Judgment:
.* IN THE HIGH COURT OF DELHI AT NEW DELHI Judgment pronounced on:
20. h February, 2015 % + I.A. No.3401/2013 & I.A. No.12048/2013 in CS(OS) 2315/2011 SUMER SINGH SALKAN Through ..... Plaintiff Ms.Malvika Rajkotia, Sr. Adv. with Mr.Ranjan N. & Ms.Anchal Kapoor, Advs. versus REEMA & ORS Through ..... Defendants Ms.Reema Salkan, D-1 in person as well as for D-7. Mr.Jaswinder Singh, Adv. for D-2. Mr.Siddharth Luthra, Sr.Adv. with Ms.Ferida Satarawala, Mr.Aditya & Mr.Shiv Pande, Advs. for D-3, 5 & 6. CORAM: HON'BLE MR.JUSTICE MANMOHAN SINGH MANMOHAN SINGH, J.
1. By way of this order I propose to decide two applications; one being I.A. No.3401/2013 and another being I.A. No.12048/2013 both under Order 1 Rule 10 read with Section 151 CPC filed by the defendant No.6 (Ranjit Narayan) and defendant No.5 (R.S. Yadav) respectively for rejection of the name of defendant No.5 and defendant No.6 from the array of parties.
2. By the application being I.A. No.3401/2013 filed by the defendant No.6 it was stated that defendant No.6 was posted as Special Commissioner (Crime), Delhi Police and is neither a proper nor a necessary party and his presence in the array of parties as defendant No.6 was not justified. The allegations made against the defendant No.6 in the plaint does not make out any cause of action against defendant No.6. The basis of the plaint is acts stated to be done in discharge of duty by defendant No.6 which cannot be the basis of claiming damages or maintaining the suit as against the defendant No.6.
3. It is stated that as per Section 140 of Delhi Police Act, 1978 (hereinafter referred to as the “Act”) which imposes certain restrictions and limitations 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. One such restriction is that such suit or prosecution 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. It is further stated that there has been no compliance of Section 140 of the Act without which the present suit is barred in law.
4. The plaintiff in his reply has denied the contentions of the defendant No.6 and stated that defendant No.6 was responsible for scuttling the transparent proceedings of the CAW cell on the basis of defendant No.1’s false complaint dated 22nd April, 2003 where the untruth in defendant No.1’s complaint dated 6th March, 2003 was being exposed in view of the legal documentary evidence which was submitted to the CAW cell on 24th March, 2003 by the parents of the plaintiff. Defendant No.1 wrote two letters dated 8th January, 2003 and 6th March, 2003 in reply to the legal notice dated 20th December, 2012 which showed deliberate abuse of authority by defendant No.6 as any Senior officer receiving a complaint against a junior official would be expected to get the matter investigated thoroughly.
5. It is stated that the defendant No.6 was responsible for deliberately registering FIR against the innocent plaintiff and his family without even checking the authenticity of defendant No.1’s complaint dated 22nd April, 2003 only because she was the sister of a colleague I.P.S officer. It is stated that no notice or summons were sent to the plaintiff by the police in Canada which required his presence in the CAW cell. On the basis of false FIR because of abuse of authority on the part of the defendant No.6, the other defendants were able to proceed by opening illegal LOC(s) against the plaintiff and his family members and then issued a series of illegal RCN(s) which confined him in Canada for 7 years. This Court vide order dated 11th August, 2010 held that the LOC(s) and RCN(s) were issued by police officers who were not even authorised to issue them.
6. It is further stated that defendant No.6 attempted to mislead this Court by splitting the para Nos. 6xxi into two portions and eliminating the relevant portion which directly indicts him in thwarting the proceedings of CAW cell midstream, at the behest of defendant No.1, by ensuring the speedy registration of the FIR merely on the basis of a false report.
7. It is averred that Section 140 of the Act does not apply to illegal acts done by the police officials. It is also stated in the application that defendant No.6 is necessary party for the purpose of disposal of the suit. The prayer is made for dismissal of the application.
8. The defendant No.6 in the rejoinder to the reply has denied the assertions of the plaintiff.
9. By the second application, being I.A. No.12048/2013, filed by the defendant No.5 it was stated that defendant No.5 was posted as Additional Commissioner of Police, Delhi Police and is neither a proper nor a necessary party and his presence in the array of parties as defendant No.5 was not justified.
10. The allegations made against the defendant No.5 in the plaint does not make out any cause of action against defendant No.5. The basis of the plaint is acts stated to be done in discharge of duty by defendant No.5 which cannot be the basis of claiming damages or maintaining the suit as against the defendant No.5.
