Delhi District Court
Unique Case Id No. 02401C0525922008 vs S.I. Pawan Kumar on 21 November, 2013
IN THE COURT OF SH. PITAMBER DUTT; ADJ (CENTRAL)11,DELHI
Suit No. 154/2008
Unique Case ID No. 02401C0525922008
1 Rizwan Khan
S/o Sh. Ahmed Hussain Khan
R/o House No. 7, First Floor
Gali No. 8, Near Radha Kishan Mandir
Old Brij Puri, Delhi-1100031
2 Mohd. Riazuddin Aqbar @ Mohd. Akbar
S/o Mohd. Shafi
R/o B-99, Parvana Road
New Govindpuri
New Delhi ......Plaintiffs
Versus
1 S.I. Pawan Kumar
Then I.O. of the case
Presently at ATS East Delhi
2 S.I. Madan Pal
Then I.O. of the case
Presently at District Line,
East District, Delhi
3 Bahoori Singh
Then Add. SHO
P.S. Preet Vihar
Presently Inspector, Addl. SHO
P.S. Nand Nagri
Delhi ......Defendants
Date of Institution of Suit : 20.03.2008
Date when reserved for orders : 21.11.2013
Date of Decision : 21.11.2013
Suit No. 154/08 Page no. 1/25
JUDGMENT
1 Vide this judgment I shall decide a suit for compensation for malicious prosecution filed by the plaintiff against the defendant. The brief fact necessitated in filing the present suit are given as under:-
2 That plaintiffs are permanent residence of Delhi and earns their livelihood by giving tuition. On 03.09.2001, the brother of plaintiff no. 2 was killed by some person against whom an FIR bearing No. 237/01 under Section 302/324/34 of IPC was registered in PS- Geeta Colony. The plaintiff no. 1 and one Naeem @ Govinda was the key witness in the said case. The plaintiff no, 1 and said Naeem @ Govinda were threatened by the accused person on the said FIR on several occasions. During the trial of the said case, the above person namely Naeem @ Govinda was found dead at Baldev Park n 23.05.2003 and a FIR bearing No. 198/03 was registered. The defendants have falsely and maliciously involved the plaintiff, in the said case at the behest of the accused persons of Geeta Colony murder case and on the basis of illegal gratification.
3 It is further averred that the defendants called the plaintiffs to the police station in the afternoon of 24.05.2003 and started inquiry with plaintiff no. 1, he along with some other police officials forcefully took out all the cloths of plaintiff no. 1 and started beating him badly. The defendant no. 1 with the help of other police personnel also pour petrol in the rectum of plaintiff no. 1. In this manner he along with other police officials tortured him to obtain his signatures on plain papers. The plaintiff no. 2 was also tortured physically by defendant no. 1 and other police officials.
Suit No. 154/08 Page no. 2/254 The defendant no. 1 kept both the plaintiffs in illegal confinement uptill 25.05.2003. In order to torture them to make a forced confessional statement, both the plaintiffs were charge sheeted by the defendant as accused in case FIR No. 198/03. Both the plaintiffs were ultimately acquitted by the Court of Sh. S.C. Malik the then Ld. ASJ vide judgment dated 20.01.2007.
5 The defendants have maliciously prosecuted the plaintiffs on the basis of illegal gratification and on one occasion the money was given to defendant no. 1 in the presence of plaintiff no. 1 by the family members of accused of Geeta Colony murder case. They falsely implicated the plaintiffs in order to save the real culprit and created false evidence against them in the clear disregard of law of land. The defendant no. 1 physically tortured the plaintiffs but the said physical torture was the result of meeting of mind of all the defendants because all the defendants had either investigated the matter or supervised the investigation. The defendants have thus caused irreparable damage to the reputation and financial status of the plaintiffs due to which plaintiffs had confined to jail for about 5 years. On the basis of the aforesaid averment, present suit has been filed for adjudication.
6 Pursuant to the summons defendants appeared and filed their written statement taking preliminary objections that the suit is liable to be dismissed in terms of Section 138 of Delhi Police Act; that there exists no cause of action against the defendant; that suit is barred under Section 41 (d) (i) (h) of Specific Relief Act; that suit is barred under Section 140 of Delhi Police Act, 1978; that no notice under Section 80 of CPC as well as under Section 140 (2) of Delhi Police Act 1987 has been served upon the defendant; that suit is Suit No. 154/08 Page no. 3/25 barred by limitation.
