Pathumma vs State of Kerala and Others

S. Sankarasubban, J.—This appeal is filed by the Petitioner in I.O.P. 20/92 on the file of the Subordinate Judge''s Court, Muvattupuzha. The Appellant is the Petitioner in I.O.P. 20/92. She filed I.O.P. for recovery of a sum of Rs. 7,00,000 with interest as compensation for the loss of her son. Since she was not able to pay the Court fee, she prayed for permission to file the suit as an indigent person. The averments in the petition are as follows: The Petitioner is a resident of Thankala Kara, Thrikariyoor Village. Her son Ansari was aged about 19. On 7th August 1991 he was taken into custody without any reason or justification by Defendants 2 to 7 who are the Sub Inspector of Police and the Police Constables of Pothanicad Police Station. The Defendants 2 to7 kept the aforesaid Ansari in illegal restraint. They tortured him in different manner by using various means, manhandled, and be laboured him in cruel and in human manner. As a result of that the said Ansari breathed his last while in the illegal custody of Defendants 2 to 7. According to Petitioner, after the cold-blooded murder of the Petitioner''s son, the Defendants 2 to 7 conspired together and hanged the deadbody of Ansari in the police station with the object of making it that he had committed suicide. The real cause of death of Ansari was the torture by Defendants 2 to 7. It is stated that by misusing their official position and taking advantage of their presence in and proximity to the Kothamangalam Police Station, Defendants 2 to 7 got the case registered in relation to the incident of the murder of Ansari as unnatural death by hanging. It is further stated that Defendants 2 to 7 were suspended. The charges included the alteration of the records also. The death of her son in police custody has caused great hardship to the Petitioner. It is further stated that it is not clearly in the normal official functions of Respondents 2 to 7 to belabour anybody brought to the police station or to torture a citizen of India. Hence the petition is filed.

To this petition objections are filed by the second Respondent and Respondents 3 to 7. The first Respondent State of Kerala did not file any objection.

The contention taken by the second Respondent is as follows: The 6th Respondent Salim was on Tapal duty on 7th August 1991. While he was serving as Police Constable at Kothamangalam Police Station he saw Ansari at 9.30 p.m. near Woodlands Hotel, Kothamangalam with a sack full of materials. Since Ansari have convictions in various crimes, the Police Constable felt suspicious of the presence of Ansari and approached him. By the time Ansari ran away leaving behind the sack. The Police Constable chased Ansari and caught him. Thereafter the Police Constable opened the sack. It contained the spare parts of motor vehicles. He could not give any valid explanation for the possession and hence he was brought to the police station at about 10.15 p.m. A crime 233/91 was registered and thereafter Ansari was removed to the lock up. Thereafter in the morning the said Ansari was found hanging inside the lock up. He committed suicide by hanging inside the lock up. None of the Respondents are responsible for the death of Ansari. Thus the case of the Respondents is that Ansari hanged himself. It was also stated therein that he was brought to the police station when he was caught redhanded having stolen articles. It is further denied that the Respondents tortured him. The objection of Respondents 3 to 7 is also on the above line. Another objection is raised on the basis of Section 64(3) of the Kerala Police Act. All the Respondents have taken the objection that the Petitioner''s application is barred by limitation as per Section 64(3) of the Police Act and hence the application has to be dismissed under Order 33 Rule 5(b) of the Code of Civil Procedure. The Court below after hearing both parties found that the petition is barred by limitation. The Court below held as follows:

It is a fact that torturing of a person while in police custody cannot be treated as an act done by the police in good faith. The allegation of the Petitioner shows that the act done by the police officials is in the course of the discharge of their official duties. The alleged act done by the police officials is in pursuance of the duty imposed on them or authority conferred on them by the provision of the Police Act. This being the fact the suit ought to have been filed within six months from the date of the alleged offence.

It is against the above order that the appeal is filed.

Learned Counsel for the Appellant submitted that the order of the Court below is wrong. He submitted that for considering the question whether the suit is barred by limitation u/s 64, allegations in the plaint have to be referred. This has to be decided on the basis of the allegations in the plaint and not on the basis of the defence raised. According to him, the Appellant has clearly stated in the petition that the death of her son was due to the torture committed by Respondents 2 to 7. In so far as the allegation is that the death was due to torture, counsel submitted that such an action cannot be justified under the Kerala Police Act. He further submitted that the defence submitted by Respondents 2 to 7 has to be proved at the trial. Learned Counsel for the Respondents submitted that the son of the Appellant was caught redhanded when he had stolen the articles and he was brought to the police station in the discharge of duties of the police officer. He also stated that a crime has been registered against the deceased person. Hence according to him, the Respondents 2 to 7 denied that they have tortured the deceased. Since the action of the Police Officers was in discharge of their duties, Section 64 of the Kerala Police Act comes into play. Hence it is submitted that the order of the Court below is correct.

