SUMER CHAND Vs. UNION OF INDIA

JUDGEMENT

(1.) The plaintiff was prosecuted by the State (Delhi Administration) for the offences punishable under sections 148/365/149/452/ 308/506/149 of the Indian Penal Code. According to the FIR lodged by one Mr. Amit Kumar Tripathi, an employee of Anil Kumar Gupta, defendant No. 5, against the plaintiff, on 27.12.1983 on an information having been received on telephone, H.C. Chottu Ram had given an information that in Lakkar Mandi some persons had come in a bus and they indulged in beating with some other persons. Acting on that information S.I. Kripa Shankar Bhatnagar, who is defendant No. 4, then Incharge. Police Post, Maya Puri, along with S.I.. Habib Ahmed reached the place of occurrence. In the meantime, they got a copy of DD No. 33 dated 27.12.83 of P.P. Maya Puri. On that S.I. Kripa Shankar Bhatnagar, defendant No. 4, sent one ASI Baldev Singh along with some constable to P.S. Kishmere Gate for inquiry. The statement of one Amit Kumar Tripithi, the complainant and an alleged employee of one M/s. Anil International of which Anil Kumar Gupta, defendant No. 5, is a partner, was recorded, which is the F.I.R. of the case. It was stated by Amit Kumar Tripathi that he was working for the last 10-12 days with M/s, Anil International at l/71,Kirti Nagar, Timber Market, New Delhi as their godown chowkidar and on the night between 26 and 27.12.1983 at about 10 P.M. he was present in the godown along with some other persons named in the F.I.R. They took their dinner and slept in the two rooms outside the factory godown and the gate of the factory was locked. At 12.30 A.M. on 27.12.83 Prof. Sumer Chand, plaintiff, accompanied by his companions came there and attacked them with lathis and dandas and they told the peasons present at the godown to vacate the factory otherwise all of them would be down away with. It was also stated by him that these persons gave danda and lathi blows to the workers. Taking advantage of the mob he (Ami Kumar Tripathi) came out side by jumping over the gate and then ran away from there and gave the information about the occurrence to the wireless police sitting at the chowk of Maya Puri. It was further stated that after giving this information to the police he again returned to the factory. He saw that Prof. Sumer Chand the plaintiff, along with his goonda companions had forcibly taken away his co-workers Batin Lal, Dhanpat, Jagan, Ziley Singh, Ranvir and Virender Kumar in injured condition in the bus in which they had come there. The accused party had also thrown away the goods of the factory as also goods, utensils and boxes etc. belonging to him and his companions. He then went in a three-wheeler scooter to Anand Lok to give information of the occurrence to his employer. After giving that information to them he again came back in that very three-wheeler to the place of occurrence where he found the police party already preseat there. After investigation of the case the police had challaned the plaintiff Prof. Sumer Chand and his other co-accused of the offences under sections 365, 452, 308, 506 read with section 149 IPC. The accused were charged with the said offences. After the trial of the case the learned Additional Sessions Judge by his judgment dated 28th February 1986 acquitted all the accused persons holding that the prosecution story appeared to be improbable and unreliable and no offence was proved against any of the accused persons. It was also observed that the investigation of the case was also tainted.

(2.) The plaintiff thereafter filed the present suit for the recovery of Rs. 300.000.00 as damages for his malicious prosecution in the said case against the Union of India; The Commissioner of Police, Delhi; Inspector Vijay Malik, who was the S.H 0. of Paharganj Police Station: inspector Kripa Shanker Bhatnagar, who was Investigation Officer of the case and one Anil Kumar Gupta, defendant No. 5, who is the partner of Anil International with whom Amit Kumar Tripathi was employed. It is alleged in the plaint that defendants 3 to 5 had entered into a conspiracy to launch false and malicious prosecution against the plaintiff with sinister motive and with view to harass and humiliate him. According to the plaintiff, these defendants had managed to chollan the plaintiff in the said case and continued with his prosecution in the case maliciously.

(3.) An application, being I.A. No. 7672/87, was filed by defendant No. 4 under Order 7, Rule 1 and sec. 151 Civil Procedure Code stating therein that as per the provisions of section 140 of the Delhi Police Act, 1978 (hereinafter called 'the Act') in any case of alleged offence by a police officer of a wrong alleged to have been done by such police officer by any act done under colour of duly or authority or in excess of any such duty or authority, the suit shall not be entertained by the court and if entertained shall be dismissed if the same is instituted more than three months after the date of the act complained of. The present suit is one of the nature as covered by section 140 of the Act and as the suit has not been filed within the period of three months from the date of doing of the impugned act, namely, arrest and prosecution of the plaintiff' in the said case, but having been filed more than one year even after the acquittal of the plaintiff in the case, the same was barred by time and has to be dismissed in view of section 140(1) of the Act. The other objection raised in the application is that as per section 140(2) of the Act, in the case of any intended suit on account of such a wrong as aforesaid or like the present one, the plaintiff has to give a minimum of one month's notice to the defendant prior to the filing of the said suit with sufficient description of the ground complained of and if no such notice is served on the defendant prior to the institution of the suit, the suit has to be dismissed. It is also alleged that as per section 140(3) the fact of the service of such a notice is required to be stated in the plaint. Defendant No. 4 has slated that the plaintiff did not serve any such notice, nor has made any avernment in the plaint about serving any such notice on defendant No. 4 and that thus, the plaint was liable to be rejected on that ground Defendants No. 1 and 2 in their joint written statement took the preliminary objection that the suit was barred by limitation in view of section 140 of the Act. Defendant No. 3 in his written statement took the preliminary objection that the suit was not maintainable in view of section 140(2) of the Act as not prior notice of the filing of the suit was served on him. On these pleas of defendants 1 to 3 the following preliminary issue was framed :-