THE HIGH COURT OF SIKKIM : GANGTOK
(Civil Revisional Jurisdiction)
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SINGLE BENCH: THE HON'BLE MR. JUSTICE BHASKAR RAJ PRADHAN, JUDGE
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C.R.P. No.01 of 2020
Hem Prasad Subedi,
S/o Shri Deo Narayan Subedi,
R/o Rawtey Rumtek,
P.O. Sajong and P.S. Ranipool,
East Sikkim.
..... Petitioner/Revisionist
Versus
1. Deo Narayan Dahal,
S/o late Manohar Dahal,
R/o Upper Tarku,
P.O. Tarku and P.S. Temi,
South Sikkim-737134.
2. State of Sikkim,
Through the Chief Secretary,
Manan Kendra, Gangtok,
East Sikkim-737101.
.....Respondents
Revision petition under Section 115 read with Section
151 of the Code of Civil Procedure, 1908.
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Appearance:
Mr. Zangpo Sherpa, Advocate and Mr. Jushan
Lepcha, Advocate for the Petitioner.
Mr. N. B. Khatiwada, Senior Advocate with Ms
Gita Bista and Ms. Pratikcha Gurung,
Advocates for Respondent No.1
Ms. Pema Bhutia, Assistant Government
Advocate for Respondent No.2.
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C.R.P. No. 01 of 2020
Hem Prasad Subedi Vs. Deo Narayan Dahal & Anr.
J U D G M E N T (ORAL)
( 18.08.2021 )
Bhaskar Raj Pradhan, J.
1. A revision petition under Section 115 read with
Section 151 of the Code of Civil Procedure, 1908 (CPC) has
been filed by the petitioner/defendant no.1 (the petitioner).
It is against the impugned order dated 18.12.2019 passed
by the learned District Judge, South Sikkim at Namchi
(the learned District Judge). The impugned order rejected
the application under Order VII Rule 11 of the CPC filed by
the petitioner. The petitioner had sought for rejection of
the suit filed by the respondent no.1/plaintiff for failure to
disclose a cause of action and for being barred by law.
2. The suit was filed by the respondent no.1 against the
petitioner for recovery of money for malicious prosecution
and other reliefs. In the plaint it was averred that the
petitioner was a teacher by profession and the defendant
no.2 (the respondent no.2 herein) was the State of Sikkim
who had prosecuted the respondent based on false First
Information Report (FIR) lodged by the petitioner. The
plaint categorically states that the respondent no.1 is not
seeking any reliefs against the respondent no.2. 3
C.R.P. No. 01 of 2020 Hem Prasad Subedi Vs. Deo Narayan Dahal & Anr.
3. As per the narration in the plaint an FIR was lodged
on 14.07.2016 by the petitioner before the Temi police
station alleging that the respondent no.1 had committed
sexual assault on the victim who was residing with the
petitioner and his wife. Consequently, a warrant was
issued for the arrest of the respondent no.1, and he was
arrested and kept in the lockup from 14.07.2016 to
15.05.2017 for almost 10 months. It is alleged that based
on the false FIR, Temi police station Case No.17/2016
dated 14.07.2016 under Section 376 of the Indian Penal
Code (IPC) read with Section 4 and 8 of the Protection of
Children from Sexual Offences Act, 2012 (POCSO Act) was
registered against the respondent no.1. On completion of
investigation charge sheet was submitted under Section
376(1)/341 IPC read with Section 4 and 8 of the POCSO
Act and cognizance taken by the learned Trial Court. The
plaint further narrates that the learned Trial Court heard
the parties and charges were framed against respondent
no.1 under Section 5(j)(ii), 5(l) of the POCSO Act and under
Section 376 (2) (i), (n) and 354-B IPC.
4. It is stated in the plaint that the prosecution
examined 12 witnesses and after a protracted trial the
respondent no.1 was acquitted on 21.03.2018. It is 4
C.R.P. No. 01 of 2020 Hem Prasad Subedi Vs. Deo Narayan Dahal & Anr.
averred that the petitioner had lodged the false FIR against
the respondent no.1 without a reasonable or probable
cause which is evident from the evidence recorded during
the trial. Various portions of the evidence in the criminal
trial have been highlighted in paragraph 11 of the plaint. It
is stated that the respondent no.1 and his family members
had suffered physical and mental pain; and they have
been lowered in the estimation of their friends, relatives,
and society.
