Delhi District Court
Annis vs Ms. Kusam Lata on 24 October, 2013
IN THE COURT OF REETESH SINGH,
ADDITIONAL DISTRICT JUDGE-01 (NORTH-EAST),
KARKARDOOMA COURTS, DELHI.
CS NO. 280/2011
Date of institution of the case : 30.04.2011
Date on which Judgment was reserved : 08.10.2013
Date on which Judgment was pronounced : 24.10.2013
Case I.D. NO. : 02402C0132882011
IN THE MATTER OF:-
ANNIS
S/O SH. MUNSHI KHAN,
R/O F-2/98, SUNDER NAGRI,
NAND NAGRI,
DELHI.
.......PLAINTIFF
VERSUS
MS. KUSAM LATA, ASI,
NO. 28870002
NAND NAGRI POLICE STATION,
DELHI
SERVICE TO BE EFFECTED
THROUGH SHO, NAND NAGRI POLICE STATION
JUDGMENT
1. This suit has been filed by the plaintiff praying for decree for recovery of Rs.5,00,000/-. The plaintiff has averred that he is a peace loving and law abiding citizen of India and having good status in the society.
2. It is averred that the defendant is serving in the Delhi Police as an Assistant Sub Inspector and posted at Police Station Nand Nagri, Delhi. It is Civil Suit No. 280/2011 Page 1 of 8 averred that the defendant is the Investigating Officer of FIR No. 22 dated 28.01.2011 instituted against the plaintiff and his family members under Sections 376/365/366/406/34 IPC. It is averred that in September, 2010, police officials of police station Nand Nagri started harassing the plaintiff and his family members on a false complaint of Ms. Mamta. The plaintiff was therefore compelled to file an application seeking anticipatory bail. It is averred that the Court of Ld. ASJ, Karkardooma Court, Delhi by order dated 01.10.2010 directed the plaintiff to join investigation and his bail application was adjourned to 04.10.2010. It is averred that on 04.10.2010 the Court of Ld. ASJ, Karkardooma Courts, Delhi dismissed the application for grant of anticipatory bail as premature as no case had been registered till then against the plaintiff. However a direction was passed to the Investigating Officer of the case / SHO of Police Station Nand Nagri to give three days' notice to the plaintiff before his arrest if a case was registered against him on the basis of complaint of Ms. Mamta which was pending investigation in police station Nand Nagri.
3. It is averred that after 04.10.2010, plaintiff was never called by the defendant i.e. investigating officer / SHO of the matter to join investigation in relation to the said complaint. It is averred that in the intervening night of 28th and 29th January, 2011, a notice under Section 160 of the Code of Criminal Procedure (hereinafter referred to as Cr.P.C.) under the signatures of the defendant were served upon the plaintiff calling him to appear before her at 10.00 am in police station Nand Nagri on 31.01.2011. It is averred that in terms of the said notice plaintiff appeared before the defendant on the date and time fixed but he was arrested by the defendant and produced before the Metropolitan Magistrate on the following day i.e. 01.02.2011 and the plaintiff was remanded to judicial custody. Plaintiff has averred that during the time he was under the custody of the defendant, he was compelled to sign on 4-5 blank papers and was beaten up and was also threatened.
Civil Suit No. 280/2011 Page 2 of 84. Plaintiff has averred that the defendant was obliged to give three days' notice to the plaintiff before arresting him as directed in the order dated 04.10.2010 of the Ld. ASJ, Karkardooma Courts, Delhi but the defendant deliberately served a notice under Section 160 of the Cr.P.C. calling the plaintiff to join investigation and thereafter arrested him on 31.01.2011. Plaintiff has averred that due to no default he was confined to jail for a period of ten days due to mischievous act of the defendant who had failed to give notice prior to his arrest. The plaintiff suffered a loss of reputation in the eyes of the society as well as his family members. Plaintiff has averred that had three days' notice been given to him prior to his arrest, he could have applied for anticipatory bail in the appropriate Court and would have obtained the same as he has sound proof of his innocence. Plaintiff has averred that he issued a noticed dated 08.03.2011 under Section 140 of the Delhi Police Act to the defendant which was received by her by courier on 14.03.2011 and by speed post on 16.03.2011. Plaintiff had also sent a copy of the notice to the Commissioner of Police as well as Office of Lieutenant Governor to be delivered to the said authorities by speed post on 14.03.2011. no reply to the said notices were received by him. Plaintiff has therefore claimed damages of Rs.5,00,000/- against the defendant by way of this suit.
