SHAH KALIDAS MADHAVLAL JAIN v. B. L. THAKORE — 1991 DIGILAW 16 (GUJ)

S. D. DAVE, J. ( 1 ) THIS First Appeal arises out of the judgment and decree pronounced by the learned Joint Civil Judge, Senior Division, Nadiad in Special Civil Suit no. 156 of 1976 dated 12/01/1976, dismissing the suit of the plaintiff against the defendant-Police Officer, without any orders as to cost and calls upon this Court to adjudicate upon and decide the oft raised question as to whether in an action for damages for Police Atrocity the defendant-Police Officer can successfully raise the defence of his acting in a good faith as a Public Servant, giving effect to the orders issued with the apparent authority of the State government in the discharge of his duty. The learned trial Judge, oblivious of the existence of Art. 21 of the Constitution of India and the loud messages sought to be conveyed by the Apex Court of the Nation, after having under taken the liability of defending the Police Officer on his shoulders, has replied the question in affirmative, ushering the plaintiff victim to this Court for the redressal of his grievances. ( 2 ) ANY Court either trial or appellate in such a situation would be required to see as to what has been given to ourselves by we The People of India by enacting the Constitution. We indeed wanted to secure to all the citizens of the Country Justice (Social, Economic and Political) Liberty (of thought, expression, belief, faith and worship) Equality (of status and opportunity) and to promote amoung them all Fraternity assuring the Dignity of the Individual. The preamble itself declared the right and freedoms to be guaranteed to the people of India. Art. 21 of the Constitution though in negative language confers upon and secures to every citizen right to the life and personal liberty. The right to life necessarily includes the right of live with human dignity. The expression "personal Liberty" has been given a very wide meaning and the supreme Court speaking through His Lordship Mr. Justice Bhagwati in Maneka gandhis case ( AIR 1978 SC 597 ) has said thus :"the expression "personal Liberty" in Art. 21 is of the widest amplitude and it covers a variety of rights which go to constitute the personal liberty of man and some of them have been raised to the status of distinct fundamental rights and additional protection under Art. 19. " ( 3 ) IT is at the same time, really, very true that the Personal Liberty can always be curtailed but that should be done by the "procedure established by the Law of the State". Such a law would presuppose firstly some Law or Laws justifying interference with the persons liberty. Secondly the law should be a valid law and thirdly the procedure laid down by the Law should have been strictly followed. If the State or the Officer of the State interferes with the personal Liberty of the Citizen in any other manner not warranted by Law or an excepted legal procedure necessarily contravenes Art. 21 of the Constitution. ( 4 ) A faint suggestion was sought to be made out here also, saying that the concerned Police Officer was acting in the discharge of Sovereign powers of the State. The second subsequent suggestion which would automatically spring out from the former one would be that the Police Officer was immune for the acts and deeds allegedly committed by him. But it requires to be appreciated that the doctrine of immunity was based upon the Common Law principle that the King Commits No Wrong. This doctrine imported from the English Common Law has seen many changes and it stands substantially charged and altered by The Crown Proceedings Act, 1947, as pointed out by Their Lordships of the Supreme Court in Kasturi Lals case ( AIR 1965 SC 1039 ). Thus, by invoking the dying doctrine of Sovereign immunity, the guarantee given by Art. 21 of the Constitution cannot be set at naught. ( 5 ) GOING to the facts of the Appeal on hand the appellant-plaintiff Kalidas jain a merchant dealing in utensils and metalwares at Kansara Bazar, Nadiad, had filed the above said suit against P. S. I.- B. L. Thakore for claiming the total compensation of Rs. 10,162-00 for the alleged police atrocities. His case is that he has a shop at Kansara Bazar, Nadiad, and at the relevant time the defendant was working as a P. S. I. According to the plaintiff, the defendant, in company of other five police constables had gone to the shop situated at Nadiad on 10th Sept. 1972 during evening hours and thereafter the defendant-P. S. I. had abused him and he was arrested. 1972 during evening hours and thereafter the defendant-P. S. I. had abused him and he was arrested. It is further the case of the plaintiff that after his arrest he was made to move with handcuffs in the bazar of Nadiad and later on he was taken to Nadiad Railway station, and was made to catch the Ahmedabad Passenger Train leaving Nadiad at 10-00 p. m. and was made to alight at village Gothaj and was again taken to village Khambholi by road. It is further his case that later on he was taken to village Varasola by a Tractor at about 1-00 a. m. after the midnight, and was taken to one unknown house and thereafter the defendant had started to beat him. He was also abused and was given stick blows and his head was dashed by the defendant against the wall. According to the plaintiff he was taken from Varasola on 11/09/1972, by Tractor to Mehmadabad Police Station and there also the defendant had assaulted upon him and abused him with a view to extort the confession from him. Later on according to the plaintiff, he was produced before the J. M. F. C. , kaira at about 7-30 p. m. and the plaintiff had complained to the J. M. F. C. , kaira regarding the ill-treatment meted out to him by the police and that he was sent to Kaira Civil Hospital. He was examined by the Medical Officer at the above