Delhi District Court
Akhlaq Ahmad vs Mangal Chand Meena on 5 August, 2015
In the Court of Sh. V.K. Goyal, Additional District Judge01
(EAST) Karkardooma Courts, Delhi.
RBT C.S: 96/15/2010
Unique Case ID No.: 02402C0051142010
Date of Institution :22.02.2010
Date of Reserving Judgment:15.07.2015
Date on which judgment is pronounced:05.08.2015
In Re:
Akhlaq Ahmad
s/o late Salim Ahmed
r/o E432, Gali no. 7,
West Vinod Nagar,
Delhi 92. ...........Plaintiff
Versus
1. Mangal Chand Meena
Earlier SHO PS Mandawli
PIS no: 28760010
2. H.Ct. Ikpal Singhj
PIS no. 155/E
Earlier posted at
PS Mandawali
3. Constable Brij Lal
PIS NO. 1856/E Earlier posted
at PS Mandawali
All through the Commissioner of Police
Head Quarter I P Estate, New Delhi.
4. Rashid
s/o Mohd Yunus
r/o E429, Gali no. 7
West Vinod Nagar,
RBT CS: 96/15/10 1 of 16
Delhi 92.
5. Akram
s/o Mohd Yunus
r/o E429, Gali no. 7
West Vinod Nagar,
Delhi 92. ...........Defendants
JUDGMENT
1. Brief facts of the case relevant for the disposal of the present suit are that the plaintiff has filed a suit for recovery of damage for malacious prosecution against the defendants on the averments that on 21.4.2005, defendant no.4 and 5, Rashid and Akram alongwith his associates armed with deadly weapons forcibly entered in the house of the plaintiff and started beating the plaintiff and his guests, in which some of the guests and family members were injured and one of the guest namely Javed Mansoori was taken to the hospital, where he was medically examined vide MLC no. 3432 dated 21.4.2005 and the defendants also damaged the furniture and also threatened to kill the plaintiff and his family members. A PCR call was made and plaintiff and his family members were called in the police station Mandawali and they were misbehaved by the defendant no.1 to
3.
2. It is further averred that the defendant no.1 to 3 suppressed the fact of entire occurrence and made a false kalandra u/s 92/93/97 RBT CS: 96/15/10 2 of 16 of D P Act vide D D No 21A dated 21.4.2005, with collusion of defendant no. 4 and 5, in which defendant no. 4 and 5 were convicted, whereas, plaintiff and Javed were acquitted.
3. It is further averred that due to suppression of fact by defendant no.1 to 3 on the behest of defendant no. 4 and 5, plaintiff had to file a complaint case before the court of ld. ACMM, Karkardooma, which has caused loss of Rs.5 lakhs alongwith mental and physical harassment to the plaintiff and further averred that wrong allegations had been made against the plaintiff by the police on behest of defendant no. 4 and 5, for which notice u/s 140 of D P Act was served on the defendants.
4. Feeling aggrieved with the acts and conducts of the defendant, the plaintiff has filed a suit and prayed for passing a decree of Rs. 5 lakhs with interest @ 18% per annum in favour of the plaintiff and against the defendants with cost.
5. The summons of the suit were issued to the defendants.
6. Defendant no.1,2 and 3 have filed separate written statement,whereas, defendant no. 4 and 5 have filed joint written statement.
7. It is stated by the defendant no.1, 2 and 3 that defendant no.2 received a PCR call on 21.4.2015 regarding quarrel at house no. 373, Gali no. 5, Sabzi Mandi, West Vinod Nagar, Delhi, so defendant no.2 alongwith defendant no.3 Ct. Brij Lal went to the RBT CS: 96/15/10 3 of 16 said address and in order to maintain peace, they tried to make them understand and they were having apprehension of commission of cognizable offence and therefore, arrested the plaintiff, Akram, Javed Mansoori and Akhlaq Ahmed u/s 92/93/97 of DP Act. Thereafter, all of them were granted police bail. Defendant no. 4 and 5 namely Rashid and Akram pleaded guilty and were fined Rs. 150/ each, whereas, the plaintiff and Shri Javed Mansoori were acquitted by the ld. M.M. Ms Savitri, KKD on 2.12.2009. It is denied that they have booked the plaintiff and defendant no. 4 and 5 in a false and fabricated case. It is stated that notice u/s 140 of DP Act was received and reply to the notice was also sent.