7 On merit it is averred that on 23.05.2003 a call vide DD No. 6A was received in PS Preet Vihar to the effect that one person was lying dead near Brijwasi Mishthan, Baldev Park, Brijwasi Gali. The said DD was marked to ASI-Ram Singh who along with Constable Ram Bhajan reached at the spot. Inspector Bahoori Singh and Inspector Kailash Chand also reached at the spot along with SI-Madan Pal and found one person lying dead who was identified as Naeem @ Govinda, S/o Bashir Ahmad. Postmortem of the dead body conducted and doctor opined cause of death Asphyxian, consequently, a case vide FIR No. 198/03 under Section 302/IPC was got registered. The investigation was conducted by defendant no. 3 and during the investigation he recorded the statement of deceased's father, Bashir Ahmad, Waqar Ali and other persons and thereafter both the plaintiffs were interrogated who confessed their crime. Both the plaintiffs were arrested and after completion of investigation, charge sheet was filed in the court. However, the plaintiff have been acquitted by the Ld. ASJ. It is denied that defendants have falsely and maliciously involved the plaintiff at the behest of accused person of Geeta Colony murder case and on the basis of illegal gratification. They also denied that defendants physically tortured the plaintiff. It is stated that defendants carried out investigation fairly and same was the part of their duty. The allegations levelled by the plaintiff are baseless, false and with the motive to harass the defendants. All other averments have been denied. It is prayed that suit be dismissed with cost.
8 On the basis of the pleadings of the parties, the Ld. Predecessor of this court vide order dated 07.08.2009 framed the following issues for Suit No. 154/08 Page no. 4/25 adjudication:-
1. Whether the suit is time barred? OPD
2. Whether the suit is not maintainable for want of requisite notice under Section 140 Delhi Police Act and Section 80 CPC? OPD
3. Whether the suit is without any cause of action? OPD
4. Whether the suit is barred by Section 41 (d) (i) (h) of Specif Relief Act? OPD
5. Whether the plaintiff is entitled to a decree for the amount of compensation as claimed? OPP
6. Relief.
9 In order to prove their case, plaintiff no. 1 has examined himself as PW-1 and reiterated the averment made in plaint in his examination in chief. During cross examination PW-1 briefly deposed that he had not made any complaint to the police regarding threat extended by the accused who committed murder of his brother. He is not aware who was investigating the FIR No. 445/2001. He denied that he made SI-Pawan Kumar as defendant due to the fact that he was not investigating FIR No. 445/2001 as per his wish. He further stated that he is not aware if investigation of FIR No. 198/2003 was started on the statement of the father of Naeem or not. He further stated as he is also not aware if he was called by the police for investigation as witnesses gave statement in the said murder case against him. He denied that he has not visited the police station when he was called and therefore he was taken by the police from his resident. He also denied that some cloths were recovered from his residence pursuant to which he was called. He further stated that he was produced before the court on 26.05.2003. He did not make any complaint before the Ld. MM before whom he was produced by the police Suit No. 154/08 Page no. 5/25 on 26.05.2003. He also did not file any application for getting any medical examination. He does not remember the name of police officer who was present. He has not filed any complaint against the defendants even after acquittal from the said case with any authority. He has not stated to the Doctor about the injury done to him by the defendant when he was taken for examination. He denied that he was not beaten or tortured during his custody, that is why he has not stated the fact of injury to the Doctor who conducted medical examination. He further stated that he has no proof to show the defendant demanded any bribe from him. He further stated that he did not file any application before the Ld. MM regarding his tortured by the police and forcing him to give confessional statement. He denied that he was not falsely implicated in FIR No. 198/03 PS-Preet Vihar. He does not remember when he gave money to SI-Pawan Kumar as illegal gratification. He also does not have any document or witness to support his plea that he paid the said money to SI Pawan Kumar. He denied that police officer conducted their investigation as per law. He also denied that he remained in jail because he was accused in criminal case and there is no fault of the defendant.
