Krishna Gupta and Others vs D.D. Sadhotra and Others

Y.P. Nargotra, J.—These three Civil First Appeals arise out of the judgment and decree dated 22-9-1999 passed by the learned 1st Addl

District Judge, Jammu, whereby suit for compensation filed by the plaintiff, Sh D.D. Sadhotra has been decreed against the defendants, i.e., State

of Jammu and Kashmir; Shri Amrik Singh and one Onkar Nath Thusoo. In the two appeals filed by the State of Jammu & Kashmir and Amrik

Singh, the defendants-appellants are seeking setting aside of the judgment and decree of learned trial Court, whereas by the third appeal filed by

the plaintiff, Shri D.D. Sadhotra, enhancement of compensation awarded by the learned trial Court is being sought.

Facts which are not in dispute are that defendant-Onkar Nath Thusoo lodged a complaint against the plaintiff, Sh D.D. Sadhotra, an I.F.S

Officer, with the Anti Corruption Organization, Jammu, leveling allegations of corruption against him, on the basis of which FIR No. 1 of 1976 was

registered by the defendant-Amrik Singh, who stood posted as Deputy Superintendent of Police, for commission of the offence u/s 5(2) of the

Prevention of Corruption Act.

The said FIR was also investigated by said Amrik Singh, where after a charge-sheet for seeking trial of the plaintiff, D.D. Sadhotra came to be

filed before the Court of Special Judge, Anti Corruption, Jammu. The plaintiff after being charged was put on trial for commission of the said

offence. He was, however, acquitted of the charges by the learned trial Court vide its judgment dated 20-12-1980.

The State on 21-2-1981 filed acquittal appeal before this Court and the same was also dismissed by order dated 12-4-1983 and the acquittal

of the plaintiff came to be upheld.

The plaintiff, Shri D.D. Sadhotra alleging malicious prosecution filed suit for damages and compensation against the defendants on 31.3.1984,

which has been decreed by the trial Court vide its judgment impugned.

The defendants through an application filed before the trial Court during the trial prayed for dismissal of the suit, as, according to them, the same

was barred by limitation.

The defendants contended before the learned trial Court that the limitation started to run from the date of acquittal by the trial Court and not

from the date of dismissal of the acquittal appeal. It was further submitted that even if the period of pendency of appeal was to be excluded, still

the suit would be barred by time.

The learned trial Court rejected the prayer and held the suit to be within time by observing:

These arguments of the learned Advocate for the defendant are simply to be rejected because the decision of our own Hon'ble High Court being

the limitation in such case starts not from the date of acquittal but from the date of dismissal of the revision or appeal. So, if the limitation is to be

taken from the date of dismissal of appeal or revision against the order of acquittal, then there is no question of reckoning the limitation from the

date of acquittal, and as such, it is held that the plaintiff's suit is within limitation and the application is mis-conceived and decided accordingly.

For holding so, the learned trial Court relied upon the case A.K. Wattal v. Kh. Mohd Sidiq and Ors. 1965 KLJ 64

I have heard learned Counsel for the parties.

Mr. L.K. Sharma, learned Counsel for appellant-Amrik Singh, and Mr. B.S. Salathia, learned Addl Advocate General for appellant-State

have raised the preliminary objection to the maintainability of the original suit itself on the ground of limitation. They contend that as the limitation

started to run from the date of acquittal, i.e., 20.12.1980, therefore, the suit filed by the plaintiff/respondent on 31.3.1984 was barred by time.

On the other hand, Mr. P.S. Bhardwaj submitted that the limitation started to run from 12.4.1983, i.e., the date when the acquittal order was

confirmed and the appeal was dismissed, therefore, the suit is within time.

Limitation for filing the suit for compensation on account of malicious prosecution is governed by Article 23 of the Jammu and Kashmir

Limitation Act, which reads:

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Article Description Period of Time from which period

of Suit Limitation begins to run

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23 For One year When the plaintiff is

compensation acquitted, or the prosecution

for a is otherwise terminated,

malicious

prosecution.

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From the bare reading of Article 23, it is manifest that the limitation for a suit for damages on a cause of action of malicious prosecution starts

to run ""when the plaintiff is acquitted or the prosecution is otherwise terminated"". The article deals with two alternative situations; one envisages

acquittal, while the other deals with termination of the prosecution. A criminal case filed for prosecution of a person for commission of any offence

comes finally to an end when such person is either convicted and sentenced or acquitted or discharged of the charges. In case of conviction, there

would not be any cause for the convicted person to sue for damages. But if such conviction on his appeal or revision comes to be set aside by the

appellate or revisional court and he is acquitted of the charges, then the limitation under the article would start to run from the date of his acquittal,

as the cause of action to sue becomes available to him from that date. Cases of discharge would be governed by the second situation envisaged by

the article.

If order of acquittal or discharge of the person prosecuted is followed by an appeal or revision, whether starting point of limitation would

remain suspended during the pendency of such appeal or revision?

