Delhi District Court
Cs No.196/2012 "Ajit Kar vs Surendra Nath Mishra & Anr." Date Of ... on 3 January, 2013
CS No.196/2012 "Ajit Kar V/s Surendra Nath Mishra & Anr." Date of Order: 03.01.2013
IN THE COURT OF VINOD YADAV: ADDL. DISTRICT JUDGEIV:
SOUTHWEST DISTRICT: DWARKA COURTS: NEW DELHI
Suit No.196/2012
UID No.: 02405C0341352009
In the matter of:
Shri Ajit Kar,
R/o 99, Satyaniketan (FF),
New Delhi110 021.
.....Plaintiff
(In person)
Versus
1. Shri Surendra Nath Mishra,
S/o Shri Jit Ram,
R/o H.No.890, Sector19, Pkt3,
Dwarka, New Delhi.
2. Smt.Sasikala,
S/o Shri Surendra Nath Mishra,
R/o H.No.890, Sector19, Pkt3,
Dwarka, New Delhi.
.....Defendants
(Through Shri Rajesh Rai, Advocate)
Date of Institution of Suit : 02.07.2009
Date of Transfer to this Court : 07.08.2012
Date of reserving judgment : 02.01.2013
Date of pronouncement : 03.01.2013
Suit for Damages "Dismissed being not maintainable" Page 1 of 11
CS No.196/2012 "Ajit Kar V/s Surendra Nath Mishra & Anr." Date of Order: 03.01.2013
SUIT FOR DAMAGES
J U D G M E N T:
By this judgment, I shall dispose off the two preliminary issues framed in the matter on 01.12.2009, which read as under:
(i) Whether the suit is not premature? OPP.
(ii) In case the suit of the plaintiff is to continue as maintainable at
present, whether the same should not be consigned sine die till the criminal trial is over? OPP.
2. Since both the parties proposed to advance arguments on the aforesaid issues which are purely legal in character and for which no evidence was proposed to be led, I have heard the plaintiff in person and Shri Rajesh Rai, learned counsel for the defendants.
3. The facts of the case, in brief required for the present are that plaintiff has a house bearing No.1185, Pocket3, Sector9, Dwarka, New Delhi, whereas there is an adjoining house bearing No.1170, which belongs to Shri Harender Mudgal. On 01.07.2008, on the basis of statement made by Smt.Sangeeta Mudgal, wife of Shri Harender Mudgal, case FIR No.414/2008, U/s 354 IPC, PS Dwarka was registered against the plaintiff, on the allegations that on 30.06.2008 at about 6.00 PM the plaintiff was clicking the photographs of her flat and when she objected to the same, the plaintiff in a fit of anger caught her by her hair, pulled her down and fondled with her private parts. When she screamed for help, some persons from the locality came to the spot. Thereafter, the plaintiff ran inside his house and bolted Suit for Damages "Dismissed being not maintainable" Page 2 of 11 CS No.196/2012 "Ajit Kar V/s Surendra Nath Mishra & Anr." Date of Order: 03.01.2013 the door from inside. During the course of investigation of the aforesaid case FIR, the police recorded the statement of both the defendants namely Shri Surinder Nath Mishra and his wife Smt.Shashi Kala Mishra, who told the police in their statements recorded U/s 161 Cr.P.C that at the relevant time they were on evening walk and when they were passing in front of the house of Smt.Sangeeta Mudgal, they saw plaintiff pulling her hair and they further saw him fondling with her body. It was further stated that they had reached at the spot after hearing the screams of Smt.Mudgal. The plaintiff has alleged in the suit that the said two witnesses have given false statement to the police. As regards the cause of action for filing the present suit, it has been stated as under:
xxxxx Cause of Action:
11. That the cause of action originated on 30.06.2008 when the defendants stood knowingly with malicious intention eye witnesses to give wilfully false statement under undue influence to the police against in derogation of the plaintiff supporting Mrs.Sangita that her modesty was outraged by the plaintiff after snapping her's and the like as per the FIR. The second cause of action arose when on 01.07.2008 a false FIR No.414/08, PS Dwarka was lodged against the plaintiff on the basis of their false statement as a support to the false complaint of Mrs.Sangita Mudgal, the cause of action further arose when the plaintiff was arrested on 03.07.2008 and the cause of action thereafter arose again and again when the plaintiff got compelled loose money, mind, time and reputation, health etc, filing civil and criminal case against the false complainant Smt.Sangita Mudgal, and her Suit for Damages "Dismissed being not maintainable" Page 3 of 11 CS No.196/2012 "Ajit Kar V/s Surendra Nath Mishra & Anr." Date of Order: 03.01.2013 accomplices and the police filed false chargesheet and the cause of action shall have been arising continuously as long as the plaintiff might have been appearing in various Courts and again and again loosing money, mind, health, reputation, time etc.