said hospital and later on the necessary certificate was issued. The case of the plaintiff further is that, later on the defendant had not filed any case against him for the offence of theft but later on a criminal case for the alleged commission of the offence punishable under Sec. 110 of the bombay Police Act, 1951 was filed against him. But in that case the defendant - the complainant had never remained present and therefore the above said case against the plaintiff was disposed of by passing necessary judicial orders. But in that case the defendant - the complainant had never remained present and therefore the above said case against the plaintiff was disposed of by passing necessary judicial orders. ( 6 ) IT is the case of the plaintiff that the defendant was acting with a great malica against him and that the above said atrocities were committed on him with a clear view to extort a confession which would later on assist the Police Officer in launching the prosecution in respect of certain theft cases allegedly committed within the jurisdiction of the Mehmadabad Police station. The case of the plaintiff is that, not only he had received multiple injuries due to the atrocities of the Police but he had also undergone great pain, shock and suffering. It is also his case that he was required to engage an Advocate for the legal assistance in the case which was filed against him. According to him, he was required to take the treatment from a private medical practitioner also and that he was required to spend for the same. Moreover, according to him, he could not run his business because of the illegal confinement for a couple of days. It is, therefore that the plaintiff has claimed an amount of Rs. 10,162-00 as the damages from the defendant. The heads on which the different amounts have been claimed can be summarised as under : rs. 3,000-00 for physical injuries. Rs. 5,000-00 for compensation for reputation, damages and for mental shock and pain. Rs. 776-00 actual costs for coming and going to Court and for engaging advocate etc. Rs. 256-00 costs of medicines. Rs. 1,000-00 as compensation for damages for closure of shop, and for remaining in lock-up. Rs. 130-00 Notice charges. ____________________ rs. 10,162-00 ____________________ it is alleged by the plaintiff that the defendant was not acting in discharge of his duties and his actions were illegal and unauthorised and would never save him. It is also the case of the plaintiff that the necessary statutory notice under sec. 18 of the Code of Civil Procedure was duly issued and it was received by the defendant on/or about 3rd Sept. 1973. It is on these basis that the plaintiff had filed the above said suit against the defendant on 9/11/1973. It is also the case of the plaintiff that the necessary statutory notice under sec. 18 of the Code of Civil Procedure was duly issued and it was received by the defendant on/or about 3rd Sept. 1973. It is on these basis that the plaintiff had filed the above said suit against the defendant on 9/11/1973. ( 7 ) THE defendant had appeared in response to the summons issued to him before the trial Court and had challenged the case of the plaintiff by filing the w. S. at Ex. 16. The defendant has inter alia denied all the allegations of the alleged atrocities committed by him. He has denied that he had illegally arrested the plaintiff and that he had hand-cuffed him and that later on he was made to move in the bazar of Nadiad town. It is also denied that later on he was taken to various places by Train and by Tractor and that the defendant had beaten him and had assaulted him with a view to extort the confession. It is also denied that the plaintiff was having certain injuries when he was examined by the R. M. O. at Civil Hospital, Kaira. ( 8 ) THE defendant has further contended that at the relevant time he was working as a P. S. I. and that, therefore even if the alleged actions are taken to be proved and established then, also he would be saved under the provisions contained under Sec. 161 of the Bombay Police Act, 1951. It was also a contention raised on behalf of the defendant that the suit would be barred under the same provision of the Bombay Police Act, 1951 because the suit was not filed within the stipulated period of six months from the date of the alleged police atrocities. ( 9 ) MOREOVER, the defendant-P. S. I. further contended that during that period various thefts were committed from the wells situated around about Mehmadabad, and that in C. R. No. 139 of 1972 of Mehmadabad Police Station, it was alleged that the brass parts of some oil engine have been stolen and during the investigation three persons were arrested and they had informed the Police Officer that they had sold the stolen brass parts to the plaintiff at his shop and that the defendant had gone to the shop of the plaintiff. It is also a further contention raised by the defendant that further investigation had revealed complicity of the plaintiff in the commission of the above said offence or in receiving the stolen property. But any how the case under Sec. 100 of the Bombay Police Act, 1951 was filed against the plaintiff, but later on as the defendant was transferred to some other place he could not remain present at Nadiad Court and therefore, the above said case against the plaintiff was dismissed in default. ( 10 ) THUS the defendant-P. S. I. has denied all the allegations of the plaintiff against him regarding the alleged atrocity. Moreover the defendant claims protection under Sec. 161 of the Bombay Police Act, 1951. ( 11 ) UPON the above said pleadings of parties, the learned trial Judge had framed issues at Ex. 18. Though the defendant had contented the suit by filing the W. S. as stated above, he had not participated during the course of the trial, and therefore, the