Delhi District Court
Sh. Rajesh Duggal vs Union Of India on 29 April, 2017
IN THE COURT OF SH. HARISH KUMAR : ADDL. DISTRICT
JUDGE -13 : CENTRAL DISTRICT ; TIS HAZARI COURTS :
DELHI
CS NO. 12256/16 (Old No. 470/14)
In re :-
Sh. Rajesh Duggal
S/o Late Shri O.P. Duggal,
R/o 4-B/34, Old Rajinder Nagar,
New Delhi-110060.
........ Plaintiff
Versus
1. Union of India
(Service to the effected on the Secretary,
Ministry of Home Affairs, Govt. of India, New Delhi)
2. Lt. Governor of Delhi,
Raj Niwas, Delhi
3. S.I. Onkar Singh
P.S. Mayur Vihar, New Delhi
4. H.C. Satyawan,
P.S. R.K. Puram, New Delhi
5. Abdul Rehman
S/o Sh. Abdul Majeed
R/o 1/1, Kirti Apartments, near Samachar Apartments,
Mayur Vihar-I, Delhi.
6. Mst. Suricha alias Sufia Rehman
W/o Sh. Abdul Rehman, D.C. Dass
R/o as defendant no. 3 above.
7. Ms. Allia Rehman
D/o Sh. Abdul Rehman
R/o As defendant no. 5.
CS No. 12256/16 Rajesh Duggal vs. Union of India & Ors. Page No. 1 of 15
8. Ms. Sarah Rehman,
D/o Sh. Abdul Rehman
R/o as defendant no. 5.
.......... Defendants
Date of institution of present suit : 05.09.2007
Date of receiving in this court : 03.09.2016
Date of hearing arguments : 01.04.2017
Date of Judgment : 29.04.2017
Suit for recovery of Rs. 5 Lacs on account of damages for wrongful
arrest and detention.
JUDGMENT
1. Plaintiff has instituted the present suit seeking decree of Rs. 5 Lacs on account of damages for wrongful arrest and detention of the plaintiff in his favour and against the defendants.
2. Brief fact as set out in the plaint is that the defendant no. 5 who was the erstwhile counsel of the plaintiff and now stands removed from the rolls by the Bar Council of India for a period of 5 years as per order dt. 25.02.2007 passed by Bar Council of India in B.C.I. transferred case no. 53 of 2004 had swallowed several lacs of rupees of the plaintiff partly in the name of professional fee and other charges without rendering due service and further in the name of personal loan and had also fraudulently duped him of his car No. DL-35-CC-4120 regarding which numerous criminal complaints stands filed against him which are pending in different courts. In the course of criminal proceedings filed against the said defendants, it also transpired that he had likewise cheated his two other clients namely Smt. Subhash Devi and Sh. K.M. Anees-ul-Haq and being common victim they became acquainted with each other and later friendly to the plaintiff so much so that they CS No. 12256/16 Rajesh Duggal vs. Union of India & Ors. Page No. 2 of 15 sometime solicited the help of the plaintiff for looking after their pending cases.
3. That amongst various cases a criminal complaint u/s 211/500 IPC filed by Sh. K.M. Anees-ul-Haq had been going on against the defendant No. 5 and his family members i.e. his wife and two daughters was fixed for 25.05.2007 but due to his non-appearance Non Bailable Warrants ( in NBW) was issued against him. On the request of Sh. K.M. Anees-ul-Haq, aforesaid plaintiff had gone with the police party to the house of the defendant no. 5 for identifying him for his arrest in pursuance of the N.B.Ws. issued against him. The police party who had gone to arrest the defendant no. 5 also comprised of defendant no. 3 and 4 and other police officials and accordingly the plaintiff pointed out the place of residence of the defendant no. 5. The police party had gone inside the residence of the defendant no. 5 and found him present in his house alongwith defendant no. 6 to 8. The police party had first brought out the defendant no. 5 outside the society gate whereupon the plaintiff duly identified him but the police party instead of taking him in their custody then and there allowed him to go inside his house on the pretext of change of clothes and the plaintiff had to wait all alone for about two hours for the purpose of signing necessary papers for execution of N.B.Ws. After about two hours, the plaintiff was told by the defendants 3 and 4 and other members of the police party that the defendant no. 5 had fled from his house and the plaintiff had reason to believe that this was done by the defendant no. 5 not only with the help of defendants no. 6 to 8 but also with the connivance of the police and shattered and benumbed by such an ominous course of events the plaintiff was constrained to file necessary application in the court of Sh. Lalit Kumar, MM, New Delhi on 04.06.2007 upon which the Ld. MM was pleased to call for the CS No. 12256/16 Rajesh Duggal vs. Union of India & Ors. Page No. 3 of 15 necessary report but during this period there was some bargaining and horse trading between the defendants 3 and 4 and other police officials with the rest of the defendants with the result that they embarked upon vicious plans and designs to implicate the plaintiff in some false cases to teach him a lesson.
