Kerala High Court
Hakkim Batheri vs O.K. Kunhikrishnan on 9 November, 2012
Author: K. Vinod Chandran
Bench: K.Vinod Chandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
FRIDAY, THE 9TH DAY OF NOVEMBER 2012/18TH KARTHIKA 1934
CRP.No. 611 of 2006 ( )
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AS.145/1997 of DISTRICT COURT,THALASSERY
OS.406/1994 of ADL.SUB COURT, THALASSERY
REVISION PETITIONERS/APPELLANTS 1 & 3/DEFENDANTS 1 & 4::
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1. HAKKIM BATHERI, AGED 53 YEARS,
S/O. HASSAN KUNHI, DY. S.P.OF POLICE
RESIDING AT KANNUR.
2. BALAKRISHNAN NAMBIAR,
S/O. NARAYANAN NAMBIAR, AGED 55 YEARS
RETIRED SUB INSPECTOR OF POLICE
RESIDING AT NELLOOI P.O., MATTANNUR.
BY ADV. SRI.P.T.ANTONY
RESPONDENTS/RESPONDENT NO.1/PLAINTIFF::
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O.K. KUNHIKRISHNAN, S/O.KUNHIRAMAN,
AGED 45 YEARS, ADVOCATE, RAMANTHALI
PAYYANNUR.
BY ADV. SRI.M.SASINDRAN
THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON
09-11-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
K. VINOD CHANDRAN, J
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C.R.P No. 611 of 2006
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Dated this the 9th day of November, 2012
O R D E R
Police excesses, which is the bane of civilized society, from its very inception, is the cause of action for the suit for damages filed by the two public-spirited persons who were politically active and were admittedly prominent members of a political party. The 1st revision petitioner herein is the 1st defendant, the Dy. Superintendent of Police, Thaliparamba and the 2nd revision petitioner is the 4th defendant, who was a Head Constable with the Armed Reserve Police. The 2nd and 3rd defendants, who were police officers, alleged to be involved in the incident have not chosen to challenge the appellate orders.
2. The incident in which the plaintiffs in the respective suits claimed to have suffered mental agony and pain as also loss of face happened on 9.12.1991. Admittedly, on the said day there was a 'Bandh' declared. The situation in the northern districts of the State, allegedly was tense and there were also incidents of communal riots. The local police was CRP611 of 2006.
: 2 :deployed with the assistance of the Armed Reserve Police for maintaining law and order. The 1st respondent herein, the plaintiff in O.S 406/1994, is a practicing advocate, who was then, also an elected Panchayat Member. Hearing about some untoward incidents happening within the jurisdiction of the Panchayat Ward, represented by him, he was proceeding to the spot when he met the plaintiff in O.S.No.407/1994. The plaintiff in O.S No.407/1994 was a prominent leader of a political party to which the plaintiff herein also owed allegiance. Incidentally, it was their party which had called for the 'bandh'.
3. Both the plaintiffs together proceeded in a two wheeler and having reached the spot, parked the vehicle on the side of the road, near which a contingent of police was deployed with the first defendant, DySP, in charge. It was alleged in the plaint that without any provocation, the defendants 3 and 4 came up to the plaintiffs and abused them. Then, on the direction of the DySP they were arrested by the 2nd defendant. The 2nd defendant handed them over to defendants 3 and 4 who assaulted them and forcibly took them CRP611 of 2006.
: 3 :to the police station in a jeep. While the plaintiffs contended that the arrest was made at 1.00 p.m, DW3, the 2nd defendant, Additional Sub Inspector, who made the arrest, claimed that it was at 1.30 p.m. A crime was registered and the plaintiffs were detained overnight in police custody. The plaintiffs were produced by DW3 on the next day before the Judicial First Class Magistrate, Taliparamba at 3.45 p.m. The plaintiffs complained of assault by the policemen and on the directions of the Magistrate, they were taken to the District Hospital, wherein they were examined by the Civil Surgeon on duty and the wound certificate prepared. The plaintiffs alleged that the arrest was illegal and their detention without production before the Judicial First Class Magistrate within 24 hours stipulated in the Code of Criminal Procedure, was against the provisions of the Code.
4. The 1st appellant/the 1st defendant contended in his written statement that at Ramanthali, where the alleged cause of action occurred, the situation was very tense due to communal clashes. The DySP claimed that the plaintiffs in both the suits were instigating and abetting culprits and was CRP611 of 2006.
: 4 :attempting to intervene in the clashes. It was specifically pleaded that the arrest of the plaintiffs by the 2nd defendant was due to the activities of the plaintiffs in instigating and abetting the commission of offence. The allegations of abuse, physical assault etc.,were also denied. The 2nd defendant separately and the defendants 3 and 4 together filed a written statement, in tandem, with the contentions raised by the first defendant. All the defendants claimed protection under Section 64 of the Kerala Police Act, 1960.