plaintiff and his witnesses could not be cross-examined for and on behalf of the defendant. In this position the Court had preferred to put certain questions to the plaintiff in nature of cross-examination. Later on the learned trial Judge had reached the conclusion that the plaintiff was not able to establish his case regarding the atrocities allegedly committed on him. The learned trial Judge had also reached the conclusion that the defendant who at the relevant time was working as a Police Officer was protected under Secs. 160 and 161 of the Bombay Police Act, 1951. The learned trial Judge had also taken the view that the suit for damages against the defendant was also barred in view of the clear limitation provided under Sec. 161 of the Bombay Police act, 1951. Any how, the learned trial Judge had also taken a view that even if the suit of the plaintiff were to be allowed, at the most he would be entitled to the total amount of Rs. 600. 00 as damages. Reaching the above said conclusion the learned trial Judge has dismissed the suit of the plaintiff by the judgment dated 12-1-1976. Being aggrieved and dissatisfied with the above said judgment and the consequent decree that the present appeal has been filed by the appellant, who is the original plaintiff. ( 12 ) MR. 600. 00 as damages. Reaching the above said conclusion the learned trial Judge has dismissed the suit of the plaintiff by the judgment dated 12-1-1976. Being aggrieved and dissatisfied with the above said judgment and the consequent decree that the present appeal has been filed by the appellant, who is the original plaintiff. ( 12 ) MR. G. R. Udhwani the learned Advocate appears for Mr. K. G. Vakharia the learned Advocate for the appellant. The respondent has been represented by Mrs. S. D. Talati the learned A. G. P. Mr. Udhwani who appears on behalf of the appellant has urged that the learned trial Judge has committed a grave error in coming to the conclusion that the defendant who was working as a Police Officer at the relevant time is protected under Secs. 160 and 161 of the Bombay Police Act, 1951. It is also a contention raised by Mr. Udhwani that if the defendant were not to be protected by the above said provisions, it would be clear that the suit for damages filed by the plaintiff would not be governed by the special law of limitation provided under the above said provisions but would be governed by the provisions contained in the limitation Act, 1963 and therefore, the suit can never be said to be barred by the Law of Limitation. Mr. Udhwani has also contended that the learned trial Judge has committed an error in coming to the conclusion that the evidence tendered by the plaintiff was not clear and unequivocal, directly pointing to the guilt of the defendant. It is also a grievance made by Mr. Udhwani that the learned trial Judge was not justified in coming to the conclusion that if the suit were to be allowed the plaintiff would be getting, at the most an amount of Rs. 600. 00. It is on these basis that Mr. Udhwani has urged that the present appeal requires to be allowed and after the reversal of the judgment and decree under appeal, the suit filed by the plaintiff deserves to be allowed. ( 13 ) BUT Mrs. 600. 00. It is on these basis that Mr. Udhwani has urged that the present appeal requires to be allowed and after the reversal of the judgment and decree under appeal, the suit filed by the plaintiff deserves to be allowed. ( 13 ) BUT Mrs. Talati the learned A. G. P. who appears on behalf of the respondent has contended that it is alleged by the plaintiff that certain atrocities were committed on him while making his arrest in connection with certain crime registered against certain other persons and, therefore, the learned trial Judge was perfectly justified in coming to the conclusion that the respondent Police officer was duly protected under Secs. 160 and 161 of the Bombay Police Act, 1951. Mrs. Talati has also urged that if once the above said conclusion is reached, the suit of the plaintiff would be clearly barred under the above said provisions. Mrs. Talati has also urged that the appellant-plaintiff has not been able to establish that the alleged atrocities were committed upon him by none else but the defendant, and therefore also the learned trial Judge was justified in dismissing the suit. Lastly, Mrs. Talati the learned A. G. P. has urged that the suit filed by the plaintiff is clearly in form of a suit for damages and unless and until the damages on each heads are duly established the plaintiff would not be entitled to a decree for damages. Mrs. Talati therefore has urged that the present appeal is devoid of any merit and no interference at the hands of this Court is called for. ( 14 ) AS noticed above, the learned trial Judge has dismissed the suit by the judgment dated 12-1-1976. It is made clear in the former portion of these orders that though the defendant had challenged the case of the plaintiff by filing the W. S. at Ex. 16, later on he had not remain present before the trial Court and had not participated in the proceedings. Naturally therefore he could not cross-examine the plaintiff and his only witness the concerned R. M. O. But it is astonishing to notice that the learned trial judge had taken the liability of defending the defendant on his shoulders and had put certain questions to the plaintiff by way of "questions from the Court". Naturally therefore he could not cross-examine the plaintiff and his only witness the concerned R. M. O. But it is astonishing to notice that the learned trial judge had taken the liability of defending the defendant on his shoulders and had put certain questions to the plaintiff by way of "questions from the Court". The reference to this portion of the evidence of the plaintiff and his witness can be conveniently