5. By order dated 02.05.2011, summons of the suit were issued to the defendant. Defendant was served with the summons and appeared in person before this Court on 01.08.2011. She was granted four weeks to file written statement. The defendant failed to appear thereafter did not file her written statement. By order dated 05.02.2011 fresh summons of the suit were directed to be issued to the defendant to be served to her through the Office of Commissioner of Police. The same were served in the office of Commissioner of Police but even thereafter the defendant failed to appear. In these circumstances, by order dated 27.04.2013 the defendant was proceeded ex-parte and her right to file written statement was closed. Matter was fixed for evidence of the plaintiff.
6. Plaintiff examined himself as PW-1 and deposed by way of affidavit Civil Suit No. 280/2011 Page 3 of 8 Ex.PW1/1. He proved the following documents on record:-
(a) Certified copy of the order dated 30.09.2010 as Ex.PW1/A.
(b) Certified copy of the order dated 04.10.2010 as Ex.PW1/B.
(c) Photocopy of Notice under Section 160 Cr.P.C. as Mark A.
(d) Certified copy of the order dated 04.02.2011 as Ex.PW1/C.
(e) Certified copy of the order dated 08.02.2011 as Ex.PW1/D.
(f) Copy of notice U/s DP Act as Ex.PW1/E.
(g) Original receipt of speed post and courier as Ex.PW1/F (colly.)
(h) Original delivery reports as Ex.PW1/G (colly.)
7. PW-1 deposed on the lines of the plaint. Since the defendant was ex- parte, PW-1 was not subjected to any cross examination. The version of the plaintiff in the plaint and evidence of PW-1 has gone unrebutted and unchallenged.
8. Ld. Counsel for the plaintiff has argued that the defendant violated the order dated 04.10.2010 of the Court of Ld. ASJ by which she was directed to give three days' notice prior to arrest of the plaintiff. He had submitted that due to violation of the said order the plaintiff was unable to apply grant of anticipatory bail and had to undergo judicial custody. He submitted that the plaintiff was subsequently granted bail by the Court of Ld. ASJ by order dated 08.02.2011 but he had remained in custody between 31.01.2011 to 08.02.2011. He submitted that by the acts of the defendant the reputation of the plaintiff in the society has suffered for which he entitle to damages.
9. I have heard the Ld. Counsel for the plaintiff and have perused the record.
10. The defendant is ex-parte. Her version has not come. Ex.PW1/A is a copy of an order dated 30.09.2010 of the Court of Sh. R.P.S. Teji, Ld. ASJ, Karkardooma Courts, Delhi. The said proceedings were in relation to an anticipatory bail application moved under Section 438 Cr.P.C. by the plaintiff alleging that officials of police station were harassing him on a complaint of Ms. Mamta. In the order sheet dated 30.09.2010, it is recorded that ASI Sh. Kailash Chand had intimated that only a complaint of Ms. Mamta had been received and no FIR had been registered. The Ld. Court by order dated 30.09.2010 directed Civil Suit No. 280/2011 Page 4 of 8 the plaintiff to join the investigation and to appear before the investigating officer on 01.10.2010.
11. Ex.PW1/B is an order dated 04.10.2010 which is a subsequent order on the anticipatory bail application passed by the Court of Sh. Sudesh Kumar, Special Judge, NDPS, North-East, Delhi. The same is re-produced as under:-
"Annis versus State FIR not known PS Nand Nagri Under section not known 4.10.2010 Present Sh. Naresh Gambhir counsel for the applicant/accused.
Sh. Ashok Kumar Addl.PP for the State IP/ASI Kailash Chand.
It has been submitted by IO/ASI Kailash Chand that no case has been registered yet against the applicant/accused at PS Nand Nagri and only a complaint made by the complainant Mamta is pending investigation at PS Nand Nagri. Since no case has been registered yet against the applicant/accused at PS Nand Nagri and only a complaint made by the complainant Mamta is pending investigation at PS Nand Nagri, the present anticipatory bail application is premature and the same is dismissed as premature with the direction to the IO of the case/SHO PS Nand Nagri to give three days notice to the applicant/accused before his arrest, if a case is registered against eh applicant/accused on the basis of the complaint made by the complainant Mamta which is pending investigation at PS Nand Nagri.
The applicant/accused shall join the investigation as and when required.
Copy of the order be given dasti to learned counsel for the applicant/accused.
Sd/-
(Sudesh Kumar) Special Judge NDPS (NE) /Link ASJ KKD Courts, Delhi"
12. By order dated 04.10.2010, the Ld. Court had directed the investigating officer to give three days' notice to the plaintiff before his arrest if a case was registered against him on the basis of complaint of Ms. Mamta. Mark A is the Civil Suit No. 280/2011 Page 5 of 8 photocopy of the notice dt.28.1.2011 under Section 160 Cr.P.C. issued by the defendant to the plaintiff. Since the same is material to the determination of the issues raised in this suit, the same is re-produced its entirety:-
"Case FIR No. 22/2011 Dated 28-1-2011 U/S 376,366,406,34 IPC P.S. Nand Nagri Distt. North-East NOTICE U/S 160 Cr.P.C.