4. In pursuance of the aforesaid ignominious plans and designs the defendant no. 3 secured the presence of the plaintiff in the police station and arrested and detained him on the night intervening 5/6.6.2007 till he was released on bail in the evening of 6.6.2007 and after his release the plaintiff came to know that proceedings U/s 107/151 Cr. P.C. were installed against him by way of a Kalendra filed in the court of Special Executive Magistrate, Krishna Nagar, Delhi and on revision petition filed by the plaintiff the same had been now quashed by the Ld. Court of Sh. S.C. Malik, ASJ, Karkardooms Courts, Delhi by his order dt. 28.08.2007. The police has admitted in the said Kalendra that defendant No. 5 had fled from custody of the police and this it is the defendants No. 3 and 4 who are responsible for letting of the accused No. 5 and at the same time the defendants No. 5 to 8 are responsible for joshing the warden in such a ruthless manner, under a deep rooted conspiracy. As a result of the deep rooted conspiracy the defendants No. 3 and 4 instead of apprehending the real culprit i.e. defendant No. 5 and his abettors defendants No. 6 to 8 shifted their oars towards the plaintiff and illegally arrested and detained him under the facade of a Kalandra U/s 107/151 Cr. P.C. on the basis of false allegations and police report of defendant No. 5 to the effect that the plaintiff was uttering abuses and shouting in the presence of several residents and security guards etc. that defendant No. 5 and his daughters should be arrested and obstructing the way by parking his Maruti Swift Car in a unusual manner and the CS No. 12256/16 Rajesh Duggal vs. Union of India & Ors. Page No. 4 of 15 defendants No. 3 and 4 on such tell tale stories stalled the proceedings without examining any independent witness and on such pretext jeopardies the life and liberty of the plaintiff without any valid or cogent reason. Due to the aforesaid clever and wicked strategy adopted by the defendants No. 2 to 6 the plaintiff suffered illegal arrest and wrongful detention for about 18 hours physically shattered, psychologically benumbed and financially crippled the plaintiff he is entitled to damages both general and special from the defendants in view of the fact that defendant no. 1 and 2 are also vicariously liable for the illegal acts and omission on the part of defendants No. 3 to 4. The plaintiff is a big business man and running an establishment in Okhla Industrial Area and commanding a good deal of respect and reputation in the business circle which has been tarnished on account of tirade of hatred and contempt launched by the defendants and resultant arrest and detention by the police and consequent loss sustained by him and although he is entitled to Rs. 18 Lacs towards compensation looking to the status and position and extent of damage suffered by him yet in all fairness the plaintiff claims an amount of Rs. 5 Lacs in all, towards general and special damages, the details of which is given below :-
A. Special Damages :-
i. Expenses incurred for managing bail and for Rs. 15,000/-
legal advice through a counsel.
ii. Expenses incurred for seeking quashment of Rs. 25,000/- proceedings in the Court of Addl. Sessions Judge, Delhi iii. Conveyance charges for court attendance. Rs. 5,000/- iv. Loss of business for not devoting time due to Rs. 55,000/- the aforesaid case.
