Partap Singh vs State of Haryana

V.S. Aggarwal, J.—Petitioner Partap Singh is are tired Lamberdar. On basis of the report of one Sultan Singh the case has been registered. The prosecution case is that the petitioner identified various persons at different times in connection with execution of several documents before Tehsildar, Hansi. He identified those persons as Lamberdar when in fact he was not a Lamberdar. It had further been asserted that the petitioner had done so for consideration and attested certain sureties in various Courts as Lamberdar while in fact he was not a Lamberdar.

After investigation challan was submitted in Court. The learned Judicial Magistrate concluded that offences under Sections 419 and 420, IPC were not drawn against the petitioner and accordingly he was discharged. The State preferred a revision petition in the Court of Session. The learned Additional Sessions Judge, Hisar upheld the findings of the learned trial Court that no case under Sections 419 and 420 Indian Penal Code would be made out. But the Court of Session held that the duty of the trial Court does not come to an end. Once it is mentioned that the sections referred to by the police are not attracted, the Court went on to hold that in the facts prima facie offence u/s 170 Indian Penal Code would be drawn. Accordingly, the revision petition was allowed. The learned Additional Sessions Judge directed the trial Court to frame charge against the petitioner for the offence punishable u/s 170, IPC.

Aggrieved by the said order, the present revision petition has been filed,

The sole submission made by the learned counsel for the petitioner has been that it is not one of the statutory duties of the Lamberdar to identify persons before a sale deed is executed or a surety bond is to be attested. According to him, therefore this act cannot be said to have been done under the colour of the office of the Lamberdar.

To appreciate the said contention, reference may be made to the provisions of Section 170 of the Indian Penal Code. It runs as under : -

Personating a public servant.-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 such 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.

Perusal of the same reveals that prima facie it must be shown :-

(a) that the accused pretended to hold a particular office or falsely personated any other person holding such office;

(b) that when he pretend to hold a particular office, he did so knowing that he did not hold such office; and

(c) that any such assumed character, he did or attempted to do an act under the colour of such office.

In the present case it is the last ingredient which is being pressed because there is no controversy being raised with respect to the findings of the learned trial Court that Section 415 read with Section 419, IPC was not attracted. The fore question, therefore, would be if the petitioner did an act under the colour of the office of the Lamberdar or not.

Admittedly, the petitioner was not a Lamberdar. He signed certain documents as Lamberdar. The expression "to act under the colour of an office" does no) necessarily imply that the person who is being impersonated was under a legal obligation to do such act or it was his statutory duty.

Petitioner''s learned counsel relied on the decision in the case of P.R. Gopala Pillai v. State of Kerala 1974 KLT 131. In the cited case the accused pretended to be a police officer. He was not in uniform and arrested a person . He asked for bribe to let him off. The question controversy was whether the said person acted under the colour of an office or not. The Kerala High Court acquitted him holding that Section 170 of the Penal Code is not attracted. While discussing the said question, it was held :-

Taking the view that the prosecution had failed to prove that the act was done under colour of the pretended office, the Court held that no offence u/s 170, IPC was committed by the petitioner-accused. Similar was the view taken by the Patna High Court in Sukhdeo Pathak v. Emperor AIR 1918 Pat 653 : 19 Cri LJ 209 In that case the accused was charged with an offence u/s 170, IPC, because he avoided paying one anna for aplat form ticket by pretending, upon entering the station platform, that he was a C.I.D. Officer. It was held that the act did not constitute an offence u/s 170, IPC, on the reasoning that the mere assumption of false character without any attempt to do any official act is not sufficient to bring the offender within the meaning of that section. In a later decision reported in Lakshminarayan Tripathy Vs. Emperor, , the above decision was followed by the Patna High Court. That was a case in which the High Court held that the promise to appoint one as a constable or writing something nonsense and unintelligible on paper cannot be regarded as act done under colour of office of C.I.D. officer. It was pointed out in that decision that:

the act done ''under colour of an office'' is an act having some relation to me office which the accused pretends to hold. A mere promise to appoint a person as a constable does not amount to an act under colour of the office of a C.I.D. officer. Such recommendation or promise might be made, not necessarily by a C.I.D. officer only.

Same was the view of the Calcutta High Court in the case of Biswanath Mukherjee Vs. The State, . In the case before the Division Bench of the Calcutta High Court, the accused personated as a Customs Officer and "extracted presents. It was held that Section 170, IPC was not attracted. The clause ''under colour of such office'' was discussed and it was held (at page 1627 of Cri LJ):-

The clause "under colour of such office" apparently means making use of such office and an act done or attempted to be done "under colour" must be an act having some relation to the office which the accused pretends to hold. There is no doubt that reception of presents has no relation to the office of the Customs Officer in the port of Calcutta and to that extent the offence charged can hardly be said to have been made by the petitioner by making use of his pretended office. It is important to note here that the relevant portion of the section not only speaks of "in such assumed character" but further adds that "the act done or attempted to be done must be under the colour of such office." Mere assumption of the office would not be sufficient but the act done or attempted to be done must be under colour of such office.

The result was that the accused was acquitted.

With respect one finds difficult to subscribe the view of the Kerala and Calcutta High Courts. This is for the reason that it is not necessary that the act done should be such an act, as might legally be done by the public servant personated. The expression "under colour of such -office" need not have direct proximity with the duties of the office of the person impersonated. it is enough that a person pretends to tell others as to what he is when he in fact is not so. In the present case the petitioner identified persons in different sale deeds as Lambardar and attested certain sureties. In fact he was not so. He obviously acted under the colour of the office as Lamberdar. Close to the facts of the present case is the decision of the Lahore High Court in the case of Roshan v. Emperor AIR 1935 Lah 92 : Cri LJ 81. It was held (at page 82 of Cri LJ). :-

The question is whether it was part of the duty of a constable in the C.I.D. to ask people who had cattle with them to produce the rahdari paper. There is no material on the record to decide this question one way or the other, but even assuming in favour of the accused that it was not the duty of a C.I.D. Constable to order the production of rahdari paper, the fact remains that the accused pretended to be a police officer and as such police officer demanded the production of the rahdari papers from Nur Khan. This view is supported by 27 All 294. As regards the offence u/s 379 read with Section 75, Penal Code, there is no doubt that this sum together with some other money was found on the person of the accused when he was arrested shortly after the incident. The case therefore under this section also is clearly proved.

One finds in agreement with the said reasoning because the petitioner pretended to be Lamberdar while he is deemed to be aware that in fact he was not a Lamberdar.

For these reasons, there is no ground to interfere in the impugned order. Prima facie case with respect to the offence punishable u/s 170, IPC would be attracted. The revision petition must fail and is dismissed.