To
Annis S/o Munshi Khan & with Father - Munshi Khan
R/o H.No. F-298, Sunder Mother - Kanij
Nagri, Nand Nagri, Delhi. Brothers - Nafish & Shamim
Whereas the presence of the aforesaid person is necessary for the purpose of enquiry in the offence reported to have been committed under section above mentioned at police station Nand Nagri therefore the said person is hereby directed to appear before the undersigned at 10AM place Nand Nagri PS date 31-1-2011 here to give such information relating to the said alleged offence as he may possess.
Sd/-
Date 28-1-2011 Investigation Officer Kusum Lata
Asstt. Sub. Insp.
Police Station Nand Nagri PS
28-1-2011"
13. Perusal of the notice Mark A reveals that the same mentions registration of FIR No. 22/11 on 28.01.2011 under Section 376/366/406/34 IPC in police station Nand Nagri, North-East. The plaintiff along with his parents were directed by the defendant to appear before her on 31.01.2011. Plaintiff was arrested directed by the defendant on 31.01.2011 when he appeared before her.
14. Question is arises for determination is whether the notice Mark A under Section 160 Cr.P.C. was not in accordance with the directions contained in the order dated 04.10.2010 by which the IO was required to give three days' notice to the applicant / plaintiff before his arrest if a case was registered against him.Civil Suit No. 280/2011 Page 6 of 8
15. The notice Mark A is dated 28.01.2011. The defendant was required to give to the plaintiff three days' notice prior to his arrest if an FIR was registered against him on the complaint of Ms. Mamta. The notice Mark A mentions registration of FIR on 28.01.2011 and calls upon the plaintiff to appear before the defendant on 31.01.2011. An ordinary reading of the same would reveal that fact of registration of an FIR against the plaintiff on 28.01.2011 under Sections 376/366/406/34 IPC stood communicated to the defendant.
16. The plaintiff was asked to appear before the defendant on 31.1.2011, which is three days after the date of the notice. Plaintiff has averred that the notice was received by him in the night of 28/29.01.2011. However, there is nothing in the record produced by the plaintiff regarding as to what time the notice was received by him. Plaintiff has alleged that he was arrested on 31.01.2011 by the defendant. However the time of the arrest of the plaintiff has not been disclosed by him.
17. This Court has not come across format of any notice under the provisions of Cr.P.C. which an investigating officer gives to an accused stating that he intends to arrest the accused and giving him three days' notice in writing of his intention. Section 160 of the Cr.P.C. by itself does not provides that if notice is issued to any person under the provisions of the said section, the investigating officer cannot arrest such person when he appears in compliance of such notice.
18. The facts and circumstances of this case would reveal that the information of registration of FIR on 28.01.2011 was given to the plaintiff by the defendant and he was asked to join investigation on 31.01.2011. The contents of the notice under Section 160 Cr.P.C. dated 28.01.2011 Mark A were sufficient notice to the plaintiff about the registration of the FIR and intention of the investigating officer to arrest him.
19. As regards notice period of three clear days, investigating officer has issued the notice on 28.01.2011 and the plaintiff was arrested on 31.01.2011. The exact time of the service of the notice and exact time of the arrest of the plaintiff has not been brought on record. The tenor of the order dt.4.10.2010 Civil Suit No. 280/2011 Page 7 of 8 seems to be to give an opportunity to the plaintiff to avail his remedies as available under law upon having notice of registration of the FIR. The notice Mark A dt.28.1.2011 discloses registration of the FIR and asks the plaintiff to join investigation on 31.1.2011. The plaintiff could very well have availed his remedies prior to appearing before the defendant on 31.1.2011.
20. Section 140 of the Delhi Police Act, 1978 provides that where any offence has been committed by a police officer or wrong has been done by such police officer by any act done under colour or duty or authority or in excess of any duty or authority or where it shall appear to the Court with the offence or wrong if committed was of the character aforesaid a suit can be filed against such police officer within three months after the date of the alleged act. The only conclusion which can be reached by this Court is that plaintiff had been provided sufficient notice of the registration of the FIR and intention of the defendant to arrest him. The Acts of the defendant cannot be said to be within the meaning of Section 140 of the Delhi Police Act so as to attract any liability to pay damages.
21. For the reasons recorded above, I do not find any merit in the case of the plaintiff. Suit of the plaintiff is dismissed.
22. File be consigned to Record Room.
Announced and dictated to the steno in open Court today i.e. 24.10.2013 (REETESH SINGH) Addl. Distt. Judge-01 (NE) Karkardooma Courts, Delhi Civil Suit No. 280/2011 Page 8 of 8