5. In paragraph 14 of the plaint, it is stated that to
prove malicious prosecution the respondent no.1 was
required to prove the following ingredients:
"a. That the plaintiff was prosecuted on the complaint lodged by the defendant.
b. The proceeding complained was terminated in favour of the present plaintiff.
c. That the prosecution was instituted against the plaintiff without any just or reasonable cause.
d. That the prosecution was instituted with a malicious intention, that is not with the mere intention of getting the law into effect, but with an intention which was wrongful in fact.
e. That the plaintiff suffered damage to his reputation."
6. It is averred that the cause of action first arose on
21.03.2018 from the date of the judgment of acquittal 5
C.R.P. No. 01 of 2020 Hem Prasad Subedi Vs. Deo Narayan Dahal & Anr.
passed by the learned Trial Court and continued
thereafter.
7. On such pleadings the respondent no.1 sought for
expenses and financial losses incurred for engaging
counsel in the criminal case, damaging reputation, mental
and physical agony, and interest pendente lite and future.
8. On 21.02.2019 the learned District Judge issued
summons to the petitioner and respondent no.2.
9. On 23.03.2019 the petitioner filed an application
under Order VII Rule 11 read with Section 151 CPC (the
application). In the application it was averred that the
plaint was not maintainable and barred by the provisions
of Order 11(a) and (d) of the CPC. The respondent no.1
filed his objections.
10. On 27.11.2019 the learned District Judge heard the
learned counsel for the parties and on 18.12.2019 passed
the impugned order rejecting the application. The
petitioner is aggrieved by the impugned order.
11. Heard Mr. Zangpo Sherpa, learned counsel for the
petitioner. It is contended that a reading of the plaint
would show that the suit was barred by law i.e. Section
19(7) of the POCSO Act. It is his contention that under 6
C.R.P. No. 01 of 2020 Hem Prasad Subedi Vs. Deo Narayan Dahal & Anr.
Section 19 (1) of the POCSO Act there is an obligation cast
upon any person having knowledge about sexual assault
on a child victim to report the same and failure to do so is
punishable under Section 21 thereof. It is pointed out
that Section 19(7) provides immunity to the informant
against both civil and criminal liability for giving such
information in good faith. The learned counsel also draws
the attention of this court to the impugned judgment
which reflects that this fact was pointed out to the learned
District Judge who, however, did not examine it. It is
argued, while taking this court through the impugned
judgment, that the acquittal was not an acquittal on a
conclusion that the FIR was false, but by giving benefit of
doubt to the respondent no.1. The learned counsel
referred to the judgment of the Supreme Court in SR.
Tessy Jose v. State of Kerala1 which held on examination
of Section 19 of the POCSO Act that a person who had an
apprehension that such an offence may be committed or
knowledge that it has been committed would be required
to provide such information to the relevant authority.
12. Ms. Gita Bista, learned counsel for the respondent
no.1, vehemently opposes grant of any prayer in favour of
1 (2018) 18 SCC 292 7
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the petitioner. While taking this court through the
evidence in the criminal trial filed by the respondent no.1
along with the plaint it is submitted that the respondent
no.1 had clearly laid out the cause of action in the plaint
and shown that it was not barred by limitation. It is
contended that neither the petitioner (P.W.2) nor the
victim (P.W.1) in the criminal trial had deposed that the
victim informed the petitioner that it was the respondent
no.1 who was responsible for her pregnancy. It is
contended that as such the FIR lodged by the petitioner
was evidently false and malicious against the respondent
no.1. The learned counsel also drew the attention of this
court to the admission made by the victim in her cross-
examination where she admitted that "it is true that I was
told by Sir and Madam to depose before the court about the
incident without fear. It is true that I was told to depose
before the court saying that I had gone to the house of the
accused on the relevant day. It is not a fact that I was told
by Sir and Madam to depose saying that I never stayed
overnight in any other person's house." It is thus,
submitted by the learned counsel that this would clearly
reflect that the victim was tutored by the petitioner for
lodging a false FIR. The learned counsel also argued that 8
C.R.P. No. 01 of 2020 Hem Prasad Subedi Vs. Deo Narayan Dahal & Anr.
the burden was on the petitioner to prove the criminal
case against the respondent no.1 and having failed to do
so it does not lie upon the petitioner to seek rejection of
the plaint for malicious prosecution against him.