made at a later juncture. But at the outset it appears that the learned trial Judge was not justified in putting the question as have been put by him to the plaintiff. The learned trial Judge was no doubt authorised to put certain questions to the plaintiff but he should have limited the task of putting such questions only for the purpose of finding the truth of the case. He could have no doubt put certain questions to the plaintiff and his witness-but it must have been a fact finding mission and nothing else. ( 15 ) LEAVING the above said aspect for a while, it requires to be appreciated that while dismissing the suit of the plaintiff the learned trial Judge has reached the following broad conclusion : (1) That the actions taken by the defendant were protected under Secs. 160 and 161 of the Bombay Police Act, 1951. (2) That the suit filed by the plaintiff is barred by the Special Law of limitation, as provided under the above said provisions of the Bombay police Act, 1951. (3) That the plaintiff had failed to prove that the defendant had caused the injuries and that the plaintiff should fail for want of definite and reliable evidence. (4) That even if the suit were to be decreed the plaintiff would not be entitled to anything more than an amount of Rs. 600. 00 only. ( 16 ) THE reasoning adopted by the learned trial Judge which has culminated in the above said findings also require to be perused. The learned trial Judge was not able to rule out the possibility of the plaintiff being assaulted by the policemen. Moreover, according to the learned trial Judge the only failure on the part of the plaintiff was that he had failed to take action against the defendant within six months. The learned trial Judge was not able to rule out the possibility of the plaintiff being assaulted by the policemen. Moreover, according to the learned trial Judge the only failure on the part of the plaintiff was that he had failed to take action against the defendant within six months. According to the learned trial Judge, the plaintiff had failed to prove that the injuries were caused on his person, by none else but by the defendant. Though the evidence tendered by the plaintiff was not controverted and challenged by the other side, the Court had preferred to say that the evidence tendered by the plaintiff was "perfunctory and superfluous". ( 17 ) AT para 13 of the judgement the learned trial Judge has observed thus:" I do not rule out possibility of plaintiff being beaten by policemen, but it is not certain if defendant had beaten him. Perhaps the plaintiff involved defendant in this suit because case under Bombay Police Act, Sec. 110 was filed against him". In the same paragraph the learned trial Judge had preferred to say thus :"the only failure of plaintiff failed to take action against defendant within six months from date of act complained of, and the filing of complaint as public servant is really an act done in discharge of his duty and so it is protected under secs. 160-161, Bombay Police Act". At para 14 of the judgment the learned trial Judge says thus :"as for other injuries found on plaintiff the plaintiff failed to prove that defendant had caused those injuries". Lastly, expressing his opinion regarding the nature of evidence tendered by the plaintiff the learned trial Judge has to say thus :"in my opinion, the plaintiff has led perfunctory and superfluous evidence in this case against defendant and so even though defendant had not cared to defend the suit except filing the W. S. only, yet plaintiff fails against defendant for want of definite and reliable evidence". ( 18 ) REACHING the conclusion that the plaintiff would be entitled to an amount of Rs. 600. 00 only, provided his case was required to be decreed, the learned trial Judge had summarised the position thus :"in my opinion even if plaintiff was allowed compensation for physical injuries and medical costs then also not more than Rs. 100. 00 can be allowed to plaintiff for such actual costs. 600. 00 only, provided his case was required to be decreed, the learned trial Judge had summarised the position thus :"in my opinion even if plaintiff was allowed compensation for physical injuries and medical costs then also not more than Rs. 100. 00 can be allowed to plaintiff for such actual costs. As no permanent injury is caused the amount of compensation for mental agony due to pain can be estimated at Rs. 200. 00 at the most, and so for injuries and actual compensation for mental shock due to injuries only Rs. 300. 00 can be allowed if suit against defendant was to be allowed and I hold accordingly. " ( 19 ) THE very first question therefore which falls for the consideration for this Court is, as to whether the defendant-Police Officer was protected under sec. 160 or 161 of the Bombay Police Act, 1951, as has been said by the learned trial Judge. As noticed above, the case of the plaintiff is that the defendant had gone to his shop and thereafter he was abused, he was later on hand-cuffed and in that position he was made to move in the bazar of Nadiad, where the plaintiff had got his shop and the business since last so many years. In the same hand-cuffed position he was taken to Nadiad Railway Station and was made to board a Passenger Train going towards Ahmedabad. He was made to alight from the train at village Gothaj and thereafter he was taken to two other places, namely Khambholi and Varasola. He was beaten at the above said places and later on he was taken to Mehmadabad Police Station, where also he was abused, assaulted and beaten for the purpose of extorting a confession from him. The plaintiff has averred the above said story of his woe in the plaint Ex. 1. During the course of the trial plaintiff has stated the same thing on oath vide Ex. 32. He has stated that the defendant had gone to his shop and he was abused, later on he was hand-cuffed and was made to move in the town and later on by a local train he was taken to Gothaj from where he was taken to Khambholi and Varasola and there also he was abused and beaten. 