5. The above revision filed under Section 115 of the Code of Civil Procedure, by reason of the pecuniary jurisdiction, is one akin to a proceeding under Section 100 of the Code of Civil Procedure. The courts below, who were the fact finding authorities have concurred in concluding that the plaintiffs were entitled to damages and computed the same at an amount of Rs. 25,000/- each. This Court sitting in revisional jurisdiction is called upon to examine whether there is any erroneous consideration of a question of law or failure to consider such question. Needless to say that if conclusions on facts are erroneous, or any irrelevant consideration has CRP611 of 2006.
: 5 :swayed the fact finding courts as also whether any relevant consideration has been missed or omitted in the appreciation of facts, could also be a ground for interference.
6. I have heard Sri.P.T Antony, learned counsel for the appellants, and Sri.M.Saseendran appearing for the respondent. The revision petitioners mainly contend for the position that the act of arrest and detention of the plaintiffs was in good faith and was in pursuance of the duty cast on them. If at all the police officers in the course of such duty, and in good faith, have exceeded the powers conferred on them and any offence or wrong is alleged to be committed, then necessarily the limitation under sub-section (3) of S.64 of Kerala Police Act, 1960 would be attracted with full force and vigour. The incident occurred on 9.12.1991. The suits were filed on 9.6.1992. Hence, they were filed one day after the six month period expired. Sub-section (3) of S.65 specifically prohibits cognizance of any suit or complaint, with respect to the offences or wrong specified thereon, if such suit or complaint has been filed after six months of the date on which the offence or wrong is alleged. It is the forceful submission of CRP611 of 2006.
: 6 :Sri.P.T Antony that in spite of the fact that the delay was only for one single day, the mandate of sub-section (3) of S.64 acts with full vigour and the suit has to be held to be filed beyond the period of limitation and dismissed for that reason alone.
7. Learned counsel for the revision petitioners relies on Prabha v. Sankara Giri(1989(1)KLT 927) to contend that the suit for damages against the police officer cannot be maintained after a period of six months. A learned single Judge of this Court, in the said decision, held that the Police Act being an Act enacted to "consolidate and amend the law relating to the police force in the State of Kerala" has made inroads into the common law, providing for the basis for an action for damages or malicious prosecution. A suit contemplated under Section 64(3), hence, has to be instituted within a period of six months, dehors, what is stated in the Limitation Act. The learned single Judge has also noted that the cause of action for bringing any proceeding under sub- section(3) should be in respect of any offence or wrong alleged to be committed or done by a Magistrate, police officer or CRP611 of 2006.
: 7 :other person in bad faith during the discharge of the duties imposed or the authorities conferred on him by the Police Act or any other law for the time being in force.
8. Hence, what is pertinent is that the act should be something which was done in the due performance of a duty imposed on the authority and then necessarily it should be tainted with bad faith. Merely because, a police officer had jurisdiction over the area and he was on duty; that alone cannot lead to a conclusion that all actions done within the period of his duty and within his jurisdiction are actions in discharge of the duties imposed on him by the Police Act or any other law for the time being in force. What would be relevant would be the specific act alleged and the Court has to look into whether the actions were in pursuance of the discharge of the duties imposed on the police officer. To this end this Court draws immense support from the decision of the Supreme Court in Unnikrishnan v. Alikkutty(2000(3) KLT 483) and two bench decisions of this Court reported in Pathumma v. State of Kerala(2000(2) KLT827) and Abdul Asees v. State of Kerala(2010(4)KLT259).
CRP611 of 2006.
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9. Unnikrishnan's case(supra) was one in which the cause of action alleged was torture in police custody, for four days, without being produced before the jurisdictional Magistrate. Section 197(1) of the Cr.P.C. and Section 64(3) of the Kerala Police Act were compared to hold that the scope of Section 64(3) is much narrower than that of Section 197(1). With respect to the application, it was noticed that while Section 197 only contemplates a prior sanction as a mandate for taking cognizance, Section 64(3) was held to be imposing an absolute ban. However, considering the scope, Section 197 was held to be wider in so far as it took within it any offences committed while acting or purporting to act in the discharge of an official duty. Section 64(3) is more restricted and narrow in as much as it covers only actions in discharge of duty. It was also held that a policeman keeping a person in custody for more than 24 hours, without order of a Court, would be acting outside the contours of his duty or authority. Pathumma (supra) relied on S.P Vaithianathan v. K. Shanmuganathan (AIR 1994 SC 1771) to hold that there should be some nexus between the official act under which CRP611 of 2006.
: 9 :protection is sought and the action complained of.
10. The question of limitation considered in this perspective would be a mixed question of fact and law. Hence an examination of the facts as also the conclusion on facts arrived at by the courts below assumes significance. Before the trial court, the first defendant was examined as DW1. He resiled from his pleadings and claimed total ignorance of the incident. He claimed that he came to know of the arrest only when he was informed by DW3, the 2nd defendant(Additional Sub Inspector of Police, who made the arrest). It is pertinent that the specific pleading of the DySP in the written statement was that the 2nd defendant, DW3 had made the arrest and that too in discharge of his duties. The instigation and abettment perpetuated by the plaintiffs were also projected as the valid reason for the arrest. The pleadings and evidence of the defendants, were found to be contrary and conflicting by the trial court.
