Delhi District Court
Sh. Partap Narain Singh vs Union Of India on 30 July, 2018
IN THE COURT OF SH. HARISH KUMAR : ADDITIONAL DISTRICT
JUDGE -13 : CENTRAL DISTRICT : TIS HAZARI COURTS : DELHI
CS No. 11802/2016
In re:
Sh. Partap Narain Singh
S/o Sh. Ram Adhar Singh
R/o C- 1133, Pushpanjali,
Anand Vihar, Delhi ................. Plaintiff
VERSUS
1. Union Of India
Through Secretary
Ministry of Home Affairs,
Govt. of India, New Delhi
2. Commissioner of Police
Delhi Police, PHQ,
I.P.Estate, New Delhi
3. Sh. Mahavir Prasad Singh
Retired ACP, Delhi Police,
Model Town - III
Delhi
4. Sh. Jagdish Parsad
Inspector, Delhi Police
(Auto Theft Branch)
A-107, Pocket - A,
Mayur Vihar, Delhi - 110091
5. Sh. Vinay Tyagi
Head Constable, Delhi Police
P.S. Mukharjee Nagar
Delhi
6. Sh. Sanjay Kumar
Constable Delhi Police,
Old No. 1863/N, Delhi Police,
Present No. 2530 DAP
Third Batalion, Delhi Police,
Vikaspuri, New Delhi
7. Sh. Dharamvir
CS No. 11802/2016 Pratap Narain Singh v. Union of India & Ors. Page No. 1 of 11
Ast. Delhi Police,
Police Control Room, PHQ
New Delhi
8. Sh. Kasturi Lal @ Pappu
S/o Sh. Radhey Shyam
R/o 81-533, Chhawani Mohalla,
Ludhiana (Punjab) ............... Defendants
Date of institution of present suit : 14.01.2008
Date of receiving in the Court : 14.03.2016
Date of Judgment : 30.07.2018
SUIT FOR RECOVERY OF Rs. 15,00,000/-
JUDGEMENT
This judgment shall dispose of suit filed by the plaintiff for recovery of sum of Rs.15 lacs as damages on account of malicious prosecution against defendants.
Case of the plaintiff
1. Plaintiff filed present suit stating that he is a law abiding citizen having no previous bad antecedents or involvement in any criminal activity of any nature and having good reputation.
2. Defendant No.3 who was in Delhi Police as ACP had an evil eye on the property of the plaintiff and made proposal to the plaintiff to sell the same at a nominal price but the plaintiff was not ready to sell the same at desired rate of the defendant No. 3 and due to this reason defendant No.3 became annoyed and in order to force the plaintiff to sell the property, defendant No. 3 got involved the plaintiff in a false case which he got registered with the Police Station Kashmere Gate as FIR No. 237/99 under Section 489-B/489-C/489-D/467/120B of I.P.C. on 31.05.1999. Plaintiff was called at Police Station Lahori Gate, Delhi for negotiations by the defendant No. 3 and after having failed in his attempt. Defendant No.3 got booked plaintiff in the above noted case.
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3. Plaintiff did not know anything and FIR was got prepared even prior to taking the plaintiff at P.S.- Kashmere Gate. The name of the plaintiff and his father's name and address, as communicated by defendant No.3 was already written on memos and in FIR as well. The father's name and address of the plaintiff wrongly mentioned as correct name of the father of the plaintiff was not known to defendant No.3 and as such the same was written as Pratap Narain Singh S/o Sh. Ram Ashish Singh while the correct name of the father of the plaintiff is Ram Adhar Singh. It is evident from the initial documents which were prepared at Police Station by the defendant No.4 at the instance of defendant No.3. Plaintiff was made to sign these papers at Police Station and was involved in the above noted false case.
4. In fact it was a conspiracy at the instance of the defendant No. 3 that the defendant No.4 in collusion with defendant No.8 who acted blindly at the instance of defendant No. 4 joined hands with defendant No.4 and lodged complaint at the instance of defendant No. 4 and these facts are apparent on the face of the record prepared at Police Station Kashmere Gate. Defendants No. 5 to 7 also joined with hands with defendant No. 3 and 4 and blindly signed so called recovery memos of fake recoveries while in fact there was no recovery as evident from the recovery memos and other investigation proceedings alleged to have been conducted by the defendant No. 4.