Learned Counsel for the Appellant relied on the decisions of the Supreme Court in S.P. Vaithianathan Vs. K. Shanmuganathan, , Bakhshish Singh Brar Vs. Gurmej Kaur and Another, .

Learned Counsel for the Respondents relied on the decision in R. Balakrishna Pillai v. State of Kerala 1996 (1) KLT 250, Prof. Sumer Chand Vs. Union of India (UOI) and Others, and Prabha v. Sankara Giri 1989 (1) KLT 977.

Before we proceed to deal with the decisions we shall extract Section 64(3) of the Kerala Police Act. It states as follows:

(3) Suit or prosecution not to be entertained if instituted more than six months after the date of the act complained of. No Court shall take cognizance of any suit or complaint, in respect of any offence or wrong alleged to be committed or done by a Magistrate Police Officer or other person on account of any act done in pursuance of any duty imposed or authority conferred on him by this Act or any other law for the time being in force or any rule, order or direction lawfully made or given thereunder unless the suit or complaint is filed within six months of the date on which the offence or wrong is alleged to have been committed or done.

Section clearly States that if any offence or wrong is alleged to be committed or done by a Magistrate, Ponce Officer or other person on account of any act done in pursuance of any duty imposed or authority conferred on him by this Act for the time being in force, the suit or complaint should be filed within six months of the date on which the offence or wrong alleged to nave been committed. This protection is given for an offence or wrong committed by a Police Officer or a Magistrate on account of any act done in pursuance of any duty imposed or authority conferred on him by the Police Act or any other law.

In S.P. Vaithianathan Vs. K. Shanmuganathan, (cited supra) the Supreme Court was dealing with Section 53 of the Tamilnadu District Police Act. The above section is as follows:

Limitation of action-

All actions and prosecutions against any person which may be lawfully brought for anything done or intended to be done, under the provisions of this Act, or under the provisions of any other law for the time being in force conferring powers on the police shall be commenced within three months after the Act complained of shall have been committed and not otherwise.

While interpreting that section His Lordship Ahmadi, J. (as he then was) held as follows:

It seems clear to us that before a prosecution is terminated as barred by Section 53 of the Act, the accused must show that on the allegations made in the complaint it ex facle appears that the Act complained of was done under the provisions of the Act or under the provisions of any other law for the time being in force whereunder powers are conferred on the police. It is true that u/s 31 of the Act a police officer can be said to be on duty all the 24 hours. The prosecution launched against the Respondent is in regard to the ill-treatment meted out to the Appellant when the latter visited the former in response to the summons. It was no part of the duty under the Act, Code or any other law for the time being in force conferring power on the police to beat and torture the Appellant when he presented himself before the Respondent in response to the summons. By no stretch of reasoning can it be said that the Respondent''s action of torturing the Appellant was in discharge of any duty or function under the Act or under any other law. It is also difficult to say, if the allegations made are take at their face value, that the Respondent''s action was incidental to or in furtherance of his duties and functions under any law. It must be realised that in order to avail of the benefit of Section 53 of the Act, the Respondent must show that he acted ''under'' the Act, or any other law. Merely because the Appellant was called through a summons issued under law, the conduct of beating and torturing the Appellant on the latter appearing in obedience to the summons cannot establish any nexus between the official act of issuance of summons and the action of the Respondent on the appearance of the Appellant. Unless a relationship is established between the provision of law ''under'' which the Respondent purport to act and the misdemeanour complained of the provision of Section 53 will not be attracted.

Thus the Supreme Court held that there should be a nexus between the official act of issuance of summons and the action of the Respondents also on such appearance.

In Bakhshish Singh Brar Vs. Gurmej Kaur and Another, the Supreme Court while dealing with Section 197 Code of Criminal Procedure held as follows:

In the instant case, it is alleged that grievous injuries wore inflicted upon the complainant and as a result of injuries one of the alleged accused had died. The question is while investigating and performing his duties as a Police Officer was it necessary for the Petitioner to conduct himself in such a manner which would result in such consequences. It is necessary to protect the public servants in the discharge of their duties. They must be made immune from being harassed in criminal proceedings and prosecution, that is the rationale behind Section 196 and Section 197 Code of Criminal Procedure. But it is equally important to emphasis that rights of the citizens should be protected and no excesses should be permitted. "Encounter death" has become too common. In the facts and circumstances of each case protection of public officers and public servents functioning in discharge of official duties and protection of private citizens have to be balanced by finding out as to what extent and how far is a public servant working in discharge of his duties or purported discharge of his duties, and whether the public servant has exceeded his limit. It is true that Section 195 states that no cognizance can be taken and even after cognizance having been taken if facts come to light that the acts complained of were done in the discharge of the official duties then the trial may have to be stayed unless sanction is obtained. But at the same time it has to be emphasised that criminal trials should not be stayed in all cases at the preliminary stage because that will cause great damage to the evidence.

