PARBAT GOPAL WALEKAR Vs. DINKAR S. SHINDE

JUDGEMENT

(1.) THIS revision application raises an important question as to the interpretation of Section 161 of the Bombay Police Act, 1951, which shall hereafter be referred to as the Act. The point arises in these circumstances: The petitioner Parbat Gopal Walekar is a police constable who was at the relevant time attached to the Delisle Road Police Station. On October 18, 1953, the petitioner was driving Sub -Inspector Kedari in a police jeep No. 149 and at Fergusson Road, Worli, Bombay, the jeep knocked down the opponent in this application, Dinkar S. Shinde, a minor, who is a resident of Patel Building, Fergusson Road. It would appear that on that day at about 1.20 p.m. the opponent was walking on the foot -path at Fergusson Road, opposite his building, and while he was crossing the main road he suddenly noticed the police jeep car driven by the petitioner coming from Delisle Road to Worli Naka and he was knocked down by the said jeep. The opponent suffered injuries and he was removed to the K. E. M. Hospital and it appears that he had to remain in the hospital for a number of days as an in -door patient. Thereafter his leg was kept in plaster of paris for about two months and he had to attend the hospital as an out -door patient for several months and as a result of the injuries there remained a permanent defect which has prevented him from sitting properly. It was also the case of the opponent that he was not able to attend school and render help to the other members of his family. On these facts, the opponent filed Pauper Suit No. 1913/9344 of 1955 in the Court of Small Causes at Bombay on December 17, 1954. It appears that to this suit were impleaded the State of Bombay as well as the present petitioner, and there is no dispute that plaintiff gave a statutory notice to the State of Bombay as required under Section 80 of the Civil Procedure Code on September 28, 1954. It seems, however, that at a subsequent stage of the suit, the State of Bombay was dropped and the suit proceeded against defendant No. 2 in his personal capacity, as he was the driver of the jeep on the day of the accident.

(2.) THE suit was resisted by the petitioner on the ground that he had not driven the car in a rash and negligent manner and that he was not responsible for the accident which took place. It was his defence that about four or five boys came out from the lane opposite Patel Building and they were running after a kite and one of the boys crossed the road, but the plaintiff could not cross the road and dashed against the left mud -guard of the jeep and sustained injuries. In the subsequent defences filed by defendant No. 2, he raised the point of limitation. It is not necessary for the purpose of this revision to deal with the defences filed by defendant No. 1, the State of Bombay, as I have already indicated that the proceedings of the suit were dropped so far as the State was concerned.

(3.) AGAINST this decision, the petitioner went in revision, before the Full Court, where it appears, no submission was made on the point as to the applicability of Article 22 of the Limitation Act. It seems also that the learned Judges of the Full Court were of the view that since the incident occurred on October 18, 1953, and the suit was filed on December 17, 1954, if Article 22 of the Limitation Act alone was applicable, the suit would be time -barred. But they stated that no submission on that point was made on behalf of the petitioner. The principal point that was argued before the Full Court was as to the applicability of Section 161 of the Act, and, reading Sections 159 and 161 and Rule 361 of the rules contained in the Bombay Police Manual, Vol. III, the Full Court came to the conclusion that the act of driving a jeep on the part of the petitioner would be an act done in pursuance of a duty imposed on him, as required by Section 159. But relying on Rule 363, where drivers of police vehicles are enjoined not to drive rashly, the Full Court held that the act of the petitioner in driving the vehicle rashly, as found by the trial Court, was illegal, being in violation of the rule, and such an illegal act could not be deemed to be an act done either under colour or in excess of duty, under Section 161 of the Act. The Full Court, therefore, came to the conclusion that Section 161 could not apply and, therefore, the period of limitation provided in that section could not be availed of by the petitioner. That is why the Full Court confirmed the decree of the trial Court. It is against this decision of the Full Court that the present Civil Revision application has been filed.