5. As a result of false involvement, plaintiff was arrested and was prosecuted maliciously for no fault on his part. Plaintiff remained jail for a period of one year and was admitted on bail after about one year or so. Plaintiff suffered mental pain and agony during the period of his custody and trial. Plaintiff continued to sustain mental agony and pain from 31.05.1999 to 16.01.2007 when plaintiff was acquitted by the Session Court presided over by Ms Asha Menon, the then Ld. ASJ Delhi vide order dt 16.01.2007. Plaintiff had suffered financial loss to the tune of Rs 3,00,000/- in defending himself CS No. 11802/2016 Pratap Narain Singh v. Union of India & Ors. Page No. 3 of 11 and plaintiff claims Rs 12 lacs on account of mental pain and agony due to confinement in jail for a period of about one year before his release on bail and for 8 years trial. Hence plaintiff has filed suit seeking damages to the tune of Rs 15 lacs.
Case of the defendant No. 1 to 76. Defendants No.1 to7 filed common written statement thereby raising preliminary objection that suit of the plaintiff is not maintainable because same is time barred according to the provision of Section 140 Delhi Police Act. None of the police officials of P.S. Kashmere Gate, Delhi has personal enmity with the plaintiff and thus there was no occasion for them to implicate the plaintiff in any false case. Plaintiff was accused in case FIR No. 237/99 P.S. Kahsmere Gate, Delhi on the statement and complaint of public person named Kasturi Lal @ Pappu Proprietor "M/s Ajanta Travel Agency", 5, Amar Market, Kashmere Gate, Delhi-6. Acquittal of the plaintiff by the Court was on some different grounds. Hon'ble Court had not held responsible the police officials for registering of false and fabricated case against the plaintiff. Thus mere acquittal of the plaintiff does not entitle him to claim damages from the replying defendants. It has been further submitted that suit is without the previous permission/sanction from the Lt. Governor of Delhi in term of Section 140 of D. P. Act. Prosecution has filed appeal against the acquittal vide writ L.P. No. 135/07 and pending before the Hon'ble High Court. On merits every allegation of the plaintiff was denied except that a FIR 237/1999 was registered on the complaint of Kasturi Lal @ Pappu the proprietor of Anjanta Travel Agency. Defendants further denied any liability towards the plaintiff.
Case of defendant No.8
7. Defendant No. 8 filed his separate written statement whereby taking preliminary objection that suit has been filed without any cause of action against the answering defendant. On merits denying all allegation CS No. 11802/2016 Pratap Narain Singh v. Union of India & Ors. Page No. 4 of 11 specifically it was submitted that plaintiff was accused in FIR No. 237/1999 of P.S. Kashmere Gate and entire case against him was based on the documents recovered by the police during investigation. The complaint of answering defendant was true and correct. It was submitted that plaintiff had deliberately given wrong name and address in order to deceive the police authorities. Answering defendant had no personal animosity against the plaintiff. Hence suit has been sought to be dismissed.
Replication
8. Replication was filed by the plaintiff to the respective written statement of the two set of defendants thereby reiterating the averments made in the plaint and denying the contentions made by the defendant in the written statement.
Issues
9. On the objection being raised a preliminary issue was framed on 23.03.2015 to the following effect:-
Whether notice under Section 140 DP Act was mandatory before filling the suit? If yes, what is the effect of not issuing notice by the plaintiff before filling the suit?
10. Before this issue could be decided all the defendant stopped appearing in the matter and as such they were proceeded against ex-parte and vide order dt 16.12.2017 this court held that since defendants had stopped contesting the matter therefore this issue would be decided after ex-parte plaintiff's evidence.
Evidence
11. Plaintiff led ex-parte evidence by way of his affidavit Ex PW1/A relying upon certified copy of Order of Session Court, Hon'ble High Court, notice issued by him and postal receipts Ex PW-1A PW1B PW1C and CS No. 11802/2016 Pratap Narain Singh v. Union of India & Ors. Page No. 5 of 11 PW1D respectively. His testimony remained uncross-examined. Thereafter plaintiff closed his evidence.