11. It is stated that as per Section 140 of the Act which imposes certain restrictions and limitations 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. One such restriction is that such suit or prosecution 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. It is further stated that there has been no compliance of Section 140 of the Act without which the present suit is barred in law.
12. It is stated that it is admitted by the plaintiff that defendant No.5 only wrote a letter to FRRO requesting him to issue a LOC. It is further stated that the LOC was not quashed by this Court vide order dated 11th August, 2010 in WP (Crl.) No.1315/2008, as alleged by the plaintiff. This court had observed certain irregularities only with regard to the issuance of the RCN. In reference to the LOC, it was only removed conditionally, on the plaintiff giving an undertaking regarding his appearance in Court. The issues involving the opening of the LOC and issuance of the RCN are different and have been with malafide content clubbed together by the plaintiff to implicate the defendant No.5. The LOC is neither circulated over the internet nor was the plaintiff restrained at any place on account of the LOC issued against him. It is further stated that the claim of damages for the alleged losses have no bearing with the issuance of the LOC or with any act performed by the defendant No.5.
13. The plaintiff in the replication has denied the contentions of the defendant No.5 and stated that after the false FIR was registered on 22nd April, 2003, the defendant No.6 in order to help defendant No.1 on 27th May, 2003 sent a request to FRRO for opening of LOC against the plaintiff vide letter dated 27th May, 2003 wherein it was mentioned that the plaintiff and his parents used to beat her and that he ran away with Rs. 1,55,000/-to Canada and the FIR No.127/03. However, there were no such allegations in the FIR or legal correspondence or in her letter dated 26th January, 2003 or in her parents’ statements.
14. It is stated that defendant No.5 deliberately and maliciously manufactured this offence so that LOC could be opened against the helpless plaintiff. It is further stated that FRRO issued LOC on the basis of a request from an officer who was not even authorised to issue LOC and this illegal LOC was opened soon after defendant No.1 had accepted, as per her demand, Rs.1.5 lakhs in Court vide order dated 26th May, 2003 in lieu of alleged remaining dowry and jewellery articles.
15. It is averred that the LOC was issued by the illegal acts of the defendants in collusion and connivance with defendant No.5 who played a major role in ruining the life of the plaintiff and due to actions of the defendant No.5 illegal RCN (s) was issued against the plaintiff.
16. It is also stated in the application that defendant No.5 is necessary party for the purpose of disposal of the suit. The prayer is made for dismissal of the application.
17. The matter came up for hearing when Ms. Malvika Rajkotia, learned counsel appeared on behalf of the plaintiff and Mr. Siddharth Luthra, learned Senior counsel appeared on behalf of the defendant No.5 and 6 who have made their respective submissions.
18. Ms. Rajkotia, learned counsel for the plaintiff has made her submissions while resisting the application under Order 1 Rule 10 CPC filed by the defendant No.5 and 6 and the same can summarized in the following manner: a) Firstly, learned counsel has argued that the plaint contains sufficient allegations against the defendant No.5 and defendant No.6 demonstrating as to how the said defendants have acted malafidely by misusing the system and made out a false case against the plaintiff leading to issuance of Red corner Notice/ RCN putting the plaintiff to severe prejudice which was ultimately quashed by this Court on 11th August, 2010. Defendant No.1’s SLP No.9373-9374 of 2013 against the above order was dismissed on 3rd January, 2004. Review Petition (Crl.) Nos.365366 of 2014 in SLP (Crl.) Nos.9373-9374 of 2013 against the order dated 3rd January, 2014 was dismissed on 8th July, 2014. It is argued by the counsel for the plaintiff that the allegation against Mr. R.S. Yadhav/defendant No.5 are contained in the plaint at para xxviii, para 7 (b) (i) and (ii) and para 7 (c). It is argued that the plaint also states clearly as to how the defendant No.5 wrote a letter dated 27th May, 2003 to FRRO for opening of LOC against the plaintiff by raising false allegations against the plaintiff which is contrary to the FIR. Likewise, against the defendant No.6/ Mr. Ranjit Narayan, the allegations are mentioned in paragraphs 6 and 7 of the plaint. Therefore, as per the plaintiff’s counsel, there exists a clear cause of action against the defendant No.5 and defendant No.6 in the plaint as these acts done by the defendants are malafide and false and not in discharge of their official duty. b) Secondly, learned counsel for the plaintiff has argued that the allegations contained in the plaint are required to be read alongside the judicial findings which have been arrived at inter se the parties including the order dated 11th August, 2010 passed by learned Single Judge in WP(Crl) No.1315/2008 wherein, it has been observed that “The petitioner’s description of being ‘violent and dangerous’ also has been added malafidely, with ulterior motive, in view of the fact that allegations against petitioner were only of emotional torture. Offence of kidnapping was given as the reasons for issuance of RCN, which on the representation of petitioner was removed. It is apparent that the LOC & RCN were issued for extraneous reasons by an officer who was not authorized.”
