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TMI Blog1993 (9) TMI 358X X X X Extracts X X X X X X X X Extracts X X X X ..... 9, 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 appellant filed a suit (No. 828 of 1987) in the High Court of Delhi claiming ₹ 3,00,000 by way of damages for malicious prosecution. Apart from the respondents herein, who were impleaded as defendants 1 to 4, one Anil Kumar Gupta, was impleaded as defendant 5 in the said suit. In their joint written statement respondents 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 3, in his written statement. Respondent 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 4 filed an application (I.A. No. 7672 of 1987) for rejection of the plaint under Order 7 Rule 11 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 mo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uty 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 the 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 of amends, if any, has been made by the defendant and a copy of the said notice shall be annexed to the plaint endorsed or ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Sections 4 to 24 (inclusive) shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law. 8. 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 Section 29(2) of the Limitation Act, the period of limitation prescribed by Section 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. This means that if the suit filed by the appellant falls within the ambit of Section 140 then 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. 9. Shri Wad has invited our attention to the decision of the Allahabad High Court in Mohd. Sharif v. Nasir Ali' wherein it has been held that a suit for damages for malicious prosecution was governed by the general law of limitation in the Limitation Act and not by Section 42 of the Police Act, 1861. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny such action, such plaintiff shall not have costs against the defendant, unless the Judge before whom the trial is held shall certify his approbation of the action: Proviso- Provided always that no action shall in any case lie where such officers shall have been prosecuted criminally for the same act. 12. The said provisions are confined in their application to actions and prosecutions in respect of anything done or intended to be done under the provisions of the Police Act. They do not apply to a person who is being prosecuted for an offence under any other Act or an action being brought in respect of things or anything done under the provisions of any other Act. [See : Maulud Ahmad v. State of U. p. 41 Section 140 is based on Section 161 of the Bombay Police Act, 1951 and has a wider amplitude. The words in any case of alleged offence , or of a wrong alleged to have been done and by any act done are also used in Section 161 of the Bombay Police Act. After referring to these words in Section 161 of the Bombay Police Act, 1951, this Court in Virupaxappa Veerappa Kadampur v. State of Mysore 1963 Supp 2 SCR 6 : AIR 1963 SC 849 :(1963) 1 Cri LJ 814 has held: It appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the said preparation of the panchnama and report were acts done under colour of duty imposed upon the said Head-Constable by the Police Act. 15. In State of A. P. v. N. Venugopa (1964) 3 SCR 742 : AIR 1964 SC 33 : (1964) 1 Cri LJ 16 the Court was dealing with Section 53 of the Madras District Police Act, 1859, which contains provisions similar to those contained in Section 42 in the Police Act, 1861. The accused were a Sub-Inspector of Police, a Head Constable and a Constable. They were prosecuted for having caused injuries to a prisoner in custody for the purpose of extorting from him information which might lead to detection of an offence and restoration of stolen property, and also for having his body thrown at the place where it was ultimately found with the intention of screening themselves from punishment. Section 53 of the Madras District Police Act uses the words anything done or intended to be done under the provisions of this Act . Construing the said expression this Court has observed: (AIR p. 37, para 14) The Court has to remember in this connection that an act is not under' a provision of law merely because the point of time at which it is done coincides wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect in police custody were not acts done under the colour of duty or authority since the said acts had no reasonable connection or nexus to the duty or authority imposed upon the officer under the Bombay Police Act or any other enactment conferring the powers on the police under the colour of which this act was done and that such acts fell completely outside the scope and duties of the respondent police officers and they are not entitled to the protection conferred by Section 161 (I) of the Bombay Police Act. 19. Having regard to the principles laid down in the aforementioned decisions of this Court on provisions contained in Section 161(1) of the Bombay Police Act, 1951 which are similar to those contained in Section 140(1) of the Act, we are of the view that the High Court was right in holding that the present case falls within the ambit of Section 140 of the Act. What is alleged against respondents 3 and 4 by the appellant in the plaint is that respondent 4, who was in charge of Mayapuri police post had registered a false, vexatious and malicious report against the appellant, and respondent 3, who was Station House Officer, P.S. Naraina, had filed the challan in the Court aga ..... X X X X Extracts X X X X X X X X Extracts X X X X
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