Findings
12. After having gone through the pleadings, evidence, material on record and appreciating arguments of the Counsel for plaintiff, it is clear that in the facts of the present case plaintiff has to stand own his legs as it is the plaintiff who has got to prove that it was at the instance of defendant No.3 that all other defendants joined hands with him to maliciously prosecute the plaintiff. Plaintiff has also got to prove that it was because of his property bearing No. C-133, Pushpanjali, Anand Vihar upon which defendant No. 3 was having an evil eye that all defendants moved against plaintiff in collusion and conspiracy with each other. Plaintiff remained silent in the plaint about the property for which defendant No.3 had an evil on it, however, in replication he disclosed the detail.
13. Thus, present suit of the plaintiff is based on criminal law having been set in motion maliciously against the plaintiff by defendant No. 3 in collusion and conspiracy with defendant No. 2 and 4 to 8 as defendant No. 3 had an evil eye on the property of the plaintiff. Defendants particularly defendant No. 3 have denied such allegation specifically. Plaintiff in his ex-
parte evidence deposed that defendant No.3 had en evil eye on the plaintiff's half share in the property No. C-133, Pushpanjali, Delhi - 92. But plaintiff did not lead any evidence to prove that he had half share in the said property except for his oral testimony. He also did not disclose the circumstance how defendant No. 3 got to know that plaintiff had half share in the said property or how defendant No. 3 became interested in the said property. Meaning thereby that plaintiff did not set out foundational ground to have an iota of substance to at least enable the court to infer even remote possibility of defendant No. 3 having an evil eye upon the said property. Mere allegation without setting out foundational ground even if plaintiff's testimony has CS No. 11802/2016 Pratap Narain Singh v. Union of India & Ors. Page No. 6 of 11 remained un-challenged/un-assailed, is not sufficient to lead this Court to believe the plaintiff's story that plaintiff was involved in false case because defendant No.3 had an evil eye upon the property of the plaintiff.
14. Even if it is believed that defendant No. 3 was interested in the property of the plaintiff then question arises whether there is any evidence to conclude defendant No. 3 had any role in the registration of said FIR No. 237/1999 against the plaintiff. There is no allegation in the plaint that at relevant time defendant No. 3 had control over Kashmere Gate Police Station or that Kashmere Gate Police Station came under his jurisdiction. It is relevant to note that reorganization of district and there jurisdiction has changed many a times, therefore, it was imperative for the plaintiff to allege and prove that at relevant time ACP posted at Sadar Bazar had administrative control over the Kashmer Gate. In the absence even of averment to this effect it cannot be assumed that ACP Sadar Bazar at relevant time had administrative control over P.S. Kashmere Gate.
15. Although defendant have been proceeded against ex-parte but the question whether suit is barred under Section 140 of the Delhi Police Act has got to be answered. Section 140 of The Delhi Police Act, 1978 provides bar to suits and prosecution in following words:-
"140. 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.
CS No. 11802/2016 Pratap Narain Singh v. Union of India & Ors. Page No. 7 of 11 (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 wrongdoer 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 state what tender or amends, if any, has been made by the 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."
16. Hon'ble Supreme Court in K. Kalimuthu v. State by D.S.P; JT 2205 (11) SC 48 held as under:
The protection given under Section 197 is to protect responsible public servants against the institution of possibly vexatious criminal proceedings for offences alleged to have been committed by them while they are acting or purporting to act as public servants. The policy of the legislature is to afford adequate protection to public servants to ensure that they are not prosecuted for anything done by them in the discharge of their official duties without reasonable cause, and if sanction is granted, to confer on the Government, if they choose to exercise it, complete control of the prosecution. This protection has certain limits and is available only when the alleged act done by the public servant is reasonably connected with the discharge of his official duty and is not merely a cloak for doing the objectionable act. If in doing his official duty, he acted in excess of his duty, but there is a reasonable connection between the act and the performance of the official duty, the excess will not be a sufficient ground to deprive the public servant from the protection. The question is not as to the nature of the offence such as whether the alleged offence contained an element necessarily dependent upon the offender being a public servant, but whether it was committed by a public servant acting or purporting to act as such in the discharge of his official capacity. Before Section 197 can be invoked, it must be shown that the official concerned was accused of an offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duties. It is not the duty which requires examination so much as the act, because the official act can be performed both in the discharge of the official duty as well as in dereliction of it. The act must fall within the scope and range of the official duties of the public servant CS No. 11802/2016 Pratap Narain Singh v. Union of India & Ors. Page No. 8 of 11 concerned. It is the quality of the act which is important and the protection of this section is available if the act falls within the scope and range of his official duty. There cannot be any universal rule to determine whether there is a reasonable connection between the act done and the official duty, nor is it possible to lay down any such rule. One safe and sure test in this regard would be to consider if the omission or neglect on the part of the public servant to commit the act complained of could have made him answerable for a charge of dereliction of his official duty, if the answer to his question is in the affirmative, it may be said that such act was committed by the public servant while acting in the discharge of his official duty and there was every connection with the act complained of and the official duty of the public servant. This aspect makes it clear that the concept of Section 197 does not get immediately attracted on institution of the complaint case.