B. General Damages :-
i. Damages for physical harassment due to Rs. 2,00,000/- CS No. 12256/16 Rajesh Duggal vs. Union of India & Ors. Page No. 5 of 15 wrongful confinement and mental shock.
ii. Damages on account of loss of reputation Rs. 2,00,000/-
Total Rs. 5,00,000/-
5. A notice U/s 80 CPCP read with Sec. 140 of Delhi Police Act dt. 28.06.2007 was duly sent to the defendants no. 1 to 4 and the service report is attached but none of the defendants paid the courtesy of responding to the said notice. However, one letter dated NIL was received acknowledging the legal notice and assuring the plaintiff of necessary action, but to no effect. Hence, the present suit.
6. Summons of the suit were duly served upon the defendants.
Defendant no. 5, 6, 7 and 8 filed common written statement raising preliminary objection that present suit is not maintainable as the plaintiff has no cause of action and the plaintiff has no locus standi to file the suit. Further, plaintiff has concealed material facts from the court deliberately as those facts established his criminality and filed the present suit to avert the consequences of his criminal acts. After the incident of 04.06.2007, the defendant no. 5 had pronounced in a court of law that he was going to sue the plaintiff and his accomplices for damages in the sum of Rs. 25 lacs. The present suit is therefore, a pre- emptive strike by the plaintiff. The defendants no. 6, 7 and 8 are not in any way concerned with the alleged cause of action and their names have been dragged into the controversy by the plaintiff out of malice and sheer ill-will.
7. On merits, it is admitted that defendant no. 5 appeared as counsel for plaintiff in various criminal courts as well as the High Court of Delhi and successfully defended him in two criminal cases and got the CS No. 12256/16 Rajesh Duggal vs. Union of India & Ors. Page No. 6 of 15 matter settled without even charging any professional fee as the plaintiff had become very friendly with the defendant no. 5. It is admitted that B.C.I. passed an ex-parte order dt. 25.02.2007 against the defendant in Transferred case No. 53 of 2004 on the complaint of one K.M. Anees-ul- Haq who is on trial in case FIR No. 260/02 registered at PS Mayur Vihar U/s 406/420/34 IPC read with Sec. 3 and 4 of the Dowry Prohibition Act on the complaint of the defendant no. 5. K.M. Anees-ul-Haq is now being sued for damages in the amount of Rs. 20 lacs by the defendant no. 5 for filing a false complaint against him with the B.C.I. It is denied that defendant no. 5 duped the plaintiff of his car no. DL3CS-4120 or swallowed several lacks of rupees in the name of professional fee or loan. It is submitted that plaintiff and his son Gautam Duggal are criminals and on trial for stealing the aforesaid car which rightfully belongs to defendant no. 5. It is submitted that K.M. Anees-ul-Haq, a totally corrupt and characterless Govt. Officer (now retired) who was to be the SAMDHI of defendant no. 5, has formed an unholy alliance with the plaintiff and other criminals and all of them have gaged up against the family of answering defendants. It is denied that defendant no. 5 was ever taken in to custody by the police as alleged. It is submitted that the plaintiff, who is an expert at bribing the police, caused a false report to be made by the police wherein it is alleged that defendant No. 5 escaped from police custody. In fact, the police party from PS K.M Pur was called off by their senior officers. It is submitted that the plaintiff was arrested and detained in PS Mayur Vihar in the manner detailed by the answering defendant No. 5 in his complaint dt. 18.07.2007 made to the DCP (East) and duly acknowledged by him. It is further submitted that there was no "Strategy" adopted by defendants no. 2 to 8 and the plaintiff was arrested because of his own criminal act. It is submitted that the plaintiff is an evil man with detestable habits and mannerisms. He CS No. 12256/16 Rajesh Duggal vs. Union of India & Ors. Page No. 7 of 15 does not command respect anywhere. Answering defendants have in no way responsible for any of the damages to plaintiff as alleged in these paras. It is further submitted that suit is absolutely without cause of action against the answering defendants. It is prayed that the suit be dismissed with the heaviest possible punitive and deterrent costs.