These observations as per the plaintiff’s counsel coupled with the allegations in the plaint clearly make out a cause of action against the defendants to maintain the present suit as these acts are malafidely done not in discharge of its duties but to falsely implicate the plaintiff by raising false allegations against the plaintiff not even present in FIR or any other correspondence and falsely informing the authorities as he is wanted and fugitive. c) Thirdly, learned counsel for the plaintiff has relied upon the judgment of this Court passed in the case of Balbir Singh v. Government of NCT of Delhi and Others, reported in 125 (2005) DLT543wherein the learned Single Judge of this Court after analyzing the authorities on the subject has held that the provisions of Section 140 of the Act would not be applicable if the acts done by the police officials are not the ones which can be said to be done under the colour of duty. Learned counsel also relied upon the following judgments of the Supreme Court and this Court in order to support the plea of non applicability of Section 140 of the Act. d) It was argued by Ms.Rajkotia that while dealing with an application under Order 7 Rule 11 CPC observed in paragraph No.11 as under :
“11 ….I am of the view that, prima facie, provisions of Section 140 of the Delhi Police Act would not be applicable if one has to take into consideration the allegations made in the plaint….These acts as complained of, if proved, by no stretch of imagination would be acts under the colour of duty if one has to apply the test laid down in the aforesaid judgments…. e) She has also referred another decision of Supreme Court in the case of General Officer Commanding vs. CBI & Anr. and Additional Director General vs. Central Bureau Investigation, AIR2012SC1890wherein it was held as under :
“22.….Use of the expression "official duty" implies that the act or omission must have been done by the public servant in the course of his service and that it should have been done in discharge of his duty. The section does not extend its protective cover to every act or omission done by a public servant in service but restricts its scope of operation to only those acts or omissions which are done by a public servant in discharge of official duty….”
“25.……This Court after considering its earlier judgments including Jamuna Singh (supra); The State of Andhra Pradesh v. N. Venugopal and Ors. AIR1964SC33 State of Maharashtra v. Narhar Rao AIR1966SC1783 State of Maharashtra v. Atma Ram and Ors. AIR1966SC1786 and Prof. Sumer Chand v. Union of India and Ors. (1994) 1 SCC64 came to the conclusion that the prosecution has been initiated on the basis of the FIR and it was the duty of the police officer to investigate the matter and to file a chargesheet, if necessary. If there is a discernible connection between the act complained of by the accused and his powers and duties as police officer, the act complained of may fall within the description of colour of duty. However, in a case where the act complained of does not fall within the description of colour of duty, the provisions of Section 140 of the Delhi Police Act 1978 would not be attracted.”
19. In view of the submissions advanced by the learned counsel for the plaintiff, it is prayed that this Court should dismiss I.A. No.3401/2013 filed by defendant No.6 and I.A.No.12048/2013 filed by the defendant No.5 as there exists a cause of action against the said defendants and the bar under the Act is not attracted.