8. Whereas, the defendant no. 4 and 5 have stated that the plaintiff has not come to the court with clean hands. The plaintiff has filed the present suit only to harass the defendants. It is further stated that the defendant no.4 and 5 are real brothers and the defendant no. 4 and 5 are the prosecution witnesses in the case FIR no. 465/05 registered against the plaintiff. Replying to the suit on merit the defendants have denied that on 21.4.2005, Rashid and Akram alongwith their associates armed with deadly weapon forcibly entered in the house of the plaintiff and started beating to the plaintiff and his guest or that the defendant no.1 t o 3 have suppressed the fact of the entire occurrence or that due RBT CS: 96/15/10 4 of 16 to the suppression of fact by the defendant no.1 to 3, on the behest of defendant no. 4 and 5, the plaintiff had to file a case before the ld. ACMM or that wrong allegations had been made against the plaintiff by the police and prayed for the dismissal of the suit.
9. Plaintiff has filed the replication to the Written statements of the defendants.
10.From the pleadings of the parties following issues were framed:
1. Whether the plaintiff has no cause of action to file the present suit?OPD1,2 and 3 and OPD 4 and 5.
2. Whether the suit of the plaintiff is bad for non joinder and mis joinder of the parties?OPD4,5.
3. Whether the plaintiff is entitled for damages to the extent of Rs. 5 lakhs towards mental pain and physical harassment?OPP.
4. Whether the defendant no.1,2 and 3 acted in due discharged of their official duties?OPD1,2 and 3.
5. Relief.
11.In order to prove the case, plaintiff has examined himself as PW1 and his wife as PW2.
12.Whereas, the defendant no.1 has examined himself as DW1, defendant no.2 has examined himself as DW2, defendant no.3 has examined himself as DW3, defendant no.4 has examined himself as D4W1 and defendant no. 5 has examined himself as RBT CS: 96/15/10 5 of 16 D5W1.
13.Heard the ld.counsels for the parties and perused the record. Written submissions also filed one day before the order by the plaintiff.
14.Findings on Issue no.1:
Issue no.1. Whether the plaintiff has no cause of action to file the present suit?OPD1,2& 3 and OPD 4 and 5.
The onus to prove this issue was on the defendants. The plaintiff has filed a suit for damages for malacious prosecution against the defendsants. Defendant no.1, 2 and 3 are the police officials and defendant no. 4 and 5 are public persons. According to the case of the plaintiff, on 21.4.2005, defendant no. 4 and 5 i.e. Rashid and Akram alongwith their associate armed with deadly weapons forcibly entered in the house of the plaintiff and started beating the plaintiff and his guest and family members and one of the guest i.e. Javed Mansoori was injured and removed in the LBS Hospital and was medically examined vide MLC no. 3432 dated 21.4.2005 and they also damaged the furniture and also threatened to kill the plaintiff and his family members. PCR call was made. It is further alleged that the defendant no. 1 to 3 suppressed the fact of the entire occurrence and a false and fabricated Kalandra u/s 92/93/97 of the D P Act was made in connivance with defendant no. 4 and 5 i.e. Rashid RBT CS: 96/15/10 6 of 16 and Akram vide D D No. 21A dated 21.4.2005, in which Rashid and Akram were convicted and the plaintiff alongwith Javed Mansoori were acquitted by the ld. MM Ms Savitri, KKD Court vide order dated 2.12.2009. Copy of the Kalandra has been marked as DW2/2. The same however, is not disputed in any manner. According to the contents of the Kalandara, on 21.4.2005 at about 8.30 a.m. on receiving a PCR call, defendant no.2 alongwith defendant no.3 Constable Brij Lal had reached at the spot i.e. at H.no. 373, Gali no. 5, Sabzi Mandi, West Vinod Nagar,Delhi and found crowd there, where the plaintiff and Javed Mansoori were quarelling with Akram and Rashid in a public place and abusing in filthy language to Akram and Rashid and defendant no. 2 and 3 tried to make them understand, but they did not stop and on apprehension of commission of cognizable offence, defendant no.2 and 3 arrested the plaintiff, Javed Mansoori and defendant no. 4 and 5 and after the medical examination done, they were booked u/s 92/93/97 of D P Act.
