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2017 DIGILAW 427 (KER)

S. SIVADAS v. K. J. THOMAS

2017-02-28

K.SURENDRA MOHAN

body2017
JUDGMENT : "Whether the detention of a citizen in the Police Station for not having opened the door of his hotel room, when directed to do so at 2.30 a.m. in the morning by the Sub Inspector of Police can be justified as the due exercise of Police Powers?" This is the question that arises for consideration in this appeal. 2. The second defendant in a suit for damages is the appellant. The first respondent is the plaintiff and the second respondent is the State represented by the District Collector, the first defendant in the suit. The suit was filed for recovery of damages by the first respondent/plaintiff for his illegal detention by the Police authorities consequent to his refusal to open the door of his hotel room at the dead of the night, on being asked to do so by the local Sub Inspector of Police. The appellant is the Sub Inspector of Police involved in the incident. Though an amount of Rs.50,000/- was claimed as damages, the court below has decreed only an amount of Rs.500/-, which is the subject matter of challenge in the above appeal. 3. The suit was filed by the first respondent on the following averments: The first respondent/plaintiff who is a native of Uzhavoor in Meenachil Taluk is presently settled and residing at Gudallur in Tamil Nadu State. He is a Post Graduate in Arts and Education and was a teacher in various schools like Santhome High School, Madras, FACT Township School, Udyogamandal, Illesha-Ibadan Grammar Schools, Nigeria and Good Shepherd Public School, Ooty. He is the author and publisher of various books and publications. Presently, he is a planter and resides at the Good Shepherd Estate, Gudallur. His wife is a retired High School Assistant and his son is a Post Graduate who is managing his own business. His second son is doing his engineering degree course and his eldest daughter is studying for BDS, while the youngest is doing her M.Sc Degree Course. 4. On 25.04.1995, at about 9.30 p.m., he reached Koothattukulam Town on the way to his home town, Uzhavoor. As it was late, he could not get a bus to Uzhavoor. Therefore, he took a room in Cisler Tourist Home and stayed there for the night. At about 2.30 a.m., somebody knocked on his door and asked him to open the room. As it was late, he could not get a bus to Uzhavoor. Therefore, he took a room in Cisler Tourist Home and stayed there for the night. At about 2.30 a.m., somebody knocked on his door and asked him to open the room. On enquiry, he was told that it was the Sub Inspector of Police, Koothattukulam, who was waiting outside for the purpose of checking the room. But, the plaintiff suspected the identity of the persons outside and since he was afraid of thieves and robbers, he did not open the door. He asked them to disclose the identity of the persons who were standing outside. However, they started pulling and pushing at the door trying to open the same by force. After some time, since he did not open the door, they left the premises. On the next day morning at about 6 O'clock when he got up, he tried to open the door and found that the room was locked from outside. There was no means of communication with the reception counter. Therefore, he called out to some people who were walking on the road outside and requested them to pass information of his plight to the receptionist. Within ten minutes, a Police jeep came with seven Policemen and they took him to the Koothattukulam Police Station where he was abused and ill treated like a criminal. 5. At about 10 O'clock in the morning, the Sub Inspector of Police who is the appellant/second defendant came to the Police Station, called the plaintiff to his room and started questioning him using foul language and threatening him with dire consequences. The plaintiff was roughed up and pushed around causing him bodily pain. He asked the plaintiff to explain why he had refused to open the door, the previous night. Though the plaintiff told him that he was afraid of thieves and was not convinced about the identity of the persons who were outside, the second defendant was not willing to accept his explanation. After the ill-treatment, the Policemen made him open his suit case and they checked his belongings. Without allowing him to leave or even move about freely, he was detained in the Police Station till 3.30 p.m. He was not allowed to take his breakfast or lunch. After obtaining information from him his brother Simon Joseph was called to the Police Station. Without allowing him to leave or even move about freely, he was detained in the Police Station till 3.30 p.m. He was not allowed to take his breakfast or lunch. After obtaining information from him his brother Simon Joseph was called to the Police Station. His brother came to the Police Station accompanied by another person. They also were made to wait and later, after making them execute bail bonds, he was released at 3.30 p.m. The plaintiff returned home deeply pained, ashamed and humiliated. He was unable to face his relatives and the public who were all under an impression that he had done some illegal act. 6. On 2.5.1995, the plaintiff sent a petition to the Inspector General of Police, Thiruvananthapuram requesting him to take action against the second defendant, who exceeded his authority in intruding into the privacy of the plaintiff, by wrongfully restraining him in his room, by detaining him in the Police Station and by verbally assaulting him in filthy language and by physically roughing him up. He alleged that he was humiliated in the eyes of his relatives, friends and the general public. Therefore, he claimed an amount of Rs.50,000/- as damages. However, his complaint was not redressed. Therefore, he issued a notice under Section-80 of the Code of Civil Procedure and a separate notice under Section 64 (4) of the Kerala Police Act and thereafter filed the suit. 7. The first defendant did not file any separate written statement, but, adopted the written statement