Delhi District Court
Shri Har Singh Rawat vs Shri Brij Kishore & Others on 1 July, 2009
IN THE COURT OF SH. KAMLESH KUMAR, ADJ (CENTRAL ) -17, DELHI
Suit No. 757/08
Shri Har Singh Rawat ......Plaintiff
Versus
Shri Brij Kishore & Others .....Defendants
ORDER
By this order, I propose to decide the preliminary issues framed in the suit for declaration and damages / compensation filed by the Plaintiff Shri Har Singh Rawat against the Defendants Shri Brij Kishore and others.
2. The Plaintiff, a Government employee, working as UDC in the office of Regional Provident Fund Commissioner, got married to one Mrs. Alka Rawat in the year 1998. After marriage, certain differences / disputes arose between them, due to which the Plaintiff apprehended that his wife may file frivolous, vexatious and baseless cases, including u/s 498-A IPC against him and his family members. He filed a petition u/s 438 CrPC seeking anticipatory bail before the High Court of Delhi. On 19.07.2001, Hon'ble High Court issued directions that if the police intended to arrest the Plaintiff after registration of the case, he would be given seven days notice in advance. A copy of said order dated 19.07.2001 passed by the Hon'ble High Court was allegedly sent to SHO/IO PS Nanakpura New Delhi. A case FIR No. 677/01 u/s 498-A/406 IP, -:1:- in fact, was registered against the Plaintiff on the complaint of his wife Mrs Alka Rawat, at Police Station Malviya Nagar, New Delhi. The Plaintiff has alleged that IO ASI Brij Kishore despite the Hon'ble High Court's order dated 19.07.2001, arrested him from his residence at Sahibabad (UP) on 08.09.2001 alongwith his elder brother Shri Ganga Singh Rawat in the presence of his neighbours after tore-off of the said order. The Plaintiff was produced before the Duty Magistrate on 09.09.2001 and his counsel allegedly brought this fact to the notice of Metropolitan Magistrate but no action was taken by him (Metropolitan Magistrate) and the Plaintiff was sent to Judicial Custody for 14 days.
3. The Plaintiff was placed under suspension by his employer as a consequence of illegal and wrongful arrest by ASI Brij Kishore. The Plaintiff then moved a Criminal Misc. (Main) Petition No. 3333 of 2005 before the Hon'ble Delhi High Court against ASI Brij Kishore for having committed contempt of court since he had not given seven days' advance notice to him before arresting him in the Criminal Case. In response to the notice of Hon'ble High Court, ASI Brij Kishore allegedly filed a false affidavit and denied having knowledge of the order dated 19.07.2001. Hon'ble High Court vide order dated 31.10.2002 observed that there were prima facie -:2:- sufficient grounds to proceed against ASI Brij Kishore for having committed Criminal Contempt u/s 12 of the Contempt of Court Act. The Plaintiff, further, submitted that Hon'ble High Court vide order dated 11.11.2002 disposed of his Criminal Misc. (Main) Petition directing his employer to reinstate him and discharged ASI Brij Kishore from the notice of Contempt.
4. The Plaintiff filed a Special Leave Petition (Crl) No. 49 of 2003 in the Hon'ble Supreme Court of India against the High Court's order dated 11.11.2002 but the said SLP was dismissed.
5. The Plaintiff claimed that due to alleged illegal, unjust, arbitrary and malafide action of ASI Brij Kishore, despite the protection of High Court's order dated 19.07.2001, he had to cut a sorry figure not only before his family members but also before his neighbours, friends, relatives and office colleagues. He also had to face humiliation before the family members of his wife at the time of his illegal arrest. He not only lost his reputation/goodwill and suffered mental agony but also had to incur huge expenditure in obtaining his release from imprisonment and still suffered from his horrifying detention in Jail. Hence the suit for declaration and damages/compensation against the ASI Brij Kishore and other -:3:- Defendants.
6. The Defendant no.1, ASI Brij Kishore in his written statement claimed that the suit is barred by limitation and that the Plaintiff/Petitioner is estopped from taking any further action after dismissal of his SLP. He further claimed that being an employee of Delhi Police, he performed his duties as commanded by his superiors. He denied the allegations that he tore-off the order dated 19.07.2001 passed by the Hon'ble High Court of Delhi. He claimed that neither the Plaintiff nor his counsel showed the said order to him nor produced before the ld. Duty MM and he only obeyed the command of court. He further claimed that he was discharged by the Hon'ble High Court from the contempt notice and that the said order has been upheld by the Supreme Court. He further claimed that the arrest of the Plaintiff was an act of State, on failure to produce the order dated 19.07.2001 passed by the High Court of Delhi and for his own mistake, he (the Plaintiff) can not blame him or the State. He further claimed that there is no cause of action against him and prayed that the suit be dismissed. In his counter- claim, he submitted that the Plaintiff has filed the present suit for damages after his retirement which has caused him mental tension, harassment and sleepless nights and he claimed a sum of Rs.3 -:4:- lacs, for the post-service and Rs.5 lacs for the service-period as damages and compensation.
