Balbir Singh vs Government Of Nct Of Delhi And Ors.
2005 Latest Caselaw 1581 Del

JUDGMENT

A.K. Sikri, J.

Page 2492

1. Defendant No. 2 has filed this application under Order VII Rule 11(d) of the Code of Civil Procedure (in short 'CPC') and Section 114 of the Delhi Police Act for rejection of the plaint. Before setting up the grounds on which the applicant wants plaint to be rejected under the aforesaid provisions, it would be necessary to take note of the averments made in the plaint on the basis of which, claimed raised therein is founded.

2. The plaintiff is a non-resident Indian settled in England since 1974. He has filed this suit for compensation/recovery of damages to the tune of Rs. 1.50 crores Page 2493 with interest @ 12% per annum for his malicious prosecution. It is alleged that the plaintiff boarded the flight of Lufthansa Airlines from Heathrow Airport, London on 23rd June 1999 for New Delhi. At that time he was working/employed with the British Railways, i.e. Thames Trains, London, UK. After boarding the said flight, he landed at Indira Gandhi International Airport in the intervening night of 23rd/24th June 1999. On his arrival, his relative from Punjab, namely, Sukhmander Singh came to receive him at the airport. He was to go back to London on 3rd July 1999 and for this he was carrying return ticket from Delhi to London. When he came out and hired a taxi for going to Chandini Chowk Gurudwara for darshan, the time was 1.45 a.m. The taxi was intercepted by the police officials in plain clothes at the exit of the airport itself by putting a barricade. He was dealt with inhumanly and his belonging were searched. The police personnel took him away to Lodhi Colony Special Staff where defendants No. 3 to 7 were posted. None of his family members were informed. No arrest was shown either. When he did not reach home, his relations got worried and reported the matter to various authorities. After keeping him in illegal detention from early morning of 24th June 1999, ultimately case was registered against him on 29th June 1999 when formal arrest was shown under Sections 3, 4 and 5 of the Explosive Substances Act read with Section 120(b) of the Indian Penal Code by planting RDX upon the plaintiff and his relations. He was produced before the Magistrate, Tis Hazari Court, Delhi, on 30th June 1999 and was remanded to custody charges were framed and he was put to trial. Ultimately he was acquitted by the trial court vide judgment dated 27th March 2002. Since no interim bail was granted to the plaintiff, he remained in jail during this period of trial. On the basis of these averments, brief note whereof is taken, he states that the prosecution launched against him was malicious and, therefore, he has prayed for damages for Rs. 1.50 crores with interest as aforesaid.

3. Defendant No. 2, i.e. Union of India wants rejection of this plaint under Order VII Rule 11 CPC. In the application filed in this behalf the provisions of Section 140 of the Delhi Police Act are pressed into service. Section 140 of the Delhi Police Act reads as under:-

"Bar to suits and prosecution:- (I) In any case of alleged offence by a police officer or other persons, or of a wrong alleged to have been done by such police officer or other person, by any act done under colour of duty or authority or in excess of any such duty or authority, or wherein it shall appear to the court that the offence or wrong if committed or done was of the character aforesaid, the prosecution or suit shall not be entertained and if entertained shall be dismissed if it is instituted, more than three months after the date of the act complained of.

Provided that any such prosecution against a police officer or other person may be entertained by the court, if instituted with the previous sanction of the Administrator, within one year from the date of the offence...."

4. Submission is that suit or prosecution could be filed, as per sub-section (1) of Section 140 within three months from the date of the act complained of. As per proviso to sub-section (1), beyond three months and within one year from the date of the offence allegedly committed by the police officer, suit Page 2494 could be instituted with previous sanction of the Administrator. Thus, outer limit is one year. In the present case, it is contended, the suit is filed well beyond one year and, therefore, the bar contained in Section 140 shall apply. To buttress this submission that suit is filed beyond one year, the applicant submits that period of limitation would start from 29th June 1999 when the plaintiff was arrested as it is that act of arrest which is complained of and sub-section (1) prescribes period of three months after "date of act complained of". It is also pointed out that before filing the suit legal notice under Section 80 of the CPC was sent to the defendant on 25th March 2003 and the suit filed on 26th May 2003. It is submitted that sub-section (2) of Section 140 prescribes one month's notice to be given before filing such a suit and the plaintiff could get benefit of month only, for computation of limitation period for having served the said notice as per the law laid down by the Supreme Court in the case of Sri Amar Chand Inani v. Union of India, . It is also submitted that Section 140 of the Delhi Police Act is a special provision and any suit filed by any person against a police officer is to be governed by these provisions and not the Code of Civil Procedure or the limitation prescribed therein. In support of this proposition reliance is placed on the judgment of this Court in S.I. Manoj Pant v. State of Delhi 1999 (1) JCC (Del.) 1.

5. Learned counsel for the plaintiff/non-applicant, on the other hand, submits that provisions of Section 140 of the Delhi Police Act would not be applicable in the instant case. His submission is that only those acts which are done by the police officer under "the colour of duty or authority or in excess of any such duty or authority" would be covered by the said provision and not the acts which are outside the authority and which have no flavour of "colour of duty". In support he has relied upon following judgments:-

(1) K. Kalimuthu v. State by D.S.P., .

