Delhi District Court
Thapinder Singh Bawa vs Jia Lal Khanna & Ors on 7 October, 2015
IN THE COURT OF SH. BALWANT RAI BANSAL,
ADDITIONAL DISTRICT JUDGE02 (SOUTHEAST),
SAKET COURTS, NEW DELHI
Civil Suit No. 45/14
Thapinder Singh Bawa
..... Plaintiff
Vs.
Jia Lal Khanna & Ors.
..... Defendants
O R D E R
1. Vide this order I shall dispose of an application u/o 7 rule 11 CPC and another application u/o 1 rule 10 CPC moved by the defendant no. 5.
2. It is stated in the application that the answering defendant had filed the charge sheet u/s 173 Cr.P.C. in case FIR No. 299/93 dated 14.08.1993, U/s 342/386/448/420/468/471/506/120B/34 IPC r/w Section 454/385/397 IPC, PS Lajpat Nagar, New Delhi under the instruction of SHO concerned by virtue of Section 157 Cr.P.C. The investigation was entrusted to SI Khushal Raj/ defendant no. 6 who carried out all the investigation. After completion of investigation, challan u/s 173 Cr.P.C. was prepared by SHO, PS Lajpat Nagar, New Delhi and same was filed before the court concerned. It is stated that CS No. 45/14 Thapinder Singh Bawa Vs. Jia Lal & Ors. Page No. 1 of 13 the answering defendant though was cited as a witness in the said case, but he had only prepared a Fard/Seizure dated 22.02.1998 by which electricity bill, telephone bills and house tax relating to the property in question were seized. The answering defendant was examined as PW20 by the Ld. Trial Court and supported the aforesaid version. It is stated that no cause of action has arisen against the defendant no. 5 as the Trial Court has acquitted the plaintiff in the instant case. It is further stated that the present suit is barred by Section 140 of Delhi Police Act r/w Section 52 of the Govt. of NCT of Delhi Act, 1991 which has been instituted after more than 3 months from the last cause of action i.e. 21.05.2013. The answering defendant is also protected by virtue of Section 138/139 of Delhi Police Act as he has acted in good faith in discharge of his official duty. It is stated that the answering defendant was handed over the investigation at the fake end under the instructions of SHO concerned by virtue of Section 157 Cr.P.C. and the answering defendant was bound to comply with in discharge of his official duty and hence the present suit is barred u/s 140 of Delhi Police Act. It is stated that there is no cause of action against the answering defendant and hence it has been prayed the suit against the answering defendant may be dismissed.
3. By way of application u/o 1 rule 10 CPC, the defendant no. 5 is seeking deletion of his name from the array of the parties on CS No. 45/14 Thapinder Singh Bawa Vs. Jia Lal & Ors. Page No. 2 of 13 the ground of similar contentions as raised in the application u/o 7 rule 11 CPC.
4. The plaintiff has filed reply to both the applications separately contending that defendant no. 5 had filed the charge sheet citing the plaintiff as accused without carrying out proper investigation. Had the defendant no. 5 carried out proper investigation, the plaintiff would not have been cited as accused. It is further contended that whatever was done by defendant no. 5 was not done in discharge of his official duty and he acted in very negligent manner. It is denied that the present suit is barred by limitation or is barred by Section 140 of Delhi Police Act r/w Section 52 of the Govt. of National Capital Territory of Delhi Act. It is stated that the present case is not covered under Section 140 of the Delhi Police Act as the plaintiff has not filed the present case upon the commission of any offence committed by any police officer but the present case has been filed for damages for facing the trial of a false case for malicious prosecution and hence the limitation of 3 months does not apply to the present case. The limitation for filing the present suit is one year and present suit having been filed within one year from the cause of action accrued to the plaintiff is within limitation. The other contents of the applications are stated to be wrong and denied that the plaintiff has prayed for dismissal of both the applications.
