Sumer Chand vs Union Of India And Ors.
1989 Latest Caselaw 232 Del

JUDGMENT

H.C. Goel, J.

(1) The plaintiff was prosecuted by the State (Delhi Administration) for the offences punishable under sections 148/365/149/452/ 308/506/149 of the Indian Penal Code. According to the Fir lodged by one Mr. Amit Kumar Tripathi, an employee of Anil Kumar Gupta, defendant No. 5, against the plaintiff, on 27.12.1983 on an information having been received on telephone, H.C. Chottu Ram had given an information that in Lakkar Mandi some persons had come in a bus and they indulged in beating with some other persons. Acting on that information S.I. Kripa Shankar Bhatnagar, who is defendant No. 4, then in charge. Police Post, Maya Puri, along with S.I.. Habib Ahmed reached the place of occurrence. In the meantime, they got a copy of Dd No. 33 dated 27.12.83 of P.P. Maya Puri. On that S.I. Kripa Shankar Bhatnagar, defendant No. 4, sent one Asi Baldev Singh along with some constable to P.S. Kishmere Gate for inquiry. The statement of one Amit Kumar Tripithi, the complainant and an alleged employee of one M/s. Anil International of which Anil Kumar Gupta, defendant No. 5, is a partner, was recorded, which is the F.I.R. of the case. It was stated by Amit Kumar Tripathi that he was working for the last 10-12 days with M/s, Anil International at l/71,Kirti Nagar, Timber Market, New Delhi as their godown chowkidar and on the night between 26 and 27.12.1983 at about 10 P.M. he was present in the godown along with some other persons named in the F.I.R. They took their dinner and slept in the two rooms outside the factory godown and the gate of the factory was locked. At 12.30 A.M. on 27.12.83 Prof. Sumer Chand, plaintiff, accompanied by his companions came there and attacked them with lathis and dandas and they told the persons present at the godown to vacate the factory otherwise all of them would be down away with. It was also stated by him that these persons gave danda and lathi blows to the workers. Taking advantage of the mob he (Ami Kumar Tripathi) came out side by jumping over the gate and then ran away from there and gave the information about the occurrence to the wireless police sitting at the chowk of Maya Puri. It was further stated that after giving this information to the police he again returned to the factory. He saw that Prof. Sumer Chand the plaintiff, along with his goonda companions had forcibly taken away his co-workers Batin Lal, Dhanpat, Jagan, Ziley Singh, Ranvir and Virender Kumar in injured condition in the bus in which they had come there. The accused party had also thrown away the goods of the factory as also goods, utensils and boxes etc. belonging to him and his companions. He then went in a three-wheeler scooter to Anand Lok to give information of the occurrence to his employer. After giving that information to them he again came back in that very three-wheeler to the place of occurrence where he found the police party already preset there. After investigation of the case the police had challaned the plaintiff Prof. Sumer Chand and his other co-accused of the offences under sections 365, 452, 308, 506 read with section 149 IPC. The accused were charged with the said offences. After the trial of the case the learned Additional Sessions Judge by his judgment dated 28th February 1986 acquitted all the accused persons holding that the prosecution story appeared to be improbable and unreliable and no offence was proved against any of the accused persons. It was also observed that the investigation of the case was also tainted.

(2) The plaintiff thereafter filed the present suit for the recovery of Rs. 300.000.00 as damages for his malicious prosecution in the said case against the Union of India; The Commissioner of Police, Delhi; Inspector Vijay Malik, who was the S.H 0. of Paharganj Police Station: inspector Kripa Shanker Bhatnagar, who was Investigation Officer of the case and one Anil Kumar Gupta, defendant No. 5, who is the partner of Anil International with whom Amit Kumar Tripathi was employed. It is alleged in the plaint that defendants 3 to 5 had entered into a conspiracy to launch false and malicious prosecution against the plaintiff with sinister motive and with view to harass and humiliate him. According to the plaintiff, these defendants had managed to challan the plaintiff in the said case and continued with his prosecution in the case maliciously.