10 The plaintiff no. 2 examined himself as PW-2 and reiterated the averment made in the plaint in his examination in chief. PW-2 mark the legal notice as Mark-A. The receipt of the legal notice Ex.PW2/B(Colly). During cross examination, PW-2 briefly deposed that he has filed a suit against the defendant as defendant illegally framed him in a criminal case. He knows Bashir Ahmad who is the father of the Naeem, deceased. He is not aware if Bashir Ahmad lodged a complaint with the police mentioning that he visited his house along with two other persons and extended threat to him. He is also not aware if Bashir Ahmad suspected him in the murder of his son or not. He Suit No. 154/08 Page no. 6/25 denied that he was pressurizing deceased / Naeem to depose in a murder case of his brother registered in PS-Geeta Colony being FIR no. 237/01. He further stated that he was not arrested by the police. He volunteered that he himself went to the police station on 24.05.2003. He further stated that police personnel came to call him but they did not disclose the purpose for which they called him in the police station. He further stated that in the police station investigation was started by defendant no. 1. Thereafter, defendant no. 1 along with 2-3 persons put him in another room and started beating him. He was sent to judicial custody on 26.05.2003. He made a complaint to Ld. Magistrate regarding the beating by defendant no. 1. His medical was also got conducted. He has not placed on record the copy of medical report. He further stated that he has not made any complaint in writing to any of the authority regarding the maltreatment. He has not placed any document of his treatment in the jail on record. He admitted that Bashir Ahmad deposed that he was not involved in the murder case. He denied that none of the defendant had ever demanded bribe from him at any point of time. He also denied that police had taken action against him and Rizwan as per the law and in discharge of their official duty. He also denied that he remained in the jail due to his own act and not due to the fault of the defendant. He also denied that there was material found against him during the investigation, therefore, he was sent behind the bar.
11 In order to answer the claim of the plaintiff, defendant no. 3 has examined himself as DW-1 and reiterated the averment made in the written statement in his examination in chief. DW-1 exhibited the Case Diary dated 25.05.2003 and 26.05.2003 as Ex.DW1/1 & E.x.DW1/2. During cross examination, DW-1 briefly deposed that he investigated the FIR No. 198/03 Suit No. 154/08 Page no. 7/25 registered in PS-Preet Vihar. SI-Pawan Kumar and SI Madan Pal had assisted him in the investigation. He admitted that an FIR No. 445/2001 dated 07.09.2001 was registered in PS-Preet Vihar and the matter was referred to SI-Pawan Kumar for investigation. SI-Pawan Kumar is the same sub- inspector who was also assisting him in FIR No. 198/03. He further stated that they have received the information of death of Naeem through PCR. The dead body was identified by his father namely Bashir Ahmad. They recorded the statement of the father of deceased. The postmortem was completed in afternoon of 23.05.2003. They first time recorded the statement of Bashir Ahmad in the night of 23.05.2003 which is Ex.DW1/P1. He recorded the statement of Bashir Ahmad after 7o'clock in the night on 23.05.2003. He denied that statement of Bashir Ahmad recorded under Section 161 of Cr.P.C. is false and malicious. He also denied that Bashir Ahmad never gave any statement raising suspicion on the plaintiff. He further stated that he arrested the plaintiff on 25.05.2003. He is aware that at the time of arrest the signatures of any of the family members of the arrestee or any respected member of the society has to be obtained on the arrest memo. He denied that plaintiff were taken into custody on 24.05.2003 and tortured uptill 25.05.2003 and a manipulated arrest was shown on 25.05.2003. He has further stated that he was not aware whether Naeem and plaintiffs were receiving threats from accused persons of Geeta Colony Murder case. He was fully aware of the fact that Naeem was an important witness of Geeta Colony murder case. He did not interrogate or called the accused persons of Geeta Colony murder case. He denied that he in collusion with the accused persons of Geeta Colony murder case had not investigated the angle of involvement of the accused persons in the murder of key witness. He denied that they received illegal consideration from the accused persons of Geeta Colony murder case Suit No. 154/08 Page no. 8/25 to falsely implicate the plaintiff. He also denied that they tortured the plaintiff in order to force them to confess the alleged crime by hitting at the secret organs and by using petrol. He further stated that the Head Office of Delhi Police is situated at IP Estate. He did not inquire from Head Office before the suit and even after the suit whether any notice from the plaintiff was sent in his name. He does not remember whether he had received the notice from the plaintiff or not. He denied that he maliciously implicated the plaintiff at the behest of the accused persons of Geeta Colony murder case. He also denied that he along with other police officers tortured the plaintiff to confess the alleged crime.