CS No. 45/14 Thapinder Singh Bawa Vs. Jia Lal & Ors. Page No. 3 of 13
5. I have heard the Ld. Counsel for the parties and perused the record carefully. I have also gone through the written submissions filed by the plaintiff.
6. Perusal of the record reveals that plaintiff has filed the present suit for recovery of damages for malicious prosecution against the defendants. It is stated that upon the complaint filed by defendant no. 1, the police registered a criminal case U/s 420/468/471/506/120B/34 IPC at PS Lajpat Nagar, New Delhi vide FIR No. 299/93 in which plaintiff was falsely implicated as an accused. The defendant no. 6 arrested the plaintiff and thereafter he was released on bail. The challan/charge sheet was filed by defendant no. 5 in the Sessions Court and parties went on trial. During the trial court proceedings, the defendant no. 1/complainant in the above said FIR made a statement that the plaintiff is not the accused linked to the offence detailed in FIR and the said fact was recorded in various order sheets. It is stated that the plaintiff was never involved in the aforesaid offence in any manner and the assertion of defendant no. 1 before the Hon'ble Session Court that the plaintiff was in fact the nephew of Bawa Thapinder Singh is highly negligent and irresponsible. The plaintiff was dragged in the false criminal litigation at the instance of the defendants. The plaintiff was arrested in the above said FIR case and faced trial for about 20 years and ultimately the Hon'ble Session CS No. 45/14 Thapinder Singh Bawa Vs. Jia Lal & Ors. Page No. 4 of 13 Court acquitted the plaintiff vide judgment dated 21.05.2013. It is stated that action of the police to register a false criminal case upon the false complaint of the defendant no. 1 was illegal and against the law. The officials of defendant no. 2 to 6 have exceeded the powers vested in them and have illegally tarnished the image of the plaintiff by filing false criminal case against him and due to said illegal action taken by the officials of defendant no. 2 to 6 the plaintiff suffered mental and physical agony and suffered damages. The defendant no. 5 and 6 failed to investigate the case properly and never got the plaintiff identified by the defendant no. 1 as to whether the plaintiff was involved in case or not. It is stated that the defendant no. 1 to 6 are jointly and severally liable to pay the damages and compensate the plaintiff for illegal action carried out by them causing losses to the plaintiff. Hence, the plaintiff has filed the present suit seeking damages of Rs. 19,50,000/ from the defendants.
7. Now, by way of present applications, the defendant no. 5 is seeking dismissal of suit qua him and deletion of his name from the array of the parties contending that he was entrusted the investigation at the fake end and he filed the charge sheet only at the instructions of the SHO PS Lajpat Nagar and prepared the seizure memo of the seized documents and whatever act was done by him, same was done in discharge of his official duty. He further contends that present suit CS No. 45/14 Thapinder Singh Bawa Vs. Jia Lal & Ors. Page No. 5 of 13 is barred by limitation u/s 140 of Delhi Police Act as same has not been filed within three months from the last cause of action accrued to the plaintiff.
8. Per contra, the Ld. Counsel for plaintiff argued that defendant no. 5 has not carried out the investigation fairly and he acted in negligent manner and had he acted diligently in carrying out the investigation, plaintiff would not have suffered agony of trial for about 20 years. He further argued that limitation for filing the suit seeking damages for malicious prosecution is one year from the accrual of cause of action and the present suit having been filed within one year from the pronouncement of judgment dated 21.05.2013 by which the plaintiff was acquitted, is within limitation. He further argued that provisions of Section 140 of Delhi Police Act would not applicable in the present case as same are applicable in a case where the police officer has caused an offence. It is further argued that it is the matter of trial as to whether the defendant no. 5 has acted in good faith and under discharge of his official duty or not for which evidence is required and hence the present suit cannot be dismissed qua defendant no. 5.