of the second defendant. The second defendant contested the suit by filing a written statement alleging that the suit was not maintainable either in law or fact. The second defendant admitted that he was the Sub Inspector of Police, Koothattukulam during the relevant period. On 25.4.1995, at 2 a.m., he had conducted an inspection of Cisler Tourist Home along with the Police Constable 5171. The lodge supervisor Sri.Joy George was present. As per the register maintained at the lodge, it was found that many outsiders were staying there. Therefore, in order to verify the details of such outsiders, he along with the said Joy George had identified each person in those rooms. When he reached room No.32, where the plaintiff was staying, he knocked at the door after introducing himself as the S.I. of Police, Koothattukulam and asked him to open the door. Therefore, in order to verify the details of such outsiders, he along with the said Joy George had identified each person in those rooms. When he reached room No.32, where the plaintiff was staying, he knocked at the door after introducing himself as the S.I. of Police, Koothattukulam and asked him to open the door. But, the plaintiff refused to open the door and poured out filthy abuses. The son of the owner of the lodge, Dr.Joy George by name, who was present at that time also requested the plaintiff to open the door, but he refused to do so. As he behaved in a violent and indecent manner, a genuine doubt arose in the mind of the second defendant about the plaintiff and therefore, he instructed the lodge management to inform him when the plaintiff checked out. The next day when the plaintiff was about to leave the lodge, the second defendant was informed. He immediately reached the lodge and asked the plaintiff to accompany him to the Police Station for identification. Since the plaintiff could not answer questions to his satisfaction, he was detained there. When the plaintiff furnished the address of one Simon, S/o Joseph Poonamattathil, Uzhavoor, he contacted him through a subordinate and asked him to come to the Police Station. When Simon came to the Police Station with one Somasekharan Nair, the identity of the plaintiff was verified and after satisfying himself of the details of the identity of the plaintiff, he was sent along with them. 8. It is contended by him that whatever was done, was as part of his official duty. He denied the allegation that he had locked the room of the plaintiff from outside and also denied that he had abused the plaintiff using indecent words. The allegations regarding manhandling, pushing, pulling etc. were also denied. According to him, he had spent money from his pocket to serve food to the plaintiff and the plaintiff was not allowed to leave the Police Station only because there was bona fide suspicion in his mind about the details furnished by the plaintiff. He denied that the plaintiff was released from custody only after executing a bail bond. According to him, the plaintiff was released after executing a kychit and it was executed only as a legal formality. He denied that the plaintiff was released from custody only after executing a bail bond. According to him, the plaintiff was released after executing a kychit and it was executed only as a legal formality. He contended that whatever he had done was legal and nothing illegal was done by him. He asserts that he is empowered under the provisions of law to verify the identity of suspicious persons with the object of ensuring that the limits of the Police Station are kept free of anti-social elements. The calculation of damages by the plaintiffs was disputed as exorbitant, excessive and without any basis. On the above averments, he prayed for dismissal of the suit. The trial court framed five issues and tried the suit. The evidence in the case consists of the oral evidence of PWs. 1 to 3 and Exts.A1 to A6 documents on the side of the plaintiff and the oral evidence of DWs.1 to 4 and Exts.B1 and B2 documents for the defence. 9. The court below, after an elaborate consideration of the rival contentions of the parties and the evidence on record, both oral and documentary as well as the attendant circumstances, came to the conclusion that the second defendant had exceeded his authority and power in detaining the plaintiff without any justification. The quantum of damages claimed was found to be excessive and therefore, the court below has decreed the suit and awarded an amount of Rs.500/- as damages with 6% interest of costs. It is the said judgment and decree that is under challenge in this appeal. 10. According to the counsel for the appellant, the appellant is a Police Officer. At the time of the incident, he was the Sub Inspector of Police, Koothattukulam Police Station. It was his duty to ensure that law and order was maintained within the limits of his Station. Therefore, he had the power to do everything that was necessary to ensure prevention of crimes. As part of his duties include surveillance of suspected offenders, by checking the lodge at Koothattukulam where the plaintiff was residing, he was acting well within his powers. Therefore, there was no culpable conduct on the part of the appellant. It is also submitted that the suit was barred by limitation. As part of his duties include surveillance of suspected offenders, by checking the lodge at Koothattukulam where the plaintiff was residing, he was acting well within his powers. Therefore, there was no culpable conduct on the part of the appellant. It is also submitted that the suit was barred by limitation. Further, it is alleged that the suit was filed before the expiry of the notice period stipulated by Section 64 of the Kerala Police Act. The counsel for the plaintiff - first respondent submits that the suit was filed within the period of limitation and that too after complying with the provisions of Section 64 of the Kerala Police Act. According to him, the appellant had exceeded his powers and had ill-treated the first respondent - plaintiff. The appellant had no authority whatsoever to detain the first respondent in the Police Station even after coming to know that he was a retired school teacher, as claimed by him especially when no offence was alleged. The illegal acts of the appellant had caused acute mental agony, distress and loss of reputation to the first respondent, for which he was entitled to claim compensation. The trial court has awarded only a nominal compensation of Rs.500/- and there are no grounds to interfere with the same. 11. I have heard the learned counsel for the appellant and the learned counsel for the first respondent at length. I have been taken through the pleadings and the evidence in the case. I have anxiously considered the arguments and counter arguments. 