8. Other defendants did not file written statement, though defendant No.3 off and on participated in the proceedings.
9. From the pleadings of the parties, following issues were framed vide order dated 11.10.2007:-
1. Whether the plaintiff has locus standi to file this suit against defendant No. 5 to 8 and any cause of action to maintain it? OPP
2. Whether the suit has been filed in connivance with K.M.Anis-ul-Haque out of malice and ill will preempting the name of defendant No. 5 of damages? OPD
3. Whether the plaintiff is entitled to recover the suit amount from the defendants? OPP
4. Relief
10. In support of their case, plaintiff has examined himself only as PW1 and filed his affidavit Ex A-1 in examination-in-chief and relied upon Copy of Bar Council Of India's Order Ex PW1/1, copy of notice dt 28.08.2007 Ex PW1/4, postal receipt and Ad Cards Ex Ex PW1/4A to 4D, copy of Kalandra under Section 107/151 CrPC Ex PW1/5 and the order of the revisionary Court Ex PW1/6, certified coy of Order dt 26.02.2008 in Crl. M.C. No. 4183-86/2006 Ex Pw1/7 and certified copy of Order of Justice Mrs Aruna Suresh Ex PW1/8. In examination in chief CS No. 12256/16 Rajesh Duggal vs. Union of India & Ors. Page No. 8 of 15 recorded on 13.05.2009 documents has been exhibit as Ex PW/9 to Ex PW1/11 also but no such document is there on record nor has been referred to in his affidavit. He was cross examined by the defendant No.3 and by Defendant No. 5 to 8. Again on the request of defendant another opportunity was granted to the defendant s to cross examine the PW1 but no one further cross examined the plaintiff and as such right to further cross examine PW1 was closed on 28.01.2012.
11. Defendants have not led any evidence. Despite sevral opportunity non of the defendants lead any evidence though defendant No. 5 to 8 have almost stopped appearing when matter reached the stage of defendant's evidence. As noted above defendant No.3 was not regular to proceedings.
12. Ld Counsel for plaintiff has been heard at length. His arguments is on the lines of averments made in the plaint and has also contended that plaintiff's testimony has not been controverted at all on material points and in fact has gone unchallenged. He has further contended that defendant have not led any evidence to prove their version or innocence nor has been able to bring any material on record to falsify the stand of the plaintiff, hence he had prayed for passing of decree in terms of prayer made in the plaint.
13. Having heard Ld Counsel for plaintiff and after going through the pleadings, evidence and material on record issue wise findings are as under:-
ISSUE No. 1:- Whether the plaintiff has locus standi to file this suit against defendant No. 5 to 8 and any cause of action to maintain it? OPP.
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14. Onus to prove this issue is upon the plaintiff. Defendant No.6 is the wife of defendant No.5 and defendants No. 7 and 8 are the daughters of defendant No.5. Present case of the plaintiff is for damages for wrongful arrest and detention of the plaintiff. Defendant No 5 to 8 have been impleaded in the present case on the grounds that they and defendant No. 3 and 4 entered into conspiracy to embroiled plaintiff into false case so as to teach him a lesson. Plaintiff while examining himself as witness in his examination in chief did not depose any conspiracy between defendant No. 3 and 4 with defendant No. 5 to 8. He simply deposed that false Kalandra was prepared at the instance of defendant No.5. defendant No. 6 to 8 also supported the Kalandra on false ground. He further deposed that on account of illegal detention and arrest by defendants No. 3 and 4 at the instance of defendant No. 5 to 8 he is entitled for damages.