13. Ms. Pema Bhutia learned Assistant Government
Advocate for the respondent no.2 submits that the dispute
is between the petitioner and the respondent no.1 and as
the respondent no.1 has chosen not to seek any relief
against the respondent no.2, she has nothing to submit.
14. This court has considered the submission made by
the learned counsel, examined the plaint and the
documents sought to be relied upon therein; the
application filed by the petitioner as well as the reply of
the respondent no.1.
15. Order VII Rule 11(a) and (d) of the CPC reads as
under:
"11. Rejection of plaint. - the plaint shall be rejected in the following cases:-
(a) where it does not disclose a cause of action;
.....................................................................
(d) where the suit appears from the statement in the plaint to be barred by any law;
...................................................................."
16. A reading of Order VII Rule 11 clearly reflects that
the plaint could be rejected in any of the grounds 9
C.R.P. No. 01 of 2020 Hem Prasad Subedi Vs. Deo Narayan Dahal & Anr.
enumerated in sub-clause (a) to (f). Whereas under sub-
clause (a) plaint could be rejected for non-disclosure of
cause of action, sub-clause (d) mandates that the plaint
shall be rejected where the suit appears from the
statement in the plaint to be barred by any law.
17. In Dahiben v. Arvindbhai Kalyanji Bhanusali (Gajra)
dead2 the Supreme Court held that under Order 7 Rule
11, a duty is cast on the court to determine whether the
plaint discloses a cause of action by scrutinising the
averments in the plaint, read in conjunction with the
documents relied upon, or whether the suit is barred by
law.
18. In the plaint the respondent no.1 has categorically
averred that the FIR was lodged by the petitioner stating
that the victim who was staying with him since childhood
had fallen sick and so they had taken her to Gangtok
hospital for medical treatment after which the doctor told
them that the victim was 28 weeks pregnant. It also avers
that it was alleged that the victim was sexually assaulted
by the respondent no.1. The plaint avers that after the
FIR, a criminal investigation was started by the police who
2 (2020) 7 SCC 366 10
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filed the charge sheet against the respondent no.1 under
Section 376 (1)/341 of the IPC read with Section 4 and 8
of the POCSO Act. The respondent no.1 also clearly avers
that the learned Trial Court framed charges against the
respondent no.1 under Section 5 (j) (ii), 5(1) of the POCSO
Act and under Section 376 (2) (i), (n) and 354-B of the IPC.
Thereafter, the trial is referred to and the ultimate
acquittal which, according to the respondent no.1, gave
the cause of action to file the suit.
19. It is clear from reading of the plaint itself that it was
not only the petitioner who had complained to the police
about the commission of the offence against the
respondent no.1, but also that the police had investigated
the case and concluded by filing a charge sheet that the
allegation made by the complainant was prima facie true.
It is also clear from the reading of the statements in the
plaint that the criminal trial pertained to allegations
against the respondent No.1 under the POCSO Act.
20. Sections 19, 21 and 22 of the POCSO Act would be
relevant at this juncture and quoted herein below.
"19. Reporting of offences.- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), any person (including the child), who has apprehension that an offence under this Act is 11
C.R.P. No. 01 of 2020 Hem Prasad Subedi Vs. Deo Narayan Dahal & Anr.
likely to be committed or has knowledge that such an offence has been committed, he shall provide such information to,-
(a) the Special Juvenile Police Unit; or
(b) the local police.
(2) Every report given under sub-section (1) shall be-
(a) scribed an entry number and recorded in writing;
(b) be read over to the informant;
(c) shall be entered in a book to be kept by the Police Unit.
(3) Where the report under sub-section (1) is given by a child, the same shall be recorded under sub-section (2) in a simple language so that the child understands contents being recorded.
(4) In case contents are being recorded in the language not understood by the child or wherever it is deemed necessary, a translator or an interpreter, having such qualifications, experience and on payment of such fees as may be prescribed, shall be provided to the child if he fails to understand the same.