32. He has stated that the defendant had gone to his shop and he was abused, later on he was hand-cuffed and was made to move in the town and later on by a local train he was taken to Gothaj from where he was taken to Khambholi and Varasola and there also he was abused and beaten. He has further stated that his head was dashed by the defendant with the wall of the house and he had sustained injuries on the head, fingers, hands, legs and other parts of the body. Thus the plaintiff was able to substantiate his averments made in the plainti during the course of the trial by his own testimony at Ex. 32. It is interesting to note that the defendant had not participated in the proceedings before the learned trial judge and, therefore, the entire say of the plaintiff goes unchallenged so far as the defendant is concerned. ( 20 ) THE defendant could have participated in the proceedings, rather one would say that it was the bounden duty of the defendant to participate in the proceedings and to say on oath that he was not responsible for any of the above said alleged atrocities. Any how the defendant had preferred to remain absent. In view of this position, the learned trial Judge had preferred to put certain questions to the plaintiff by way of "questions by Court". This could have been done by the learned trial Judge but the questions ought to have been limited and should have been in the nature of a fact finding exercise. Instead of that the learned trial Judge had made a suggestion that the plaintiff was a known man in the town. By using the word "known" possibly the learned trial judge wanted to assert that the plaintiff was known in the town for or in connection of such offences of retaining the stolen articles. After putting such a defaming question to the plaintiff, the learned trial Judge had proceeded further and had suggested to the plaintiff that he had suffered no damages due to his arrest but that he had filed a false suit to "extort money from the defendant". It appears that the learned trial Judge was not justified in making the above said suggestions to the plaintiff. It appears that the learned trial Judge was not justified in making the above said suggestions to the plaintiff. It is another thing if these suggestions were to come from the defendant of the learned Advocate representing him. Any how, it appears that when the evidence tendered by the plaintiff at ex. 32 was not controverted by the other side, ordinarily it should have been accepted on the face value unless it should appear to the trial Court that it was of such a nature that it required elimination from consideration. Moreover, the case of the plaintiff regarding his injuries is also duly supported by the oral testimony of R. M. O. Dr. Ahmed Husain at Ex. 37. The R. M. O. has stated that on 11-1-1972 he was working as R. M. O. at Kaira Civil Hospital and the plaintiff was sent to him with a yadi from J. M. F. C. Kaira, with one constable attached to Mehmadabad Police Station and he had examined the plaintiff and he had noticed the following injuries on his persons : (1) Abrasion 1 1/4" x 1/2" on dorsum of left hand thumb at back. (2) Abrasion 3/3 x 1/4" on medial maleolus and Rt. ankle. (3) Complaint of pain Rt. knee outer aspect. no marks of sanyrmol injury seen. (4) Abrasion 1 1/4" x 1/4" on medial aspect of Rt. leg at middle. (5) Abrasion 1" x 3/4" x Ex. earpital ay hair line. (6) Complaint of pain Rt. forehead liner abrasion 2 1/2" x 1/6" at Rt. angle of forehead. (7) Complaint of pain left scapula, no mark of exterior injury seen. . ( 21 ) THE above said evidence tendered by Dr. Ahmed Husain goes to show very clearly that the plaintiff was having at least four abrasions and he had a complaint of pain at three places on his person. The Medical expert had also expressed the opinion that all the above said injuries could have been caused by hard and blunt substance. It is also say of the medical expert that he had issued the necessary certificate and the same was sent to the learned Magistrate at Kaira. The Medical expert had also expressed the opinion that all the above said injuries could have been caused by hard and blunt substance. It is also say of the medical expert that he had issued the necessary certificate and the same was sent to the learned Magistrate at Kaira. It appears that there was a fire in the Court of the learned J. M. F. C. , Kaira and therefore it is the case of the plaintiff that he was not in a position to produce and prove the medical certificate. But even in absence of the medical certificate, this sworn testimony of R. M. O. , Dr. Ahmed Husain at Ex. 37 is clear. Here also once again the learned trial Judge had ventured to suggest to the Medical expert that the injuries were minor and could have been self-inflicted. This suggestion as made by the learned trial Judge has been accepted by the Medical expert. But there would have been no reason for the plaintiff to inflict the above said injuries on his person when he was in the police custody. Even if the plaintiff wanted to cause certain injuries on his person he could not have done so because he was hand-cuffed and was in police custody. The conclusion therefore would be that when the plaintiff was examined by the R. M. O. , he was having the above said injuries on his person. ( 22 ) THE case taken up by the defendant in the W. S. it that the plaintiff was no doubt arrested but no atrocities were committed on him. The defendant has not stated in the W. S. that he had not effected the arrest and that he was never in the picture. Therefore it is the case even of the