(2) Manoj Pant v. State, 1996 RLR 197.

(3) P.P. Unnikrishnan and Anr. v. Puttiyottil Alikutty and Anr., 2000(3) Crimes 209 SC.

(4) State of Maharashtra v. Atma Ram and Ors., AIR 1966 SC 1786.

6. In K. Kalimuthu v. State by D.S.P. (supra), while interpreting Section 197 of the CPC which grants a protection to public servants against the institution of vexatious criminal proceedings for offences alleged to have been committed by them while they are acting or purporting to act as public servant, held that before Section 197 can be invoked, it must be shown that the official concerned was accused of an offence alleged to have been committed by him while acting or purporting to act in discharge of his official duties. It further observed that it is the duty which requires examination so much as the act, Page 2495 because the official act can be performed both in the discharge of the official duty as well as in dereliction of it. The act must fall within the scope and range of the official duties of the public servant concerned. It is the quality of the act which is important and the protection of this section is available if the act falls within the scope and range of his official duty. The test to be applied to determine whether the act falls within the scope and range of the official duty is stated by the Court in the following manner:-

"Safe and sure test in this regard would be to consider if the omission or neglect on the part of the public servant to commit the act complained of could have made him answerable for a charge of dereliction of his official duty. If the answer to his question is in the affirmative, it may be said that such act was committed by the public servant while acting in the discharge of his official duty and there was every connection with the act complained of and the official duty of the public servant."

7. The Court also clarified that the use of expression "official duty" implies that the act or omission must have been done by the public in the course of his service and that it should have been in discharge of his duty. The Section does not extend its protective cover to every act or omission done by a public servant in service but restricts its scope of operation to only those acts or omissions which are done by a public servant in the discharge of official duty. Once it is established that act or omission was done by the public servant while discharging his duty then the scope of its being official should be construed so as to advance the objective of this Section in favor of public servant. Otherwise the entire purpose of affording protection to a public servant without sanction shall stand frustrated. The allegation in that case against police officer was that he had taken bribe. The Court opined that such an act would not come under the protective umbrella of Section 197 of the Cr.P.C.

8. In Manoj Pant v. State 1996 RLR 197 decided by this Court, the Court was concerned with interpretation of Section 140 of the Delhi Police Act itself, the provision with which we are dealing in the present case. That was also a case of taking bribe by the police officer while performing his official duties and the Court concluded that taking of bribe is not part of official duty and, therefore, provisions of Section 140 would not be attracted. The relevant discussion is found in para-11 of the judgment, which reads as under:-

"11. One thing is certain and it is that in order to come under the protective umbrella of Section 140 of the Delhi Police Act the act must have been done under colour of duty or authority or in excess of any such duty or authority. In other words, the Section does not extend its protective cover to every act or omission done by a police officer in service but restricts its scope of operation to only those acts or omission which are done under colour of duty or authority or in excess of any such duty or authority. For instance, and I am borrowing is from P. Arutswami v. State of Madras AIR 1957 SC 776, a police officer in discharge of his duty may have to use force which may be an offence for the prosecution of which sanction may be necessary. But if the same officer commits an act in course of service but not in discharge of his duty then the bar is not attracted."

Page 2496

9. In other two cases also, cited by the learned counsel for the plaintiff, similar provisions as contained in Section 140 of the Delhi Police Act, came up for consideration. P.P. Unnikrishnan v. Puttiyottil Alikutty (supra) was a case under Section 64(3) of Kerala Police Act which is pari-materia with Section 140 of the Delhi Police Act. The Court opined that the said provision contains words which are analogous to words employed in Section 171 of the Cr.P.C. That was a case where complainant had complained of physical assault and locking up in police station for more than 24 hours and the provisions of Section 64(3) of the Kerala Police Act were pressed into service to dislodge the claim of the complainant. Negativing the contention of the police officials, it was held as under:-

"14. The commission of an offence, while acting or purporting to act in the discharge of his official duty is of a wider radius when compared with an offence committed on account of an act done in pursuance of any duty or authority. In the latter, the act done itself should be an exercise in discharge of his duty or authority and that act should amount to an offence. It is not enough that the act complained of was only purported to be in exercise of his duty though it may be sufficient under the former. So the scope under Section 64(3) of the K.P. Act is much narrower than the amplitude of Section 197(1) of the Code for a public servant to claim prosecution.

15. Even under Section 197 of the Code no protection has been granted to public servants for the type of acts alleged in the case against the appellants. Decisions are a legion relating to the scope of the protection under Section 197(1) of the Code. In Matakpg Dpneu v. H.C. Bhari, this Court made a slight deviation from the vie adopted by the Judicial Committee of the Privy Council in Gill's case, 1948 Law Reports 75. This Court after referring to earlier decisions summed up the scope of Section 197(1) of the Code thus:

"There must be a reasonable connection between the act and the discharge of official duty; the act must bear such relation to the duty that the accused could lay a reasonable, but not a pretended or fanciful claim, that he did in the course of performance of his duty"

While following the said decision this Court has found, one a subsequent occasion that a superior officer who assaulted his subordinate for defying his orders could not be said to have acted in the course of performance of his duty, (vide Pukhraj v. State of Rajasthan and Anr., ).

