Delhi District Court
Ram Niwas Tripathi vs Govt Of Nct Of Delhi on 3 November, 2023
IN THE COURT OF SH. KAPIL KUMAR, ADJ-01, NORTH
EAST, KARKARDOMMA COURTS: DELHI
CS No. 74/2018
CNR No. DLNE01-001027-2018
In the matter of :-
1. Ram Niwas Tripathi
S/o Shri Brindavan Tripathi.
2. Mohit Tiwari
S/o Sh Rajesh Tiwari.
Both R/o A-160, Second Floor,
SLF Ved Vihar, Jindal Road,
Loni, Ghaziabad, UP-201102 .....Plaintiffs
Versus
1) Government of National Capital Territory of Delhi
Through Chief Secretary,
Old Secretariat, Sham Nath Marg,
Delhi.
2) The Deputy Commissioner of Police
North East District, Seelampur,
Delhi.
3) SI Y.S Malik
Through SHO, PS Gokulpuri,
Delhi.
4) ASI Raghu Nath
Through SHO, PS Gokulpuri,
Delhi ...... Defendants
Date of Institution : 20.03.2018
Arguments heard on : 02.11.2023
Date of Judgment : 03.11.2023.
SUIT FOR DAMAGES
CS No. 74/2018 Page No. 1 of 16
Digitally signed
by KAPIL
KAPIL KUMAR
KUMAR Date:
2023.11.03
15:22:29 +0530
JUDGMENT
1. Vide this Judgment, I intend to dispose off the suit for the damages filed by the plaintiffs on account of their alleged harassment, humiliation and defamation.
Case of plaintiffs.
2. The factual matrix of the present case, as revealed from the plaint, is that the driver of the plaintiff's truck namely Rajnish and helper Surjit were coming driving a truck bearing registration no. DL 1 GC 6440 at about 5:30 PM when they were stopped by defendant no.3 SI Y.S Malik Zonal Officer, Traffic, (now retired) and his subordinate officials without any reason. It is stated that the driver of the truck Rajnish produced each and every document regarding the vehicle to the defendant no.3 and requested defendant no.3 that he can take appropriate action as per Motor Vehicle Act but the said officials demanded bribe instead of taking action as per Motor Vehicle Act.
3. It is stated that initially no challan was issued but defendant no.3 got aggressive to the truck driver and started misbehaving with him. It is stated that in the meantime another constable informed defendant no.3 that truck driver is refusing to pay bribe for which defendant no.3 got further angry and started abusing truck driver and helper. It is stated that the defendant no.3 directed his subordinate officials to beat the driver and helper and thereafter both the driver and the helper of the truck were beaten by defendant no.3 and his subordinates and the challan of 'no entry/violation of entry timings' was issued for the CS No. 74/2018 Page No. 2 of 16 Digitally signed by KAPIL KAPIL KUMAR KUMAR Date:
2023.11.03 15:22:36 +0530 truck.
4. It is further stated that at the time of incident the plaintiffs were passing near the place of incident where they observed that their truck has been illegally stopped and found that the local people were also gathered near the truck. It is stated that the plaintiffs reached to their vehicle where they saw that defendant no. 3 and his subordinate officials beating the truck driver and helper.
5. It is further stated that when plaintiffs questioned the illegal acts of defendant no.3, the defendant no.3 started abusing the plaintiffs and thereafter beaten plaintiffs also. It is stated that plaintiff made a call at 100 number for which SI Shri PS Bajwa came at the spot and advised for a filing a written complaint in PS Gokul Puri.
6. It is further stated that plaintiffs reached at PS Gokul Puri to file the complaint but their complaint was not received but in the meantime defendant no.3 also reached in PS Gokul Puri and at his instance the plaintiffs were illegally framed in a kalandra u/s 107/151 Cr.PC and were locked in the lock up of police station.
7. It is further stated that the defendant no.4 ASI Raghunath of PS Gokul Puri produced the kalandra U/s 107/151 Cr.PC before the Executive Magistrate and when the plaintiffs produced the sureties before the Executive Magistrate the same were not accepted rather the surety bonds were sent for police verification for next date and in the meantime plaintiffs were sent to judicial CS No. 74/2018 Page No. 3 of 16 Digitally signed KAPIL by KAPIL KUMAR KUMAR Date: 2023.11.03 15:22:47 +0530 custody. It is stated that on the next day the plaintiffs were released from judicial custody.