defendant that the plaintiff was under arrest and that he - the defendant had effected the arrest. ( 23 ) THE question now which falls for further consideration of the Court is, as to whether in the above said circumstances the defendant could have been said to be covered under the protection granted to him under Secs. 160 and 161 of the Bombay Police Act, 1951. ( 23 ) THE question now which falls for further consideration of the Court is, as to whether in the above said circumstances the defendant could have been said to be covered under the protection granted to him under Secs. 160 and 161 of the Bombay Police Act, 1951. Sec. 160 of the Bombay Police Act, 1951 runs thus :"no public servant or person duly appointed or authorised shall be liable to any penalty or to payment of any damages for giving effect in good faith to any such order or direction issued with apparent authority by the State Government or by a person empowered in that behalf under this Act or any rule, order of direction made or given thereunder. "the provisions contained under Sec. 161 of the Act of 1951, are as under :" (1) In any case of alleged offence by the Commissioner, a Magistrate, Police Officer or other person, or of a wrong alleged to have been done to such Commissioner, magistrate, Police Officer or other person, by any act done under colour or in excess of any such duty or authority as aforesaid, 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, or shall be dismissed, if instituted, more than (one year) after the date of the act complained of. (2) In the case of an intended suit on account a wrong as aforesaid, the person intending to sue shall be bound to give to the alleged wrong-doer one months notice at least of the intended suit with sufficient description of the wrong complained of, failing which such suit 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 whether any, and if any, what tender or amends has been made by the defendant. A copy of the said notice shall be annexed to the plaint endorsed or accompanied with a declaration by the plaintiff of the time and manner of service thereof. A copy of the said notice shall be annexed to the plaint endorsed or accompanied with a declaration by the plaintiff of the time and manner of service thereof. " ( 24 ) SECTION 160 of the Act would come into play only when the Police officer was acting in good faith, Sec. 161 would come into play if any act were to be done under the colour or in excess of any such duty or the authority of the Police Officer. The moot question which arises for adjudication is as to whether when the defendant Police Officer was responsible for committing the above said atrocities and for causing the above said injuries to the plaintiff, was he acting under the colour or in excess of his duty or authority. Fortunately, for the plaintiff the question has been replied in negative at least by three decisions of the Apex Court of the Nation. ( 25 ) THE first decision on which Mr. Udhwani has placed reliance is the supreme Court decision in the State of Andhra Pradesh v. N. Venugopal and ors. , AIR 1964 SC 33 . In this decision while considering Sec. 53 of the Madras district Police Act, 1859, the Supreme Court has taken the view, that when the torture was meted out by the police during the investigation on a person suspected of having committed the crime, the protection or the bar of limitation under Sec. 53 would not be available. Thus the Supreme Court had the occasion to say very clearly way back in year 1964 that in case of torture committed by the police during the investigation on a person suspected of having committed the crime, the protection under Sec. 53 of the Madras District Police Act, 1859 was not available. It is true that Sec. 53 is slightly different in its draft from the provisions contained under Sec. 161 of the Bombay Police Act, 1951. But the principle appears to be the same and as it would become clear later on, this view has been accepted by the Supreme Court in later decisions. It is true that Sec. 53 is slightly different in its draft from the provisions contained under Sec. 161 of the Bombay Police Act, 1951. But the principle appears to be the same and as it would become clear later on, this view has been accepted by the Supreme Court in later decisions. On the analogy of the view expressed by the Supreme Court based upon Sec. 53 of the Madras District Police Act, 1859, it can be said without hesitation, that when the defendant was acting in the above said fashion, he cannot be said to be protected under Sec. 160 or 161 of the Bombay Police Act, 1951. ( 26 ) AS noticed above, the above said was a case law based upon Madras police Act, but there are two other decisions of the Supreme Court dealing directly with the provisions contained under Sec. 161 of the Bombay Police act, 1951. Mr. Udhwani has pressed in service the Supreme Court decision in State of Maharashtra v. Narhar Rao, AIR 1966 SC 1783 . In this decision the Supreme Court had taken the view, expressed on 14/03/1966, that if any act is said to have been done under the colour of the office there must be a reasonable connection between the act and power and duties of office. In the above said case the facts were that respondent-Narhar Rao was working as a Police Head Constable and he was investigating certain offence against two persons, namely Omkar and Harihar. It is alleged that the above said two persons had approached the respondent for some favour and at that time the respondent-Police Head Constable had demanded an amount of Rs. 25. 00 as the illegal gratification. The respondent had accepted an amount of Rs. 15. 