Lakshminarayan Tripathy vs Emperor

Chatterji, J.—The petitioner was convicted by the Subdivisional Magistrate, Nowrangpur, u/s 170, Penal Code, and sentenced to six months'' rigorous imprisonment. On appeal, the conviction and sentence have been affirmed by the Agency Sessions Judge, Koraput. The charge against the petitioner was as follows:

That you between 16th October 1941 and 26th October 1941 falsely personated a C.I.D. Police officer and in such assumed character (1) promised to appoint P.W. 3 Padmalav Misra as a police constable at Koraput, wrote something purporting to be an order in Ex. D and took a stamped envelope from P. W. 3 saying that the said order would be dispatched to Koraput (2) and secondly visited village Dhamanahandi under colour of such office and thereby committed an offence punishable u/s 170, Penal Code.

The facts that led to the prosecution of the petitioner are briefly as follows: On 26th October 1941, P.W. 2 a hotel keeper, went to the police station at Kotpad and reported that the petitioner had been representing himself as a C.I.D. Police officer for the past ten days and in that capacity had induced him to give him meals on credit. The Sub-Inspector registered a case of cheating under Sections 419/420, Penal Code. He went to the petitioner''s house and searched it. It transpired that the petitioner, under the colour of a representation that he was a C.I.D. Police officer, did the acts referred to in the charge. He was then sent up for trial, and he was tried on the charge u/s 170, stated above. With regard to the second part of the charge, the learned Sessions Judge considered that the evidence was not sufficient to justify a conviction on that part of the charge. As regards the first part of the charge, the learned Sessions Judge found upon the evidence that there can be no doubt that the accused represented himself to be a C.I.D. Police officer, J although he was not so in fact. He also found that the accused promised to P.W. 3, who is a servant of the hotel keeper P.W. 2, that he would appoint P.W. 3 as a constable, and wrote something purporting to be an order on a paper Ex. D which was signed by P.W. 3. The paper Ex. D was recovered from the house of the accused in the course of search. The accused admitted to have written it, but he said that he did so for fun. The writing in Ex. D is in English, but, as observed by the learned Judge, it is unintelligible and nonsense. The learned Judge held that the first part of the charge was fully established and the accused was guilty u/s 170. It is contended by Mr. G.G. Das for the petitioner that on the findings it cannot be said that the accused, though he might have pretended to be a C.I.D. Police officer, did not do any act under colour of such office'' within the meaning of Section 170. The Section runs as follows:

Whoever pretends to hold any particular office as a public servant, knowing that he does not hold such office or falsely personates any other person holding sueh office, and in such assumed character does or attempts to do any act under colour of such office, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.

It is obvious that one of the ingredients of an offence under this Section is that the accused "in such assumed character does or attempts to do any act under colour of such office." The question is whether the promise to appoint P.W. 3 as a constable or writing out the paper Ex. D constitutes an act "under colour" of the office of a C.I.D. Police Officer. In my opinion a mere promise to appoint P.W. 3 as a constable does not amount to any such act. In the first place, a mere promise cannot be regarded as an act. In the second place, the promise imported nothing more than the accused would recommend P.W. 3 for the appointment of a constable. Such recommendation might be made, not necessarily by a C.I.D. Officer only. The act done ''under colour'' of an office is an act having some relation to the office which the accused pretends to hold.

In this connection, it will be useful to refer to the case in Sukhdeo Pathak v. Emperor AIR 1918 Pat. 653. In that case the accused was charged with an offence u/s 170 because he avoided paying one anna for a platform ticket by pretending upon entering the station platform that he was a C.I.D. Officer. He was convicted of the charge but his conviction was set aside by this Court. Their Lordships observed:

It is not a power peculiar to a C.I.D. Officer to go on to a platform without a ticket. Probably, it the applicant had said that he was a Maharaja or a high priest or any person or importance, the Ticket Collector would have let him through. There is overwhelming authority for the proposition that the act done must be one which assumes an official authority.

The writing on the paper Ex. D, being unintelligible and nonsense, I do not see how this writing can be regarded as an act done under colour of the office of a C.I.D. Officer. For the aforesaid reasons I am unable to maintain the conviction u/s 170.

Accordingly I allow the application and set aside the conviction and sentence.