Learned Counsel for the Respondents relied on the decisions in R. Bdlakrishna Pillai v. State of Kerala 1996 (1) KLT 250 and in Prof. Sumer Chand Vs. Union of India (UOI) and Others, . In 1996 (1) KLT 250 (cited supra) the question raised was whether the sanction u/s 197 Code of Criminal Procedure was required. The offence charged against the accused included anti acts while he was functioning as a Minister. The contention raised was that it would not attract Section 197 as it is no part of the duty of the Minister while discharging his official duties to enter into a criminal conspiracy. It was contended that it is the quality of the act that is important and if it falls within the scope of the expression "any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, the protection of Section 197 will have to be extended to the public servant". The Supreme Court held that the act alleged.is directly and reasonably connected with his official duty as a minister it would attract the protection of Section 197(1). Dealing with that contention the Supreme Court held as follows:

To put it briefly, it is the quality of the act that is important, and if it falls within the scope of the afore-quoted words, the protection of Section 197 will have to be extended to the concerned public servant. In the present case, the Appellant is charged with having entered into a criminal conspiracy with the co-accused while functioning as a Minister. The criminal conspiracy alleged is that he sold electricity to an industry in the State of Karnataka ''without the consent of the Government of Kerala which is an illegel act'' under the prbvisions of the Electricity (Supply) Act, 1948 and the Kerala Electricity Board Rules. The allegation is that he in pursuance of the said alleged conspiracy abused his official position and illegally sold certain units to the private industry in Bangalore which profited the private industiy to the tunebf Rs. 19,58,630-40 or more and it is, therefore obvious that the criminal conspiracy alleged against the, Appellant is that while functioning as the Minister for electricity he without the consent of the Government of Kerala supplied certain units of electricity to a private industry in Karnataka. Obviously he did this in the discharge of his duties as a Minister. The allegation is that, it was an illegal act inasmuch as the conssnt of the Government of Kerala was not obtained before this arrangement was entered into and the supply was effected.

This decision can be distinguished because what weighed with the Supreme Court was that the Minister was discharging his function. In the discharge of his function, he acted illegally. So far as the present case is concerned, the act alleged against the officers is that they tortured the son of the Appellant The Respondents are not able to bring to our notice how this is connected with the duty of the police officer. Another decision relied on was Prof. Sumer Chand Vs. Union of India (UOI) and Others, . That was under''the Delhi Police Act. Section 140(1) of the Delhi Police Act was under consideration and the Court was considering the Act done under colour of duty. There a case under certain sections of I.P.C. was registered against the Appellant and others by Respondent 4 who was in charge of a Police Post. After investigation the challanwas filed in the court by Respondent 3 S.H.O. The accused were acquitted by the court. Thereafter the Appellant filed a suit in the High Court claiming damages for malicious prosecution. The Respondents raised the plea that the suit was barred by limitation in view of Section 140 of the Delhi Police Act. It was contended on behalf of the Appellant that the suit filed by him did not fall within the ambit of Section 140 of the Act inasmuch as the acts of Respondents 3 and 4 could not be regarded as acts done under colour of duty. The Supreme Court held that it was the duty of Respondent 4, being in charge of Police Pest to record the report and so also it was the duty of Respondent 3, the S.H.O. to file the challan in court. The acts complained of thus had a reasonable connection and nexus with the duties attached to the offices held by Respondents 3 and 4. The acts complained of were, therefore, done under the colour of office of the Respondents and fell within the ambit of Section 140 of the Act. The decisfon in Prabha v. Sankara Giri 1989 (1) KLT 927 is also deals with malicious prosecution.

As observed in the decision reported in S.P. Vaithianathan Vs. K. Shanmuganathan, (cited supra) by no stretch of reasoning can it be said that the Respondents'' action of torturing the Appellant was in discharge of any duty or function under the Act or under any other law. Thus the lower court was not correct in holding that the action of the Respondents came u/s 64 of the Police Act and hence the action was barred by limitation. The Respondents then contended that a notice was issued to the Respondents by the Petitioner u/s 64(3) and hence the Appellant also understood the act of the Respondents was in the discharge of duties. We perused the document No. 3 a notice issued by Advocate Ramkumar to the Respondents. After giving the statements, it is stated in the notice as follows:

Contrary to the abave position acting clearly outside the normal functions of police officers, but all the same while as Police Officers serving under the State of Kerala 2 to 7 among you caused the death of my client''s son Ansari illegally.

The notice further states that on the expiry of the statutory period fixed u/s 80 of the Code of Civil Procedure, on the cause of action a suit will be filed.

This notice was issued u/s 80 of the CPC and not u/s 64(3) of the Act.

In the above facts and circumstances of the case, we are of the view that the order of the court below is wrong. Accordingly the order dated 17th December 1992 in I.O.P. 20/92 is set aside. Since no other objections have been taken, we allow I.O.P. 20/92 and allow the Appellant-Petitioner to prosecute the suit as an indigent person. The suit will be numbered and the court below shall dispose of the same as expeditiously as possible.

C.M.A. is allowed.