17. In Manoj Pant v. State 1996 RLR 197 Hon'ble Delhi High Court was concerned with interpretation of Section 140 of the Delhi Police Act itself and relevant discussion is found under as under:-
"(11) One thing is certain and it is that in order to come under the protective umbrella of Section 140 of the Delhi Police Act, the act must have been done "under colour of duty or authority or in excess of any such duty or authority." In other words, the Section does not extend its protective cover to every act or omission done by a police officer in service but restricts its scope of operation to only those acts or omissions which are done under colour of duty or authority or in excess of any such duty or authority. For instance, and I am borrowing it from P. Arutswami v. State of Madras, a police officer in discharge of his duty may have to use force which may be an offence for the prosecution of which sanction may be necessary. But if the same officer commits an act in course of service but not in discharge of his duty then the bar is not attracted.
(12) To what extent an act or omission performed by a public servant in discharge of his duty can be deemed to be official was explained by the Supreme Court in Baijnath v. State of Madhay Pradesh. The following observations appearing therein, I feel, clinch the issue as far the case before me is concerned: "A public servant can be said to act or to purport to act in the discharge of his official duty, if his act is such as to lie within the scope of his official duty. Thus, a judge neither acts nor purports to act as a Judge in receiving a bribe, though the judgment which he delivers may be such an act, nor does a Government medical officer act or CS No. 11802/2016 Pratap Narain Singh v. Union of India & Ors. Page No. 9 of 11 purport to act as a public servant in picking the pocket of a patient when he is examining though the examination itself may be such an act. The test may well be whether the public servant, if challenged, can reasonably claim that, what he does, he does in virtue of his office."
18. Upon receipt of complaint regarding commission of cognizable offence, registration of an FIR and its investigation is the duty of Station House Officer or of other officer of particular rank upon assignment by SHO. Similarly, during investigation if other police officials have joined investigation and has witnessed recovery/arrest etc. same are all acting in pursuance of and under color of their duty. It may be so that all have misused their position and have projected happening of an incident which in fact has not happened at all. Now the question which arises is whether the act in such circumstance has been done under the color of duty or authority or in excess thereof or was not under the colour of duty or authority. Keeping in mind the test as laid down above the act of the police officials can not be said to be an act not done under the colour of duty or authority. Hence, Section 140 of Delhi Police Act come into operation and suit of the plaintiff is hit by Section 140 of Delhi Police Act, 1978 at least so fas as defendant No. 1 to 7 are concerned.
19. So far as allegation against defendant No.8 is concerned that he joined hands with defendant No. 3 and participated in his (defendant No. 3) design to falsely implicate the plaintiff in false criminal case. It has already been held herein before that plaintiff failed to convince the court about the role of defendant No. 3 in having an evil eye on his property and therefore, for the said reason it can not be held that defendant No. 8 joined in the conspiracy of defendant No. 3 to falsely implicate the plaintiff. Plaintiff has not been able to cite any other reason against the defendant No. 8 for having made false complaint, if at all it was false. Hence, plaintiff has failed to prove that even defendant No. 8 maliciously prosecuted the plaintiff.
CS No. 11802/2016 Pratap Narain Singh v. Union of India & Ors. Page No. 10 of 11 Relief In view of the above discussion and reasoning suit of the plaintiff is hereby dismissed both on merits as well as in view of Section 140 of Delhi Police Act, 1978.
Parties to bear their own cost.
Decree sheet be prepared accordingly.
File be consigned to Record Room after necessary
compliance. HARISH Digitally signed by
HARISH KUMAR
KUMAR 14:25:51 +0530
Date: 2018.07.30
(Harish Kumar)
Announce in open court ADJ-13 (Central)/THC
(Judgement contains 11 pages) Delhi/30.07.2018
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