15. Plaintiff has not brought on record any material as to how defendants No. 5 to 8 supported the false Kalandra. Similarly in evidence plaintiff did not depose anything about conspiracy between defendants No. 3 to 8. In the law of tort, the legal elements necessary to establish a civil conspiracy are substantially the same as for establishing a criminal conspiracy i.e. there is an agreement between two or more natural persons to break the law at some time in the future or to achieve a lawful aim by unlawful means. This agreement has to be prior the act performed. In evidence plaintiff only deposed that defendant No. 5 to 8 supported the false Kalandra and at other place he deposed that defendant No. 3 and 4 caused arrest and detention at the instance of defendant No.5. This testimony is not sufficient to hold any conspiracy between defendant No. 3 to 8 and thus plaintiff failed to prove that he CS No. 12256/16 Rajesh Duggal vs. Union of India & Ors. Page No. 10 of 15 has locus standi or cause of action against defendants No. 5 to 8.
Hence in view of the above discussion, issue No.1 is decided against the plaintiff and in favour of defendant No. 5 to 8.
ISSUE No. 2 :- Whether the suit has been filed in connivance with K.M.Anis-ul-Haque out of malice and ill will preempting the name of defendant No. 5 of damages? OPD
16. Onus to prove this issue is upon the defendants No. 5 to 8. It has already been noted above that no evidence was led by any of the defendants including defendant No. 5 to 8. Therefore, defendant No. 5 to 8 have failed to discharge the onus upon them, hence issue No. 2 is decided against the defendants and in favor of plaintiff.
ISSUE No. 3 :- Whether the plaintiff is entitled to recover the suit amount from the defendants? OPP
17. Onus to prove this issue is upon the plaintiff. There is no dispute that plaintiff was detained and arrested in pursuance to registration of Kalandra under Section 107/151 CrPC and was released after he was granted bail by Executive Magistrate. There is no dispute that on revision said Kalandra was quashed by the Court of Additional Session Judge vide its order dt 20.08.2007. Defendants have not led any evidence to justify arrest/detention or prove lawful cause for plaintiff's arrest/detention
18. The tort of false imprisonment has been defined, as "Every restraint of the liberty of one person by another is in law an imprisonment and if imposed without lawful cause, a false imprisonment which is both criminal offense and actionable tort (see Halsbury's Laws CS No. 12256/16 Rajesh Duggal vs. Union of India & Ors. Page No. 11 of 15 of England, Third Edition, Vol 37, paragraph 205, p120). Winfield on tort, Ninth Edition, page 32 says that false imprisonment is the infliction of bodily restraint which is not expressly or impliedly authorised by law. Street on torts, Fifth Edition., page 23, has defined it as an act of the defendant which directly and intentionally or negligently causes the confinement of the plaintiff within an area delimited by the defendant. Salmond on Law of Torts, 15th Edition, page 161, has defined it as an act of the arresting or imprisoning any person without lawful justification or otherwise preventing him without lawful justification ,from exercising his right of leaving the place in which he is. Ramaswamy Iyer on the Law of torts, Seventh Edition, page 40, states that it means the total restraint of a person's liberty without lawful justification and the word 'false' in that phrase signifies the unlawful character of the restraint. All theses definitions indicate the same elements of the tort. In the opinion of the court definition given by the Halsbury's of England seems to be the most satisfactory.
19. In an action for recovery of damages for committing the tort of false imprisonment, plaintiff is only required to prove that he was imprisoned and that the same was caused by the defendants or his servants acting in the course of employment. On proof of these facts, plaintiff succeeds in establishing the case and it is then for the defendants to prove the lawful justification for the same and it is not for the plaintiff to prove its absence. It is not necessary for the plaintiff to prove any wrongful intention, malice negligence or improper motive on the part of the defendant.
20. In the present case it has already been noted above that there is no dispute that plaintiff was arrested and detained following CS No. 12256/16 Rajesh Duggal vs. Union of India & Ors. Page No. 12 of 15 registration of Kalandra which Kalandra was subsequently quashed by the Session Court. Thus plaintiff has proved what he was required to prove as far as arrest and detention is concerned. No evidence has been led by defendants particularly from defendant No. 1 to 4 to justify the arrest and detention of the plaintiff. Thus it stand established that plaintiff's arrest and detention was not lawful or justified.