16. If a police officer dealing with law and order duty uses force against unruly persons, either in his own defense or in defense of others and exceeds such right it may amount to an offence. But such offence might fall within the amplitude of Section 197 of the Code as well as Section 64(3) of the K.P. Act. But if a police officer assaults a prisoner inside a lock-up he cannot claim such act to be connected with the discharge of his Page 2497 authority or exercise of his duty unless he establishes that he did such acts in his defense or in defense of others or any property. Similarly, if a police officer wrongfully confines a person in the lock-up beyond a period of 24 hours without the sanction of a magistrate or an order of a court it would be an offence for which he cannot claim any protection in the normal course, nor can he claim that such act was done in exercise of his official duty. A policeman keeping a person in the lock-up for more than 24 hours without authority is not merely abusing his duty but his act would be quite outside the contours of his duty or authority."

10. In State of Maharashtra v. Atma Ram and Ors. (supra), the Apex Court was concerned with similar provision, namely, Section 64(b) of the Bombay Police Act. The act complained of in that case was also beating of the complainant by the police officer and the Court was again of the opinion that the protection of Section 64(b) of the Bombay Police Act would not be available for committing such an act as the act complained of could not be treated as the one committed "under the colour of their duty or authority". It was held that there was no connection between the acts complained of and the office of the respondents and the duties and obligations imposed on them by law. Such acts would fall outside the scope of duties of the police officers as they are not entitled, therefore, to the mantle of protection conferred by Section 161(1) of the Bombay Police Act.

11. Applying the aforesaid test in the present case, I am of the view that, prima facie, provisions of Section 140 of the Delhi Police Act would not be applicable if one has to take into consideration the allegations made in the plaint. Present application, it may be borne in mind, is one under Order VII Rule 11 of the CPC and the applicant wants rejection of the plaint as barred by law. I have already narrated the acts complained of. To briefly put again, allegations are that the plaintiff was illegally detained in the wee hours of 24th June 1999; that no arrest was shown till 29th June 1999 and he remained under illegal confinement; this period he was treated in an inhuman manner; that when relatives of the plaintiff complained to the authorities about disappearance of the plaintiff and his relatives, a false case was registered showing his arrest on 29th June 1999 from ISBT and foisting false charges under the Explosive Substances Act by planting RDX. These acts as complained of, if proved, by no stretch of imagination would be acts under the colour of duty if one has to apply the test laid down in the aforesaid judgments. At this stage, I would be apposite to refer to the following observations of the learned Addl. Sessions Judge in his judgment dated 27th March 2002 while acquitting the plaintiff:-

"There can be no doubt that these telegrams were issued much prior to 7:25 P.M. the alleged time when the accused Balbir Singh and accused Sukhmander Singh @ Sukhi @ Mander, were allegedly apprehended at the Inter Bus Terminal, Kashmere Gate. ACP Rajbir Singh, who is named in these telegrams has been referred to by PW-13 Inspr. Karam Chand in his testimony when he deposed that on 28.6.99, ACP Rajbir Singh of Operation Cell was having a secret information that two Sikhs who were activists of Babbar Khalsa International, were coming from Delhi by bus from Punjab and would be in possession of explosive material for committing Page 2498 "some big incident" in Delhi. It is also deposed by Sh. Karam Chand (PW-13) that ACP Rajbir Singh deputed him to develop this information on 28.6.99 when he Along with SI Anil Kumar (PW-14) went to Inter State Bus Terminal, Kashmere Gate and kept a watch on buses coming from Punjab, meaning thereby that by 2.33 and 2.37 PM on 29.6.99, according to PW-13, Balbir Singh and accused Sukhmander Singh @ Sukhi @ Mander were yet to come from Punjab whereas the documents Ex. DW-5/1 and DW-5/2 clearly show that they were already detained by ACP Rajbir Singh against whom it was alleged that he was torturing and might involve them in some false and frivolous case. This apprehension proved true by the present case having been foisted upon the two accused, namely, Balbir Singh and accused Sukhmander Singh @ Sukhi @ Mander. It is well recognised maxim that man may tell lie but the record cannot. The accused persons by producing Ex. DW-5/1 and Ex. DW-5/2 have atleast succeeded in establishing their defense as probable and plausible. Failure of the prosecution in producing not even a single public witness in support of their case, especially when admittedly public persons were available atleast at the spot and efforts could have been made to join them to witness the recovery, creates a doubt in the mind of the court about the veracity of the prosecution story, had there been any grain of truth in their story. Prosecution story stands falsified by the defense Evidence produced by the accused as briefly discussed above."

12. Therefore, I do not find any merit in this application,which hereby dismissed.