Delhi District Court
Pushpender Singh Rathore vs State (Nct) Delhi Govt & Ors on 31 October, 2014
Page 1 of 10
IN THE COURT OF Ms. SUNENA SHARMA
Addl. Distt Judge - 04 (SE)
SAKET COURTS COMPLEX: NEW DELHI
CS No.09/2014
Unique Case ID No.02403C0204822013
Date of Institution : 03.08.2013
Received on transfer : 16.01.2014
Arguments concluded : 31.10.2014
Date of decision : 31.10.2014
Pushpender Singh Rathore versus State (NCT) Delhi Govt & Ors
O R D E R
1. By this order I shall decide the following preliminary issue framed in this Court vide order dated 26.07.2014: "Whether the suit of plaintiff is not maintainable being barred by law in particular Section 140 Delhi Police Act and Section 80 Code of Civil Procedure?"
2. Aforementioned issue came to be framed in view of the application moved by defendant No.3 under Order 7 Rule 11 (d) CPC and similar objections taken by defendant Nos.1 & 2 in their Written Statement relating to bar of Section 80 CPC and Section 140 DP Act.
3. It is argued on behalf of defendant Nos.1, 2 & 3 by their respective counsels that present has been filed by the plaintiff for seeking damages/compensation on account of alleged damages caused to plaintiff's articles which were seized by defendant No.3 on 07.12.2000 during the course of investigation of FIR No.875/2000, PS Kalkaji; on account of mental suffering and agony due to ill behaviour of defendant Nos.2 & 3; on CS No.09/2014 Pushpender Singh Rathore v State (NCT) Delhi Govt & Ors Page 2 of 10 account of nonreturn of various articles which were allegedly seized but not mentioned in the seizure memo and on account of denial by defendant Nos.2 & 3 to release plaintiff's articles on superdaari.
4. The contention raised by counsels appearing for defendant Nos.2 & 3 are two folds. First contention of learned counsels is relating to bar of limitation in view of Section 140(1) of the DP Act. Second contention is relating to lack of statutory notice under Section 140(2) of the DP Act and Section 80(2) CPC. It is submitted that as per plaintiff's case articles of plaintiff were seized from his custody by defendant No.3 during the course of investigation of aforementioned FIR which were ordered to be released in favour of plaintiff on superdari by learned Court concerned vide order dated 04.06.2003. However, on 06.06.2003 when plaintiff and his spouse approached SHO, PS Kalkaji, for release of articles, they found that many of the articles were in damaged conditions and many articles which were actually seized by IO from the plaintiff, were not even mentioned in the seizure memo. This fact was brought to the knowledge of learned Court concerned on 10.12.2003 vide an application and SHO, PS Kalkaji was also requested vide letter dated 06.06.2003 for giving direction to the Malkhana Incharge to release articles in workable conditions. Later on, plaintiff made various correspondences by writing numerous letters to different authorities viz Lieutenant Governor and Commissioner of Police for release of his articles but in vain.
5. It is argued that considering the aforementioned case of plaintiff as born out from the plaint, if any cause of action, has arisen, the CS No.09/2014 Pushpender Singh Rathore v State (NCT) Delhi Govt & Ors Page 3 of 10 same had arisen during the year 2003, whereas the present suit has been filed by him in the year 2012 that is much beyond the limitation prescribed under Order 140 (1) of the DP Act.
6. The second limb of contention of learned counsels for defendants is that suit is also barred under Section 140(2) of the DP Act as defendant Nos.2 & 3 are police official and no notice of intended suit was ever given to defendant Nos.2 & 3 by the plaintiff and same is not even claimed to have been served upon defendant Nos.2 & 3 by the plaintiff as the averments of plaint are totally lacking in this regard.
7. Besides this, similar objection has been taken by all the defendants with regard to bar of Section 80 CPC saying that defendant No.1 is a State government and defendant Nos.2 & 3 are public servants and have been sued by the plaintiff without issuing statutory notice under Section 80 (2) CPC. In support of their contentions, learned counsel for defendants placed reliance on the following judgments of Hon'ble Delhi High Court reported as: Prof Sumer Chand v UOI & Ors : 41 (1990) DLT 66; and Akbar Ali v State (Govt of NCT of Delhi) & Ors : CS (OS) No. 1306/2005 decided on 22.04.2014.
8. On the other hand, learned counsel appearing on behalf of plaintiff while refuting all the aforementioned contentions submitted that the alleged act of the defendants on account of which, plaintiff had suffered damages are not the acts done under the colour of official duty or authority. He further argued that acts complained against defendants are also not the CS No.09/2014 Pushpender Singh Rathore v State (NCT) Delhi Govt & Ors Page 4 of 10 wrongs committed by them in discharge of their official duty and, therefore, provisions of Section 140(2) DP Act and Section 80 (2) CPC are not applicable in this case.