8. It is stated that on 10.04.2017 Ld Executive Magistrate discharged the plaintiffs from the proceedings U/s 107/151 Cr.PC and after various efforts the copy of the order was received. It is stated that entire proceedings U/s 107/151 Cr.PC was conducted just to harass the plaintiffs and to save the skin of defendant no.3 from legal action. It is stated that all the defendants acted maliciously with personal vendetta against the plaintiffs and as such all are liable to pay damages to the plaintiff. It is further stated that due to illegal acts of defendants the image of the plaintiffs in the society went down.
9. On the aforesaid allegations plaintiff is seeking relief that proceedings u/s 107/150 Cr.PC be declared null and void and defendants be directed to pay the damages to the tune of Rs 10 Lacs each for the mental pain, sufferings, malicious prosecution, causing hurt to the person and reputation of the plaintiffs and for causing defamation of the plaintiffs.
Case of Defendant no.1.
10. The defendant no.1 is the Government of NCT of Delhi who stated that the present case has been filed with malafide intention just to recover the money without any reason.
Case of Defendant no.2.
11. Defendant no.2 is the DCP North-East District who stated in written statement that the truck of the plaintiffs bearing registration no. DL 1GC 6440 was found being driven in no entry CS No. 74/2018 Page No. 4 of 16 Digitally signed by KAPIL KAPIL KUMAR KUMAR Date:
2023.11.03 15:22:55 +0530 zone and as such the same was stopped by defendant no.3 SI Yashpal, Zonal Officer Traffic in Khazuri Khas Circle. The copy of the challan has been filed on record.
12. It is stated that on being stopped and challaned the driver of the truck got aggressive and the plaintiffs started abusing the traffic police officials for which huge crowd gathered at the spot which hampered the flow of the traffic and caused inconvenience which might resulted into breach of peace.
13. It is stated that call at 100 number was made vide DD no. 67B dated 29.03.2017 and ASI Raghunath (defendant no.4) from PS Gokul Puri reached at the spot and he found that plaintiffs were misbehaving with traffic police officials and were hurling abuses which resulted into the breach of peace and inconvenience to public at large for which, after obtaining necessary permission, the plaintiffs were detained u/s 107/151 Cr.PC.
14. It is further stated that the plaintiffs were produced before the Ld Executive Magistrate who warned and discharged the plaintiffs. It is stated that the present suit is filed with malafide intentions and liable to be dismissed.
Case of Defendant no.3.
15. Defendant no.3 in the present suit is SI YS Malik who stated that on 29.03.2017 he was performing as duty as ZO, traffic circle, Khajuri Khas where the plaintiff no.1 came to him near the office of Delhi Jal Board and asked him not to stop the truck and offered bribe to him which was refused by him. It is stated that in the meantime the truck of the plaintiffs reached at CS No. 74/2018 Page No. 5 of 16 Digitally signed by KAPIL KAPIL KUMAR Date:
KUMAR 2023.11.03 15:23:02 +0530 the spot and same was stopped and was challaned for being at the spot in violation of entry timings. It is stated that the plaintiffs instead of accepting their mistakes made a call at 100 number and started misbehaving with him and other police officials. It is stated that thereafter plaintiffs were booked u/s 107/151 Cr.PC.
Case of Defendant no.4.
16. Defendant no. 4 is ASI Raghunath who stated that on 29.03.2017 he was on emergency duty in North-East District, PS Gokul Puri from 8 AM to 8 PM and he received a call at 100 number vide DD no. 67B dated 29.03.2017. He stated that he reached at the spot along with Ct Mangal Singh and found that plaintiffs were misbehaving with the police officials as traffic challan was issued for the truck of plaintiffs. It is stated that proceedings U/s 107/151 Cr.PC were initiated against the plaintiffs as they were continuously abusing the police officials.
Replications of plaintiffs.
17. In the replications filed on behalf of the plaintiffs qua the written statements of defendants, all the averments of defendants were denied and the contents of the plaints were reiterated.
Issues
18. Vide order dated 28.08.2019, following issues were framed:
(i) Whether the plaintiffs are entitled for a decree of declaration, as claimed in the plaint? OPP
(ii) Whether the plaintiffs are entitled to recover the damages from the defendants, amounting to Rs CS No. 74/2018 Page No. 6 of 16 Digitally signed by KAPIL KAPIL KUMAR KUMAR Date:
2023.11.03 15:23:08 +0530 10,00,000/-, as claimed in the plaint? OPP
(iii) Whether the plaintiffs are entitled to recover the interest from the defendants, if so, at what rate and for which period? OPP
(iv) Relief.
Plaintiffs Evidence.