20. Per contra, Mr. Siddharth Luthra, learned Senior counsel appearing on behalf of the defendants No.5 and 6 has made his submissions in support of the applications and rejoinder to the reply of the plaintiff and the same can be summarized in the following manner: a) Firstly, Mr. Luthra has argued that this Court should read the plaint in order to discern the cause of action against the defendants and not the narrations of facts provided in judgments. It is argued that so far as the defendant No.6 Mr. Ranjeet Narayan is concerned, the only allegation raised in the plaint is at para 7 (a) which is that he heard the complaint of defendant No.1 and registered the FIR on the same day which is 22nd April, 2003. It is argued that the registering FIR is a part of the duty of the police officer and thus the act complained of against the defendant No.6 is not outside the ambit of its official duty. Mr. Luthra, relied upon number of judgments of this Court as well as of the Supreme Court to urge that it is obligatory on the part of the police officer to register FIR if the information discloses a commission of the cognizable offence. As per Mr. Luthra, thus the allegations in the plaint against the defendant No.6 which are towards the limited role of the defendant No.6 in issuance of the FIR is clearly an act done under the colour of the duty. Thus, so far as the defendant No.6’s case is concerned, the bar of Section 140 of the Act would clearly be attracted. a) It is argued by Mr. Luthra that the pleadings in the plaint do not make out cause of action against defendant Nos.5 and 6, with regard to defendant No.6, the allegations against him in the plaint are on page 24, para 6 (xxi) and on page 40, para 7(a). Thus, the only allegation against defendant No.6 is that he heard the complaint of defendant No.1 and a FIR was filed on the same day, i.e. 22nd April, 2003. The FIR is only the starting point of investigation. Proceedings regarding CAW Cell inquiry have been supported by this Court in Harpal Singh Arora & Ors. vs. State and Anr. W.P. (Crl.) No.1009/2007, judgment dated 1st May, 2008. Recently in Lalita Kumari vs. Govt. of U.P. & Ors. (2013) 13 SCALE559 the Supreme Court has held that registration of FIR is mandatory if the information discloses a commission of a cognizable offence. Thus, no claim has been made against defendant No.6 as a supervisory officer, which could give rise to any justification to seek damages as there cannot be said to be any allegations of defendant No.6 which led rise to a cause of action. Extraneous factors beyond the plaint and general observations in the judgment in the criminal case cannot be a basis of justification of a claim for damages. Section 43 of the Indian Evidence Act, 1872 bars the application of judgments in a criminal case to that in civil matters. The Supreme Court has time and again held that if the judgment of a civil court is not binding on a criminal court then the judgement of a criminal court will also be not binding on a civil court. Reliance is placed on Vishnu Dutt Sharma vs. Daya Sapra (Smt.) (2009) 13 SCC729and Syed Askari Hadi Ali Augustine Imam & Anr. vs. State (Delhi Admin.) & Anr., (2009) 5 SCC528 b) Secondly, Mr. Luthra argued that the only allegation against the defendant No.5 is that he requested FRRO to open LOC. It is argued that FIR is the starting point of the investigation and further information is gathered under Section 161 and 91 Cr.P.C. It is further argued that there may be a mention of the additional facts in the letter to FRRO which could not be found in FIR and such letter being sent on 27th May, 2003 two months after the FIR cannot be a ground to claim damages or to allege there is any purported abuse of the authority by the defendant No.5. This submission is reiterated in the written submissions filed by the defendants as well. c) Thirdly, Mr. Luthra has argued that the acts done by the defendants were in the discharge of their duty. It is argued that Section 140 of the Act does not lay any distinction between the bonafide acts or malafide acts as sought to be explained by the counsel for the plaintiff. If the said acts are done in discharge of the duty of the police officer, the provisions of Section 140 of the Act would be attracted. It is argued that the plaintiff has not denied that the acts were done by the defendant Nos. 5 and 6 in discharge of their duty/ authority. d) Fourthy, Mr. Luthra has relied upon the judgment passed in the case of Prof. Sumer Chand v. Union of India, (1994) 1 SCC64which has laid down that for the acts to constitute the colour of office, the said acts must have reasonable connection and nexus with the duties of officer. Section 140 of the Act is a preventive mechanism which enables the administration to protect acts done under the colour of office and exempts such acts which are not so done. Likewise, Mr. Luthra also relied upon the judgment of Surender Kumar v. Kewal Singh decided on 19th September, 2012 as CM(M) 1052/ 2012 wherein this Court observed that the acts done by the officers are in colour of the duties and thus are covered within the ambit of Section 140 of the Act. e) Lastly, Mr. Luthra argued that the judgment of Balbir Singh (supra) relied by the plaintiff’s counsel was factually different in view of the clear finding that the acts complained of are beyond the purview of the Section 140 of the Act. Thus, this Court should not apply the said judgment in facts of the present case.
21. In view of the aforementioned submissions advanced by the learned counsel for defendants, it is prayed that this Court should allow both applications filed by the defendant No.5 and 6.
22. I have gone through the applications filed under the provisions of Order 1 Rule 10 CPC by the defendant No.5 and 6 and also the replies filed by the plaintiff. I have also gone through the plaint and written statement along with the documents filed therewith. I have also given careful consideration to the submissions advanced by the learned counsel for the parties at the bar and written submissions and shall now proceed to discuss the aspects which fall for consideration in the present case.
