PROF SUMERCHAND Vs. UNION OF INDIA

JUDGEMENT

(1.) This appeal, by special leave, raises the question whether the period of limitation for filing a suit for malicious prosecution against a member of the Delhi Police is governed by the provisions of Section 140 of Delhi Police Act, 1978, hereinafter referred to as 'the Act', or by Article 74 of the Limitation Act, 1963.

(2.) On the basis of the report made by one Anil Kumar Tripathi, a case in respect of offences under Sections 148/365/452/308/ 506/149 I.P.C. was registered against the appellant and. the six others, by Kripa Shankar Bhatnagar respondent No. 4, who was Police Inspector in charge of Mayapuri Police Post. After investigation, the challan was filed in the court by Vijay Malik, respondent No. 3, SHO of P. S. Naraina. The appellant and the other six accused were prosecuted before the Additional Sessions Judge, New Delhi on charges under Sections 148, 365/149, 452/149, 308/149 and 506/ 149, IPC in Sessions case No. 6 of 1985. By judgment dated February 28, 1986, the appellant as well as the other co-accused were acquitted by the Additional Sessions Judge. Thereafter, on April 20, 1987, the appellants filed a suit (No. 828 of 1987) in the High Court of Delhi claiming Rs. 3,00,000/- by way of damages for malicious prosecution. Apart from the respondents herein, who were impleaded as defendants Nos. 1 to 4, one Anil Kumar Gupta, was impleaded as defendant No.. 5 in the said suit. In their joint written statement respondents Nos. 1 and 2 raised the plea that the suit was barred by limitation in view of Section 140 of the Act. Same plea was raised by respondent No. 3, in his written statement. Respondent No. 3 also pleaded that the suit was not maintainable in view of Section 140(2) of the Act as no prior notice of the filing of the suit was served on him. Respondent No. 4 filed an application (I.A. No. 7672 of 1987) for rejection of the plaint under Order 7, Rule11 and Section 151, CPC wherein he submitted that the suit was one covered by Section 140 of the Act and since it had not been filed within a period of three months from the date of the impugned act and was filed more than one year after the acquittal, it was barred by limitation and has to be dismissed under -Section 140 of the Act. Another objection that was raised in the said application was that as per Section 140(2) of the Act, the appellant was required to give minimum one month's notice prior to filing of the suit and under Section 140(3), the fact of the service of notice is required to be stated in the plaint and that the appellant has neither served any such notice nor has he made any averment about serving any such notice on the respondent No. 4 in the plaint. Having regard to the pleas raised by respondents Nos. 1 to 3 in their written statement, the following preliminary issue was framed:

(3.) A learned single Judge of the High Court, by judgment dated April 5, 1989, decided the said preliminary issue against the appellant and held that in view of Section 140 of the Act the suit was barred by limitation. The learned single Judge further held that the appellant had admittedly not served any notice prior to the filing of the suit of his intention to file the suit on any of the respondents as required by Section 140(2) of the Act and for that reason also the suit was liable to be dismissed as against the respondents. Consequently the suit as against the respondents was dismissed. It, however, proceeds against defendant No. 5. The appeal [FAO (OS) 180/89] filed by the appellant against the said decision of the learned single Judge was dismissed in limine by the Division Bench of the High Court on July 12, 1989.