21. Plaintiff has claimed sum of Rs 5 Lakh in all as general as well as special damages. He had claimed Rs 15000/- paid as fee to the counsel for managing bail, Rs 25,000/ for getting the Kalandra quashed through court, Rs 5000/- incurred as conveyance charge, Rs 55,000/- as loss business. Rs 2,00,000/- as damages for physical harassment due to wrongful confinement and Rs 2,00,000/- on account of loss reputation.
22. There is no evidence from the side of plaintiff about the loss of reputation. He did not examine any witness to prove whether the act of defendant in any way lowered plaintiff's estimation in the eyes of public. Reputation of a person is his estimation in the eyes of persons known to him. In the present case plaintiff has not examined any other person to prove if any other person who is known to him come to know of his arrest at all. When persons in whose eyes plaintiff has reputation did not at all come to know about his illegal arrest there is no question of loss of reputation and therefore plaintiff claim of Rs 2,00,000/- on account of loss of reputation is not sustainable as loss of reputation was not proved.
23. As far as legal expenses in getting bail and ultimately getting Kalandra quashed, is concerned although plaintiff did not prove any payment to counsel nor did he disclose his counsel's name also. CS No. 12256/16 Rajesh Duggal vs. Union of India & Ors. Page No. 13 of 15 Nonetheless cumulative claim of Rs 40,000 towards legal expense does appear to be reasonable keeping in mind the fees being charged by lawyers in the last 10 years. Claim of Rs 5,000/- as conveyance charge does not appear to be reasonable particularly in the absence of details regarding number visits, mode of transport, about detail of destination etc. However it cannot be ruled out that plaintiff must have spent some amount in conveyance and interest of justice would be served if he is awarded Rs 1,000/- toward conveyance expense.
24. Plaintiff's claim of Rs 55,000/- towards loss of business also suffers from lack of particulars. It has not been detailed as to how much time was wasted from getting bail to getting the Kalandra quashed. He has also not brought on record what kind of business he was doing. He has also not explained as to how much amount he used to earn per day, monthly or otherwise. He also did not place on record his income tax return so as to help this court assess the loss of business. Evidence with regard to loss of business is scanty. In fact there is no evidence at all. Hence plaintiff's claim towards the loss of business cannot be granted as same has not been proved at all.
25. Plaintiff's claim of Rs 2,00,000/- towards damages for physical harassment due to wrongful confinement and mental shock has got to be assessed with some amount of guess work. There cannot be any practical formula for assessing damages for physical confinement and resultant mental shock. It has also to be kept in mind that grant of damages in such circumstance should not result in unjustified enrichment of the claimant. Balance has to be struck so as to set an example to deter the violators of law not to take law in hands and at the same time it reasonably calm downs/pacify the grief of the victim of illegal CS No. 12256/16 Rajesh Duggal vs. Union of India & Ors. Page No. 14 of 15 confinement and also should not result in unjustified enrichment of the victim. Keeping in mind the above stated limitation of assessing the quantum of compensation to be awarded in the kind of present case, this court is of the opinion that sum of Rs 1,00,000/- well meet the ends of justice.
26. In view of the above discussion plaintiff is held entitled to sum of Rs 40,000/- towards legal expenses, Rs 1,000/- towards conveyance expenses and Rs 1,00,000/- towards damages for wrongful confinement and detention from the defendants No 1 to 4 jointly and severally.
RELIEF In view of the above discussion, suit of the plaintiff is allowed and decree for recovery of Rs 1,46,000/- (Rupees One Lakh Forty Six Thousand Only) is hereby passed in favour of the plaintiff and joint and severally against defendants No. 1 to 4. Suit against defendant No. 5 to 8 is hereby dismissed. Plaintiff shall also be entitled for simple interest on the aforesaid amount at the rate of 6 % p.a. from the date of passing of judgment/decree till the realisation of the amount.
Cost of the suit is also awarded in favour of plaintiff. Decree sheet be prepared accordingly.
File be consigned to Record Room after necessary compliance.
(Harish Kumar)
Announced in open Court ADJ-13(Central)/THC
(Judgment contains 15 pages) Delhi/29.04.2017
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