12. That all the parties have been residing in Delhi under the territorial jurisdiction of this Hon'ble Court for gain and the suit has been filed within the limitation period so the court is quite competent to have trial.
xxxxx (sic)
4. The plaintiff has claimed damages @ Rs.3,50,000/ (Rupees Three Lakhs Fifty Thousand Only) from the defendants alongwith interest @ 24% per annum for causing defamation against him.
5. Alongwith the plaint, the plaintiff has filed the copy of FIR in question as well as the copies of statements U/s 161 Cr.P.C of both the defendants, recorded by the police. The copy of report U/s 173 Cr.P.C filed by the police in the aforesaid matter has also been filed. The plaintiff has further filed copy of FIR bearing No.29/2010, U/s 448/506/427/34 IPC, PS Sector23, Dwarka, New Delhi, to show that with regard to the same incident an FIR against the defendants and some other persons has also been registered, which is pending investigation before the police; whereas in case FIR No.414/2008, PS Dwarka, where the plaintiff is the sole accused, the charge in the matter has been framed and the evidence is being recorded. The plaintiff has very vehemently argued that the statement given by both the defendants to the police U/s 161 Cr.P.C is false and the same is actuated with Suit for Damages "Dismissed being not maintainable" Page 4 of 11 CS No.196/2012 "Ajit Kar V/s Surendra Nath Mishra & Anr." Date of Order: 03.01.2013 malice and as such, the suit is maintainable dehors the pendency of trial of case FIR No.414/2008, PS Dwarka. Per contra, the learned counsel for the defendants has very vehemently argued that whether the statement of the defendants, recorded by the police U/s 161 Cr.P.C during the course of investigation of a crime is true or false cannot be made the basis for filing a suit for damages for causing defamation, because such statement(s) is privileged one. It is next argued that the present suit has been filed by the plaintiff with malafide intention to intimidate the defendants, so as to desist them from appearing in witness box in the ongoing criminal trial in the court of Ld.Metropolitan Magistrate. In the end, it is very vehemently argued that the suit of the plaintiff is without any cause of action.
6. In order to notice the falsehood or maliciousness of the statement recorded U/s 161 Cr.P.C of the defendants by the police, I have perused the said statements. The said statements per se do not find any malicious contents therein. The said statements were made by the defendants on the asking of the Investigating Officer. The said statements are yet to be tested in a trial. The said statements are unsigned and the defendants are yet to own such statements in a Court of Law. Let us see the matter from another angle. Even if the Investigating Officer has cited the defendants as witnesses in the criminal case on the strength of their statements recorded U/s 161 Cr.P.C, yet the defendants may not come to the court to own such statements and it is also quite possible that even if they appear in court, they may disown the said statements and in that eventuality, their said statements U/s 161 Cr.P.C would have no evidentiary value at all and the claim of the plaintiff of his defamation would wither away. Now, let us see whether there is any privilege under law attached to such statements. In this regard, reference could be had to the law Suit for Damages "Dismissed being not maintainable" Page 5 of 11 CS No.196/2012 "Ajit Kar V/s Surendra Nath Mishra & Anr." Date of Order: 03.01.2013 laid down by the Hon'ble High Court of Karnataka in case reported as, "AIR 1975 Karnataka 162", titled as, "V. Narayana Bhat V/s E. Subbanna Bhat", wherein the plaintiff had filed a complaint against the defendant and some other persons for committing offence punishable U/s 392 IPC, in pursuance whereof the defendant was arrested and during the course of investigation, the plaintiff had substantiated his statement. The suit filed by the defendant against the plaintiff for damages was dismissed by the Ld.Trial Court and the said judgment was affirmed in First Appeal. At the time of dismissing the Second Appeal, the Hon'ble High Court of Karnataka, after considering various judgments under the common law as well as law laid down by various High Courts came to the following conclusion:
xxxxx
7. The reason why absolute privilege is extended to the statement of a witness made prior to the commencement of a judicial proceeding is based on public policy, as stated by Lord Halsbury in 1905 AC 480. There is no reason why the principle stated in the said decisions should not be extended to a party and the absolute privilege confined only to the statement of a witness under such circumstances. Of the two instances referred to by Blagden J. in ILR (1943) 1 Cal 250, the first refers to the editor of a newspaper as stated above. But it is doubtful whether the editor of the newspaper in such circumstances can claim absolute privilege on the basis of the principle Suit for Damages "Dismissed being not maintainable" Page 6 of 11 CS No.196/2012 "Ajit Kar V/s Surendra Nath Mishra & Anr." Date of Order: 03.01.2013 laid down in 1905 AC 480. With regard to second illustration referred to by Blagden J., if the complaint to the police results in an unsuccessful prosecution then the person defamed can only claim damages for malacious prosecution and not for defamation. In case the complaint to the police does not result in a prosecution, then also the persons defamed have no remedy in respect of defamatory statements made in such a complaint to the police. But if a false complaint is made to the police, the person who makes such a false complaint would be punishable either under Section 182 or Section 211 of the Indian Penal Code. It cannot, therefore, be said that a person against whom false charges are made in a complaint to the police, even if no further action is taken by the police authorities on such complaint, goes scotfree. I would, therefore, prefer to follow the earlier view of the Division Bench of the same High Court in AIR 1939 Cal 477 and the other decisions referred to above which take the view that a complaint to a police officer is absolutely privileged.
xxxxx
7. Therefore, in view of the law laid down in the aforesaid authority, it is absolutely clear that the statements of the defendants, recorded U/s 161 Cr.P.C by Suit for Damages "Dismissed being not maintainable" Page 7 of 11 CS No.196/2012 "Ajit Kar V/s Surendra Nath Mishra & Anr." Date of Order: 03.01.2013 the police during the course of investigation are privileged and no suit for damages can be filed against them merely on the said ground.
8. In order to appreciate the second argument of learned counsel for the defendants that such type of suits should not be encouraged at this stage as the same has the effect of threatening the defendants, who are witnesses in a criminal case against the plaintiff and this amounts to interference with the administration of justice, reference could be had to the law laid down by the Hon'ble Allahabad High Court in case reported as, "AIR 1960 Allahabad 623 (V47 C 181)", titled as, "Haji Ahmad Husain V/s State". In the said case, an anonymous complaint had been made against a SubInspector of Police that he had committed an offence punishable under Prevention of Corruption Act, whereupon an inquiry U/s 7 of the Police Act was ordered against the said SubInspector. The said SubInspector during the pendency of the said inquiry filed a complaint against the applicant/complainant U/s 500 IPC. Hon'ble High Court of Allahabad was pleased to hold in the said case as under:
xxxxx
7. xxxxx It was obviously an attempt on the part of Sub Inspector to exercise undue pressure upon the persons, likely to be examined against him in the inquiry U/s 7 of the Police Act and it was the duty of the Magistrate not to lend any assistance to it. It should have been obvious to him that if the persons, who are likely to be examined in the inquiry U/s 7 of the Police Act, were Suit for Damages "Dismissed being not maintainable" Page 8 of 11 CS No.196/2012 "Ajit Kar V/s Surendra Nath Mishra & Anr." Date of Order: 03.01.2013 under a threat of prosecution U/s 500 IPC by the Sub Inspector, they might not be prepared to give evidence against him in the inquiry U/s 7 Police Act.
xxxxx Therefore, I agree with the submission of learned counsel for the defendants on this account as well.
