Delhi District Court
Sh. Jai Bhagwan vs Smt. Parshan Devi on 7 November, 2012
IN THE COURT OF MS.RICHA PARIHAR, CIVIL JUDGE06 (CENTRAL),
TIS HAZARI COURTS, DELHI
CS no. 804/10/02
Unique Case ID No.02401C0453472003
In the matter of:
Sh. Jai Bhagwan,
S/o Sh. Rajey Ram,
R/o H.No. 902, Gali No. 19,
Libaspur, Delhi .....Plaintiff
Versus
1. Smt. Parshan Devi,
W/o Sh. Nand Kishore,
R/o H.No. 903, Gli No. 19,
Vill. Libaspur, P.O. Sameypur,
Delhi110042
2. HC Raj Veer singh,
P.S. Patel Nagar,
New Delhi ....Defendants
DATE OF INSTITUTION : 17/08/2002
DATE OF RESERVING JUDGMENT : 16/10/2012
DATE OF PRONOUNCEMENT : 07/11/2012
Jai Bhagwan vs. Parshan Devi CS804/10/02 1 OF 15
JUDGMENT :
This is suit for recovery of Rs. 2,00,000/ (Two Lakhs only) for malicious prosecution.
1. Brief facts of the case of plaintiff are that: Plaintiff Sh. Jai Bhagwan is residing at H.No. 902, Gali No. 19, Libaspur, Delhi along with his wife and children and is employee of Delhi Jal Board. On 04/04/1998 at about 7.55 pm. Defendant no. 2 along with a constable came at house of plaintiff and said that defendant no. 1 has made a complaint against plaintiff that plaintiff had constructed a 'chajja' in wall of house no. 903 of defendant no. 1 and had abused defendant no. 1 and took plaintiff to police station where defendant no. 2 illegally demanded Rs. 3000/ from plaintiff as illegal gratification threating plaintiff that otherwise a criminal case will be registered against plaintiff and due to which he may be terminated from his services. When plaintiff declined to meet illegal demand of defendant no. 2, he implicated the plaintiff in a false Kalandara(i.e. Police Report) under section 91/92/93/97 of D.P. Act vide DD No. 26A dated 04/04/1998 with malafide intention to cause undue harassment to plaintiff.
Defendant no. 2 filed the said Kalandara in court and plaintiff contested the same. Defendant no. 2 cited witnesses in Kalandara as himself and defendant no. 1 Constable Manbir Singh of PS Sameypur Badli Delhi as defendant no. 2 was at that time posted at PS, Sameypur, Delhi.
Jai Bhagwan vs. Parshan Devi CS804/10/02 2 OF 15 Aforesaid Kalandara was decided by Ld. Metropolitan Magistrate Court Delhi vide order dated 01/04/2012 and plaintiff was acquitted holding "No such chajja or any construction on the wall of Parshanti Devi has been mentioned in complaint of IO/D2 therefore refuting her averments to this effect. Neither the I.O./defendant no. 2 made any effort to join any public person nor was the complainant able to give the name of any person who would have deposed in her favour. It was further held that the version of accused/plaintiff seems to be more probable and the defence evidence addressed by him makes it all the more probable that the complainant Prashani Devi was grudging malaice towards the accused/plaintiff which was the reason she falsely implicated the accused/plaintiff in the case".
Plaintiff submits that from the findings, it is clear that defendant no. 2 and 1 in connivance and collusion with each other out of their malafide and dishonest intention in order to cause undue harassment, monetary losses and agonize him implicated the plaintiff in a false Kalandra. On account of malicious prosecution of plaintiff on the basis of aforesaid false Kalandra, plaintiff suffered a loss of his image, reputation, name, fame, harassment, agony etc. and plaintiff assessed the damages to the tune of Rs. 5,00,000/. Plaintiff demanded the said damages from defendants but they did not reply hence plaintiff issued a legal notice dated 06/06/2002 to defendant no. 1 & 2 and also Hon'ble Lt. Governor, Government of NCT of Delhi and the Commissioner of the Police, Delhi Police seeking permission for prosecution of defendant no. 2 but no reply was received by Jai Bhagwan vs. Parshan Devi CS804/10/02 3 OF 15 plaintiff from Lt. Governor and the Commissioner of Police.
Plaintiff has waived his claim of damages upto Rs. 3,00,000/ and claims a sum of Rs. 2,00,000/(two lakhs) only as damages for malicious prosecution by way of present suit praying for following relief from this court.
"Prayer :
It is therefore prayed that a decree for recovery of Rs. 2,00,000/ with costs and interest pendentilite and future @24% p.a. From the date of institution of suit till realisation of decreetal amount for malacious prosecution may please be passed in favour of plaintiff and against the defendants.