12 The defendant no. 1 examined himself as DW-2 and reiterated the averment made in the written statement in his examination in chief. During cross examination, DW-2 briefly deposed that he was posted in PS-Preet Vihar on 23.05.2003, when the FIR bearing No. 198/2003 was registered. He volunteered that he was on leave on 23.05.2003. He denied that he was not on leave on 23.05.2003. He has not filed any documentary evidence of his leave on 23.05.2003 and 24.05.2003. He further stated that he was involved in the investigation of the FIR No. 198/2003 on 25.05.2003. He further stated that any senior can ask him to join the investigation of any case. There is no written order, asking him to join the investigation. He denied that he was part of the investigation team since 23.05.2003. He further stated that they arrested plaintiffs on 25.05.2003 from their respective house. He denied that both the plaintiffs were called at the police station on 24.05.2003. He also denied that plaintiffs was physically tortured by various method and were illegally confined up till 25.05.2003. He also denied that when plaintiffs refused to give bribe money they were falsely implicated in the FIR No. Suit No. 154/08 Page no. 9/25 198/2003. He further stated that he does not remember that he has obtained the signatures of any family member or neighborers of the plaintiffs. He cannot say whether the deceased in FIR No. 198/03 namely Naeem was an eye witness in Geeta Colony murder case. He admitted that FIR bearing No. 445/01 dated 07.09.2001 was entrusted to him for investigation. He denied that deceased / Naeem and other witnesses were receiving threats from the accused persons of Geeta Colony murder case. He also denied that he falsely implicated the plaintiff in collusion with the accused persons of Geeta Colony murder case. He cannot tell whether he made any inquiry from Delhi Police Head Office about any notice or no. He cannot tell whether he received the legal notice of the plaintiff before the case. He denied that he received legal notice. He also denied that they falsely and maliciously implicated the plaintiff in FIR No. 198/03. He also denied that they illegally confined the plaintiffs and tortured them to sign confession.
13 The defendant no. 2 examined himself as DW-3 and reiterated the averment made in the written statement in his examination in chief. During cross examination, DW-3 briefly deposed that he was posted at PS-Preet Vihar in April, 2003. He joined the investigation on 23.05.2003. Inspector Bahoori Singh was the investigating officer of Case FIR No. 198/2003. He cannot say whether defendant no. 1 was also assisting in the investigation. He volunteered that he can only tell about his first day at that time inspector Bahoori Singh was the investigating officer. He was not knowing that the deceased in FIR bearing No. 198/2003 was an eye witness in a murder case registered in Geeta Colony, police station bearing FIR No. 237/01. He further stated that after receiving the information he reached at the spot alongwith Inspector Bahoori Singh and Constable Ram Bhajan and also Constable Brij Suit No. 154/08 Page no. 10/25 Bhushan. He never joined investigation with SI-Pawan Kumar, defendant no.
2. Inspector Bahoori Singh recorded the identification statement. He further stated that document Ex.DW-3/P1 was recorded by him. He does not remember when the statement of the father of the deceased was firstly recorded. He also does not remember if the statement of the father of deceased was recorded in his presence or not. He does not know if the accused of the case in which the deceased was a witness was ever examined by the I.O. or not. He denied that he along with Bahoori Singh and SI-Pawan Kumar have implicated the plaintiff in false criminal case in collusion with the accused persons of murder case bearing FIR No. 237/01, PS-Geeta Colony. He does not remember if he had received any notice from the plaintiff in the year 2007.
14 I have heard both the Ld. Counsels for the parties and perused the pleadings and evidence and other material placed on record. My issue wise findings are as under:-
15 ISSUE NO. 1 Whether the suit is time barred? OPD The defendants have taken a plea in para- 8 of the preliminary objection of the written statement that the suit filed by the plaintiffs is barred by limitation. The plaintiffs have not filed any replication and has thus not controverted the said plea.
16 The plaintiffs have filed the present suit for malicious prosecution against the defendants. Article 74 of the Limitation Act 1963 provides period of limitation for filing suit for malicious prosecution which is as under:-
Suit No. 154/08 Page no. 11/25 Description of suit Period of Time from which period
Limitation begins to run
74. For compensation for a One year When the plaintiff is acquitted or
malicious prosecution. the prosecution is otherwise
terminated.
17 The defendants were posted as Police Officer at the relevant time in
PS-Preet Vihar. Section 140 (1) of Delhi Police Act 1978 also prescribe limitation for initiating proceeding against police officer which reads as under:-
Section 140. Bar to suits and prosecution:--- (1) In any case of alleged offence by a police officer or other persons, 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 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 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.
18 The plaintiffs have filed the present suit for malicious prosecution against the defendants on the ground that they had prosecuted them in case FIR No. 198/2003 at the behest of accused of Geeta Colony Murder case and ultimately they were acquitted by the Competent court of jurisdiction in the said court, therefore, they are liable for compensation from the defendants. The plaintiffs were acquitted in the said criminal case vide judgment dated 20.01.2007. As per Article 74 of the Limitation Act, a suit for malicious prosecution can be filed within one year from that date of termination of Suit No. 154/08 Page no. 12/25 prosecution. The plaintiffs were acquitted vide judgment dated 20.01.2007, thus the present suit could have been filed by the plaintiffs within one year from that date i.e. upto 20.01.2008. The plaintiffs, however, have filed the present suit on 20.03.2008 i.e. after one year from the date of their acquittal.