23. Firstly, it is noteworthy to mention that the applications have been filed by the defendant No.5 and 6 are under Order 1 Rule 10 CPC seeking deletion of the names of the defendants from the present suit. Therefore, ideally, this court should merely confine to the enquiry in determining whether the defendant No.5 and 6 are proper and necessary parties to the present proceedings in view of settled principles of law governing the addition and deletion of the parties governing the provisions of Order 1 Rule 10 CPC. However, the applications have been averring that the present suit is barred by the law and does not disclose cause of action against the defendant Nos. 5 and 6 and the arguments have been addressed by the parties on the applications on the same understanding as if the present applications are under Order 7 Rule 11 CPC and written arguments have also been filed on that basis. In such a case, ignoring the nomenclature of the applications, this Court is proceeding to treat these applications as filed also under the provisions of Order 7 Rule 11 CPC considering that both the parties have raised the contentions not keeping in mind the scope of the concept of proper or necessary parties as envisaged under Order 1 Rule 10 CPC but on the aspect whether the suit discloses cause of action against the defendant Nos. 5 and 6 or not and the bar of Section 140 of the Act is attracted or not. Accordingly, this Court is proceeding to answer the contentions of the parties by considering the present applications although the application filed by the defendant No.1 is pending for consideration. She at the time of deciding this application submits that let these two applications filed by the defendant No.5 and 6 be decided first. None of the parties has opposed the suggestion given by her. Thus, the hearing of her application is postponed.
24. There are certain settled principles of law which guide the Court while deciding the application under Order 7 Rule 11 CPC when the grounds are invoked that the plaint does not disclose cause of action and/ or the plaint is barred by the law under the provisions of Order 7 Rule 11 (a) and (d) of the CPC. The said principles of law can be summarized in the following manner: a) It is a settled principle of law that for the purposes of evaluating as to whether the plaint discloses cause of action and/or the suit is barred by the provisions of law, the allegations made in the plaint are germane and the plaint is assumed to be correct document along with the documents filed therewith. It is settled law that if there are allegations contained in the plaint, the plaintiff can further elaborate the said pleas raised in the plaint by way of the documents filed along with the same and the court can take recourse to looking at the documents filed therewith in order to evaluate as to whether the cause of action is disclosed in the plaint. Reliance is placed on Liverpool & London S.P. & I Association Ltd. Vs. M.V.Sea Success I and Another (2004) 9 SCC512 b) Again, it is equally well settled principle of law that the Court has to do the meaningful reading of the plaint and the plaint has to be read in its entirely in order to find out as to whether it discloses a cause of action against the defendants or not. No isolated reading or compartmentalization of the paragraphs of the plaint can be done in order to find out of the cause of action from the plaint. This is due to the reason that the cause of the action is the bundle of facts giving rise to the right to sue and the same can be discerned from the reading of the plaint in the entirely and not from secluded reading of the certain paragraphs. Reliance is placed on Sopan Sukhdeo Sable & Ors vs Assistant Charity Commissioner & Others, (2004) 3 SCC137 c) It is also trite law that while deciding the application under Order 7 Rule 11 (d) which is that the suit is barred by the law, the said question is sometimes a pure question of law and sometimes it is mixed question of fact and law. In a case where the reading of the plaint ex facie suggests that the bar under the law is clearly attracted, the Court can immediately reject the plaint observing that the suit is barred by the law. On the contrary, there are cases wherein the reading of the plaint does not clearly suggests the applicability of the bar under the law, in such cases, the Court proceeds to observe that it is a mixed question of fact and law and thus trial is necessary as no conclusive finding on the applicability of the bar under the law can be made at the stage of the deciding the application under Order 7 Rule 11 CPC. This has been seen in the cases wherein the question as to whether the suit is barred under the law of limitation has been decided by the Supreme Court under the provisions of Order 7 Rule 11 CPC. In such cases, the Supreme Court observed that wherein the reading of the plaint clearly indicate without any enquiry that the suit is barred by the limitation, the Court should reject the plaint as against the same wherein the Court finds that some enquiry into the disputed facts is essential, then the Court can postpone the decision of the applicability of the bar of the limitation pending the trial so that the disputed facts can further be thrashed out in trial. Reliance is placed on Balasaria Construction (P) Ltd. v. Hanuman Seva Trust & Ors.; (2006) 5 SCC658 25. Considering the aforementioned settled principles of law in mind, let me evaluate from the reading of the plaint as to whether the plaint discloses a cause of action against the defendant Nos. 5 and 6 and also whether the bar under the provisions of law which is Section 140 of the Act is attracted or not.
