Delhi District Court
Addl. District Judge: West: Tis ... vs The Commissioner Of Police on 23 September, 2015
IN THE COURT OF SH. DEVENDER KUMAR JANGALA:
ADDL. DISTRICT JUDGE: WEST: TIS HAZARI:DELHI
SUIT NO:40/15
Sh. Lalit,
S/o Sh. Jagdev Singh,
R/o House no. A228,
Baba Haridas Colony,
Tikri Border, New Delhi. ......Plaintiff
Versus
1. The commissioner of Police,
PHQ, IP Estate, New Delhi
2. S.I. Raj Kumar,
3. S.I Anuj,
4. S.I Ghanshyam Bansal,
All no. 4T06, Posted at
P.S Mundka, New Delhi.
Service through DCP West
Punjabi Bagh, Delhi.
5. The Secretary,
Ministry of Home affairs,
South Block,
New Delhi.
6. The Chief Secretary,
Govt. of NCT of Delhi,
5, Shyam Nath Marg, Delhi .......Defendants
Lalit v/s The Commissioner of Police & ors Page 1 of 12
ORDER
23.09.2015
1. By this order, I shall decide the preliminary issue regarding the maintainability of the suit framed on 01.09.15 which is as under:
" Whether the suit filed by plaintiff is liable to be dismissed for want of notice under Section 140 of DP Act?"
2. The plaintiff has filed the present suit against the defendants for recovery of the damages of Rs. 10 lakh. The plaintiff stated that he is a student and law abiding citizen. That defendant no. 2, 3 and 4 are working in Delhi police under the control and employment of defendant no. 1. That defendant no. 2, 3 and 4 were posted in Police Station, Mundka in Month in March 2013 as Assistant Sub Inspector and Sub Inspector. That on 28.03.13, the defendants came to the house of the plaintiff and without any reason, tortured the family members of the plaintiff and took plaintiff with them. The plaintiff was mercilessly beaten, abused, misbehaved in the police station. That the mother of the plaintiff intervened but she was also abused, pushed and Lalit v/s The Commissioner of Police & ors Page 2 of 12 received injuries. That defendant no. 2 to 4 called the plaintiff in the police station to implicate him in some false case. That the defendants tried to implicate the plaintiff in a case FIR no. 30/13 P.S Mundka in murder case. That plaintiff was mercilessly beaten on 29,.03.13 in the police station. The plaintiff was released on 29/30.03.13 at about 11.30 PM. Then, he was taken to the hospital for treatment where MLC was prepared. It is stated that plaintiff has suffered damages due to the acts of defendants no. 2 to 4 of Rs. Twenty lakh which all the defendants are liable to pay to the plaintiff jointly or severally.
3. It is stated that plaintiff served legal notice u/s 80 (Code of Civil Procedure) CPC on 03.02.14 upon defendants through his counsel. That said notice was duly served but they have sent the false and frivolous reply. The plaintiff prayed that a decree of Rs. 10 lakh as damages along with interest may kindly be passed against defendants.
4. The summons of the suit were issued to the defendants. The defendants filed their joint written statement whereby denied all the submissions of the plaintiff. It is stated that FIR no. Lalit v/s The Commissioner of Police & ors Page 3 of 12 30/13 u/s 307/34 IPC 25/27/54/49 Arms Act was registered on the complaint of Sh. Lalit Jha, but after the victim sccummed to his injury and Section 302 IPC was also added in the case. It is stated that the plaintiff was called to join the investigation u/s 160 CRPC because brother of the deceased and his wife suspected the involvement of the plaintiff. It is stated that after interrogation, plaintiff was permitted to go to the house. It is denied that plaintiff was beaten during the course of investigation.
5. That plaintiff also lodged a complaint at District HQ of West District. The independent vigilance enquiry was conducted, and the plaintiff was got medically reexamined from DDU Hospital on 01.04.13. The competent authority has held that the allegations leveled by the plaintiff are with ulterior motive, false and baseless vide its finding dated 09.04.2013.