Any other order as deemed fit and proper be also passed in favour of plaintiff and against the defendants".
2. Defendant no. 1 Smt. Parshan Devi was served with the summons for settlement of issues and filed his written statement wherein Defendant No.1 has denied each and every paragraph of plaint is incorrect and states that plaintiff has filed the present suit with an intention to harass and victimize the defendant no. 1 who is an innocent lady. That plaintiff has been in a habit to create tension for defendant no. 1 on trifling matters and used to defame the defendant no. 1 by using unparliamentary language in the presence of family members and members of society. That If the plaintiff has been acquitted in respect of DD No. 26A/98 u/s 91/92/93/97 of DP Act, Police Station, Samaypur, Badli, Delhi that does Jai Bhagwan vs. Parshan Devi CS804/10/02 4 OF 15 not mean the plaintiff herein is entitled to initiate proceedings for malicious prosecution against the answering defendant or against the police official who performed his duty assigned to him by the Constitution to maintain Law and Order.
3. Defendant no. 2, Head Constable Sh. Raj Veer Singh was served with summons for settlement of issues and has taken objection that suit of plaintiff is an after thought without any cause of action is barred by limitation and is not maintainable against defendant no. 2 because plaintiff has not served any legal notice on defendant no. 2 nor any sanction has been obtained against him for filing the present suit as required under Delhi Police Act. Defendant no. 2 is a State Employee and has performed his official duty bonafidely and that the State is also necessary party and has not been impleaded. That there was a PCR call received by defendant no. 2 while he was on his official duty and on the direction of the duty officer he along with Constable Manbir reached at the spot and after knowing the factual position, took necessary action under his official capacity. Plaintiff has made false complaint against defendant no. 2 on which detailed enquiry was conducted by Vigilance but no fault was found on the part of defendants no. 2. Defendant no. 2 submits that Kalandara u/s 91/92/93/97 of the DP Act against the plaintiff was filed as it was necessary action against him under the law. It is denied that defendant no. 2 did not appear intentionally and deliberately in the witness box or that he had made false Kalandra against the plaintiff. It is further submitted that the prosecution case was not false but the plaintiff who was accused in the case was acquitted on technical grounds and further Jai Bhagwan vs. Parshan Devi CS804/10/02 5 OF 15 given benefit of doubt which does not mean that Kalandra against the plaintiff was false or incident was not happened attracting action under law. It is submitted that on receiving the phone call at 2.45 pm defendant no. 2 immediately reached at spot with Const. Manbir where PCR was already found and Const. Rakesh of PCR No. 3728 along with the commander narrated all the incident. Defendant no. 2 further conducted enquiry on the spot and then took necessary action under his official capacity. That defendant no. 2 asked from persons present to be witness to the investigation but being neighbors no one came forward. It is denied that there is any connivance and collusion between defendant no. 1 & 2 or any malafide or dishonest intention in order to cause any undue harassment, monetary loss or agony to plaintiff. It is specifically denied that defendant no. 2 implicated the plaintiff in a false Kalandra or that plaintiff suffered any physical and mental pain or disrepute. It is specifically denied that plaintiff has incurred any amount to defend the Kalandara as the plaintiff was duty bound to attend the court as required by law. It is denied that defendant no. 2 has done any official work in connivance of defendant no. 1 against the plaintiff or any harassment etc. has been caused or any damage incurred to plaintiff.
4. The plaintiff filed replication to the written statement of defendant in which he has denied the contents of written statement and reaffirmed the averments of plaint as correct.
Jai Bhagwan vs. Parshan Devi CS804/10/02 6 OF 15
5. On completion of pleadings of parties, following issues were framed on 05/11/2003:
(i) Whether the suit is not maintainable in view of Section 140 D.P. Act? OPD.
(ii) Whether the plaintiff has not locus standi to file the suit? OPD
(iii) Whether the suit is bad for nonjoinder of necessary parties? OPD
(iv)Whether plaintiff is entitled for relief claimed in the suit? OPP
(v) Relief.
6. I have heard the Ld. Counsels for both the parties and carefully perused the records. As far as question of limitation is concerned as per Section 140 (1) of The Delhi Police Act, 1978 provides as follows:
"Bar to suits and prosecutions (1) In any case of alleged offence by a police officer or other person, 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.
Jai Bhagwan vs. Parshan Devi CS804/10/02 7 OF 15 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 offence. ...."