26. At the outset, it is clarified that the reading of the plaint alongside the memo of parties would suggest that there exists some error in so far as the reference of defendant No.6 in the plaint is concerned. There are allegations in the plaint with reference to Mr. Vikram Singh Mann as defendant No.6 whereas in the memo of parties, he is arrayed as defendant No.7 and some allegations with reference to defendant No.6 concerns with Mr. Ranjeet Narayan. Thus, the reading of the plaint has to be done carefully in order to cull out only those allegations which are concerning Mr. Ranjeet Narayan as defendant No.6 and not all.
27. So far as Mr. Ranjeet Narayan/the defendant No.6 is concerned, the following are the allegations raised in the plaint:
“(xxi) The defendant No.1 realising that she was getting nowhere in the Crime Against Women Cell, exerted her influence with a senior police officer, by sending a false complaint against Inspector Raj Kumari to Mr.Ranjeet Narayan, Joint Commissioner of Police; wherein she said that the I.O. had advised her not to take her lawyer with her on 17.04.2003, hence she could not plead her case in the court convincingly, and consequently the parents and sisters of the plaintiff got their bail. However, the order-sheet of the proceedings of 17.04.2003 shows that the defendant No.1 was not present in court. Thus there was no question of her not being able to argue her case convincingly. It is pertinent to mention that the FIR was registered on the same day, i.e. 22.04.2003, when she complained to Mr.Ranjit Narayan. Evidently, a false and illegal FIR was registered without looking into the documents on record (legal correspondence) which forms part of the FIR and without checking the authenticity of complaint of defendant No.1 against I.O. Ms.Raj Kumari. 7(d) The counsel for the defendant No.1 sent a reply on 06.03.2003 to he counter reply dated 18.01.2003 by which the defendant confirmed the contents of her letter dated 08.01.2003. It is pertinent to note that the above legal correspondence forms a part of the FIR and that both the defendant No.1’s letters dated 08.01.2003 and 06.03.2003 in that correspondence were signed by the defendant No.1 on each page and were sent through her counsel. The I.O. concerned (Raj Kumari) who was investigating the case in transparent manner was apparently not convinced with defendant No.1’s police complaint of 06.03.2003 after she had read the legal correspondence. The complaint was clearly an improvement upon her original case which formed part of the legal correspondence and contained specific allegations. In fact, a letter sent to the plaintiff through her lawyer on 06.03.2003 finds no mention of the serious allegations made on the same day in her police complaint. In her police complaint there were serious criminal charges against her husband, father-in-law and his daughter when there were no such allegations against them made by her in her recent letters in legal correspondence. When the defendant No.1 realized that the I.O. was asking uncomfortable questions in the course of investigation about such contradictions and took the first opportunity to have the case transferred from her by making a false complaint on 22.04.2003 to Ranjeet Narayan who registered the FIR without further investigation on the same day. (a) Mr.Ranjit Narayan received a complaint from the defendant No.1 dated 22.04.2003. In that complaint the defendant No.1 had lied and stated that the I.O. had advised her not to take her counsel with her to court on 17.04.2003 and as such she could not plead her case in court convincingly and because of that the plaintiff’s parent’s got their bail on that date. The fact that defendant No.1 had lied in that complaint is evident from the court order of 17.04.2003 which does not even record the presence of the defendant No.1, or her counsel, in court on that day. It is not known whether the concerned I.O. Raj Kumari was over ruled or disciplined. However, what is known is that an illegal FIR was promptly registered on that very day on which the defendant No.1 had filed her false complaint i.e. 22.04.2003. Mr. Ranjit Narayan, not only deliberately ignored the legal correspondence, he did not even consider it necessary to check if the petitioner had actually attended the court hearing on 17.04.2003 as alleged by her. This irresponsible and premeditated, action of Mr.Ranjit Narayan in registering the FIR, merely on the basis of defendant No.1 false report, ensured that the plaintiff’s parents could not prove their innocence in C.A.W. Cell. As a consequence the defendant No.1 got even bolder and filed numerous cases during the last 8 years against the plaintiff and his parents in 3 of the Courts in Meerut, Tees Hazari, Rohini, Delhi High Court and even in Supreme Court of India.”