19. Plaintiff no.1 Shri Ram Niwas Tripathi examined himself as PW1 and tendered his evidence by way of affidavit as Ex.PW1/A and relied upon followings documents i.e. Kalandra u/s 107/151 Cr.PC Ex.PW1/1; complaint dated 16.05.2017 Ex.PW1/2; complaint dated 15.11.2017 Ex.PW1/3; legal notice dated 29.11.2017 along with postal receipts Ex.PW1/4 and letter dated 14.12.2017 Ex.PW1/5.
Defence Evidence.
20. Defendant no. 4 ASI Raghu Nath examined himself as D4W1 and tendered his evidence by way of affidavit as Ex.DW1/A and relied upon the certified copy of the proceedings in the kalandra dated 30.03.2017 as Ex.D4W1/1; copy of DD no. 20A dated 29.03.2017 as Ex.D4W1/2 and certified copy of his statement dated 30.03.2017 as Ex.D4W1/3.
21. Defendant no.3 YS Malik examined himself D3W1 and tendered his evidence by way of affidavit as Ex.D3W1/A. He relied upon the copy of the challan of the truck bearing registration no. DL 1GC 6440 as Ex.D3W1/1 and copy of complaint dated 29.03.2017 made by him to SI Raghunath as Mark A. CS No. 74/2018 Page No. 7 of 16 Digitally signed by KAPIL KAPIL KUMAR KUMAR Date:
2023.11.03 15:23:14 +0530
22. No evidence was led on behalf of defendant no.1 i.e. Government of NCT of Delhi and defendant no. 2 i.e. DCP North-East District.
23. I have heard arguments advanced on behalf of plaintiff and defendant no.3 and 4 and perused the records. None appeared for defendant no.1 and 2 to advance final arguments. My issue-wise findings are as under.
Issue no.1- Whether the plaintiffs are entitled for a decree of declaration, as claimed in the plaint? OPP
24. The onus to prove this issue was upon the plaintiff. The plaintiff no.1 examined himself as PW1. The plaintiff no.2 not stepped into the witness box. It is to be appreciated as to whether the plaintiff has been able to discharge his burden of proof qua this issue or not.
25. Perusal of the affidavit tendered in evidence by way of plaintiff as Ex.PW1/A reveals that the alleged incident dated 29.03.2017 started with the alleged misbehaving of defendant no.3 with driver of the truck namely Rajnish and helper Surjit. As per the contents of the affidavit the plaintiffs reached at the spot later on.
26. The starting of the alleged incident occurred on 29.03.2017 is crucial for arriving at the just decision in the present case. At the risk of repetition it is to be mentioned here that the case of the plaintiffs is that his truck was illegally stopped and the defendant no.3 along with his subordinates demanded bribe from the driver CS No. 74/2018 Page No. 8 of 16 Digitally signed KAPIL by KAPIL KUMAR KUMAR Date: 2023.11.03 15:23:23 +0530 of the truck namely Rajnish and helper Surjit and when the bribe was not tendered they were manhandled by defendant no.3 and his subordinates.
27. In the above-mentioned circumstances it was imperative for the plaintiff to examine the driver of the truck Rajnish and helper Surjit. The present case was not filed by Rajnish or Surjit. If the truck was illegally stopped by defendant no.3 who was working as Zonal Officer, Traffic then it could be best explained by Rajnish or Surjit as to why the truck was stopped and how the act of defendant no.3 was illegal.
28. Rajnish and Surjit were the best witnesses as to the alleged demand of bribe by the defendant no.3. Without examining Rajnish and Surjit on oath it could not be proved by the plaintiff that the bribe was demanded by defendant no.3 and when the same was refused the challan was issued illegally and truck driver along with helper were mishandled.
29. If Rajnish and Surjit were the employees of the plaintiff then in all circumstances they must have been brought into the witness box to prove as to how incident dated 29.03.2017 initiated and how there was illegality in the act/omission of defendant no.3.
30. Admittedly the challan for plying the vehicle in no entry timings was issued. The challan has been proved on record. The plaintiff has not brought on record as to whether the challan was contested or not or whether the offenders were discharged or acquitted in that case. This is the major void in the case of the CS No. 74/2018 Page No. 9 of 16 Digitally signed by KAPIL KAPIL KUMAR KUMAR Date:
2023.11.03 15:23:29 +0530 plaintiffs and certainly hitting the roots of the present suit which was filed with the allegations that the truck was illegally stopped which resulted into the preparation of illegal kalandra later on and committing other alleged atrocities on the plaintiffs.