The Judgment by the court of Ld. Metropolitan Magistrate, Delhi in DD no. 26A/98 (State vs. Jai Bhagwan) is dated 01/04/2002 on the basis of which plaintiff filed present suit on 17/08/2002 that is after more than three months and as stipulated by section 14o (1) of Delhi Police Act,1978 present suit is barred by limitation.
7. Evidence on record:
Plaintiff/PW1 Sh. Jai Bhagwan has led his evidence by way of affidavit which is Ex. PW1/A. Plaintiff has placed on record Ex. PW1/1 which is the certified copy of judgment dated 01/04/2002 by the court of Ld. Metropolitan Magistrate, Delhi in DD no. 26A/98 (State vs. Jai Bhagwan). EX. PW1/2 is the copy of statutory notice sent by plaintiff to the Lt. Governor, Commissioner of Police and Defendants no. 1 & 2. Ex. Pw1/3 to Ex. PW1/6 are the Postal Receipts. Ex. PW1/7 is the UPC of the notice sent to defendants no. 1 & 2, Ex. PW1/8 to PW1/11 are the AD cards received from defendant no. 1 & 2 and Lt. Governor and Commissioner of Police. Plaintiff has examined Sh. Nand Kishore Sharma as PW2 who is the Record Clerk, Record Room (Criminal), Tis Hazari. PW2 brought the summon record file of State vs Jai Bhgwan DD No. 26A/98, PS Samaypur Badli, Kalandra u/s 91/92/93/97 DP Act. decided on 01/04/2002. The statement of Smt. Parshan Devi Jai Bhagwan vs. Parshan Devi CS804/10/02 8 OF 15 (defendant no. 1 in present case) dated 12/08/99 is Ex. PW2/2. Statement of Const. Manbir Singh is Ex. PW2/3 and statement of accused Jai Bhagwan (plaintiff in present case) is Ex. PW2/4. Statement of Sh. Ram Sharan, Record Clerk, DCP Office is Ex.
PW.2/5, Plaintiff's complaint copy of Police Commissioner dated 13/04/1998 is Ex. PW2/6, reference attached complaints of Sh. Jai Bhagwan is Ex. PW2/7 and statement of Record Clerk, ZRO, Water1, Rohini Zone, Ashok Vihar is Ex. PW2/8.
Defendant no. 1/DW1 Smt. Parshan Devi has filed his evidence by way of affidavit which is Ex. DW1/A. DW2 Sh. Naresh Kumar,DW3 Sh. Dharambir Singh and DW4 Sh. Madan Kumar have been presented as defendant witness. Defendant no. 2/DW5 sh. Rajveer Singh has led his evidence by way of affidavit which is EX. DW2/1.
These evidences on record shall be considered at the time of deciding the issues.
8. My issue wise findings are as follows: Issue no. 1:
Whether the suit is not maintainable in view of Section 140 D.P. Act? OPD. The onus to prove this issue was on defendant no. 2 HC Sh. Raj Veer Singh. This being legal issue it is useful to mention the relevant legal provisions, Section 140 of The Delhi Police Act, 1978 provides as follows:
" Bar to suits and prosecutions (1) In any case of alleged offence by a police officer or other person, or of a wrong alleged Jai Bhagwan vs. Parshan Devi CS804/10/02 9 OF 15 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 offence.
(2) In case of an intended suit on account of such a wrong as aforesaid, the person intending to sue shall give to the alleged wrong doer not less than one month's notice of the intended suit with sufficient description of the wrong complained of , and if no such notice has been given before the institution of the suit, it shall be dismissed.
(3) The plaint shall set forth that a notice as aforesaid has been served on the defendant and the date of such service and shall Jai Bhagwan vs. Parshan Devi CS804/10/02 10 OF 15 state what tender or amends, if any, has been made by defendant and a copy of the said notice shall be annexed to the plaint endorsed or accompanied with a declaration by the plaintiff of the time and manner of service thereof."
DW3 HC. Dharambir Singh brought the record of the Vigilance enquiry of defendant no. 2 conducted on the complaint of plaintiff herein Sh. Jai Bhagwan and photocopy of same is Ex. DW3/1 (OSR). DW4 Const. Sh. Madan Kumar brought the record of DD No. 20A dated 04/04/98, Ex. DW4/1.
In the Vigilance enquiry conducted by the Department of defendant no. 2 which is placed on record as Ex.PW2/7 it was held that defendant no. 2 did not act maliciously against plaintiff in conducting the enquiry of kalandara against plaintiff.
No sanction was granted by the competent authority to file the present suit against defendant no. 2. Hence, this issue is accordingly decided in favour of defendant and against plaintiff and suit of plaintiff is not maintainable in view of Section 140 of The Delhi Police Act, 1978.