(3) An application, being I.A. No. 7672/87, was filed by defendant No. 4 under Order 7, Rule 1 and sec. 151 Civil Procedure Code stating therein that as per the provisions of section 140 of the Delhi Police Act, 1978 (hereinafter called 'the Act') in any case of alleged offence by a police officer of a wrong alleged to have been done by such police officer by any act done under colour of duly or authority or in excess of any such duty or authority, the suit shall not be entertained by the court and if entertained shall be dismissed if the same is instituted more than three months after the date of the act complained of. The present suit is one of the nature as covered by section 140 of the Act and as the suit has not been filed within the period of three months from the date of doing of the impugned act, namely, arrest and prosecution of the plaintiff' in the said case, but having been filed more than one year even after the acquittal of the plaintiff in the case, the same was barred by time and has to be dismissed in view of section 140(1) of the Act. The other objection raised in the application is that as per section 140(2) of the Act, in the case of any intended suit on account of such a wrong as aforesaid or like the present one, the plaintiff has to give a minimum of one month's notice to the defendant prior to the filing of the said suit with sufficient description of the ground complained of and if no such notice is served on the defendant prior to the institution of the suit, the suit has to be dismissed. It is also alleged that as per section 140(3) the fact of the service of such a notice is required to be stated in the plaint. Defendant No. 4 has slated that the plaintiff did not serve any such notice, nor has made any avernment in the plaint about serving any such notice on defendant No. 4 and that thus, the plaint was liable to be rejected on that ground Defendants No. 1 and 2 in their joint written statement took the preliminary objection that the suit was barred by limitation in view of section 140 of the Act. Defendant No. 3 in his written statement took the preliminary objection that the suit was not maintainable in view of section 140(2) of the Act as not prior notice of the filing of the suit was served on him. On these pleas of defendants 1 to 3 the following preliminary issue was framed :- "Whether the suit is barred by section 140 of the Delhi Police Act ? ".