9. For appreciating the rival contentions of parties, it is necessary to first have a glance of the relevant provisions of law and same reads as under: "Section 140 Delhi Police Act - Bar to suits and prosecutions: (1) In any case of alleged offence by a police officer or other person, or of a wrong alleged to have been done by such police officer or other person, by any act done under colour of duty or authority or in excess of any such duty or authority, or wherein it shall appear to the court that the offence or wrong if committed or done was of the character aforesaid, the prosecution or suit shall not be entertained and if entertained shall be dismissed if it is instituted, more than three months after the date of the act complained of:
Provided that any such prosecution against a police officer or other person may be entertained by the court, if instituted with the previous sanction of the Administrator, within one year from the date of the offence.
(2) In case of an intended suit on account of such a wrong as aforesaid, the person intending to sue shall give to the alleged wrongdoer not less than one month's notice of the intended suit with sufficient description of the wrong complained of, and if no such notice has been given before the institution of the suit, it shall be dismissed.
(3) The plaint shall set forth that a notice as aforesaid has been served on the defendant and the date of such service and shall state what tender or amends, if any, has been made by the defendant and a copy of the said notice shall be annexed to the plaint endorsed or accompanied with a declaration by the plaintiff of the time and manner of service thereof.
CS No.09/2014 Pushpender Singh Rathore v State (NCT) Delhi Govt & Ors Page 5 of 10 Section 80 CPC reads as under: "80 Notice:(1) Save as otherwise provided in sub section (2) no suit shall be instituted against the Government (including the Government of the State of Jammu and Kashmir) or against a public officer in respect of any act purporting to be done by such public officer in his official capacity, until the expiration of two months next after notice in writing has been delivered to, or left at the office of
(a) xx xxx
(b) xx xxx (bb) in the case of a suit against the Government of the State of Jammu and Kashmir, the Chief Secretary to that Government or any other officer authorised by that Government in this behalf;
(c) in case of suit against any other State Government, a Secretary to that Government or the Collector of that district;
and in the case of a public officer, delivered to him or left at his office, stating the cause of action, the name, description and place of residence of the plaintiff and the relief which he claims; and the plaint shall contain a statement that such notice has been so delivered or left.
(2) A suit to obtain an urgent or immediate relief against the Government including the Government of the State of Jammu and Kashmir or any public officer in respect of any act purporting to be done by such public officer in his official capacity, may be instituted, with the leave of the Court, without serving any notice as required by sub section (1), but the court shall not grant relief in the suit, whether interim or otherwise, except after giving to the Government or public officer, as the case may be, a reasonable opportunity of showing cause in respect of the relief prayed for in the suit:
Provided that the Court shall, if it is satisfied, after hearing the parties, that no urgent or immediate relief need be CS No.09/2014 Pushpender Singh Rathore v State (NCT) Delhi Govt & Ors Page 6 of 10 granted in the suit, return the plaint for presentation to it after complying with the requirements of sub section (1).
(3) xx xxxx
10. Reverting to instant case, as per para 12 of plaint, the cause of action for filing the present suit arose when the defendants denied the release of seized articles of the plaintiff; secondly, when the plaintiff was asked to sign on the register by the Malkhana Incharge before the release of the articles; thirdly, when Malkhana Incharge denied the release of the articles; and fourthly, when the plaintiff raised demands for return of his articles through various letters written to various authorities. In the present suit, plaintiff is seeking damages / compensation on account of damage allegedly caused to the articles which were seized by the defendant No.3 during course of investigation of FIR No.875/2000 and on account of mental sufferings and agony allegedly suffered by him due to ill behaviour and negligence on the part of the defendants and further on account of the conduct of defendant Nos.2 & 3 in not mentioning all the articles seized, in the seizure memo and further denying the release of seized articles on superdaari despite orders of the Court.
11. As far as allegations of damage to the seized goods are concerned, it is important to note that all the articles after being seized by the IO during investigation of any case, becomes the case property and is handed over to the Malkhana Incharge of the concerned PS and any damage allegedly occurred to such articles after their deposit in Malkhana cannot be attributed to the IO of the case. Another grievance of the plaintiff CS No.09/2014 Pushpender Singh Rathore v State (NCT) Delhi Govt & Ors Page 7 of 10 is that IO had mentioned only few articles in the seizure memo whereas besides the articles mentioned in the seizure memo, many other articles were also seized from the custody of plaintiff and IO deliberately did not mention all articles in the seizure memo. However, one thing is clear that all the causes of action for seeking damages/compensation from the defendants are arising out of the alleged acts of defendant Nos.2 & 3 done by them during the course of their official duty. All the allegations against the SHO or the IO are relating to their alleged acts done during the course of investigation of aforementioned FIR. Considering the averments contained in the plaint and documents placed on record, I do not find any merit in the contention of learned counsel for plaintiff that the acts alleged against the defendant Nos.2 & 3 are not done by them under the colour of duty or authority or in excess of any such duty or authority within the meaning of Section 140 (1) of the DP Act.