31. The best witnesses who were initially allegedly manhandled or abused by defendant no.3 were not examined by the plaintiff. This court is pressing the facts as to the non- examination of truck driver and helper in the present case as those were the persons who were the alleged eye witnesses to the beatings given to the plaintiffs and the illegal framing of plaintiffs under proceedings 107/151 Cr.PC.
32. It is further important to mention that it was mentioned again and again in the plaint and so in the affidavit that the defendant no.3 along with the subordinates beaten the plaintiffs, truck driver and helper. No MLC has been proved on record. There is no record as to the injury sustained any of them. If the defendant no.3 and his subordinates were so aggressive that they were beating plaintiffs and their employees on road then in all circumstances the plaintiffs must have sustained injuries but there is no record as to any injury sustained by the plaintiffs or their employees. This fact is also raising clouds of doubt on the case of the plaintiffs.
33. The defendant no.3 YS Malik proved on record the copy of challan of the truck of the plaintiff on record as Ex.DW3/1. It is not the case of the plaintiff that the challan Ex.DW3/1 was not issued at the spot and the same was issued ante-timed. The challan was issued at 5:40 PM on 29.03.2017. It is not the case of CS No. 74/2018 Page No. 10 of 16 Digitally signed by KAPIL KAPIL KUMAR Date: KUMAR 2023.11.03 15:23:36 +0530 the plaintiff that there was no restriction on plying of commercial vehicle i.e. HTV at the given date and time. There is no cross- examination on the point that challan was issued wrongly as there was no entry restriction at the spot where the challan was issued. The fact that the challan was issued and the plaintiff has not brought the record as to the discharge or acquittal of offenders in that challan, on record reveals that the challan was issued as per law and there was no illegality in the act of defendant no.3 which was done by him while discharging his duties as Zonal Officer, Traffic as per law.
34. Now coming to the proceedings 107/151 Cr.PC. Section 107 Cr.PC empowers an Executive Magistrate to taken bond for keeping peace from the person who is likely to commit breach of peace or disturb public tranquility or to do any wrongful act that might probably occasion the breach of peace or disturb the public tranquility. Section 151 Cr.PC empowers a police official to take preventive action to prevent a cognizable offence.
35. Keeping the above-mentioned provision of law in mind it is to be appreciated as to whether there was ground/reason for preparation of kalandra u/s 107/151 Cr.PC or not.
36. The case of plaintiffs is that they were illegally framed in the kalandra by defendant no.4 in connivance with defendant no.3. The plaintiff no.1 only examined himself on this aspect and not examined his employees or any independent public witness that he was illegally framed. Contrary to that the defendant no. 3 examined himself and deposed that the plaintiffs and his companions started quarrellings and misbehaving with him when CS No. 74/2018 Page No. 11 of 16 Digitally signed KAPIL by KAPIL KUMAR KUMAR Date: 2023.11.03 15:23:42 +0530 the challan of violation of restriction of entering was issued. The testimony of defendant no.3 is corroborated with defendant no.4 who deposed that when he reached at the spot after receiving DD no. 67B dated 29.03.2017 he found that plaintiffs were misbehaving with traffic police officials as the challan was issued for their truck. He further deposed that he tried to make plaintiffs understand but the plaintiffs continued to abuse police officials.
37. The defendant no.4 even deposed on oath during the cross- examination that additional DCP Shri Devender Kumar also reached at the spot and the defendant no.3 given a complaint to him. The defendant no.4 is not the person who allegedly demanded bribe from the employees of the plaintiff. He was not a traffic police official at the relevant time. He was not the person with whom the confrontation of the plaintiffs or their employees started. In these circumstances, this court inclined to consider the testimony of defendant no.4 as the testimony of independent witness. The testimony of defendant no.4 is corroborating the testimony of defendant no.3.
38. If public persons were abusing the traffic police officials on road when their vehicle was challaned for being in the no entry zone at the relevant point of time for which public gathered at the spot then it was certainly a condition of breach of peace and disturbance of public tranquility. In these circumstances the preventive action taken by defendant no.4 cannot be said to be illegal.
39. At this stage, the order of Ld Executive Magistrate passed by him while allegedly discharging plaintiffs from the Digitally signed CS No. 74/2018 Page No. 12 of 16 by KAPIL KAPIL KUMAR KUMAR Date:
2023.11.03 15:23:49 +0530 proceedings u/s 107/151 Cr.PC is worth mentioning. The order of Ld Executive Magistrate read as under:-
"Both respondents are present with their counsels, Heard arguments in details, and I have gone through the contents of the kalandra, and the other material available on record; hence, keeping in views of above facts and circumstances; I hereby warned and discharged the both respondents. Case is closed. Copy of order be given to the both respondents and one copy be sent to SHO concerned, case file be consigned to record. Announced in open court."