00 on two different dates as illegal gratification and ultimately he came to be tried by the Court of the Special Judge, Akola, for the offences punishable under Sec. 161 of the Indian Penal Code and under Secs. 5 (2) and 5 (1) (b) of the Prevention of Corruption Act and he came to be convicted for the above said offence. The respondent had filed an appeal before the High Court of Bombay and the High Court had taken a view that Sec. 161 (1) of the Bombay Police Act, 1951, was attracted. 5 (2) and 5 (1) (b) of the Prevention of Corruption Act and he came to be convicted for the above said offence. The respondent had filed an appeal before the High Court of Bombay and the High Court had taken a view that Sec. 161 (1) of the Bombay Police Act, 1951, was attracted. Reaching the above said conclusion the High Court of Bombay pronounced the judgment of acquittal after allowing the appeal. The Supreme Court while reversing the judgment of the High Court and remanding the matter to the High court has laid down the test to be applied for determining the question as to whether in such cases the provisions contained under Sec. 161 of the Bombay police Act, would be applicable or not. The Supreme Court has stated that, before the above said provisions are made applicable, it should appear to the court : (1) that the offence was committed under colour of any duty imposed under the Bombay Police Act or any other law for the time-being in force, and (2) that the act was done in excess of any such duty or authority as aforesaid. After having provided the test, the Supreme Court has stated that, in that case the action of demanding and accepting illegal gratification would not satisfy any of the two above said conditions and, therefore, the respondent was not protected under Sec. 161 of the Bombay Police Act, 1951. ( 27 ) BUT it is interesting to note that at para 4 of the above said decision the Supreme Court speaking through the Division Bench has expressed as under: "for example, if a Police Officer is prosecuted for an offence under Sec. 323 of the Indian Penal Code said to have been committed in making an arrest, the prosecution must fail unless commenced within six months of the act complained of, as required by Sec. 161 (1) of the Bombay Police Act". ( 28 ) THEREFORE, from the above said observations, it may appear that if the allegation against the Police Officer is that he had committed an offence under Sec. 323 of the Indian Penal Code while making the arrest, he would be protected under Sec. 161 of the Bombay Police Act. ( 28 ) THEREFORE, from the above said observations, it may appear that if the allegation against the Police Officer is that he had committed an offence under Sec. 323 of the Indian Penal Code while making the arrest, he would be protected under Sec. 161 of the Bombay Police Act. But the same division Bench of the Supreme Court in a decision rendered on the same day, namely 14/03/1966 had the occasion to examine one another case, the facts of which are similar to the facts of the case with which this Court is concerned. This decision has been rendered by the Supreme court in State of Maharashtra v. Atma Ram and Ors. , AIR 1966 SC 1786 , on 14/03/1966. In that case some of the respondents were working as the Head Constables while one respondent was working as a Police constable and they were attached to Jalgaon Police Station. One Akaram had gone to the Police Station on 1/09/1962, to report that his brother lahanu had disappeared. The Sub-Inspector In-charge had recorded the information and respondent No. 1-Atmaram was ordered to inquire into the matter and submite the report. The respondent No. 1 had gone to the concerned village on 3/09/1962, and sent for certain certain persons at the place of Police Patel for the purpose of inquiry. As these persons had denied having any knowledge about Lahanu, they are were assaulted by the respondent No. 1 and were detained in the "baithak" of the Police Patel till the evening. While Dwarki had returned in the office of the Gram Panchayat, the other persons were taken into the jungle and were assaulted. On the way back Jumma was stripped naked and kept hanging from a Salai tree. All these persons were again detained during the night in the office of the Gram Panchayat. It is the background of the above said facts that the question had arisen before the Supreme Court as to whether when the above said acts were alleged against by the respondents, they were protected under Sec. 161 of the Bombay Police Act, 1951. The Supreme Court had taken the view that there was no connection between the alleged acts and the duty imposed on the officer, and therefore, the Police Officers were not entitled to the protection. The Supreme Court had taken the view that there was no connection between the alleged acts and the duty imposed on the officer, and therefore, the Police Officers were not entitled to the protection. ( 29 ) THUS, the above said three decisions rendered by the Supreme Court of India would go to show that in no case the defendant could have been said to be protected under Sec. 161 of the Bombay Police Act, 1951. Mrs. Talati the learned A. G. P. appearing on behalf of the defendant had tried to take shelter under the umbrella provided by the Division Bench decision of this Court in fatehsinh Madhusinh Rathod v. N. Rama Iyer, Commissioner of Police, (1976) 17 GLR 172. But the facts in the above said case are entirely different. The respondents therein were working as the High Police Officers in the capacity of the Commissioner of Police, etc. The allegation against them by the plaintiffappellant- fatehsinh Rathod, a P. S. I. were that certain departmental proceedings were initiated against him at the instance of the respondents out of clear malice. In view of this position, the Division Bench of this Court while confirming the decision rendered by the City Civil Court, Ahmedabad, had expressed the opinion that the act of initiating the departmental proceedings would be