12. In view thereof, in my considered opinion bar of Section 140(1) DP Act is clearly attracted as all the alleged acts complained of by the plaintiff against defendants are pertaining to the year 2003 when the plaintiff firstly came to know about the conditions of seized articles and further regarding the fact that seizure memo does not contain the entire list of actually seized articles. Mere fact that after more than five years of the alleged acts of the defendants, the plaintiff sent few letters to the Lieutenant Governor of Delhi and Commissioner of Police requesting them to take appropriate action and giving directions to concerned police officials for release of his articles will not give him a fresh cause of action for filing CS No.09/2014 Pushpender Singh Rathore v State (NCT) Delhi Govt & Ors Page 8 of 10 the instant suit. As per Section 140(1) D P Act, no suit shall lie against a police officer for a wrong alleged to have been done by him under the colour of duty or in excess of any such power, duty or authority after expiry of three months of the said act complained of. In the instant case, suit has been instituted after more than 10 years of the acts complained against. It is also pertinent to note that Delhi Police Act is a special legislation and shall have an overriding effect on the general law. Furthermore, instant suit is not a suit for damages for malicious prosecution. Therefore, same is barred by limitation even as per the general law of limitation. For holding the aforementioned opinion, I drew support from the observation of the Hon'ble Delhi High Court in Sumer Chand (supra) and Akbar Ali (supra).
13. Another objection of defendants is regarding lack of statutory notices under Section 140(2) of the DP Act and Section 80(2) CPC. As per latter section, whenever a person intends to file a suit against the public servant in respect of wrong committed against him by such public servant during discharge of his official duties, he is supposed to give such public servant 60 days prior notice. There is a similar provision of Section 140(2) Delhi Police Act for police official in Delhi Police. As per the requirements of the Section 140(2) of the DP Act, the person intending to sue a police officer shall give not less than a month's notice of the intended suit with sufficient description of the wrong complained of. Further, as per Section 140(3) DP Act, plaint shall set forth that the notice as contemplated under Section 140 (2) of the Act, has been served upon the defendant and the date of such service and shall state what tender or amends, if any, has been CS No.09/2014 Pushpender Singh Rathore v State (NCT) Delhi Govt & Ors Page 9 of 10 made by defendant and a copy of said notice shall be annexed to the plaint endorsed or accompanied with a declaration by the plaintiff of the time and manner of service thereof.
14. On the identical lines, Section 80(2) CPC contemplates the specific averments in the legal notice regarding the cause of action, the name, description and place of residence of the plaintiff and the relief which he claims; and the plaint shall contain a statement that such notice has been so delivered or left. Whereas in the instant case, the averments of plaint are completely silent regarding any such notice under Section 140(2) DP Act or Section 80(2) CPC being given by plaintiff to the defendants prior to the filing of instant suit. During course of arguments, leaned counsel for plaintiff has drawn my attention to certain letters dated 06.06.2003, 08.12.2003, 09.01.2004, 27.09.2003(sic), 20.01.2006, 14.09.2006, 26.12.2008, 24.04.2008, and 05.04.2013, the photocopies whereof have been filed with the plaint, but none of such letters is fulfilling the requirement of the notice as contemplated under Section 140(2) DP Act or Section 80 (2) CPC as neither the said letters are written to any of the defendants nor the plaintiff has intimated the addressee therein regarding his intention to sue the defendants against their alleged wrong acts.
15. In all the said letters, plaintiff appears to have raised demand for release of articles in proper condition and has nowhere communicated that he intends to file any civil suit for seeking damages against the defendants. Even otherwise, as already noted above, none of these letters are addressed to the defendants herein.
CS No.09/2014 Pushpender Singh Rathore v State (NCT) Delhi Govt & Ors Page 10 of 10
16. Considering the aforementioned facts and circumstances of the instant matter, it appears that the suit of the plaintiff is barred by provisions of Section 140(1) and (2) DP Act and Section 80(2) CPC. Accordingly, the preliminary issue is decided against the plaintiff and in favour of defendants.
As a consequence, plaint is hereby rejected under Order 7 Rule 11 (d) CPC. No order as to cost. File be consigned to Record Room.
(Sunena Sharma) Addl. Distt Judge04/SouthEast Saket Courts Complex, New Delhi Announced & dictated in the Open Court on 31.10.2014.
CS No.09/2014 Pushpender Singh Rathore v State (NCT) Delhi Govt & Ors