(5) Where the Special Juvenile Police Unit or local police is satisfied that the child against whom an offence has been committed is in need of care and protection, then, it shall, after recording the reasons in writing, make immediate arrangement to give him such care and protection (including admitting the child into shelter home or to the nearest hospital) within twenty-four hours of the report, as may be prescribed.
(6) The Special Juvenile Police Unit or local police shall, without unnecessary delay but within a period of twenty-four hours, report the matter to the Child Welfare Committee and the Special Court or 12
C.R.P. No. 01 of 2020 Hem Prasad Subedi Vs. Deo Narayan Dahal & Anr.
where no Special Court has been designated, to the Court of Session, including need of the child for care and protection and steps taken in this regard.
(7) No person shall incur any liability, whether civil or criminal, for giving the information in good faith for the purpose of sub-section (1)."
........................................................................
"21. Punishment for failure to report or record a case.- (1) Any person, who fails to report the commission of an offence under sub- section (1) of section 19 or section 20 or who fails to record such offence under sub-section (2) of section 19 shall be punished with imprisonment of either description which may extend to six months or with fine or with both.
(2) Any person, being in-charge of any company or an institution (by whatever name called) who fails to report the commission of an offence under sub-
section (1) of section 19 in respect of a subordinate under his control, shall be punished with imprisonment for a term which may extend to one year and with fine.
(3) The provisions of sub-section (1) shall not apply to a child under this Act.
22. Punishment for false complaint or false information.- (1) Any person, who makes false complaint or provides false information against any person, in respect of an offence committed under sections 3, 5, 7 and section 9, solely with the intention to humiliate, extort or threaten or defame him, shall be punished with imprisonment for a term which may extend to six months or with fine or with both.
(2) Where a false complaint has been made or false information has been provided by a child, no punishment shall be imposed on such child.
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C.R.P. No. 01 of 2020 Hem Prasad Subedi Vs. Deo Narayan Dahal & Anr.
(3) Whoever, not being a child, makes a false complaint or provides false information against a child, knowing it to be false, thereby victimizing such child in any of the offences under this Act, shall be punished with imprisonment which may extend to one year or with fine or with both."
21. Section 19 (1) of the POCSO Act mandates that any
person who has apprehension that an offence under the
Act is likely to be committed or has knowledge that such
an offence has been committed shall provide such
information to the special juvenile police or the local
police. Section 19(7) provides that no person shall incur
any liability, whether civil or criminal, for giving the
information in good faith for the purpose of sub-section
(1).
22. The Supreme Court in SR. Tessy (supra) has clearly
held that there is a legal obligation on a person to inform
the relevant authorities if he had knowledge about
commission of such an offence. It was held that the
expression "knowledge" means that some information was
received by such a person giving him/her knowledge about
the commission of the offence. It was held that a person is
supposed to know only where there is direct appeal to his
senses.
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C.R.P. No. 01 of 2020 Hem Prasad Subedi Vs. Deo Narayan Dahal & Anr.
23. Under Section 21 of the POCSO Act any person, who
fails to report the commission of an offence under sub-
section (1) of Section 19 shall be punished with
imprisonment of either description which may extend to
six months or with fine or with both. The POCSO Act
therefore, clearly ensure that no sexual offence against a
child goes unreported and for that matter further assures
that the informant would also be protected if such
information is in good faith. If the information provided
was not in good faith and if false complaint was lodged,
Section 22 provides that any person, who makes false
complaint or provides false information against any
person, in respect of an offence committed under Sections
3, 5, 7 and Section 9, only with the intention to humiliate,
extort or threaten or defame him, shall be punished with
imprisonment for a term which may extend to six months
or with fine or with both.
24. The protection provided under Section 19(7) of the
POCSO Act against civil or criminal liability would be for
giving information only in good faith and not for providing
or giving false information.
25. A reading of the statements in the plaint makes it
clear that the plaint was barred by section 19(7) of the 15
C.R.P. No. 01 of 2020 Hem Prasad Subedi Vs. Deo Narayan Dahal & Anr.
POCSO Act. Ms. Gita Bista, however, seeks to rely upon
the documents filed with the plaint as well. The
respondent no.1 along with the plaint filed a list of
documents consisting of:
(1) Certified copy of the FIR lodged by the petitioner;
(2) Certified copy of the judgment of acquittal;
(3) Certified copy of the deposition of
prosecution witnesses and defence
witnesses;
(4) Certified copy of CFSL report pertaining to
the DNA test of the respondent no.1 and
(5) Original challan.