said to be related with the duty of the Police Officer and that the immunity under sec. 16 (1) of the Bombay Police Act was available to the respondents. It was pointed out that even if the case of alleged malice of instituting the departmental proceedings was to be established, the provisions of Sec. 161 (1) will be attracted. One can easily distinguish the facts of the above said case from the facts of the instant case, i. e. the appeal on hand by saying that, in that case the allegation against the Police Officers was only to the effect that they had initiated certain departmental proceedings against the Lower Police Officer, namely the P. S. I. out of the malice. Here in the instant case the facts are entirely different duly covered by the above said three Supreme Court decisions. Here in the instant case the facts are entirely different duly covered by the above said three Supreme Court decisions. The conclusion therefore would be that the learned trial Judge was definitely in error in coming to the conclusion that the alleged action on behalf of the defendant was covered or protected under Sec. 160 or Sec. 161 of the Bombay Police Act, 1951. The learned trial Judge was also at an apparent error in coming to the conclusion that the Law of Limitations as provided under Sec. 161 (1) of the Bombay Police act, 1951 would be applicable. ( 30 ) IT requires to be appreciated that the case of the plaintiff would fall within the purview of Art. 113 of the Limitation Act, 1963, which provides for the limitation of a period of three years from the date on which the right to issue accrues. It is the case of the plaintiff that the atrocities were committed on him on 10-9-1972. The cause of action had arisen and the right to sue had accured to the plaintiff on 10-9-1972. He could have filed the suit within a period of 3 years from the above said date. The suit has been filed by him on 9/11/1973, and therefore the suit cannot be said to be barred by Law of Limitation. ( 31 ) THE learned trial Judge has observed in his judgment that there is no evidence to show that the defendant himself had committed the atrocities on the plaintiff. But it appears that the learned trial Judge has failed to scrutinise the evidence of the plaintiff at Ex. 32. A detailed reference to this evidence has been made earlier and a second reference would merely be a repetition of what has been stated above. But it requires to be pointed out that Kalidas the plaintiff has stated very clearly that all the acts and deeds were done by the defendant himself. In view of this position, the learned trial Judge could not have taken a view that the plaintiff has not stated that the defendant was guilty for the act of atrocities. This finding also therefore cannot be maintained. The learned trial Judge has reached the conclusion that in his opinion at the most the plaintiff would be entitled to an amount of Rs. 600. 00 only. This finding also therefore cannot be maintained. The learned trial Judge has reached the conclusion that in his opinion at the most the plaintiff would be entitled to an amount of Rs. 600. 00 only. The above said finding rendered by the learned trial Judge is based, rather on assertion than on any reasoning which would appeal to a judicial mind. Mr. Udhwani has invited the attention of this Court to a Supreme Court decision in Bhim Singh. M. L. A. v. State of J. and K. and Ors. , AIR 1986 SC 494 . In that case the sitting member of the Legislative Assembly was arrested unlawfully while en route to seat of Assembly and in consequence the member was deprived of his Constitutional rights to attend the Assembly Session. In view of this position, in the proceedings which were in nature of Writ Petition before the Supreme Court, the compensation of Rs. 50,000. 00 was awarded by the Supreme Court in year 1986. It is indeed true that the fact of the case on hand are different, but the fact remains that a citizens was ill-treated, was hand-cuffed, was made to move in a procession in the bazar of the town where he has got his business and ultimately was taken to various places and was repeatedly assaulted. In view of this position, it appears that the claim made by the plaintiff, namely the amount of Rs. 10,162-00 cannot be said to be unreasonable at any stretch of imagination. It is true that the case under Sec. 110 of the Bombay Police Act came to be filed against him later on and that, therefore he would not be entitled to anything on the head of the fees paid to the Advocate or on the head of attending the Court on various occasions. There is no evidence as to for how many days he was required to close his shop. Though no compensation or damages should be awarded on the above said heads, he would definitely be entitled to more compensation on the head of physical injuries and for the pain, shock and suffering arisen from the assault, the abuse and the humiliation. In view of this position, it appears that, even if the plaintiff had prayed for a larger amount he would have been entitled to the same. In view of this position, it appears that, even if the plaintiff had prayed for a larger amount he would have been entitled to the same. In view of this position it must be said at once that he could get the entire amount of damages claimed by him and the suit should be decreed in its entirety. Therefore the conclusion would be that the appeal succeeds and requires to be allowed and therefore the same is hereby allowed with costs all throughtout. The judgment and decree under appeal are hereby reversed and the suit of the plaintiff is hereby decreed for the entire amount claimed by him. The defendant shall pay the above said decretal amount to the plaintiff forthwith together with the interest at the rate of 6% per annum from the date of these orders till the date of payment. .