So for as revision against the order of acquittal is concerned, a learned Single Bench of this Court in A.K. Wattal v. Kh. Mohd. Sidiq 1965

KLJ 64 while relying upon AIR 1938 Mad. 349 (FB) and AIR 1942 489 (Oudh) took the following view:

About the limitation in such cases there was conflict of opinion as to wherefrom limitation should be computed. Under Article 23 of the Limitation

Act time runs in such suits from the date of the order of acquittal or termination of the prosecution. It has now been finally settled that the limitation

in such cases starts not from the date of acquittal but from the date of dismissal of the revision petition. (Vide AIR 1938 Mad 349 FB and AIR

1942 489 (Oudh) . Therefore the suit of the plaintiffs is within time and this issue is decided against the defendant.

There being no difference between appeal and revision for the purposes of computation of period of limitation, therefore, if the above view is

to be accepted as correct preposition of law, then the limitation in case of an acquittal followed by an appeal or revision would start to run from the

date of dismissal of the acquittal appeal or revision, as the case may be.

However, with great respect, I may say so thaf She view expressed in Wattals case (supra) does not state the correct position of law.

It is a settled principle of Law of Limitation that once the prescribed period of limitation starts to run, then no subsequent disability or inability

to sue stops it. Section 9 of the Act reads as follows:

Continuous running of time

Where once time has begun to run, no subsequent disability or inability to sue stops it:

Provided that, where letters of administration to the estate of a creditor have been granted to his debtor, the running of the time prescribed for the

suit to recover the debt shall be suspended while the administration continues.

Under Article 23, the starting point for limitation in case of acqviittal is the date on which the acquittal order is passed. No provision either in

Article 23 or in other sections of the Limitation Act has been made for providing automatic suspension of the period of limitation prescribed in the

event of appeal or revision being filed against the acquittal order.

Mere filing of appeal or revision for questioning the legality of the acquittal of plaintiff, who seeks to sue for damages on account of his

malicious prosecution, perse does not result in suspension, exclusion or extension of the period prescribed.

If a ca use of action arises on the passing of an order by an authority then that cause of action does not get suspended or deferred by mere

filing of an appeal or revision against that order, unless there is something in the provision regulating the appeal or revision for suspending the order

appealed against or sought to be revised or for rendering it inoperative on the reason of filing the appeal or revision.

In case of acquittal, the cause of action for filing the suit for damages on the ground of malicious prosecution arises on the date of passing of the

acquittal order in terms of Article 23. Article 23 no where provides that the cause of action to sue will remain suspended during the pendency of an

acquittal appeal or revision against the order. Acquittal appeal lies u/s 417 Cr.P.C. There is no provision in the Cr.P.C. which provides for

automatic suspension or staying of the acquittal order on mere filing of the appeal. Likewise, the Court of Session and High Court have been

vested with revisional jurisdiction under Sections 435 and 439 respectively for examining the legality or propriety of an order passed by a criminal

court subordinate thereto. There is no provision for providing automatic suspension or staying of the order sought to be revised. Therefore, merely

because against the acquittal order an appeal or revision has been filed, the filing of the same does not stop the limitation to run. However, on filing

of the appeal or revision against the acquittal order, if the appellate court or revisional court stays the operation of the acquittal order, in that event

the period during which the stay remains in force gets excluded in terms of the provision contained in Section 15 of the Limitation Act. Section 15

reads:

Exclusion of time during which proceedings are suspended.

(1). In computing the period of limitation prescribed for any suit or application for the execution of a decree, the institution prescribed for any suit

or application for the execution of a decree, the institution or execution of which has been stayed by injunction or order, the time of the continuance

of the injunction or order, the day on which it was issued or made, and the day on which it was withdrawn, shall be excluded.

(2). In computing the period of limitation prescribed for any suit of which notice has been given in accordance with the requirements of any

enactment for the time being in force, the period of such notice shall be excluded.

Section 15(1) thus safeguards the interest of a person who is precluded from exercising his right to institute the suit by injunction or order of

stay passed in appeal or revision. In the absence of stay order in appeal or revision, the fact of filing of the same by itself can have no effect on

running of the limitation.

There is another aspect of the matter. It may be argued that in Article 23 the phrase ""or the prosecution is otherwise terminated"" is to be read

with first phrase ""when the plaintiff is acquitted"", to mean that a prosecution finally terminates when all the remedies against the acquittal order get

exhausted, i.e., when acquittal order becomes filial. Therefore, in case of acquittal appeal or revision, the limitation starts to run from the date of

dismissal of appeal or revision filed against the acquittal order.

The above argument would not be legally tenable because if this were to be the intention of the legislature, there would have been no necessity

to provide for two phrases in two fact situations in the article and it would have been sufficient to say that ""when prosecution is terminated"". The

purpose of using two expressions 'acquittal' or 'otherwise termination of prosecution' in the article is obvious. By incorporation of the word

'otherwise' in second phrase, the legislature intended to maintain the distinction between acquittal and discharge.