40. Ld Counsel for plaintiffs during the course of the arguments vehemently argued that the plaintiffs were discharged by the Executive Magistrate. Per contra, it was argued on behalf of the defendants that the plaintiffs were warned by the Executive Magistrate and thereafter discharged.
41. The order of Ld Executive Magistrate is a non speaking order. The order is not clear as to how the proceedings were closed. If the plaintiffs were discharged then why the 'warning' was given to the plaintiffs? If the plaintiffs were warned then impliedly they were not discharged from the proceedings. The order as to the warning and discharge simultaneously in the proceedings u/s 107/151 Cr.PC is beyond comprehension of this court.
42. A person detained for preventing the breach of peace in the society, if warned by the Executive Magistrate this impliedly reveals that magistrate was of the opinion that the accused CS No. 74/2018 Page No. 13 of 16 Digitally signed by KAPIL KAPIL KUMAR KUMAR Date:
2023.11.03 15:23:59 +0530 persons committed something in violation of law but they were left with warning. If there was warning then impliedly there was illegality on the part of plaintiffs herein.
43. If the plaintiffs herein were to be discharged on the ground that there was no illegality on their part then the word 'warning' could not have been mentioned in the order of Ld Executive Magistrate. The order of Ld Executive Magistrate attained finality.
44. The plaintiffs are relying heavily on the orders of Ld Executive Magistrate arguing that since they were discharged impliedly the kalandra prepared by defendant no.4 was illegal. In the considered opinion of this court the order of Ld Executive Magistrate is going against the case of the plaintiff. The order being non-speaking and specifically mentioning the word 'warning' which has been accepted by the plaintiffs being not challenged impliedly reveals that proceedings u/s 107/151 Cr.PC were not conducted without any reason and in these circumstances the preparation of kalandra u/s 107/151 Cr.PC cannot be declared null and void in any circumstances.
45. In view of the facts that-the factum as to the issuing of challan of the truck of the plaintiffs as per law is proved on record; the eye witnesses who are the employees of the plaintiffs not examined; the fate of challan has not been proved by the plaintiff as to whether offenders were exonerated or not; no medical documents available on record as to the injury sustained by the plaintiffs; plaintiffs abused traffic officials resulted into gathering of crowd, inconvenience to public which might CS No. 74/2018 Page No. 14 of 16 Digitally signed by KAPIL KAPIL KUMAR KUMAR Date:
2023.11.03 15:24:08 +0530 resulted into the breach of peace or disturbance to public tranquility and the fact the plaintiffs were warned by the Executive Magistrate, the plaintiffs are not able to discharge their onus of proof required for declaring the kalandra u/s 107/151 Cr.PC issued against them as null and void.
46. In view of the same, the present issue decided against the plaintiffs.
Issue no. (ii) Whether the plaintiffs are entitled to recover the damage from the defendants, amounting to Rs 10,00,000/-, as claimed in the plaint? OPP
47. In view of the findings of issue no.1 the plaintiffs are not able to prove that the kalandra u/s 107/151 Cr.PC was issued against them illegally or they were beaten by defendant no.3 or his subordinates or any illegality committed by defendant no.4 in issuing the kalandra, the plaintiffs are not entitled to any damages on account of their alleged harassment, humiliation, injury or defamation.
48. Accordingly, the present issue is decided against the plaintiffs.
Issue no. (iii) Whether the plaintiffs are entitled to recover the interest from the defendants. If so, at what rate and for which period? OPP
49. In view of the findings on issue no.1 and 2 the plaintiffs are not entitled to any interest on any amount by virtue of present CS No. 74/2018 Page No. 15 of 16 Digitally signed by KAPIL KAPIL KUMAR KUMAR Date:
2023.11.03 15:24:18 +0530 suit and accordingly the present issue is decided against the plaintiffs.
Relief.
50. In view of the findings on issue (i) and (ii) the suit of the plaintiffs is hereby dismissed. No order as to cost.
File be consigned to record room.
Digitally signed by KAPIL KAPIL KUMAR
KUMAR Date:
2023.11.03
15:24:25 +0530
Typed to the direct dictation and (Kapil Kumar)
announced in the open court ADJ-01, North-East
on this 03rd November 2023 KKD Courts, Delhi
CS No. 74/2018 Page No. 16 of 16