Mahavir Vaid vs Kewal Singh & Anr.
2012 Latest Caselaw 5655 Del

*          THE HIGH COURT OF DELHI AT NEW DELHI

+                          CM (M) 1052/2012

                                              Date of Decision: 19.09.2012

SURENDER KUMAR                                          ...... Petitioner
                           Through:       Mr. I.C.Mishra, Advocate.

                                     Versus

KEWAL SINGH & ANR.                                      ...... Respondent
                Through:                  Nemo.

CORAM:
HON'BLE MR. JUSTICE M.L. MEHTA

M.L. MEHTA, J. (Oral)

1. This petition under Article 227 of the Constitution is directed against the order dated 27.4.2012 of the ADJ, whereby an application under Order 7 Rule 11 CPC filed by the respondents No. 1 & 2 herein, for rejection of the plaint, was allowed, and the plaint filed by the petitioner/plaintiff was rejected.

2. The petitioner had filed a suit for recovery of compensation and damages against the defendants (the respondents herein) on the averments that when he was performing his duty as police official, Inspector Roop Kumar Sharma conducted his checking and allegedly found him under the influence of liquor and in possession of two bottles of whisky. The petitioner/plaintiff had alleged that the

circumstances were manipulated by both the respondents in connivance with each other, and he was falsely implicated. He was placed under suspension and in the departmental enquiry, he was held guilty, and was dismissed from service; but he was reinstated by the order of CAT and the High Court.

3. The respondents filed an application under Order 7 Rule 11 CPC, alleging that the suit filed by the plaintiff/petitioner was not maintainable being barred by Section 140 (1) of the Delhi Police Act (for short the „Act‟). The said application was allowed by the learned ADJ and the plaint was rejected vide the impugned order. The same is under challenge in the instant petition.

4. The main challenge against the impugned order is that the acts which were committed by the respondents in connivance with each other, did not fall within the ambit of provisions of Section 140 (1) of the Act. It is submitted by the learned counsel for the petitioner that the acts were committed by the respondents in their individual and personal capacity, and not in their official capacity under the colour of their office, and so, the provisions of Section 140 (1) of the Act were not attracted.

5. Having heard the learned counsel for the petitioner as also on going through the material available on record, particularly, the averments as set out in the plaint as also the impugned order, I am

unable to agree with the submissions of the learned counsel for the petitioner.

6. The checking was done by Inspector Roop Kumar Sharma in his official capacity under the directions of Asstt. Commissioner, and it was on checking that the petitioner was found to be under the influence of liquor as also in possession of two bottles of whisky. It was also revealed that the petitioner had not marked himself on duty in SOD and report in this regard was also lodged by the respondent No. 2. Thus, whatever was done by the Inspector Roop Kumar Sharma as also the respondent No. 2 was undoubtedly under the colour of their official duty. Similarly, the respondent No. 1, who at the relevant time was Joint Commissioner, had taken decision of checking; his acts would also be within the ambit of colour of his official working. The fact of petitioner having been ultimately exonerated because of lack of evidence or on technical ground by the CAT or by this court, cannot disentitle the respondents to the protection provided by Section 140 (1) of the Act. As per the provision of Section 140 (1) of the Act, the suit could be filed against them within the period of three months of the alleged offence and at the most, within one year, with the prior sanction of the Administrator. Undisputedly, the incident being of 20.2.2001, the suit filed in the year 2010 without prior sanction of Administrator, was hit by the provisions of Section 140 (1) of the Act.

7. In a case before Supreme Court titled Virupaxappa Veerappa Kadampur Vs. State of Mysore, 1963 Supp 2 SCR 6, the allegation was that the appellant, a police Head Constable, had prepared a false panchnama and a false report with regard to the seizure of gaanja. It was held that the said preparation of panchnama and report were acts done under the colour of the duty imposed upon the said Head Constable. Repelling the contention that if the alleged act is found to have been done in gross violation of the duty, then it ceases to be an act done under the colour of the duty, it was observed that "it is only when the act is in violation of the duty, the question of the act being done under colour of the duty arises" and, therefore, "the fact that the act has been done under gross violation of the duty can be no reason to think that the act has not been done under colour of the duty". It was thus held that the provision of Section 161(1) of the Bombay Police Act are applicable.

8. In the case before Supreme Court in Prof. Sumer Chand Vs. Union of India and Others, (1994) 1 SCC 64, it was alleged that the respondent No. 4, who was the Incharge of Mayapuri Police Post, had registered a false, vexatious and malicious report against the appellant, and the respondent No. 3, who was the SHO, P.S. Naraina, had filed the challan in the court against the appellant and other accused on the basis of the said report. It was held that it was the duty of the respondent No. 4, being Incharge of Police Post Mayapuri to record the report and so also, it was the duty of respondent No. 3 SHO to file the

challan in the court. The acts complained had reasonable connection and nexus with the duties attached to the offices held by the respondents No. 3 and 4 and were, therefore, done under the colour of office of the respondents and thus, fell within the ambit of Section 140(1) of the Act.

9. The expression "under colour of duty" are also contained in sub- section (1) of Section 161 of the Bombay Police Act. Construing this expression, the Supreme Court in above-cited case of Virupaxappa Veerappa Kadampur (supra) has laid down as under:

"The expression "under colour of something" or "under colour of duty", or "'under colour of office", is not infrequently used in law as well as in common parlance. Thus in common parlance when a person is entrusted with the duty of collecting funds for, say, some charity and he uses that opportunity to get money for himself, we say of him that he is collecting money for himself under colour of making collections or a charity. Whether or not when the act bears the true colour of the office or duty or right, the act may be said to be done under colour of that right, office or duty, it is clear that when the colour is assumed as a cover or a cloak for something which cannot properly be done in performance of the duty or in exercise of the right or office, the act is said to be done under colour of the office or duty or right. It is reasonable to think that the legislature used the words "under colour" in Section 161(1) to include this sense".

10. In view of the propositions of law as enunciated in the afore- cited decisions of the Supreme Court, the facts of present being identical, the provisions of Section 140 (1) of the Act would be attracted. That being so, the suit filed by the petitioner herein was hit

by provisions of Section 140(1) of the Act and consequently, the plaint was rightly rejected by the learned ADJ. There being no infirmity or illegality in the impugned order, the petition is devoid of any merit and is hereby dismissed.

M.L. MEHTA, J.

SEPTEMBER 19, 2012 akb