19 As per Section 140 (1) of Delhi Police Act, no action against the police officer can be entertain by the court, if such suit is instituted after more than three months after the date of act complain of. The question which needs to be examined in this case is whether the present case shall be governed by Article 74 of Limitation or by Section 140 (1) of Delhi Police Act, 1972.
20 The Delhi Police Act has been enacted for the purpose of amending and consolidating the law relating to regulation of police in the union territory of Delhi. The Act is a special enactment. Section 140 of the Act imposes certain limitations in the matter of institution of suit and prosecution against the police officers in respect of acts done by a police officer under the colour of their duty or authority. One such limitation is that such suit or prosecution shall not be entertained and if entertained shall be dismissed if it is instituted after more than month from the date of the Act complained of.
21 The Hon'ble Supreme Court of India in Prof. Sumer Chand Vs. Union of India reported as AIR 1993 Supreme Court 2579 has held that:-
"Where a suit for malicious prosecution against two police officers alleging that one police officer was incharge of police post had registered a false, vexatious and malicious report against a person and another officer who was Station House Officer had filed the challan in the Court against him and other accused on the basis of the said report was filed after the expiry of three months from acts Suit No. 154/08 Page no. 13/25 complained of, it was barred by limitation. The act thus alleged were done under the colour of office of the said officers and would fall within the ambit of Section 140(1) of Delhi Police Act because it was the duty of the said first officer being incharge to Police Post to record the report and so also it was the duty of the another officer to file the challan in the court. The acts complained of were therefore, done under the colour of office of the said officers and fell within the ambit of Section 140(1) of the act. In such a case, the period of limitation for institution of the suit would be that prescribed in Section 140 and not the period prescribed in Article 74 of the Limitation Act. The Limitation Act is an enactment which consolidates and amends the law for the limitation of suits and other proceedings connected therewith. It is a law which applies generally to all suits and proceedings. It is, therefore, in the nature of general enactment governing the law of limitation. The Delhi Police Act has been enacted for the purpose of amending and consolidating the law relating to regulation of police in the Union Territory of Delhi. The Act is a special enactment in respect of matters referred to therein. Section 140 of the Act imposes certain restrictions and limitations in the matter of institution of the suit and prosecutions against police officers in respect of acts done by police officer colour of duty or authority or in excess of such duty or authority. 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"Suit No. 154/08 Page no. 14/25
22 In the instant case, the defendants were posted as Police Officer in the PS-Preet Vihar, thus received intimation with regard to the death of one person. The defendants carried out investigation and arrested the plaintiff, and filed charge sheet before the court of competent jurisdiction. The plaintiffs, were ultimately acquitted by the court holding that the prosecution could not prove the charge against them beyond reasonable doubts. The act of the defendants complaint by the plaintiffs was done by them in performance of their duty, therefore, the act complained against defendants squarely comes under Section 140 (1) of Delhi Police Act 1978 and the suit for malicious prosecution against defendants should have been filed within the period of three months from the date of act complained of.
23 The instant suit, however has been filed after the expiry of three months period from the date of acquittal of the plaintiffs. The instant suit has been filed even after the expiry of one year from the date of their acquittal, same is thus barred by limitation.
24 In view of the above facts and circumstances, I am of the considered view that present suit filed by the plaintiffs against the defendants is barred by limitation. The defendants have successfully discharged the onus of Issue No. 1, same is accordingly in favour of the defendants.
25 ISSUE NO. 2 Whether the suit is not maintainable for want of requisite notice under Section 140 Delhi Police Act and Section 80 CPC? OPD The defendants have taken a plea that plaintiff have not served any notice before filing the suit as provided under Section 80 CPC as well as Suit No. 154/08 Page no. 15/25 Section 140 of Delhi Police Act 1978, therefore, suit is liable to be dismissed. The plaintiffs have averred in para-28 of the plaint that they have served the legal notice upon the defendants through Commissioner of Police vide speed post before filing the suit.
26 In order to substantiate the above plea, plaintiff no. 2 has examined himself as PW-2 and reiterated the fact regarding service of notice in compliance of Section 80 CPC in para-22 of his examination in chief. He has also exhibited the legal notice and postal receipt as Ex.PW2/A and Ex.PW2/B. The defendant has not controverted the above testimony of PW2 made by him in para 22 of his examination in chief. The defendants thus deemed to have admitted that plaintiffs served legal notice upon them in compliance of the statutory provision before filing the present suit.
