Akbar Ali vs State (Govt. Of Nct, Delhi) And ...
2014 Latest Caselaw 1990 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                         Date of decision: 22nd April, 2014.

+                           CS(OS) 1306/2005
       AKBAR ALI                                                   ..... Plaintiff
                           Through:     Mr. Rajesh Kumar proxy counsel
                                        along with plaintiff in person.
                                    Versus

    STATE (GOVT. OF NCT, DELHI) AND ORS.     .... Defendants
                  Through: Mr. Dhamesh Relan, Adv. for D-1
                           to 4.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

1.

The plaintiff has on 10th May, 2005 sued the State (Govt. of NCT of

Delhi), the Commissioner of Police, the S.H.O. Police Station-Jahangirpuri,

Sub Inspector, Jaipal Singh and one Mr. Niranjan Singh, for damages and

compensation in the sum of Rs.22 lakhs along with interest @ 12% per

annum from the date of institution of the suit till realization, pleading:

(i) that the plaintiff has been carrying on proprietorship firms

namely M/s. Star Steel Polishing and Buffing Works and M/s. Akbar

Polishing Works and is an income tax assessee;

(ii) that the plaintiff, in the month of January, 2002, was repairing

and constructing his house No.J-1746-47 Jahangirpuri, Delhi when a

small portion of his balcony fell down in the night; however no harm

was caused to any neighbour resident including family members of

the plaintiff;

(iii) that the defendant No.5 Mr. Niranjan Singh aforesaid, resident

of H.No.J-1754, Jahangirpuri, Delhi however called the police and

demanded examination of contents of cement used in the process of

construction and to which the plaintiff agreed;

(iv) that the cement used was found to be genuine;

(v) that the defendant No.5 however asked the plaintiff for a sum

of Rs.50,000/-, under threat of implicating the plaintiff in civil and

criminal cases;

(vi) that on the refusal of the plaintiff to pay, the defendant No.5

subjected the plaintiff and his family members to harassment, of

which complaints dated 25th February, 2002, 8th April, 2002, 9th April,

2002, 11th April, 2002, 17th April, 2002, 26th April, 2002, 10th May,

2002 and 16th May, 2002 were made by the plaintiff to various

authorities;

(vii) that the defendant No.5 along with some others also physically

attacked the plaintiff and his family members and of which First

Information Report (FIR) No.239/2002 under Sections 323/341/34

IPC was lodged on 23rd April, 2002;

(viii) that the defendant No.5 and his associates continued to harass

the plaintiff and of which Kalandra under Sections 107/111 Cr.P.C.

was submitted by the police against the defendant No.5 and his

associates;

(ix) that the defendant No.5 along with another, in the month of

May, 2002, also filed a suit for permanent and mandatory injunction

for restraining the plaintiff from raising construction and for

demolition of the construction already raised;

(x) that another complaint dated 11th July, 2002 was made by the

plaintiff against the defendant No.5;

(xi) that the defendant No.5 got registered FIR No.452/2002 under

Sections 307/354/34 IPC on 16th July, 2002 against the plaintiff and

two others of an incident which had not taken place;

(xii) that the plaintiff was arrested in the aforesaid case and was kept

in custody for about 45 days and where after he was released on bail;

(xiii) that the plaintiff preferred Criminal Writ Petition No.19/2003

in this Court for transfer of investigation in the aforesaid two FIRs

(FIR No.239/2002 & FIR No.452/2002) to an independent and

impartial agency and vide order in which, the investigation was

transferred to the District Investigating Unit North West;

(xiv) that however in the meanwhile charge sheet had been filed by

defendant No.4 S.I. Jaipal Singh aforesaid in connivance with the

defendant No.5 and the plaintiff was put to trial in case FIR

No.452/2002;

(xv) that vide judgment dated 5th March, 2004, the plaintiff was

given benefit of doubt and acquitted;

(xvi) that no appeal was preferred against the aforesaid judgment;

(xvii) that the plaintiff, on 1st March, 2005 got issued a legal notice

claiming compensation and to which a reply dated 11th March, 2005

was given by the defendant No.5.

