 !PC includes act done as a public A 
servant Hence, such objection sustainable. 
Penal Code, 1860: 
Section 166 Ingredients of-Explained 
Words and Phrases: 
"Under colour of duty" and "aforesaid"-Meaning of-In the context 
of S.166(1) of the Bombay Police Act, 1951. 
B 
One I lodged a complaint before the Magistrate alleging that his brother 
was kidnapped by some person named in the complaint. Acting on this C 
complaint the appellants arrested the respondent-police officer but the alleged 
kidnapped person appeared before all the people concerned. The respondent-
police officer was later released on bail. After investigation the police 
submitted "final report." The Court after hearing the respondent-police 
officer also in the matter held that the complaint was false. 
D 
Thereafter, the respondent-police officer filed a complaint before the 
Metropolitan Magistrate against the appellants for committing offences under 
Sections 166, 167, 176, 201, 219, 220, 312, 417 of the Penal code, 1860 read 
with Sections 120-B, 34 and 109 of the same Code. The offence under section 
147(G) of the Bombay Police Act, 1951 was also included. The Metropolitan E 
Magistrate took cognizance of the offences and issued process to the appellants. 
Thereupon, the appellants filed a revision before the Sessions Court in 
which they raised one additional point that the complaint was filed beyond the 
period prescribed under Section 161 (1) of the Act This point was not raised 
before the trial court The Sessions court allowed the revision and dismissed F 
the complaint 
However, the High Court allowed the revision filed by the respondent-
police officer on the ground that the Sessions Court should not have interfered 
with the interlocutory order passed by the Metropolitan Magistrate in view of 
the provisions contained in Section 397(2) of the Criminal Procedure Code, G 
1973. 
Allowing the appeal, this Court 
HELD : 1. Merely because the appellants did not raise the legal points 
based on Section 161 of the Bombay Police Act, 1951 before the Metropolitan 
Magistrate they are not estopped from canvassing on that additional ground H 
314 
SUPREME COURT REPORTS [2000] SUPP. l S.C.R. 
A also before the Sessions Court in revision as they were challenging therein 
the very issuance of process against them. The position may be different if 
the Sessions Judge had avoided dealing with the contention based on Section 
161(1) of the said Act on the premise that it

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