26. As contended by Ms. Gita Bista, it is correct that
during the cross-examination of the victim (P.W.1) in the
criminal trial, she had admitted that she was told to
depose before the court saying that she had gone to the
house of the respondent no.1 on the relevant day.
However, the cross-examination stopped there. It was not
put to the victim that what she alleged in her deposition
was not true. Thus, there is no evidence of tutoring as
sought to be made out by the learned counsel for the
respondent no.1. The learned Trial Court examined the
evidence of the victim, the petitioner, his wife (P.W.3) and
Dr. Salina Tamang (P.W.5) to hold that the victim was 16
C.R.P. No. 01 of 2020 Hem Prasad Subedi Vs. Deo Narayan Dahal & Anr.
pregnant and gave birth to a baby boy. The learned Trial
Judge, thereafter, examined as to whether the respondent
no.1 was responsible for the same. Considering the DNA
report the learned Trial Judge opined that the prosecution
had failed to prove his case against the respondent no.1 by
giving him the benefit of doubt.
27. The learned Trial Court has not held that the FIR was
false or fabricated. What was narrated by the petitioner in
the criminal trial about the fact that it was the respondent
no.1 who had committed the offence of sexual assault
upon the victim was not narrated by him alone but also by
the victim which is clearly reflected in the judgment. The
learned counsel for the respondent no.1 took this court
through the deposition of the victim as well as deposition
of the petitioner. These depositions also do not reflect any
material that the petitioner had lodged a false FIR. A
person guilty of malicious prosecution is punishable under
Section 211 IPC. Instead, the respondent no.1 has sought
for monetary damages under the civil law for malicious
prosecution.
28. Section 19(7) clearly protects the informant who in
good faith gives information about his knowledge of sexual
assault on a child victim against both civil as well as 17
C.R.P. No. 01 of 2020 Hem Prasad Subedi Vs. Deo Narayan Dahal & Anr.
criminal liability. In the criminal trial the petitioner
deposed that he and his wife had taken the minor victim
to Ashirbad clinic at Gangtok where after examining her,
the doctor told them that the minor victim was 28 weeks
pregnant pursuant to which they lodged the FIR. In re-
examination the petitioner deposed that after the test
when she came out of the clinic, he asked the minor victim
how she got pregnant, but she told him that nothing had
happened to her. He further deposed that during the third
week of January 2016 the victim was left to stay in
respondent No.1's house. The petitioner's wife (P.W.3)
however deposed that in the chamber of the doctor who
conducted the ultrasound at Ashirbad clinic the victim
disclosed that it was "antaray hajurbah" who had made
her pregnant. She further deposed that back at Temi the
victim disclosed how respondent No.1 had committed
penetrative sexual assault upon her twice after which they
lodged the FIR. Evidently the petitioner had knowledge
about the commission of the offence. Although the FIR was
lodged by the petitioner, neither the investigating authority
nor the learned Trial Court concluded that the FIR lodged
by the petitioner was false. There is no material
whatsoever in the plaint, or the documents sought to be 18
C.R.P. No. 01 of 2020 Hem Prasad Subedi Vs. Deo Narayan Dahal & Anr.
relied upon, to establish even prima facie that the
petitioner had lodged a false FIR.
29. Section 19(7) of the POCSO Act is a central
legislation and the law of the land. It would squarely fall
within the meaning of law as contemplated in Order 7 Rule
11 CPC. The protection under Section 19(7) is
unequivocal. The plaint was clearly barred under the
provision as the FIR was lodged by the petitioner in good
faith. If the plaint is allowed to continue the purpose of
Section 19 of the POCSO Act would be lost and people
would fear to lodge genuine complaints of sexual assault
upon a child.
30. This court is thus of the view, that the impugned
order passed by the learned District Judge must be set
aside and the application filed by the petitioner be allowed.
It is accordingly so ordered. No order as to costs.
31. In view of the final disposal, the interim applications
are rendered infructuous and accordingly disposed.
(Bhaskar Raj Pradhan) Judge
to Approved for reporting: yes Internet: yes