15.According to the order sheet of the court concerned, the ld. Trial court found that prima facie case of the D P Act was made out. Notice u/s 140 of Delhi Police Act was sent to plaintiff and one Javed Mansoori. Defendant no. 3 and 4 had pleaded guilty, according to the order dated 2.12.2009 of the ld. Trial court, RBT CS: 96/15/10 7 of 16 both accused i.e. plaintiff and Javed Mansoori were acquitted in view of judgment of Hon'ble Supreme Court of India titled as Raj Deo Sharma vs The State of Bihar 1999(4) Crimes 52(SC), which shows that the plaintiff and Javed Mansoori were acquitted in the said Kalandra on some technical grounds and not on merits.
16.In the evidence, the plaintiff has filed the affidavit and in cross examination, he has admitted that he is facing trial in two different cases and 78 criminal cases are pending against him, out of which, some of the cases have been disposed of. Which shows that the plaintiff is well aware of the court proceedings and the criminal law, but the plaintiff has failed to show any proof as to in which manner, there was malicious prosecution by the defendants. The basis of the case is only the arrest and booking of the plaintiff u/s 92/93/97 of D P Act, for the incident which had taken place on 21.4.2005. However, the allegations made in the suit are different to the facts of the Kalandra and if it was so, the plaintiff was at liberty to agitate the same before the ld. Trial court or the plaintiff was at liberty to file appropriate criminal complaint u/s 200 of CrPC. Neither the plaintiff has taken such steps nor any evidence has been brought on record regarding his medical examination and medical examination of Javed Mansoori , or damages caused to RBT CS: 96/15/10 8 of 16 the furniture by the defendant no. 4 and 5. No independent witness has been brought on record, except the plaintiff himself and his wife, although, according to the contents of the Kalandra, crowd had gathered at H.no. 373, Gali no. 5, Sabzi Mandi, West Vinod Nagar,Delhi. Even, Javed Mansoori has not been examined as a witness to prove the contents and allegation made in the suit.
17.In the cross examination, the plaintiff has stated that he has filed the present suit for loss caused to him by breaking his goods, but no such evidence has been brought on record to prove this fact. Rather, suit has been filed for malicious prosecution and in the given circumstances, there was no malicious prosecution. Had there been any findings of the ld. Trial court of false implication of the plaintiff in the said Kalandra, then there could be a malicious prosecution on the part of the defendants. But, the plaintiff and Javed Mansoori have been acquitted in view of the judgment of Hon'ble Supreme Court of India, which was on some technical grounds and not on merits. The plaintiff has not deposed about any factum of defamation, nor proved the same by leading evidence that any loss was caused to him by breaking the goods by defendant no. 4 and 5 by entering into his house. Therefore, the plaintiff was not having any cause of action to file the present RBT CS: 96/15/10 9 of 16 suit against the defendant no.1,2 and 3, who were acting in their official duties and the said act was not challanged by the plaintiff in any other proceedings or before the ld. Trial court during the trial of Kalandra. Accordingly, this issue is decided and in favour of the defendants.
18.Findings on Issue no. 2.