27 The onus to prove the fact that the suit is not maintainable for want of requisite notice under Section 140 of Delhi Police Act and Section 80 CPC is upon the defendants. But defendants have not disputed the fact that the plaintiff served legal notice upon them before filing the suit. The DW-1, during cross examination showed his ignorance4 about the fact that whether he received the notice of the plaintiff or not. The plaintiff on the other hand, made necessary averment in the plaint with respect to legal notice served upon the defendants before filing the suit. They have also placed on record notice dated 18.09.2007 as well as postal receipt Ex.PW2/B which clearly shows that the plaintiff served legal notice in compliance of Section 80 of CPC and 140 of Delhi Police Act before filing the present suit.
28 In view of the above facts and circumstances, I am of the considered Suit No. 154/08 Page no. 16/25 view that plaintiffs had served the notice as required under Section 80 of CPC as well as Section 140 of Delhi Police Act upon the defendants before filing the present suit. The defendants have failed to discharge the onus of Issue No. 2, same is accordingly decided against the defendants.
ISSUE NO. 3 Whether the suit is without any cause action?
OPD The defendants have taken a plea that plaintiffs have no cause of action against them for filing the suit. The plaintiff has controverted the said claim in the plaint filed by them.
30 An examination of the pleadings and evidence led on record shows that defendants were posted as police officer at PS-Preet Vihar during the year 2003 when they registered and FIR No. 198/2003 under Section 302 IPC against the plaintiffs who were made accused in the said FIR. The plaintiffs were arrested by the defendants and were put into trial in the said criminal case. The plaintiffs are ultimately acquitted by the court of competent jurisdiction in the said criminal case holding that prosecution had failed to prove cause beyond reasonable doubts. The said fact clearly shows that plaintiffs have cause of action for filing the present suit against the defendants.
31 In view of the above facts and circumstances, I am of the considered view that plaintiffs have cause of action for filing the suit against the defendants. The defendants have failed to discharge the onus of Issue No. 3, same is accordingly decided against the defendant.
32 ISSUE NO. 4 Whether the suit is barred by Section 41 (d) (i)
(h) of Specif Relief Act? OPD Suit No. 154/08 Page no. 17/25 The defendants have taken a plea that suit is barred under Order 41 (d)
(i) (h) of Specific Relief Act because other equally efficacious remedy is available to the plaintiffs. The defendants though have taken a plea that suit is barred under Order 41 (d) (i) (h) of Specific Relief Act but they have not pointed out as to which of the other efficacious remedy available to the plaintiffs against the defendants. No material whatsoever has been placed by the defendants on record which can show or suggest that plaintiffs have any other equally efficacious remedy available against them. They have also failed to substantiate their plea that the suit filed by the plaintiffs against them is barred under Section 41 (d) (i) (h) of Specific Relief Act.
33 In view of the above facts and circumstances, I am of the considered view that defendants have failed to prove on record that the present suit is barred under Order 41 (d) (i) (h) of Specific Relief Act. The defendants have failed to discharge the onus of Issue No. 4, same is accordingly decided against the defendants.
34 ISSUE NO. 5 Whether the plaintiff is entitled to a decree for the amount of compensation as claimed? OPP Plaintiffs have taken a plea that defendants falsely and maliciously involved them in a criminal case being FIR NO. 198/2003 under Section 302 IPC at the behest of accused persons of Geeta Colony murder case being FIR No. 237/2001 under Section 302/324/34 IPC. They have further taken a plea that on 24.05.2003, defendants called the plaintiffs in the police station where defendant no. 1 removed the cloths of the plaintiffs and beaten them black and blue. The defendant no. 1 also pour petrol in the rectum of the plaintiffs. He kept both the plaintiffs in illegal confinement from 24.05.2003 to Suit No. 154/08 Page no. 18/25 25.05.2003 and tortured them to make a confessional statement. The plaintiffs were charged with murder and they languished in jail and were finally acquitted by the court of Sh. S. C. Malik the then Ld. ASJ vide judgment dated 20.01.2007. As per the plaintiff they were maliciously prosecuted by the defendant, therefore, they are entitled for damages to the tune of Rs. 5,00,000/- each from the defendants.