28. From the meaningful reading of the aforementioned allegations raised in the plaint against Mr. Ranjeet Narayan as defendant No.6, it can be said that it is the case of the plaintiff against the defendant No.6 that the defendant No.6 Mr. Narayan attempted to favour the defendant No.1 by registering an FIR against the plaintiff and his relatives for cruelty, when no such cognizance was taken by IO Ms. Raj Kumari attending the women cell. It is also the case of the plaintiff that there are some contradictions so far as the allegations in FIR and the legal correspondence exchanged between the parties are concerned and Mr. Narayan without investigating the matter further, proceeded to lodge the FIR on the same day upon the receipt of the complaint of the defendant No.1 because as per the plaintiff the defendant No.1 is the relative of the Senior police official Mr. Vikram Singh Mann. Prima facie, even if the said allegations contained in the plaint are assumed to be correct, still the case of the plaintiffs against the defendant No.6/ Mr. Ranjeet Narayan remains that the defendant No.6 had a role to play in lodging the false and frivolous FIR against the plaintiff and his relative. The said alleged lodgement of FIR is falling within the purview of the duty of the defendant No.6 as a police official. The correctness or falsity in the said FIR or ascribing motives in the same by alleging malice would not alter the position at least to the extent to say that after all it was the part of the duty of the police official and the said act of lodging of FIR was done in discharge of its duty. Thus, it cannot be said that the lodging a FIR upon hearing the complaint of the defendant No.1 even on the same day would be something which was not done in discharge of the duty of the defendant No.6 or was not done under the colour of the office of the defendant No.6. In such circumstances, upon the reading of the allegations contained in the plaint against defendant No.6/ Mr. Ranjeet Narayan, it appears that the acts as alleged to be done by the defendant No.6 are falling within the ambit of the dictum of Supreme Court in the case of Professor Sumer Chand v. Union of India, (supra) wherein on facts their Lordship observed in paragraph 19 that the registration of false, vexatious and malicious report against the appellant and filing a challan thereon are all forming part of the discharge of the duty approving the earlier decision of Virupaxappa Veerappa vs. State of Mysore (1963) Supp. 2 S.C.R. 6 and thus the suit against the respondents therein fell within the ambit of Section 140 of the Act. The said decision of Sumer Chand (supra) is equally apposite to the present case atleast so far as it relates to the case of the plaintiff against the defendant No.6 in the plaint is concerned. The case of the plaintiff against the defendant No.6 thus does not fall within the principle of law laid down by this Court in the Balbir Singh (supra) and line of authorities emerging therefrom.
29. Likewise, if one sees the allegations raised in the plaint so far as the defendant No.5 (R.S. Yadav) is concerned, the same reads as under:
“(b) Mr.R.S.Yadav, the defendant No.5, then Addl. Dy. Commissioner of Police, New Delhi, in his eagerness, to help the defendant No.1, out performed Mr.Ranjit Narayan by promptly dispatching his letter No.2834 dated 27.05.2003 to F.R.R.O. with directions to open L.O.C. against plaintiff. The information provided in that letter had no bearing with so called offences alleged by the defendant No.1 in her F.I.R. (i) Mr.R.S. Yadav gave reasons for opening LOC that “The in-laws and husband of complaint beaten up her for demand of more dowry. Her husband took Rs.1,55,000/(Rupees One Lakh Fifty Five Thousand only) and ran away to Canada”. In the next line, he quoted F.I.R. case No.127 of 22.04.2003. An officer of Mr.Yadav’s Seniority would surely have known that there was no such allegation ever made by the defendant No.1 against her husband in the FIR or in legal correspondence, or in her letter of 26.01.2003, in her own statement or in her parents statement given to the police U/s 161 Cr.P.C. which are all a part of the F.I.R. However, in case another new story had been invented by the defendant No.1 to Mr. Yadav to settle scores with her husband three months after writing her complaint to the police, and 1 month after the F.I.R. was registered, only a day or two after the police had recorded her and her parents statement on 24.04.2003 U/s 161 Cr.P.C., then the defendant No.1 ought to have been taken to task for perjury, instead of assisting her in her criminal designs for extortion against the plaintiff and her parents. (ii) In spite of the fact that no arrest warrant was ever issued against plaintiff, Mr.Yadav in his cavalier manner wrote “Sumer Sigh Salkan is wanted and yet to be arrested in the above case”. The F.R.R.O. wasted no time and opened illegal LOC(S) not only against the plaintiff but also against his parents and their daughter who were on bail and under the protection of the court. This was done without any order from any court of law and only because the defendant No.1 is the sister of an I.P.S. Officer. Accordingly, the defendant No.1, by misusing the state machinery, succeeded in humiliating the plaintiff and his parents as information was dispatched to all immigration systems and absconder. The names of Salkans and Dahiyas were tarnished world wide by this malicious defamatory act. In fact in November, 2006 when plaintiff’s mother was going abroad she was off loaded in New Delhi Airport and humiliated by being kept the whole night at the airport police station because of this illegal L.O.C. Next morning she was taken to Alipur Police Station. The police could give no satisfactory explanation for their action since plaintiff mother had attended the court as directed by court. The order of Ld. Satnam Singh Addl. Sessions Judge, Rohini by its order of dated 17.11.2006 is attached in this connection and also complaint dated 05.09.2006 made by parents of plaintiff to the Deputy Commissioner of Police Alipur. The fact that the illegal LOC were opened on Mr.R.S. Yadav’s orders is confirmed by T.P. Message of 30.05.2003 hence this illegal action on his part deserves strong strictures being passed against him.”