Issue no. 2:
Whether the plaintiff has not locus standi to file the suit? OPD In view of findings of issue no. 1, as sanction was not granted by the competent authority to file present suit against defendant no. 2, plaintiff do not have any locus standi to file the present suit. Thus this issue is decided in favour of defendant and against the Jai Bhagwan vs. Parshan Devi CS804/10/02 11 OF 15 plaintiff.
Issue no. 3:
Whether the suit is bad for nonjoinder of necessary parties? OPD Defendant has also not led any evidence nor provided any legal provision to show what are the other necessary parties for the present suit. Hence, this issue is decided in favour of plaintiff and against the defendant. Issue no. 4:
Whether plaintiff is entitled for relief claimed in the suit? OPP Plaintiff is claiming Rs. 2,00,000/ as damages from defendants for malicious prosecution. To be entitled to this relief, plaintiff has to first prove that he was maliciously prosecuted by defendants in furtherance of Kalandra under section 91/92/93/97 of DP Act vide DD no. 26 A dated 04/04/98.
Defendant has relied upon the judgment of Hon'ble Kerala High Court reported as AIR 1989 Kerala 83 (SA No. 953 of 1982 E,D/17/03/1988) This case law supplied by the defendant is very much applicable to the facts of the case before this court.
In this case inter alia it was observed that In a tort of malicious prosecution, the four essential elements are:
(i) Institution of criminal proceedings by the defendants
(ii) Termination of proceedings in favor of the plaintiff, if from there nature they were capable of so terminating Jai Bhagwan vs. Parshan Devi CS804/10/02 12 OF 15
(iii) absence of reasonable and probable cause
(iv)malice or a primary purpose other than that of carrying the law into effect.
Where the criminal prosecution initiated by the defendant against the plaintiff has ended in acquittal the suit for malicious prosecution by the plaintiff would not succeed unless it is further established that the defendant had no reasonable and probable cause in launching prosecution against the plaintiff and in doing so they were motivated by malice or their primary purpose was something other than to bring the law into effect.
The burden to prove that the prosecutor had no honest belief in the probable guilt of the accused is on the plaintiff who claims damages for malicious prosecution. The burden is so placed not only because the plaintiff is the person who alleges lack of honest belief on the part of the defendants, but also because of the public interest not to stifle initiation of prosecution in circumstances where there is reasonable cause. The fact that the prosecution ended in acquittal because of the failure to prove the guilt of the accused beyond reasonable doubt does not negative the honest belief of the defendants.
In present case before me it is not disputed that the criminal proceedings have been initiated by the defendants against the plaintiff. It is also not disputed that the prosecution ended in the acquittal of the accused. The two other questions are whether the defendant had reasonable and probable cause in launching prosecution against the plaintiff and in doing so, whether they were motivated by malice or their primary purpose was something other than to bring the law into effect.
Jai Bhagwan vs. Parshan Devi CS804/10/02 13 OF 15 From the evidence brought on record, it is not proved by plaintiff that defendant no. 1 or 2 had acted maliciously in lodging a criminal complaint against him. Defendant no. 2 was acting under colour of his official capacity and there is no evidence in record to show that no ground was made out to for him to act upon the complaint filed by defendant no.
1. Even in the departmental enquiry on complaint of plaintiff the defendant No. 1 was found innocent. Plaintiff further has to prove that the prosecution was initiated due to malice or that the primary consideration of the defendants was something other than bringing the law into effect. Public interest requires that no honest prosecutor is deterred from doing his public duty by fear of being exposed to liability in a suit for malicious prosecution.
Just because plaintiff was acquitted in the criminal case filed by defendant does not mean that defendants were acting maliciously.
The plaintiff has failed to prove that the defendants acted without reasonable and probable cause and with malice against plaintiff. Hence, this issue is decided in favour of defendants and against the plaintiff and plaintiff is not entitled to relief as prayed from defendant.
9. Relief.
In view of the findings on issue no. 1, 2 & 4, and other observations, no ground for damages for malicious prosecution is made out hence suit of plaintiff stands dismissed.
Parties to bear their own cost.
Jai Bhagwan vs. Parshan Devi CS804/10/02 14 OF 15 Decree sheet be prepared accordingly.
File be consigned to record room as per rules.
th Announced in the open court on this day of 07 November, 2012.
(Richa Parihar) CJ06/Central 07/11/2012 Certified that it contains 15 (fifteen) pages signed by me.
(Richa Parihar)
CJ06/Central
07/11/2012
Jai Bhagwan vs. Parshan Devi CS804/10/02 15 OF 15