12. The incident in the case took place on 25.4.1995. The suit has been filed on 5.10.1995. As per Section 64(3) of the Kerala Police Act, 1960, the suit had to be filed within six months of the date on which the offence or wrong is alleged to have been committed. The six months' period stipulated by the above provision expired only on 25.10.1995. Since the suit was filed on 5.10.1995, it has to be found that the suit was filed within the period of limitation stipulated by Section 64(3) of the Act. 13. Section 64(4) reads as follows : "Two months' notice before suit. The six months' period stipulated by the above provision expired only on 25.10.1995. Since the suit was filed on 5.10.1995, it has to be found that the suit was filed within the period of limitation stipulated by Section 64(3) of the Act. 13. Section 64(4) reads as follows : "Two months' notice before suit. - No suit as aforesaid shall be instituted against any Magistrate, Police Officer or other person until the expiration of two months next after notice in writing containing a sufficient description of the wrong complained of and the relief claimed has been given to him." 14. As per the above provision, the suit has to be preceded by two months' notice. Soon after the incident, the plaintiff had issued a notice to the appellant on 14.7.1995 through his lawyer. The notice has clearly stated that it was issued under Section 64(4) of the Act. Ext.A5 acknowledgment card shows that the notice was received by the appellant on 18.7.1995. On behalf of the appellant, Ext.A6 reply notice is also seen to have been issued to the first respondent's lawyer answering the allegations in Ext.A4. The period of two months stipulated by Section 64(4) expired on 18.09.1995. The suit has been filed only on 5.10.1995, after the expiry of the period of two months stipulated in Section 64(4) of the Act. Therefore, the suit has been filed in compliance with the stipulation regarding notice contained in the above provision also. 15. My attention has been drawn to Section 29 of the Police Act which enumerates the duties of Police Officers. It cannot be disputed that every Police Officer has the duty to preserve peace, to do everything that is necessary to ensure that law and order is maintained at all times and to take every possible measure to prevent commission of crimes. The counsel for the appellant submits that Section 38 of the Police Act casts a corresponding duty on all persons and provides that all persons are bound to conform to and comply with the reasonable directions of a Police Officer, in the fulfillment of any of the duties under the Act or in exercise of any powers under the Act. It is therefore, contended that the first respondent had a duty to open the door when the Police Officer directed him to do so. It is therefore, contended that the first respondent had a duty to open the door when the Police Officer directed him to do so. Therefore, the first respondent - plaintiff is alleged to have acted in violation of the above duty. 16. However, it is worth noticing that when the appellant knocked on the door of the first respondent's room, the time was 2.30 a.m., a time at which every human would be fast asleep. It is admitted by the appellant that he was not in search of any particular criminal or criminals and that he was not in the process of investigation, of any particular crime. He was only doing routine surveillance. He does not give any reason, why he chose the ungodly hour of 2.30 a.m. to undertake his routine surveillance. The explanation of the first respondent was that he was carrying money and ornaments, that he was afraid of thieves and robbers and that he suspected the identity of the persons who were at his door and therefore, he did not open the door out of fear. He cannot be found fault with for not having opened the door at that time of the night when he was all alone in an unfamiliar hotel room. I take note of the fact that the court below has found the conduct of the plaintiff to be unreasonable in not opening the door and that the said finding has not been challenged by the plaintiff by way of an appeal or cross appeal. Therefore, I refrain from making any further observation on the above aspect, though I wish to make it clear that I do not agree at all, with the said finding. 17. We are a democratic nation where the life and individual liberty of the individual citizen are preserved and protected by the Constitution and the laws. We do not approve of intrusions by the uniformed force into the private lives of individual citizens without proper justification. The dreaded "midnight knock", familiar to societies under the rule of Military Juntas or dictatorships cannot find place in the scheme of things under our Constitution. We do not approve of intrusions by the uniformed force into the private lives of individual citizens without proper justification. The dreaded "midnight knock", familiar to societies under the rule of Military Juntas or dictatorships cannot find place in the scheme of things under our Constitution. Section 38 of the Kerala Police Act, 1960 relied on by the counsel for the appellant reads as under : "Sec.38- Persons bound to conform to reasonable directions of police- (1) All persons shall be bound to conform to the reasonable direction of a police officer given in fulfillment of any of the duties enjoined