30. From the reading of the aforementioned allegations raised against the defendant No.5 in the plaint, it can be said that the plaintiff has alleged that Mr. Yadav has written a letter by inventing the facts which are not forming the subject matter of allegations contained in the FIR and the same is addressed to FRRO based on which the Lookout notice and Red corner notice is issued by the authorities. It is also alleged that the defendant No.5 misinformed about the commission of the acts and the minimum sentence of the punishment in the said letter which has ultimately lead to issuance of the LOC and RCN and eventually tarnished the reputation of the plaintiff.
31. The said allegations if proven would not be termed as acts which have been done in discharge of the official duty of the defendant No.5 as a police official. The said issuance of the letter was neither obligatory in law nor forming part of the duty of the defendant No.5. Rather in the written submissions, the defendant No.5 contended that that there may be a mention of the additional facts in the letter to FRRO which could not be found in FIR and such letter being sent on 27th May, 2003 two months after the FIR cannot be a ground to claim damages or to allege there is any purported abuse of the authority by the defendant No.5. I find that the said submission of the defendant is under ignorance of law and thus liable to be rejected. This is due to the reason if the defendant No.5 maintains that there may exist additional facts in the letter which may be other than FIR and it is proven that the said facts are consciously inserted to injure the plaintiff which resulted into the issuance of the RCN notice, then it is not comprehendible as to how it falls within realm of the duty of the police official to improvise the case of the complainant by inserting additional facts prejudicial to the opposite party/ accused which are unfounded or without any basis. In such circumstances, it is to be thrashed out in trial as to the correctness of the allegations contained in the plaint about the role and involvement of the defendant No.5 with respect to damaging the reputation of the plaintiff and the facts if proven would fall outside the scope of the duty of the defendant No.5.
32. Thus the case of the plaintiff against the defendant No.5 so far as the allegations contained in the plaint goes would fall within the principle of law laid down by this Court in the case of Balbir Singh (Supra) by the learned Single Judge and the authorities flowing therefrom as the acts which are sought to be alleged to have been done by the defendant No.5 if proven would not fall within the ambit of the discharge of the official duty of the defendant No.5 or under the colour of his office. As such, it would not befitting to find that there is no cause of action against the defendant No.5 or the suit against the defendant No.5 is clearly barred by the provision of Section 140 of the Act till the time the facts and allegations contained in the plaint are tested in trial. Thus, prima facie, it appears from the reading of allegations contained in the plaint against defendant No.5, the bar of Section 140 of the Act is not attracted.
33. So far as the submission of the learned Senior counsel for the defendants that the plaintiff does not deny that the acts are not in discharge of the duty and hence the defendants should be safely dropped from the array of the parties or the suit is to be rejected against them is concerned, I find that the said submission is devoid of merit. This is due to reason that the question whether the acts complained of are within the discharge of the official duty of the police official or under colour of his office is not merely a question of fact but is rather a mixed question of fact and law which involves reading of the allegations in the plaint and the application of the law. Thus, the said question cannot be answered by the plaintiff himself in the form of any admission as sought to be argued by the learned Senior counsel for the defendants but the judicious approach has to be applied by the Court.
34. The resultant effect of the aforementioned discussion is that I.A No.12048/2013 filed by the defendant No.5 (R.S. Yadav) is dismissed and I.A. No.3401/2013 filed by defendant No.6 (Mr. Ranjit Narayan) is allowed in view of the reasons mentioned above. The plaintiff is directed to file the amended memo of the parties within 2 weeks from today.
35. List the pending application being I.A.No.16163/2014 filed by defendant No.1 and 7 under Order 7 Rule 11(a) CPC before the Roster Bench on 22nd April, 2015. (MANMOHAN SINGH) JUDGE FEBRUARY20 2015