In Madho Lal Vs. Hari Shanker and Another, , it was observed:

A perusal of Article 23 of the Limitation Act goes to show that Article deals with two alternative cases: one envisages acquittal and the other,

termination of the prosecution. So far as the second alternative or the expression 'termination of the prosecution' goes that is not applicable to the

present case. That governs such cases as those of discharge. It is the first alternative when will govern the case of acquittal; and acquittal would

mean acquittal from the Trial Court or if there is conviction from a Trial Court, then the order of acquittal was passed in appeal or revision. In a

case where acquittal has been ordered by the Trial Court and the complainant has filed revision, the filing of revision cannot affect the order of

acquittal already passed. It will remain an order of acquittal till the acquittal is converted into an order of sentence. It would thus appear that under

Article 23 of the Limitation Act, the limitation would run from the date when the plaintiffs were acquitted by the Trial Court or in appeal if there

was conviction from the Trial Court. Filing of a revision against an order of acquittal cannot suspend the period of limitation, which started running

from the date of the order of acquittal. This view is fully justified by the case of Shankar Prasad AIR 1935 Oudh 392.

In that case the prosecution of the plaintiff ended in acquittal. There was also a revision against the order of acquittal, and it was held by the learned

Judge, who decided that case, that the limitation started running from the date of the order of acquittal and the finling of revision did not give a fresh

start to the period of limitation; and so the suit, if brought more than one year after the order of acquittal passed by the Trial Court would be

beyond time. I respectfully agree with this view.

The case of B. Madan Mohan Singh Vs. B. Ram Sunder Singh, was a case of discharge and so that case was covered by the second

alternative of Article 23. But the Division Bench, which decided that case, also observed at p. 887 (of All LJ) : (at p. 327 of AIR):

Moreover in a case where the prosecution ended in acquittal the language of Article 23 leaves no room for argument, as it provides specifically that

limitation is to run from the date of acquittal.

This observation of the Division Bench supports the view which is expressed above.

In the Soora Kulasekara Chetty and Another Vs. Tholasingam Chetty, , it was thought that the words ""when the plaintiff is acquitted"" could not

be divorced from the words, ""or the prosecution is otherwise terminated"". It appears that the Full Bench, which overruled the earlier view of that

Court, thought that the two phrases were inter-dependent. With great respect to the learned judges, I am unable to agree with that view. The

purpose of the legislature is obvious by using two expressions ""acquittal"" or ""otherwise termination of prosecution"". If the two expressions were

inter-dependent or were meant to give starting point of limitation on termination of the prosecution, it was unnecessary for the legislature to use the

expression ""when the plaintiff is acquitted"", it would have been sufficient to say ""when the prosecution is terminated"". The legislature obviously

maintained a distinction between ""acquittal"" and ""otherwise termination of the prosecution.

In Bhaskar Narhar Deshmukh Vs. Kisanlal Sadasukhdas and Another, , it has been held:

Article 23 of the Limitation Act, Schedule 1, prescribes one year's period of limitation for compensation for a malicious prosecution and the time

begins to run ""when the plaintiff is acquitted, or the prosecution is otherwise terminated"". Apart from authority, the language of this provision would

seem to be plain. In the case of an acquittal, it provides a terminal point from which the time begins to run, the terminal point being the acquittal.

Now, an acquittal is an acquittal, whether or not the complainant files a revision application against the order of acquittal or an appeal or the State

files an appeal. The position is not altered by the addition of Section 417(3) in the Code of Criminal Procedure which permits the complainant, in

the case of a provate complaint, to file an appeal to the High Court against an order of acquittal with its permission or leave. The original acquittal

is still operative, and on the language of the provision, it is the date of acquittal from which time begins to run. The other alternative is that ""the

prosecution is otherwise terminated. Now, whenever a prosecution is started, it may not necessarily end in an acquittal. A prosecution may end,

either in acquittal or conviction. If it is the first, then it is governed by the first part of this provision, and if it is the second, there can be no case for

a suit. It may also result in an order of discharge, or in a dismissal of the complaint if the complainant is absent on the date fixed for the hearing of

the complaint. The latter part of the provision "" the prosecution is otherwise terminated"" is intended to meet such cases, and here again, it is the end

of that proceeding which is operative for all intents and purposes and governs the point of time when the period begins to run.

In our view the first part of this provision is indicative of the meaning to be attached to the latter part, and it would only mean the first terminal

point when the prosecution ends in the first Court, for the reason that the effect of such an ending is the same as in the case of an acquittal.

In my considered opinion the view expressed by High Courts of Allahabad and Bombay is the correct preposition of law. Therefore, the ratio

of the decision rendered in Wattal's case (supra) requires reconsideration by a large Bench.

I therefore, direct that these appeals be placed before Lord Chief Justice for appropriate orders.