35 The defendants have taken a plea that they were posted as police officer in PS-Preet Vihar during the relevant time. They carried out investigation of FIR No. 198/2003 under Section 302 IPC and arrested the plaintiffs who confessed their guilt. After completion of the inquiry, charge sheet was filed in the court. They have further pleaded that they performed their duty in the colour of their office and carried out investigation fairly. As per the defendants, they performed their duty as per the law and not prosecuted the plaintiffs maliciously , therefore, they are not liable for any damages.
36 In order to substantiate their plea, both the parties have led their respective evidence.
37 A careful examination of the pleadings and evidence led on record shows that the grievance of the plaintiffs is that defendants had registered an FIR No. 198/03 under Section 302 IPC against them at the behest of the accused persons of Geeta Colony Murder case. As per the plaintiffs, they were maliciously prosecuted by the defendant with an intention to malign their reputation, therefore, defendants are liable for damages. On the other hand, the case of the defendants is that they were posted as police officer in PS- Preet Vihar during the relevant period, they received information with respect Suit No. 154/08 Page no. 19/25 to commission of an offence and accordingly registered FIR and carried out investigation as per the law. As per the defendants, they performed their duty fairly and in good faith and not maliciously, therefore, they are not liable for any damages.
38 Malicious in its legal sense means such as may be assumed from the doing of a wrongful act intentionally but without just cause or excuse or for want of reasonable or probable cause. Malicious prosecution is a prosecution of some charges of crime which is willful or reckless. In malicious prosecution there are two essential element namely that no probable cause exists for instituting the prosecution or such prosecution terminated in favour of the plaintiffs.
39 The plaintiffs must prove to succeed in an action of damages for malicious prosecution that : (1) the defendants filed criminal case against the plaintiff before the competent court, (2) that the said criminal case complained of was terminated in favour of the plaintiffs, (3) that the defendant instituted or carried on such proceedings maliciously and (4) that there was an absence of reasonable and probable cause of such proceedings and (5) that plaintiff has suffered damages.
40 The onus of proving all the above conditions is upon the plaintiffs. The principle to be borne in mind in the case of cause of action for malicious prosecution are that malice is not merely doing a wrongful act intentionally but it must be established that the defendants actuated by manis animus i.e. to say by ill will or indirect or improper motive but if the defendant had reasonable or probably cause of launching criminal prosecution, no amount of Suit No. 154/08 Page no. 20/25 malice will make them liable for damages.
41 The plaintiff has filed the present case of malicious prosecution against defendants on the ground that defendants being the police officer have not carried out the investigation of FIR NO. 198/2003 under Section 302 IPC in an appropriate manner and have maliciously prosecuted the plaintiffs in that case in which they were ultimately acquitted. A perusal of the pleadings and evidence placed on record shows that the plaintiffs have taken a plea that they were implicated in FIR NO. 198/2003 by the defendant at the behest of accused of Geeta Colony Murder case being FIR No. 237/2001 under Section 302/324/34 IPC. The plaintiffs however, have not placed any material whatsoever on record which can show or suggest that they were implicated by the defendants in case FIR No. 198/03 on the behest of accused persons of case FIR No. 237/2001. No material whatsoever has been placed by the plaintiff on record in this regard.
42 The plaintiffs have further taken a plea that they were called by the defendants in the police station on 24.05.2003 and were tortured by defendant no. 1 along with some other police officer who were in civil dress. They have further pleaded that defendant no. 1 removed the cloths of plaintiffs and pour petrol in their rectum thus forced them to confess their guilt in the said FIR. The plaintiff, however, have not placed any material to substantiate their above plea.
43 The plaintiffs have sought to raise a plea that they were tortured by defendant no. 1 in the police station inhumanely and were forced to give their confessional statement. Both the plaintiffs during cross examination have Suit No. 154/08 Page no. 21/25 admitted that they were produced before the Ld. MM on 24.05.2003. PW-1 categorically stated that he did not make any complaint either to Ld. MM or to any other authority regarding the ill treatment done by defendant no. 1 to them. If plaintiffs were tortured in a manner stated by them in their plaint, then it was incumbent upon the plaintiffs to make complaint to the Ld. MM where they were produced after arrest but plaintiffs had made any such complaints. Moreover, both the plaintiffs were medically examined under the order of Ld. MM, but the Doctor who conducted their examination has not detected any such injury caused at the private part of the plaintiffs by defendant no. 1 or by any other police officer.
44 The aforesaid fact thus clearly shows that defendant had not tortured the plaintiffs in the manner stated by them in their plaint or in their examination in chief. Otherwise they would have disclosed the said fact to the court concern where they were produced by the police or the said injury at least could have been detected in their medical examination.