Issue no. 2. Whether the suit of the plaintiff is bad for non joinder and misjoinder of the parties?OPD 4 and 5. The onus to prove this issue was upon the defendant no. 4 and 5. No argument has been addressed on this issue, nor it is pointed out during the evidence or thereafter, as to in what manner, the suit of the plaintiff is bad for non joinder and mis joinder of the parties. Accordingly, this issue is decided against the defendant no. 4 and 5 and in favour of the plaintiff..
19. Findings on Issue no.4.
Issue no. 4: Whether the defendant no.1,2 and 3 acted in due discharged of their official duties?OPD1,2 and 3. Onus to prove this issue was upon the defendant no.1,2 and 3. According to the contents of the Kalandra, the defendant no. 4 and 5 and plaintiff and Javed Mansoori were found quarreling with each other at public place and were abusing in filthy language and when defendant no. 2 and 3 tried to make them understand, they did not stop, so they were booked u/s 92/93/97 RBT CS: 96/15/10 10 of 16 of D P Act.
20.According to the suit of the plaintiff, the alleged incident had taken place inside the house, for which no independent witness has been examined, nor any criminal complaint has been filed by the plaintiff to challange the fact that he and Javed Mansoori were wrongly booked u/s 92/93/97 of D P Act. Plaintiff has also not been able to prove on record that the defendant no. 4 and 5 had threatened the plaintiff to kill him and his family. Even the said Javed Mansoori has not been examined as a plaintiff witness. So, under such circumstances it has not been proved on record that the defendant no. 1,2 and 3 had booked the plaintiff and Javed Mansoori u/s 92/93/97 of D P Act, by preparing false and fabricated Kalandra at the behest of the defendant no. 4 and
5. According to the Kalandra, the police official defendant no. 2 and 3 reached at the spot on receiving DD No.8 A, which was received on PCR call. Contrary to this, nothing has been brought on record by the plaintiff to prove by way of cogent and trustworthy evidence.
21.In the cross examination, PW2 has admitted that a quarrel had taken place on 21.4.2015 near her house on installation of their tent in Bharat Ghar on the occasion of marriage of her daughter and due to this quarrel they called the police. She has also admitted that her husband Akhlaq, her relative Javed, Rashid and RBT CS: 96/15/10 11 of 16 Akram sustained simple injuries and they were medically examined in the government hospital. No such medical record has been produced to prove the fact that PW2 also sustained injuries in this incident. Therefore, nothing has been brought on record in the cross examination to believe PW2 to the extent that the incident had happened in the manner, as alleged in the suit, whereas, the defendants have deposed the manner of the incident as per Kalandra. So, under such circumstances, it is proved that defendant no.1,2 and 3 acted in due discharge of their official duties and not otherwise and in connivance with the defendant no.4 and 5. Accordingly, this issue is decided in favour of defendant no.1,2 and 3 and against the plaintiff.
22.Findings on Issue no. 3:
Issue no.3: Whether the plaintiff is entitled for damages to the extent of Rs. 5 Lakhs towards mental pain and physical harassment?OPP.