9. It is very strange that the plaintiff has chosen to proceed in this case only against two witnesses and not against the main complainant namely Smt.Sangeeta Mudgal, which means that he in his wisdom does not find her statement before the police to be false or actuated with malice. Not impleading the said lady in this case in a way amounts to admission of her statement to be correct and free from malice on the part of the plaintiff.
10. In the fag end, the plaintiff very meekly tried to justify the cause of action in filing the present suit on the ground that in respect of the alleged incident dated 30.06.2008, an FIR on his behalf, being FIR No.29/2010, U/s 448/506/427/34 IPC, PS Sector23, Dwarka, New Delhi also stands lodged under the orders of Ld.Metropolitan Magistrate and the said complaint is pending investigation and as such, there is a cause of action in filing the present suit. I do not agree with this argument. Registration of FIR by the police on the complaint of plaintiff is a matter which comes within the domain of police and police in its wisdom may chargesheet the accused persons mentioned therein or may initiate proceedings U/s 182 IPC against the plaintiff. This court cannot go into the investigation aspect, as Suit for Damages "Dismissed being not maintainable" Page 9 of 11 CS No.196/2012 "Ajit Kar V/s Surendra Nath Mishra & Anr." Date of Order: 03.01.2013 the same comes within the domain of the powers of police. The plaintiff further relied upon judgment reported as, "2005 (4) RCR (Crl.) Page 597", titled as, "National Small Industries Corporation Ltd. V/s M/s Samudra Corporation & Anr.", to put forward a point that criminal as well as civil proceedings can go simultaneously. He relied upon another judgment of the Hon'ble Madras High Court, reported as, "2000 (4) RCR Madras Page 596", titled as, "Venkittu Achari V/s C. Vaithiyanathan", to put forward a point that in a suit for damages even if the complaint filed by the plaintiff is found to be false, the same cannot be taken as the basis for the suit for damages. There is no quarrel with the proposition of law laid down in the aforesaid judgments, but with due respect, the said judgments have no application in the facts and circumstances of the present case.
11. Even the reliance upon an order dated 19.07.2005, passed by the Hon'ble High Court of Delhi in Criminal Misc.(Main) No.1594/2002, titled as, "Darshan Singh V/s Ramesh Chander Chopra", is highly misplaced, as the Hon'ble High Court in the said order had reiterated the well settled principle of law that judgments of criminal courts is not binding on civil courts. In this case, there is no judgment of criminal court in the matter, rather the point in issue is as to whether the statement(s) U/s 161 Cr.P.C recorded by the police during the course of investigation can be the basis for filing a suit for damages causing malicious prosecution.
12. In view of the aforesaid discussion, I find the suit filed by the plaintiff to be premature and is without any cause of action, as on today and as such, Issue No.(i) is decided against the plaintiff.
Suit for Damages "Dismissed being not maintainable" Page 10 of 11 CS No.196/2012 "Ajit Kar V/s Surendra Nath Mishra & Anr." Date of Order: 03.01.2013
13. As a consequence of deciding the Issue No.(i) against the plaintiff, Issue No.(ii) becomes redundant; same stands dropped.
14. At this stage, it is pertinent to highlight the conduct of plaintiff, as appearing on the judicial record of this case. He made the defendants to suffer this litigation for almost 3½ years in which he amended his suit twice, made the defendants to file written statement twice and further moved an application for withdrawal of the suit and when this court on 21.02.2012 recorded his statement with regard to withdrawal of the suit, he refused to sign the same and then got recorded his further statement thereby withdrawing his application U/o 23 CPC which entailed wastage of precious judicial time.
15. The suit filed by the plaintiff is accordingly dismissed with cost of Rs. 10,000/, to be paid by him to the defendants within four weeks from today.
16. Decree Sheet be prepared accordingly.
17. File be consigned to Record Room.
Dictated & Announced in the (Vinod Yadav)
open Court on 03.01.2013 Addl. District JudgeIV/SouthWest
Dwarka District Courts: New Delhi
Suit for Damages "Dismissed being not maintainable" Page 11 of 11