6. That police was duty bound to conduct the investigation in Case FIR no. 30/13 and rightly called the plaintiff to join the investigation in compliance of the provisions of Section 160/175 Cr. P.C. It is stated that plaintiff has levelled the false and frivolous allegations, which has no basis.
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7. The defendant has also raised the preliminary objection that suit is liable to be dismissed U/o 7 Rule 11 CPC. It is stated that suit is not maintainable in the absence of service of the notice under Section 140 of DP Act. On the reply on merit, all the allegations of the plaintiff are denied.
8. On 01.09.15, on the basis of pleadings of parties, a preliminary issue was framed. The counsel for the both the parties advanced their arguments on the preliminary issue.
9. It is submitted by Sh. N.K Gupta, ld. Counsel for the plaintiff that the notice u/s 80 of CPC was duly served upon defendants. It is stated that since the notice u/s 80 CPC was served, therefore, there was no requirement of the service of notice under Section 140 of DP Act. It is stated that suit of the plaintiff is within period of limitation. On the other hand, it is submitted by Sh. Atul Rathi, ld. Counsel for the defendants that service of the notice u/s 140 of DP Act is mandatory as per provisions of law. That suit is liable to be dismissed in the absence of notice u/s 140 of DP Act.
10. The provisions of Section 140 of Delhi Police Act, 1978 is reproduced as under:
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"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 of other person, by any act done under colour of duty or authority or in excess of any such duty or authority; or wherein it shall appear to the court that the offence or wrong if committed or done was of the character aforesaid, the prosecution or suit shall not be entertained and if entertained shall be dismissed if it is instituted, more than three months after the date of the act complained of:
Provided that any such prosecution against a police officer or other person may be entertained by the court, if instituted with the previous sanction of the Administrator, within one year from the date of the offence.
(2) In 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 Lalit v/s The Commissioner of Police & ors Page 6 of 12 time and manner of service thereof."
11. The provision of Section 140 of DP Act clearly stated that in case of any wrong alleged to have been done by 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 3 months after the date of the act complained of.
12.This section also provided in Sub clause (2) that it shall be mandatory upon the person intending to sue to serve to the alleged wrongdoer one month's advance notice of the intended suit, with sufficient description of the wrong complained of. It lays down that if no such notice has been given before the institution of the suit, it shall be dismissed.
13. It is submitted by the counsel for the plaintiff that the notice u/s 80 of CPC dated 03.02.14 was duly served upon all the defendants, therefore, the compliance of provisions of law has been made. That provision of Section 140 DP Act is having no Lalit v/s The Commissioner of Police & ors Page 7 of 12 application in view of the existence of the provisions of Section 80 of CPC. The provisions of the Code of Civil Procedure are general in nature. The provision and contents of Section 140 of DP Act is special provision relating to the police officials governed by provisions of said act. The Delhi Police Act, 1978 is a special law. The law on this issue is well settled that the special law shall prevail upon general law.
14. The Hon'ble Supreme Court in the judgment, titled as, Tata Motors Pvt ltd V. Pharmaceuticals Products of India ltd & Anr. JT (2008) (9) SC 227 held that the special law shall prevail upon general law.
15. The Hon'ble Apex Court in a recent judgment, titled as, Commercial Tax Officer, Rajasthan v/s Binani Cements Limited and Anr, reported as, (2014) 8 Supreme Court Cases 319 has held that: " a subject specific provision relating to a specific, denied and descriptable subject is regarded as an exception to and would prevail over a general provision relating to a broad subject."
16. In view of the judgment (supra) of Hon'ble Apex Court, it is Lalit v/s The Commissioner of Police & ors Page 8 of 12 clear that where a general law is in existence and there is a special law, in that situation, the special law shall prevail over the general law. The provisions of Section 80 CPC are general in nature, whereas provisions of Section 140 DP Act are special provisions, therefore, the provisions of Section 140 DP Act shall prevail upon Section 80 of CPC.