7. The Defendants no. 2 and 3, Commissioner of Police and the Government of NCT of Delhi in their respective writtens statement claimed that the suit is not maintainable as no relief has been sought against them. They also claimed that the suit is not maintainable in view of Section 140 of Delhi Police Act and for want of notice u/s 80 CPC. The Defendants further claimed that ASI Brij Kishore, the Defendant no.1 acted as a sincere officer during the course of his duty and has acted honestly and diligently without any malafide intention. They also claimed that the Plaintiff has been trying to mislead the court with oblique motives and has concocted a false and fabricated story. The Defendants prayed that the suit be dismissed.
8. The Plaintiff filed replication to the written statements of the Defendant No. 1 and Defendant no. 2 & 3 separately. The Plaintiff controverted the allegations contained in the written statement and reiterated the averments made in the plaint. The Plaintiff submitted that the Defendant no.1 was only discharged by the High Court but was not exonerated from the misdeeds -:5:- committed by him intentionally and malafide. The Plaintiff also filed written statement to the counter-claim of the Defendant no.1 in his written statement. The Plaintiff denied that he or his counsel could not produce / show the order dated 19.07.2001 to the Metropolitan Magistrate. The Plaintiff further denied that the Defendant no.1 had incurred huge expenses for filing his affidavit. The Plaintiff denied that he filed the suit for damages against the Defendant no.1 after his retirement from the service. He also denied that he filed the contempt petition against him to take revenge, cause damage and harass the Defendant no.1. The Plaintiff also submitted that the counter-claim of the Defendant no.1 is barred by limitation. In his replication to the written statement of Defendants no. 2 & 3, he controverted all the allegations levelled therein and reiterated the averments made in the plaint.
9. On the pleadings of the parties, my ld. predecessor framed the following issues:-
1 Whether the Plaintiff is entitled to the declaration as prayed for? OPP 2 Whether the Plaintiff is entitled to claim damages, if so, what that amount is and from whom? OPP 3 Whether the suit is not maintainable? OPD 4 Whether the suit is bad for mis-joinder of parties? OPD 5 Whether the suit is not maintainable because of absence of notice under Section 140 Delhi Police Act and Section 80 CPC? OPD -:6:- 6 Whether the Plaintiff has no cause of action? OPD 7 Whether the suit is time-barred? OPD1 8 Whether the Plaintiff is estopped by his act and conduct. If so its effect? OPD1 9 Relief.
The issues no. 3, 5, 6 and 7 were treated as preliminary issues.
10. I heard the ld. counsel for the parties on the preliminary issues and have carefully gone through the entire material including the written submissions on record. My findings on the issues are as under:-
Issue no. 7 Whether the suit is time barred? OPD1
11. Ld. counsel for the Defendant ASI Brij Kishore vehemently argued that the suit is barred by limitation. Ld. counsel submitted that the period of limitation for filing the suit for compensation is three months u/s 140 of Delhi Police Act and one year, if previous sanction of the Administrator has been obtained. The ld. counsel for the Plaintiff, on the other hand, submitted that the suit can be filed within a period of one year of false imprisonment. He further submitted that the arrest of the Plaintiff was found to be illegal and wrongful by High Court of Delhi on 11.11.2002. The suit, therefore, could have been filed by 10/11/2003 but the Plaintiff was busy in defending himself in various courts and hence he has sought condonation of delay of one year.
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12. Admittedly, there is delay in filing of the suit. Whereas the Defendant has claimed that the period of limitation is only three months, the Plaintiff submitted that the period of limitation is one year. Hon'ble Supreme Court in "Professor Sumer Chand Vs Union of India (AIR 1993 SC 2579) has held that where the acts alleged were done under the colour of office of the police officers, the same would fall within the ambit of Section 140 (1) of the Delhi Police Act. In such a case, the period of limitation for institution of the suit would be that prescribed in Section 140 D.P. Act and not the period prescribed in Article 74 of the Limitation Act. The Delhi Police Act is a special enactment in respect of the matters referred therein. Since the Act is a special law which prescribes a period of limitation different from the period prescribed in the Schedule to the Limitation Act, for suits against persons governed by the Act in relation to matters covered by Section 140, by virtue of Section 29(2) of the Limitation Act, the period of limitation prescribed by Section 140 of the Act would be the period of limitation prescribed for such suits and not the period prescribed in the schedule to the Limitation Act.
I, accordingly, hold that the period of limitation for filing the instant suit is three months and not one year. The contentions of ld. counsel for the Plaintiff have no force in the eyes of law and are rejected.