11. The evidence of PWs 1 and 2 remained uncontroverted. PW4 was an eye witness who had seen the incident from a nearby house. True, she does not identify the CRP611 of 2006.
: 10 :police officers, but, she specifically and categorically speaks of seeing the plaintiffs walking down and the policemen approaching them. She speaks of having seen the policemen abusing the plaintiffs and manhandling them. The presence of the defendants in the spot is admitted. The factum of arrest is also not disputed. The defendants would only contend that the arrest was in good faith in discharge of their duty.
12. The courts below also went into the aspect of the case as set up by the defendants. DW3, the Sub Inspector who made the arrest, admitted the arrest having been made by him. He also admitted to have produced the plaintiff before the jurisdictional Magistrate, at the instruction of the DySP, DW1. His vernacular evidence, in crossexamination, was extracted by the trial court. He admitted that the plaintiffs, at about 1.30 p.m, were walking towards the police contingent; specifically towards DW3. The first appellate Court also extracted DW3's version which shows that according to DW3 the plaintiffs were not persons abetting any communal violence. It is also admitted that the plaintiffs were not told of the reason of their arrest, before such arrest was made. CRP611 of 2006.
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13. The courts below also relied on Ext.A12 to find that the crime so registered against the plaintiffs were referred as being a mistake of fact. The investigating officer who referred the case was also examined as PW5. Coupled with this was the wound certificate of both the plaintiffs. Both the wound certificates shows abrasions and contusions. The fact of the arrest having been made and the detention overnight also having been admitted; the wounds could have been caused only while in custody. The examination by the Doctor was immediately after the production of the plaintiffs before the jurisdictional Magistrate and that too on the orders of the jurisdictional Magistrate. On such overwhelming evidence the fact finding authorities found that the arrest of the plaintiffs were illegal, inter alia for not having informed of such arrest, especially in the context of there being no warrant against them. The detention of the plaintiffs beyond 24 hours is also a fact emanating from the evidence recorded. The physical assault on the plaintiff is very much evident from the wound certificate and the cause is also clear by reason of the fact of their medical examination having been done on production CRP611 of 2006.
: 12 :from custody, before the Magistrate. The courts below on facts concurred that the arrest was illegal and so was the detention beyond the period prescribed under the Criminal Procedure Code.
14. This Court, sitting in revisional jurisdiction, does not see any reason why the conclusions arrived at by the courts below are to be interfered with. This is not a case where any irrelevant consideration has weighed with the fact finding courts and nor is a relevant consideration eschewed. The limitation prescribed by sub-section (3) of Section 64 has already been held to be applicable only in instances of a wrong or offence being committed in the course of discharge of duty. The mere fact that there was a Bandh and a law and order situation existing and that the police were deployed to control the law and order situation cannot be a reason for such police officer to illegally arrest and detain any person. The illegal arrest and detention having been found; this Court on the strength of the precedents discussed above, holds that the suit was not barred by limitation under Section 64(3) of the Kerala Police Act. The actions complained of has CRP611 of 2006.
: 13 :absolutely no nexus with the discharge of official duty of the policemen. It does not appeal to reason that any act done by a policeman, while he is on duty is to be protected as an act done in discharge of official duties. The declaration of a 'bandh' or existence of a law and order situation does not by itself clothe a police officer with unbridled power. Here is a case where the officer who carried out the arrest conceded to the persons arrested having committed no offence. Police excesses if given the protection of official acts then it would lead to anarchy. Rule of law, then will take a backseat to reign a terror.
15. However, it has to be noticed that there were two revision petitions pending before this Court against the orders passed in the two suits and the two first appeals thereon. The plaintiff in O.S 407/2011 being no more, the other revision was dismissed as abated. Looking at the facts of this case, it cannot be said that the 2nd revision petitioner who was the 4th defendant, had committed any act of violence against the plaintiff in O.S No.406/1994. True, there are findings against the 4th defendant, however, only against the plaintiff in O.S. CRP611 of 2006.
: 14 :No. 407/1993 and relevant only in that case. With respect to the 2nd revision petitioner herein(the 4th defendant) for reason of there being no overt act alleged or proved against the 4th defendant/2nd revision petitioner as against the plaintiff herein, the judgment and decree as against him in O.S 406/94 is set aside and the suit dismissed as against him. The judgment and decree in O.S. 406/1994 as confirmed in first appeal is not liable to be interfered with as against the 1st revision petitioner.
The Civil Revision Petition, in so far as the 1st revision petitioner is concerned, stands dismissed and against the 2nd revision petitioner, stands allowed. The Civil Revision Petition is partly allowed.
Sd/-
(K. VINOD CHANDRAN, JUDGE) jma //true copy/// P.A to Judge CRP611 of 2006.
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