45 The plaintiff has also taken a plea that they were implicated in the said criminal case by the defendants on the basis of gratification taken by them from the accused of FIR No. 237/2003. The said allegations has primarily levelled against defendant no. 1. The plaintiffs, however, have not placed any material whatsoever on record which can show or suggest that any such gratification was taken by defendants for initiating criminal proceedings against them. The plaintiff have not furnished any particular as to when the said amount was given, who had given the said amount, how much amount was given and what the plaintiffs were doing at that point of time when the said amount was given.
Suit No. 154/08 Page no. 22/2546 It is also relevant that defendant no. 1 against whom the allegations of gratifications have levelled by the plaintiffs has examined himself as DW-2. He has been extensively cross examined by Ld. Counsel for the plaintiff, however, no suggestion whatsoever was given to DW-2 to the effect that he received bribe from the accused of Geeta Colony Murder Case. In the absence of any suggestion or cross examination of DW-2 in this regard, the plea of the plaintiffs that defendant no. 1 had taken gratification on one occasion from the family members of the accused of Geeta Colony Murder Case in the presence of plaintiff no. 1 remained unsubstantiated and unproved.
47 The defendants were posted as police officer during the relevant period when they received information vide DD No.6A regarding a dead body. On receiving that information, defendant no. 2 & 3 being the police officers posted in the PS-Preet Vihar reached at the spot and started investigation as per the law. The defendant no. 1 who was sub-Inspector in the PS-Preet Vihar also joined investigation at the instance of the IO of the said case. The act of the defendants was squarely comes within the ambit of their duty which they were bound to carry out in any manner.
48 The grievance of the plaintiff is that the defendants had not carried out investigation in appropriate manner because they had not interrogated the accused of Geeta Colony Murder Case, because the deceased of FIR No. 198/2003 was one of the witness in the said case. The defendants carried out investigation and during investigation they recorded the statement of the father of the deceased who was examined before the Sessions Court as Suit No. 154/08 Page no. 23/25 PW-4. The said witness, however, was declared hostile by the court and the Ld. APP carried out his cross examination. The court of Sh. S.C. Malik the then ASJ has acquitted the plaintiffs vide judgment dated 20.01.2007. While acquitting the plaintiffs, the Ld. Judge has held that the accused persons are entitled for benefit of doubts, therefore they were acquitted from the offence charged against them. If the defendants had not carried out investigation in an appropriate manner or they were flow in the investigation carried out by them, it was with jurisdiction of the court who tried the said case to make and observation in that regard or to order re-investigation, if needed. The Court of Sh. S. C. Malik the then ASJ, has not made any such observation while acquitting the plaintiffs in the said case.
49 The police officers are required to carry out investigation as per the law and to their best ability. The plaintiffs have no right to determine as to how defendants were to carry out investigation. It they were aggrieved from the manner in which the investigation was carried out they had remedy under the law to seek transfer of investigation or any appropriate order. At best, it can be said that the defendants had not carried out the investigation efficiently and they were required to interrogate the accused of Geeta Colony Murder Case. But merely on these ground, it cannot be held that defendants have prosecuted the plaintiff maliciously.
50 The defendants were made accused on the basis of the statement of the father of the deceased which was recorded under Section 161 Cr.P.C. during investigation. The father of the deceased though turned hostile before the court but said fact itself not sufficient to attribute motive upon the defendants for implicating the plaintiffs in case FIR No. 198/03. The Suit No. 154/08 Page no. 24/25 defendants were acting as police officer and has acted in the colour of their office and have carried out investigation bonafidely. Thus their act of registration of FIR and submission of charge sheet against the plaintiffs was done by them in good faith and same is protected under Section 138 Delhi Police Act.
51 In view of the above facts and circumstances, I am of the considered view that plaintiffs have failed to prove on record that defendants have ill will or malafide intention against the plaintiffs while prosecuting them in case FIR No. 198/2003. The plaintiffs have also failed to prove on record that the defendants prosecuted them maliciously or without any reasonable and probable cause. The plaintiff have thus failed to prove on record that defendants have prosecuted them maliciously. The plaintiffs have thus failed to discharge the onus of Issue No. 5, same is decided against the plaintiffs.
52 RELIEF.
In view of the above, the suit filed by the plaintiffs against the defendants is dismissed. No order of cost. Decree sheet be accordingly prepared. File be consigned to record room after due compliance.
Announced in the open court (PITAMBER DUTT)
On the 21st of November, 2013 Additional District Judge
Delhi
Suit No. 154/08 Page no. 25/25