A.G. Panneerselvam vs M. Jayaraman

Arumugham, J.—This revision is directed against the order of the learned Sub-Divisional Judicial Magistrate, Tirupattur, made in C.C. No.

31 of 1987, dated 28.12.1987, acquitting the Respondent herein, who is a Police Officer during the relevant point of time for an alleged offence

u/s 500, I.P.C., holding that the complaint alleged by the revision Petitioner against the Respondent for the abovesaid offence was clearly hit by the

law of limitation provided u/s 53 of the Tamil Nadu District Police Act.

The facts of the prosecution case, as culled out from the impugned order and the case records are briefly as follows: A complaint u/s 200, Code

of Criminal Procedure was filed on behalf of the revision Petitioner before the learned trial Magistrate against the Respondent, who is a Police

Officer, for the offence u/s 500, I.P.C. alleging that on a prior occasion, the Respondent herein has initiated a false complaint and prosecution

against the Petitioner herein for an offence u/s 75 of the City Police Act, which was taken on file in S.T.C. No. 150 of 1986 before the Judicial

Second Class Magistrate, Vaniyambadi, that after full trial, the accused therein was found not guilty and was acquitted, and that even after the

acquittal, the Respondent herein has opened a history sheet against revision Petitioner, thereby acting quite against his interest and maligning his

fame and popularity.

The Respondent, who is a Police Officer, on his appearance before the learned Judicial Magistrate raised a preliminary objection to the effect

that in his capacity as a public servant and Police Officer, on the receipt of complaint, filed the charge sheet in the previous case, which ended in

acquittal, that there was no malice at all on his part against the revision Petitioner, and that even so, the complaint having been filed by the revision

Petitioner on 23.12.1986, after the previous case ended in acquittal on 30.6.1986 before 5 1/2 months, it is directly hit by S. 53 of the Tamil Nadu

District Police Act, which provides a period of three months limitation to launch any criminal prosecution against an erring police official.

The learned trial Magistrate, upon perusing the question of law referred to in the context of the allegations and objections made, has found that

to the facts of the present case, S. 53 of the Tamil Nadu District Police Act is clearly made applicable since the complaint has been made after 5

1/2 months from the date of acquittal, viz. 30.6.1986 and that the present complaint filed against the Police Officer-Respondent for the alleged

offence u/s 500, I.P.C. is clearly time barred. Therefore, the learned Magistrate rejected the complaint and acquitted the accused, and against

which the present revision is sought for.

Mr. V. Gopinath, learned Counsel appearing for the revision Petitioner, while canvassing the grounds urged in this revision, in challenging the

propriety and legality of the order passed by the trial Magistrate, has brought to my notice the decision in Pulavarti Lakshmanaswami Vs.

Mahammad Galah Hussain Saheb Garu and Others, which held as follows:

An act done by a Police Officer in the exercise of his police powers will not have the benefit of S. 53 of the Act if it was done maliciously. But the

onus is on the Plaintiff in the suit to prove by strong and cogent evidence the existence of malice and the absence of any honest desire to execute

his powers on the part of the Police Officers.

He also brought to my notice another decision in C.P. Singh v. K. Hanumantha Rao A.L.T. 1028 (sic), wherein it was held as follows:

The benefit of S. 53 of the Madras District Police Act is subject to the qualification that the Police Officer did not act maliciously. The onus of

proving malice lies upon the complainant. The preliminary objection u/s 53 of Act XXIV of 1859 can be properly considered only after the

prosecution is recorded.

BY relying on the abovesaid two decisions alone, Mr. V. Gopinath, learned Counsel appearing for the revision Petitioner has urged before me

that the impugned order passed by the learned Magistrate is not correct in the context that malice, if any, on the part of the Respondent-police

Officer would be exposed only after the trial, that before trial, malice inherent with the activities of the Respondent herein, cannot be established

and that, as such the impugned order passed by the learned Magistrate is to be interfered with..

Mr. N. Dinakar, learned Counsel appearing for the Respondent, while countering the said position, drew my attention to the every allegations

made in the complaint, which fails to attribute or project any kind of malice on the part of the Respondent in launching the criminal prosecution

against the revision Petitioner, for an offence u/s 75 of the City Police Act, which ended in acquittal and that even so, since the prosecution is not

based on the established malice, but some other material, the case laws referred to above cannot be made applicable to the present case to escape

from the clutches of the teeth of S. 53 of the Tamil Nadu District Police Act. -

In the light of the above rival contentions, the only point that arises for consideration is: whether the impugned order passed by the learned trial

Magistrate, acquitting the Respondent herein, is vitiated with any illegality or impropriety, and if so, whether it is liable to be interfered with in this

revision?

In the light of the rival contentions and the case laws referred to above, I have carefully perused the provisions of S. 53 of the Tamil Nadu

District Police Act. It is not disputed that, for the malicious prosecution, to launch any civil proceedings, or criminal proceedings u/s 200 of the

Criminal Procedure Code, the limitation provided u/s 53 of the Tamil Nadu District Police Act is three months and that there cannot be two views

about the applicability of S. 53 to the facts of the instant case. If that is so, it has to be seen that the previous case launched against the

complainant-revision Petitioner by the Respondent herein ended in acquittal on 30.6.1986. Therefore, to save limitation provided u/s 53 of the

Tamil Nadu District Police Act, the revision Petitioner should have filed the present complaint within three months, viz., on or before 30.9.1986.

But, curiously, he has come forward with the presentation of the present complaint only on 23.12.1986. Therefore, the complaint is clearly within

the teeth of S. 53 of the Tamil Nadu District Police Act. So, I find that the learned trial Magistrate has rightly rejected the complaint and acquitted

the Respondent herein.

However, Mr. V. Gopinath, learned Counsel, placing reliance upon the above two case laws, has urged before me that if the Police Officer,

viz., the Respondent acted with malice in launching the previous case, then he is not entitled to avail S. 53 of the Tamil Nadu District Police Act.

But, as has been justifiably countered by Mr.N. Dinakar, learned Counsel for the Respondent, there is no iota of material in the complaint itself to

prove any malice on the part of the Respondent. In the absence of such material in the complaint itself, I fail to understand totally as to how the

revision Petitioner is going to establish the concept of malice during the trial. Therefore, it is highly preposterous to contend that to establish malice,

evidence should be adduced. In my view, this is not at all a ground to be countenanced in view of the facts involved in this case. In this context, I

am totally unable to persuade myself to countenance any of the arguments advanced by Mr. V. Gopinath, on behalf of the revision Petitioner. On

the other hand, I fully agree with the contentions projected on behalf of the Respondent by Mr. N. Dinakar, learned Counsel appearing for him on

the ground that no material was placed before the trial Magistrate to establish malice, at least prima facie on the part of the Respondent and that

therefore the order of the learned Magistrate is certainly in order and cannot be interfered with.

In the result, the revision fails, and is accordingly dismissed.