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2009 DIGILAW 123 (KER)

T. Chandran v. Ganapathy

2009-02-12

M.SASIDHARAN NAMBIAR

body2009
Judgment: Petitioner is the second defendant and first respondent the plaintiff in O.S.69/2004 on the file of Sub Court, Thrissur. Respondents filed the suit claiming damages for malicious prosecution against the petitioner and others consequent to his acquittal in S.C.73/1998 by Sessions Judge, Thrissur. Petitioner filed I.A.3232/2008 after the examination of Pws.1 and 2 in the suit, for hearing the preliminary issue on the maintainability of the suit as against him in view of the bar provided under sub section (3) of Section 64 of Kerala Police Act. Learned Sub Judge following the decision of the Apex Court in Unnikrishnan v. Alikutty (2000 (3) KLT 483) held that Section 64(3) of Kerala Police Act has no application as the act alleged against the petitioner was not done under the Act and found the suit maintainable under Ext.P4 order. The order is challenged in this petition filed under Article 227 of the Constitution of India. 2. Learned counsel appearing for the petitioner and respondents were heard. 3. Learned counsel appearing for the petitioner relying on the decision of the single Judge of this Court in Prabha v. Sankara Giri (1989 (1) KLT 927)argued that learned Sub Judge grossly erred in relying the decision of the Apex Court in Unnikrishnans case (supra) where the facts are entirely different. It is pointed out that under sub section (3) of Section 64 of Kerala Police Act no court can take cognizance of a complaint or entertain a suit in respect of any wrong alleged to have been committed or done by a Police Officer on account of any act done in pursuance of any duty imposed or authority conferred on him by the Kerala Police Act or any other law for the time being in force unless the suit is filed within six months of the date on which the offence or wrong is alleged to have been committed or done and as held by this Court in Prabhas case (supra) the act allegedly done by the petitioner in this case is submission of a final report under section 173(2) of Code of Criminal Procedure and an order of acquittal was passed in the Sessions Case on 110.1999 and as the suit was not instituted within six months at least from the date of the order of acquittal, the suit as against the petitioner should have been dismissed. 4. 4. Learned counsel appearing for the respondents relying on the Division Bench decision of this Court in Pathumma v. State of Kerala (2000(2) KLT 827 argued that the decision of the learned single Judge in Prabhas case (supra) was not followed by the Division Bench and as the investigation in the case was not conducted as provided under the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities Act) 1989 as found by the Sessions Judge in the Sessions Case the act alleged against the petitioner cannot be an act done under the said Act and so Act does not come within the ambit of sub section (3) of Section 64 of Kerala Police Act and the suit is maintainable and there is no reason to interfere with the impugned order. Learned counsel also argued that as Pws. 1 and 2 were already examined, learned Sub Judge may be directed to dispose the suit expeditiously. 5. Sub section (3) of Section 64 of Kerala Police Act applies to any suit filed against a Police Officer in respect of any wrong done or on account of any act done in pursuance of any duty imposed or authority conferred on him by the Kerala Police Act or any other law for the time being in force or any rule, order or direction lawfully made or given. If it applies, then suit will not lie unless it is instituted within six months of the date on which the wrong is alleged to have been done. A learned single Judge of this Court in Prabhas case (supra) had considered the application of Section 64(3) in a suit for malicious prosecution. It was contended in that case that when Article 74 of the Limitation Act provides a period of one year from the date on which plaintiff was acquitted or criminal prosecution was terminated to institute a suit for malicious prosecution, and so Section 64(3) cannot be made applicable. It was contended that termination of the criminal case or the order of acquittal could be beyond the period of six months and if so suit cannot be filed. It was contended that termination of the criminal case or the order of acquittal could be beyond the period of six months and if so suit cannot be filed. Relying on sub section (2) of Section 29 of the Limitation Act this court held that Article 74 is only the provision in the general law and when the period of limitation under section 64(3) by the special law, it is section 64(3) that is applicable and not the general law and plaintiff need not wait, for instituting a suit for malicious prosecution till the termination of the criminal proceedings and the period available is only six months from the date when alleged wrong was done. 6. That legal position is declared by the Apex Court in Sumer Chand v. Union of India and others (1994) 1 SCC 64). As in this case it was a suit for malicious prosecution, where the Station House Officer who laid the final report was a third defendant and two other Police Constables were also prosecuted along with the others for malicious prosecution Apex Court held that as far as the Station House Officer is concerned, he is the person who, under the provisions of Code of Criminal Procedure, has to submit the final report under section 173(2) of Criminal Procedure Code and therefore the act done by him is under the Act. Similarly following an earlier decision in Virupaxappa v. State of Mysore( AIR 1963 SC 849) it was held that even preparation of a false panchnama is an act done under the Code of Criminal Procedure and therefore Section 140 of Delhi Police Act applies. 7. Though learned Sub Judge relied on the decision in Unnikrishnans case (supra) the facts are different. It is a case where the Police Officers were being prosecuted for the acts done, which acts are found to be not done under the provisions of Kerala Police Act or the Code of Criminal Procedure. In such circumstance, it was found that Section 64(3) has no application. That decision cannot be made applicable to a case where the alleged act as in the case was done under the Act. The act allegedly done was filing of the final report under section 173(2) and that too as provided in the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989. That decision cannot be made applicable to a case where the alleged act as in the case was done under the Act. The act allegedly done was filing of the final report under section 173(2) and that too as provided in the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989. Under the said act, the case can be investigated and the final report filed only by an Officer not below the rank of Deputy Superintendent of Police. The Petitioner was admittedly the concerned Deputy Superintendent of Police at that time. He laid the final report in that capacity. Therefore the act that was done can only be an act done under the provisions of Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 as well as Code of Criminal Procedure which are "any other law for the time being in force" as provided under sub section (3) of Section 64 of the Kerala Police Act. 8. Learned Sub Judge has not considered these aspects. In such circumstance Ext.P4 order is set aside. Sub Judge is directed to rehear the question of maintainability of the suit, as against the petitioner the second defendant, in view of the provisions of sub section (3) of Section 64 of Kerala Police Act and proceed in accordance with law. Writ Petition is disposed of.