2. Summons of the suit were issued. Written statement was filed by the

defendants No.1 to 4, contending:

(i) that the suit is barred by Section 140 of the Delhi Police Act,

1978 having been instituted after more than three months from the

date of acquittal of the plaintiff and no previous sanction from the

Administrator has been obtained before filing the suit against the

defendants No.2 to 4;

(ii) that no notice as required by Section 140 of Delhi Police Act

and Section 80 of the Civil Procedure Code (CPC), 1908 had been

issued;

(iii) that the defendants No.1 to 4 acted in good faith in pursuance

to their official duties and the suit is not maintainable under Section

138 of the Delhi Police Act;

(iv) that the FIR Nos.239/2002 & 542/2002 were counter FIRs and

FIR No.239/2002 was still sub-judice;

(v) that in the judgment dated 5th March, 2004 in case FIR

No.542/2002, the plaintiff had been acquitted, giving benefit of doubt

to him and no adverse remarks had been made against the concerned

police officials;

(vi) denying any mala fides and malice.

3. The defendant No.5 has also contested the suit by filing a written

statement denying the claim of the plaintiff.

4. Needless to state that the plaintiff has filed replications to both the

written statements.

5. On the pleadings of the parties, the following issues were framed on

9th February, 2009:

"1. Whether the plaintiff is entitled for a decree for recovery of Rs.22 lakhs? OPP

2. Whether the plaintiff is entitled for interest, if so, on what amount, for what period and at what rate? OPP

3. Whether the acts of the defendants are protected under Section 138 of Delhi Police Act and whether the suit is barred under Section 140 of Delhi Police Act, if so, to what effect?

OPD

4. Whether the suit is bad for mis-joinder and non-joinder of parties as alleged by the defendants? OPD

5. Relief."

6. The defendants absented at the stage of evidence and were vide order

dated 24th November, 2011 proceeded against ex-parte.

7. The plaintiff in his ex-parte evidence, besides examining himself has

examined one Mohammad Naqi as PW-2 and closed his evidence.

8. The counsel for the plaintiff took repeated adjournments for

addressing ex-parte arguments. When the suit was listed on 18th February,

2014, again adjournment was sought. Finding the suit to be prima facie

barred by time and the plaintiff to have even otherwise not proved a case of

malicious prosecution, judgment was reserved giving liberty to the counsel

for the plaintiff to address arguments either on the next date or on the

following date.

9. The counsel for the plaintiff has filed written submissions along with

copies of some judgments which have been perused.

10. The affidavit by way of examination-in-chief of the plaintiff by way

of his ex-parte evidence is a replica of the plaint save that documents have

been proved therein. PW-2 Mohammad Naqi examined by the plaintiff is

the brother-in-law of the plaintiff and except supporting the plaintiff has not

otherwise advanced the case of the plaintiff in any way.

11. The written submissions of the plaintiff are again a replica of the

plaint and the affidavit by way of examination-in-chief, save that in addition

thereto reference is made to:

(A) Shakila Abdul Gafar Khan Vs. Vasant Raghunath Dhoble

AIR 2003 SC 4567; and,

(B) Nilabati Behera Vs. State of Orissa AIR 1993 SC 1960.

12. Though the defendants are ex parte, but the counsel for the

defendants no.1 to 4 has filed copies following judgments:-

(i) Sumer Chand Vs. Union of India 41 (1990) DLT 66;

(ii) Balvinder Singh Sodhi Vs. Mahender Singh 70 (1997) DLT

472; and,

(iii) Inspector Rajender Saini Vs. State 121 (2005) DLT 595.