9. Before proceeding further, let us discuss the relevant provisions of Delhi Police Act, 1978 : Section 138 No police officer to be liable to penalty or damage for act done in good faith in pursuance of duty - No police officer shall be liable CS No. 45/14 Thapinder Singh Bawa Vs. Jia Lal & Ors. Page No. 6 of 13 to any penalty or to payment of any damages on account of an act done in good faith in pursuance of or purported to be done in pursuance of any duty imposed or any authority conferred on him by any proviso of this Act or any other law for the time being in force or any rule, regulation, order or direction made or given thereunder.
Section 139 No public servant liable as aforesaid for giving effect in good faith to any rule, regulation, order or direction issued with apparent authority - No public servant or person duly appointed or authorized shall be liable to any penalty or to payment of any damages for giving effect in good faith to
(a) any order of direction issued with apparent authority by the Administrator or by a person empowered in that behalf under this Act; or
(b) any rule or regulation made under this Act.
Explanation - In this section, the expression "public servant" has the meaning assigned to it in section 21 of the Indian Penal Code. Section 140 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 suit, it shall be dismissed.
(3) The plaint shall set for 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 CS No. 45/14 Thapinder Singh Bawa Vs. Jia Lal & Ors. Page No. 7 of 13 declaration by the plaintiff of the time and manner of service thereof.
Section 52 of The Government of National Capital Territory of Delhi Act, 1991 provides as under:
Contracts and suits - For the removal of doubts it is hereby declared that
(a) all the contracts in connection with the administration of the Capital are contracts made in the exercise of the executive power of the Union; and
(b) all suits and proceedings in connection with the administration of the Capital shall be instituted by or against the Government of India.
10. It has been held in Manoj Pant Vs. State & Anr. 2015 I AD (Delhi) 598 by the Hon'ble High Court of Delhi that, "Scope of protection under Section 197 is widened by extending protection to even those acts or omissions which are done in purported exercise of official duties, that is under colour of office - Official duty implied that act or omission must have been done by public servant in course of his service and such act or omission must have been performed as part of duty which further must have been official in nature - Its operation has to be limited to those duties which are discharged in course of official duties - Once it is established that act or omission was done by public servant while discharging his official duties then scope of it being official should be construed so as to defend objection of sanction in favour of public servant - Otherwise entire purpose of affording protection to public servant without sanction shall stand frustrated".
CS No. 45/14 Thapinder Singh Bawa Vs. Jia Lal & Ors. Page No. 8 of 13
11. The Hon'ble Apex Court has held in Prof. Sumer Chand Vs. Union of India & Ors AIR 1993 Supreme Court 2579 that, "Where a suit for malicious prosecution against two police officers alleging that one police officer who was in charge 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 said report was filed after expiry of three months from acts complained of, it was barred by limitation. The acts thus alleged were done under the colour of office of the said officers and would fall within the ambit of S. 140 (1) of Delhi Police Act because it was the duty of the said first officer being in charge of Police Post to record the report and so also it was the duty of another officer to file the challan in court. The acts complained of were, therefore, done under the colour of office of the said officers and well 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 a general enactment CS No. 45/14 Thapinder Singh Bawa Vs. Jia Lal & Ors. Page No. 9 of 13 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 limitation in the matter of institution of suits and prosecutions against police officers in respect of acts done by a police officer under 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 S. 29(2) of the Limitation Act, the period of limitation prescribed by S. 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".