on, or in exercise of any of the powers vested in him under this Act. (2) A Police Officer may restrain or remove any person resisting or refusing or omitting to conform to any such direction as aforesaid." (emphasis supplied) The duty contemplated by the above provision is a duty to conform only to the "reasonable direction" of a Police Officer. The direction of the appellant to the first respondent to open his hotel room at 2.30 a.m. cannot be termed as reasonable under the circumstances. Therefore, the first respondent cannot be found fault with for not having opened his door. The appellant clearly exceeded his lawful authority by intruding into the privacy of the first respondent at 2.30 a.m. 18. The next day, the first respondent was brought to the Police Station in the morning and was detained there till about 3.30 p.m., though the Police authorities were informed of his identity. It is worth noticing that the plaintiff - first respondent was not a person accused of having committed any crime. He was not suspected of any illegal or criminal activities also. Therefore, there was no justification for detaining him in the Police Station till 3.30 p.m. 19. The counsel for the appellant relies on Sections 41 and 42 of the Code of Criminal Procedure to submit that a Police Officer has ample powers to arrest a person without warrant. It is submitted that Section 42 empowers a Police Officer to arrest a person, if he refuses to give his name on demand. However, it is to be noticed that the said provision applies to a situation where a person has committed an offence or has been accused of committing an offence in the presence of the Police Officer. It is submitted that Section 42 empowers a Police Officer to arrest a person, if he refuses to give his name on demand. However, it is to be noticed that the said provision applies to a situation where a person has committed an offence or has been accused of committing an offence in the presence of the Police Officer. Such a situation is not available in the present case, because the first respondent - plaintiff was not accused of or suspected of having committed any offence. It is clear from the sequence of events that the plaintiff had not refused to reveal his identity at any time. It is further to be noted that Section 43(3) of the Code of Criminal Procedure provides that if such a person who does not give his name or residence under Section 42 is found not to be involved in any offence, he shall be released at once. However, in the present case, the plaintiff was detained in the Police station long after he had disclosed his name and identity. On his information, his brother and another person were summoned to the Police Station and thereafter, it was only on their executing a bond that he was allowed to leave. The sequence of events clearly show that the appellant had not acted in compliance with the mandate contained in Section 43(3) of the Code of Criminal Procedure. 20. As noted by the court below, the appellant would have been cut up with the first respondent for not having opened the door of his hotel room at 2.30 a.m. when he was directed to do so. But, Police Officials have no power or authority to violate the right of personal liberty of an individual, which is a sacred and sacrosanct right guaranteed by Article-21 of the Constitution. Any attempt on the part of Police Officials to violate the personal liberty of a citizen even if it is in purported exercise of the powers available to them, should be put down with a stern hand. Otherwise, personal liberty and individual freedoms would become mere dead letters in the Constitution. Any leniency would only convey a very wrong impression to those armed with Police powers that they would be able to get away with any and every violation of individual liberty. 21. Otherwise, personal liberty and individual freedoms would become mere dead letters in the Constitution. Any leniency would only convey a very wrong impression to those armed with Police powers that they would be able to get away with any and every violation of individual liberty. 21. Therefore, this was a fit case in which the court below ought to have awarded a just and reasonable compensation to the first respondent for the violation of his personal liberty. The attitude of the court below in awarding only a paltry amount of Rs.500/- as compensation depicts a total lack of sensitivity to the gravity of the violation committed by the appellant. In our country, various factors like the requirement of court fee payable ad valorem, high litigation expenses, delay, etc. deter causes like the present one from even reaching the courts. Consequently, very few cases claiming compensation for like wrongs actually reach the courts of law. In such a scenario, lack of sensitivity on the part of the courts would only serve to aggravate the situation and deny 'access to justice' to many an aggrieved citizen. Therefore, the situation calls for a paradigm shift in the attitude of courts in the matter of awarding compensation to redress blatant violation of rights like the personal liberty of a citizen. However, in the present case, since the first respondent has not filed an appeal challenging the quantum of the damages awarded by the court below, I have no other option but to confirm the decree of the court below. However, a suitable recompense can be provided by allowing costs in the appeal. 22. The appellant has dragged the first respondent to this court to fight a protracted litigation, contesting even the meager amount awarded as damages by the court below. This appeal has been pending for the past more than fifteen years. Therefore, I quantify and fix the costs in the appeal at Rs.15,000/- which the first respondent shall be entitled to recover from the appellant. In the result, (i) the appeal fails and is dismissed confirming the judgment and decree of the Sub Court, Muvattupuzha in O.S.No.222 of 1995; (ii) the first respondent shall be entitled to realize the costs of this appeal from the appellant which is quantified and fixed at Rs.15,000/-.