17. It is the admitted fact that the plaintiff has failed to serve any notice under the provisions of Section 140 of DP Act. Even if for the sake of argument, the notice given by the plaintiff u/s 80 of CPC is considered to be u/s 140 of DP Act, the same does not fulfill the necessary requirement of this section. Section 140 lays down that no suit shall be entertained more than 3 months after date of act complained of.
18. The plaintiff in the plaint has admitted that the alleged act took place on 28.03.13 and 29.03.13. The notice u/s 80 of CPC was given on 03.02.14 which is beyond the limitation period of 3 months as per Section 140 of DP Act. The present suit is filed on 20.02.15. The suit is filed by the plaintiff almost two years after the alleged date of wrong committed by defendants. This section provided for filing of the suit only within 3 months from Lalit v/s The Commissioner of Police & ors Page 9 of 12 the date of act complained of. Therefore, the suit filed by plaintiff is beyond the limitation period of 3 months as provided u/s 140 of DP Act.
19. The plaintiff has alleged that the defendant no. 2, 3 and 4 are working as Assistant Sub Inspector and Sub Inspector of Delhi Police under the control and employment of defendant no. 1 were posted in Police Station, P.S Mundka. The allegations leveled by plaintiff itself reveals that defendants were acting in discharge of their official duty or under the colour of their official duty. The plaintiff was called in the police station for investigation in case FIR no. 30/13 u/s 302/34 of IPC in PS Mundka. The act of calling the plaintiff to join the investigation or any act done in excess of the official duty is also covered under the provisions of Section 140 of DP Act.
20. The necessary condition for the applicability of Section 140 of DP Act is that the alleged wrong or omission must be one which has been committed by police official either in his official capacity or under colour of the office held by him. The words, "
any wrong alleged to have been done by him while acting or purporting to act in the discharge of his official duty" employed Lalit v/s The Commissioner of Police & ors Page 10 of 12 in this Section are capable of a narrow as well as wide interpretation. If these words are construed too narrowly, this section will become redundant altogether because no part of an official duty could be to commit a wrong, and never can be. If these words are construed in a wider sense, then these words will take under their umbrella every act or omission done by the police officials under the official capacity or under the colour of the office held by him. The right and just approach to import the meaning of these words lies between these two extremes.
21. The perusal of the plaint and the alleged act complained by the plaintiff reveals that the same squarely falls within the meaning of official duty or an act done under the colour of the official duty. The protection of Section 140 of DP Act is available to the defendants. The wrong act as alleged by plaintiff falls within the ambit of Section 140 of DP Act. There is no reason for non application of Section 140 of DP Act. The Hon'ble High Court in the judgment, titled as, Balvinder Singh Sodhi v/s Mahender Singh , reported as, 70 (1997) DLT 472 has explained the applicability of Section 140 of DP Lalit v/s The Commissioner of Police & ors Page 11 of 12 Act.
22. In view of the above discussion, I am of the considered opinion that provisions of Section 140 of DP Act is applicable to the present case. On the basis of averment made in the plaint, it is clear that suit is barred by limitation as prescribed under Section 140 of DP Act. No evidence in this regard is required to be led by the parties. The plaintiff has failed to serve the mandatory notice u/s 140 of DP Act. Accordingly, a preliminary issue framed on 01.09.2015 is decided in favour of the defendants and against plaintiff. It is held that suit filed by plaintiff is liable to be dismissed for the want of notice u/s 140 of DP Act. The suit filed by the plaintiff is accordingly dismissed. File be consigned to record room after completion of necessary formalities.
ANNOUNCED IN THE OPEN COURT on 23.09.2015 Devender Kumar Jangala ADJ07/West/Delhi 23.09.2015 Lalit v/s The Commissioner of Police & ors Page 12 of 12