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13. Ld. counsel for the Plaintiff has sought condonation of delay on the ground that the Plaintiff has sufficient cause for not being able to file the suit within the period of limitation. The Plaintiff has submitted that after his release from judicial custody on 17.09.2001, he had been busy in defending himself in various cases filed against him and his family members by his wife in Family Courts in Ghaziabad and Delhi implying thereby that he had no time to file this suit which probably was last on his priority list or may be he was not quite sure or serious for making such claim. The Plaintiff was dealing / handling various litigations in various courts. He would have been in contact with his lawyers and ought to have taken due interest, if he was really so keen, to file the presently suit within the period of limitation. The explanation that he did not get time to file the present suit because he was busy in different courts can not be considered as 'sufficient cause'. I, therefore, find no justification for condoning of delay in filing the suit. The suit is clearly time-barred. The issue no. 7 is, accordingly, decided against the Plaintiff and in favour of the Defendants. Issue No. 3 Whether the suit is not maintainable? OPD Issue No. 5 Whether the suit is not maintainable because of absence of notice under Section 140 Delhi Police Act and Section 80 CPC? OPD
14. Ld. counsel for the Defendants have submitted that the -:9:- Plaintiff has not served the requisite mandatory notice u/s 140 of the Delhi Police Act and Section 80 CPC. Ld. counsel for the Plaintiff, on the other hand, vehemently argued that the Defendant ASI Brij Kishore is not entitled to the protection of Section 140 of Delhi Police Act, since the act committed by him is not in the course of discharge of his duty. Ld. counsel further submitted that it was no part of his duty and no law conferred power upon him to arrest the Plaintiff who had the protection of order passed by the Hon'ble High Court.
15. Section 140 of Delhi Police Act provides as under:-
"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;
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 the offence.
(2) In the 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) - - - - - - -- - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - - -."-:10:-
16. Admittedly, Section 140 of the Delhi Police Act, does not extend its protective cover to every act or omission done by a Police Officer in service but restricts its scope to only those acts or omissions which are done under 'colour of duty or authority' or in excess of any such duty or authority (Reliance placed on 1996(36) DRJ - Manoj Pant Vs. State). In the instant case, the Defendant was allegedly shown the order dated 19.07.2001, but he allegedly tore-off the same. This allegation has no substance, particularly because the Plaintiff after his arrest was produced before the Metropolitan Magistrate. At that time, the Plaintiff (then accused) or his counsel could have brought to the notice of Metropolitan Magistrate, the said order of the High Court. However, they failed to do so. The averments of the Plaintiff that ld. Metropolitan Magistrate was informed but he took no notice certainly can not be believed / accepted. The Metropolitan Magistrate would have definitely made enquiries, if any such fact were brought to his notice. Moreover, Hon'ble High Court in its order dated 11.11.2002 observed that the explanation of SI Brij Kishore appeared to be bonafide and does not call for any further action. It is thus evident that the Hon'ble High Court found the explanation bonafide and that is why no action was initiated against him and he was discharged form contempt petition. The Plaintiff even filed a Special Leave Petition against the -:11:- said order but that was also dismissed. It is, therefore, clear that the Defendant ASI Brij Kishore is entitled to protection of Section 140 of Delhi Police Act and since no notice has been served on him before filing the suit, the suit is not maintainable. Similarly, the notice dated 02.06.2003 u/s 80 CPC allegedly served on Chief Secretary of GNCT of Delhi also was barred by limitation.
In view of the discussion hereinabove, the contentions raised by the ld. counsel for the Plaintiff are rejected. The issues no. 3 & 5 are decided against the Plaintiff and in favour of the Defendants. Issue no. 6 Whether the Plaintiff has no cause of action? OPD
17. Ld. counsel for the Defendant contended that the Hon'ble High Court having found the explanation of the Defendant ASI Brij Kishore bonafide, it can not be said that the action of the Defendant ASI Brij Kishore was malafide and illegal. The Plaintiff, therefore, has no cause of action against the Defendants. Ld. counsel for the Plaintiff, on the other hand, argued that the Defendant no.1 was only discharged and not exonerated by Hon'ble High Court. I am not in conformity with the ld. counsel for the Plaintiff. The discharge of Defendant no.1 from Criminal Contempt proceedings by the Hon'ble High Court can have no two interpretations or meanings. The explanation offered by the Defendant No.1 was -:12:- found bonafide by Hon'ble High Court and it was observed that no further action was called for against him. In view of the observation of Hon'ble High Court, it is clear that the Plaintiff has no cause of action against the Defendant. In this context, it may also be observed that the Defendant No.1 preferred a counter-claim just because the Plaintiff filed the instant suit against him. The counter- claim is nothing but a counter-blast to the suit as is evident from the fact that the Defendant no.1 did not initiate any action while he was still in service and had been discharged by the Hon'ble High Court in Criminal Contempt Proceedings. Obviously, there was no ground for such claim by the Defendant No.1 against the Plaintiff who felt aggrieved by his act of commission in discharge of his duties.
In view of the discussion hereinabove, I hold that the suit is without any cause of action and the issue is decided accordingly.
18. In view of my findings on the preliminary issues, the suit is dismissed. No order as to costs. Decree sheet be drawn accordingly. File be consigned to record.
Announced in the open court (KAMLESH KUMAR)
Today i.e. on 01 July 2009 Additional District Judge
Delhi
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