In the suit, the allegations are raised against defendant no.4 and 5, Rashid and Akram that on 21.4.2005, defendant no. 4 and 5 alongwith their associates armed with deadly weapons forcibly entered in the house of the plaintiff and started beating the plaintiff and his guests, in which some of the guests and family members were injured and one of the guest namely Javed Mansoori was taken to the hospital where he was medically RBT CS: 96/15/10 12 of 16 examined vide MLC no. 3432 dated 21.4.2005 and the defendants also damaged the furniture and also threatened to kill the plaintiff and his family members and thereafter it is alleged that the plaintiff and Javed Mansoori were booked u/s 92/93/97 of D P Act in connivance with defendant no. 4 and 5, by suppressing the fact. The cause of action arosed in favour of the plaintiff on 21.4.2005 and secondly on 2.12.2009, when the plaintiff and Javed Mansoori were acquitted by the ld. Trial court, while relying upon the judgment of Hon'ble Supreme Court of India. The suit has been filed on 22.2.2010. The alleged claim is on the ground of malacious prosecution. There is no findings of the ld. Trial court, while acquitting the plaintiff and Javed Mansoori to the extent that both were malaciously prosecuted by the defendant on.1,2 and 3 in connivance with defendant no.4 and 5. Defendant no. 4 and 5 have pleaded guilty, whereas, the plaintiff and one Javed Mansoori have been acquitted on technical grounds, so it cannot be said that plaintiff and Javed Mansoori were malaciously prosecuted by the defendant on.1,2 and 3 and in connivance with defendant no.4 and 5. According to the findings on Issue no. 4, defendant no. 1,2 and 3 had acted in due discharge of their official duties and found certain circumstances in which the plaintiff, Javed Mansoori and defendant no. 4 and 5 were found involved, so RBT CS: 96/15/10 13 of 16 they were booked u/s 92/93/97 of D P Act. The Kalandra was made against both the parties by the police under the power vested by D P Act and both the parties were found abusing in filthy language to each other at public place and more so, when the police official tried to stop them, they did not stop in any manner.
23.DW1 i.e. defendant no.1 has denied the suggestion in the cross examination that the plaintiff was falsely implicated by the police officials of PS Mandawali as plaintiff made several complaints against them.
24.According to cross examination of DW2 i.e. defendant no.2, he reached the spot on receipt of DD no. 8A and when he reached there, 1520 persons were present and there was some altercation between the plaintiff on one side and Akram and Rashid on the other side and the altercation was due to the blockage of the drain, which was due to the fall of the ballies, which were used for installing the tent on the marriage of daughter of the plaintiff. Both the parties sustained injuries and he took them to the RML Hospital. So, from the said cross examination, it is clear that incident had taken place at public place. In the cross examination, nothing has been suggested that the incident had taken place inside the house of the plaintiff or that defendant no. 4 and 5 had damaged the furniture while entering into the RBT CS: 96/15/10 14 of 16 house of the plaintiff.
25.According to cross examination of DW3 i.e. defendant no. 3, when he reached the spot, quarrel was going on between plaintiff and Akram. Again to the said witness, it is not suggested that incident had taken place inside the house of the plaintiff and goods were damaged by defendant no.4 and 5. It was not suggested to these witnesses that they had booked the plaintiff and one Javed Mansoori u/s 92/93/97 of D P Act in connivance with the defendant no. 4 and 5 falsely in the Kalandra. DW4 has also stated that the quarrel had taken place on account of draining of water and same is the cross examination of DW5. So, under such circumstances, the plaintiff has not been able to prove the contents of the suit, nor the same has been suggested to the witnesses in their cross examination and no evidence has been brought on record to the extent that incident had taken place in some other manner as has been mentioned in the Kalandra and further that the defendant no. 1,2 and 3 in connivance with defendant no. 4 and 5 malaciously prosecuted the plaintiff, while booking him in a false Kalandra.
26.While fixing the matter for order on 15.7.2015, parties were directed to file the written submissions and the plaintiff had filed the written submissions on 3.8.2015 alongwith photocopies of certain documents, which have not been brought on record RBT CS: 96/15/10 15 of 16 earlier and proved during evidence. There are certain certified copies of the Judgements, vide which the plaintiff has been acquitted in certain cases, which have no relevancy,nor it was argued that the certified copies of these documents are relevant for the decision of the suit.
27.In view of the above, the plaintiff has not been able to prove that he is entitled for damages to the extent of Rs. 5 Lakhs towards mental pain and physical harassment. Accordingly, this issue is decided against the plaintiff and in favour of defendants . RELIEF:
28.In view of findings on Issue no. 3 and 4, the suit of the plaintiff is dismissed. Decree sheet be prepared. File be consigned to the record room.
Announced in the open Court on: 05.08.2015 ( Virender Kumar Goyal ) Additional District Judge01 (East)/KKD/Delhi RBT CS: 96/15/10 16 of 16 RBT CS: 96/15/10 17 of 16