13. Inspite of it being clearly observed, while reserving judgment that the

suit was prima facie barred by time, the counsel for the plaintiff neither in is

written submissions has adverted to the said aspect nor are any of the

judgments referred to, on the said aspect.

14. Though undoubtedly neither of the defendants in their respective

written statement took the plea, of the suit claim being barred by time, and

no issue also was framed to the said effect but Section 3 of the Limitation

Act, 1963 mandates that every suit instituted after the expiry of the period

prescribed for filing thereof shall be dismissed, although limitation has not

been set up as a defence. The suit is clearly for compensation for malicious

prosecution and the period of limitation prescribed by Article 74 of the

Schedule to the Limitation Act wherefor is one year starting from the date

when the plaintiff is acquitted or the prosecution is otherwise terminated.

The plaintiff was acquitted on 5th March, 2004 and on which date, according

to the plaint also, the cause of action for the suit accrued to the plaintiff.

The suit thus had to be instituted on or before 4th March, 2005. As aforesaid,

the suit has been instituted on 10th May, 2005 that too with defects and was

re-filed on 18th July, 2005, 2nd August, 2005 and finally on 20th August,

2005; though the suit is accompanied with an application, being IA

No.7349/2005 for condonation of delay in re-filing the suit but no order was

made thereon and the same is also pending consideration.

15. The plaintiff, in the cause of action paragraph in the plaint, has also

pleaded that the cause of action also arose on 1 st March, 2005 when the

notice for damages and compensation was given to all the defendants but

the same remained un-replied except by the defendant No.5. Even though

the notice dated 1st March, 2005 proved as Ex.PW-1/29 and got issued by

the plaintiff to all the defendants does not claim to be under Section 80 of

the CPC and it is not the averment in the plaint also, even if the said notice

got issued on 1st March, 2005 i.e. before the expiry of the period of

limitation, is to be treated as under Section 80 of the CPC and the period of

two months thereof is excluded under Section 15(2) of the Limitation Act,

the suit should still have been filed on or before 6 th May, 2005; but the same

as aforesaid, has been filed on 10th May,2005. The suit is thus clearly

barred by time and is liable to be dismissed on this ground alone. Perhaps

for this reason only, the counsel for the plaintiff in his written submissions

has chosen not to deal with the said aspect. The judgments cited are on the

quantum of compensation.

16. Though the suit being barred by time, there is no need to deal with the

other aspects but I may only add that a perusal of the judgment of acquittal

of the plaintiff from a reading thereof, does not show the prosecution of the

plaintiff to be malicious. Rather, the plaintiff has been acquitted giving the

benefit of doubt and not for the reason of having been falsely implicated.

The plaintiff else neither in the pleadings nor in the evidence also has made

out any case of malicious. On the contrary, it is the admitted position that

there were complaints and counter-complaints and counter FIRs between the

plaintiff and the defendant No.5. I have recently in Gangadhar Padhy Vs.

Prem Singh MANU/DE/0096/2014, on a conspectus of case in this regard

held that mere acquittal is not a ground for an action for malicious

prosecution; need is thus not felt to, in this judgment, again elaborate on the

said aspect.

17. The plaintiff has thus found on merit utterly failed to prove his case

and the issue no.1 and axiomatically issue no.2 are decided against the

plaintiff.

18. The judgments cited by the counsel for the defendants no.1 to 4 are

on the aspect of Section 140 of the Delhi Police Act. Applying the principle

laid down therein and considering that the plaintiff has failed to prove that

actions of the defendants no.2 to 4 were not in the discharge of duty, the

issue no.3 is decided in favour of the defendants and against the plaintiff.

19. The defendants have failed to prove issue no.4, onus whereof was on

the defendants. The said issue is accordingly decided in favour of the

plaintiff and against the defendants.

20. The suit is dismissed, however the defendants having not contested

the trial, no costs.

Decree sheet be drawn up.

RAJIV SAHAI ENDLAW, J.

nd APRIL 22 , 2014 Bs..