12. In the present case, it is not in dispute that the defendant no. 5 had filed the charge sheet at the instructions of SHO PS Lajpat Nagar. It is also apparent from the aforesaid narration of the pleadings that the defendant no. 5 was entrusted the investigation at the fake end and he prepared the seizure memo by which electricity bill, telephone bills and house tax relating to the property in question were seized. CS No. 45/14 Thapinder Singh Bawa Vs. Jia Lal & Ors. Page No. 10 of 13
13. From the averments made in the complaint, it is clear that the plaintiff has not been able to show that how the defendant no. 5 acted malafidely and carried out the investigation in negligent manner. The plaintiff has only made a bald averment that due to negligence of defendant no. 5 and 6, he had to face agony of trial for about 20 years. Though, the plaintiff was acquitted by the Hon'ble Sessions Court as the plaintiff could not be identified as a person who had committed the offence, but it would not lead to the conclusion that defendant no. 5 has not acted in discharge of his official duty. Filing of challan, preparation of seizure memo of seized documents and to carry out the investigation which was entrusted to defendant no. 5 definitely would come within the scope of his official duty. Therefore, present case is squarely covered under provisions of Section 140 of Delhi Police Act. Section 140 of the Act is attracted not only in the cases where the police officer is alleged to have committed an offence but it also imposes a bar where the police officer is alleged to have committed any wrong in discharge of his official duty. It also provides the limitation period for filing of such suits against the said police officer and the period for filing such suit is three months from the date of the act complained of. Therefore, the contention of the plaintiff that Section 140 of Delhi Police Act would not be applicable as the plaintiff has not filed the present case upon the commission of offence CS No. 45/14 Thapinder Singh Bawa Vs. Jia Lal & Ors. Page No. 11 of 13 by defendant no. 5 is misconceived and Section 140 applies to the suit also.
14. Admittedly the present suit has been filed on 20.05.2014. As per own case of the plaintiff, cause of action accrued to him when he was acquitted by the Ld. Sessions Court on 21.05.2013. Therefore, the present suit has been filed beyond the period of three months from the date when the cause of action accrued to the plaintiff.
15. The contention of the Ld. Counsel for plaintiff that period of limitation for instituting he suit for malicious prosecution is one year as prescribed under Article 74 of the Limitation Act is not tenable in view of law laid by the Hon'ble Apex Court in Prof. Sumer Chand case (cited supra).
16. Plaintiff has contended that the defendant no. 5 has acted negligently and did not carry out the proper investigation and therefore, whether the investigation was carried out in good faith or not is a matter of trial and therefore defendant no. 5 is not entitled to the protection of Section 138, 139 and 140 of the Delhi Police Act at this stage. However, in my opinion, there is no merit in this contention. Period of limitation within which such suit has to be filed is not dependent on the determination as to whether the alleged act was done within discharge of his official duty or not. As per Section 140 of DP Act, even if a police officer has exceeded his power in CS No. 45/14 Thapinder Singh Bawa Vs. Jia Lal & Ors. Page No. 12 of 13 discharge of his official duty, still the bar would operate in filing the suit within the period of limitation. As per Section 140 the period of limitation for filing such suit is three months from the date of the act complained of.
17. In view of aforesaid discussions, it is held that the suit filed by the plaintiff against the defendant no. 5 is hit by section 140 of the Delhi Police Act and barred by limitation having not been filed within three months from the cause of action accrued to the plaintiff. Hence, application moved by the defendant no. 5 u/o 7 rule 11 CPC is allowed and the plaint is rejected qua defendant no. 5 being barred by law. Consequently, the application moved by defendant no. 5 u/o 1 rule 10 CPC also stands allowed and the name of defendant no. 5 is deleted from the array of the parties.
Announced in the open Court (Balwant Rai Bansal)
on 7th October, 2015 Addl. District Judge 02 (SouthEast)
Saket Courts, New Delhi
CS No. 45/14
Thapinder Singh Bawa Vs. Jia Lal & Ors. Page No. 13 of 13
CS No. 45/14
Thapinder Singh Bawa Vs. Jia Lal & Ors.
07.10.2015
Present: None.
Vide my separate order of even date, the application moved by the defendant no. 5 u/o 7 rule 11 CPC and u/o 1 rule 10 CPC are allowed. Amended memo of parties be filed.
Now, to come up on 23.11.2015 for admission/denial of documents and framing of issues.
(Balwant Rai Bansal) ADJ02/SE/Saket/New Delhi 07.10.2015 CS No. 45/14 Thapinder Singh Bawa Vs. Jia Lal & Ors. Page No. 14 of 13