(4) I have heard arguments of learned counsel for defendants I and 2 and 4 and of the plaintiff on the application as also on the said preliminary issue. A bare reading of section 140(1) shows that if any person brings any action i.e. civil suit complaining of any wrong alleged to have been done by any police officer or other person, by any act done by him under colour of duty or authority or in excess of any such duty or authority, such suit has to be filed within a period of three months from the date of the act complained of and in case such a suit is filed beyond the period of three months from the date of the act complained of, the suit shall be time barred. The question for consideration is as to whether the impugned act, i.e. the act which is alleged by the plaintiff to be the wrongful act of defendants I to 4 and for the commission of which the plaintiff seeks the recovery of damages from them, was an act done by them under colour of their duty or authority or that was an act done by them wholly unconnected with their official duty. The impugned act of Inspector Kirpa Shanker Bhatnagar, defendant No. 4 in his having -recorded the F.l.R, and oF Inspector Vijay Malik, defendant No. 3, of having put in the challan and having continued with the prosecution of the plaintiff in the cass. which prosecution, according to the plaintiff, was wholly malicious. It is obvious that whatever defendants No. 3 and 4 did in the matter oF prosecution of the plaintiff was under colour of their authority as police officers investigating into the commission of the particular offence. Even if an extreme view be taken that these two police officers had concocted a false case on the plaintiff and went ahead with that i.e. prosecuted the plaintiff in that case, even that would also obviously be under the colour of their authority, even though that may be wholly dishonest and malicious. I am unable to understand as to how a prosecution can be launched and continued by a police officer otherwise than under the colour of his authority to act as a police officer. Any act dans by a police officer by abuse of his authority itself means that particular act has been done by the police officer under colour of his authority as a police officer .The plaintiff who argued his case personally submitted that defendants Na. 3 and 4 had colluded with the complainant party and launched the false prosecution against him and as such his prosecution at the instance oF defendants No. 3 and 4 cannot be said to be under the colour oF their authority as police officers. It was submitted that the learned Additional Sessions Judge while acquitting the plaintiff in the case has observed that the investigation was tainted and that showed that defendants No. 3 and 4 acted dishonestly and maliciously in 1aunching a false case against him and in pursuing the same before the trial course and as such the impugned act of these defendants in launching the prosecution against the plaintiff cannot be said to be under the colour oF their authority as police officers and was their separate and distinct act unconnected with their role as police officers. I do not find any merit in this submission. As mentioned by me already above, whenever a police officer challans and prosecute man, then it is obviously in the exercise oF his powers as a police officer and if he does so dishonestly and maliciously, then also he does that act under the colour of his authority, although unjustifiably and dishonestly by abuse of his authority, but nevertheless he acts and purports to act under the colour of authority as a police officer. It was also submitted by the plaintiff that Article 74 of the Limitation Act governs the case and the period of limitation for filing the present suit is one year From the date of his acquittal. Article 74 normally regulates limitation for suits For damages for malicious prosecution. However, section 140 of the Delhi Police Act is a sort of proviso controlling the operation of Article 74 if the case is covered by that provision so far as the Union Territory of Delhi is concerned where the Delhi Police Act is in force. The plaintiff referred me to a decision of the Supreme Court in the case State of Maharashtra V. Atma Ram and Others, Air 1966 Supreme Court 1786, in support of his above submission that section 140(1) of the Act is not attracted to the facts of the present case. I fail to see as to how this judgment has any bearing on the point at issue in the present case. In that case it was found that the Police officer had assaulted the complainants and had detained them in the Baithak of a police Patel. They were stripped naked and were kept hanging from a tree. These persons were again detained for a night in the office of the Gram Panchayat. A false confessional statement was procured from one of these complainants by ill treating him. The police officer had been challaned for the offences punishable under sections 330, 342, 343 & 348. One of the police officers was convicted for these offences by the Additional Sessions Judge. The other two police officers were convicted for offences punishable under section 320 Indian Penal Code . On an appeal colour to the 'High Court, the High Court took the view that the prosecution of the respondents was barred under section 161(1) of the Bombay Police Act. The appeal of the police officers was accordingly allowed and their conviction and sentences were set aside, in the appeal taken to the Supreme Court by special leave of the court, the Supreme Court observed that the aforesaid impugned acts of the police officers, namely, of giving beating to some citizens and keeping them in confinement could not be said to be acts under the colour of an authority of of the police officers and they were wholly unconnected with their acts as police officers and as such the High Court was in error in having taken the view that the prosecution of these respondents was barred under section 161(1) of the Bombay Police Act, whereunder prosecution of a police officer or any act done under the colour of his office was protected. It is obvious that there is no similarly in the impugned act on the part of the police officers in the case before the Supreme Court and in the impugned acts in the present case. The plaintiff also referred to a decision of the Allahabad High Court in the case Mohamed Sharif v. Nasir All and Others, Air 1930 Allahabad 742, wherein it was held that on the passing of the Limitation Act (9 of 1871) the part of section 42, Police Act (5 of 1861), which provides a period of three months for suits contemplated by that section was' repealed, with the result that such suits became subject to the general law of limitation contained in the Limitation Act and the special provision of limitation contained in section 42 of the said Police Act ceased to be operative. Section 140 of the Delhi Police Act being operative and which is in the nature of a proviso to section 74 of the Limitation Act, therefore, has to be given its due effect. I am accordingly of the view that the period of limitation in filing this suit as against defendants 2 to 4 as police officers and as against Union of India, which is also a legal entity, is barred by limitation in view of the provisions of section 140(1) of the Delhi Police Act.

(5) The plaintiff has .also admittedly not served any notice prior to the filing to the suit of his intention to file the present suit on any of defendants Nos. I to 4 and for that reason also the suit of the plaintiff clearly falls within the mischief of section 140(2) of the Delhi Police Act and is liable to be dismissed as against defendants I to 4 on this ground as well. In conclusion, I hold the issue against the plaintiff. The application of defendant No. 4 is also allowed. Consequently the suit of the plaintiff is dismissed as against defendant Nos. I to 4 with costs.

(6) ' Defendant .No. 5 has already, been given two months' time from yesterday 'to-file his written statement..The plaintiff shall file his replication to the same within, two weeks thereafter. The plaintiff and defendant No. 5 shall appear before the Deputy Registrar on 5th July 1989 for filing of their documents and their admission and denial and then before the Court for framing of issues on 5th September, 1989, as between the plaintiff and defendant No. 5.