LIMITATION IN COMPLAINT/SUIT AGAINST POLICE PERSONAL

LIMITATION IN COMPLAINT/SUIT AGAINST POLICE PERSONAL



Prof. Sumer Chand vs Union of India and others


Facts


In this case the question before the Supreme Court was that whether the period of limitation for filing a suit for malicious prosecution against a member of the Delhi Police is governed by the provisions of Sec. 140 of Delhi Police Act, 1978 or by Article 74 of the Limitation Act, 1963.


Held


Where a suit for malicious prosecution against two Police Officers alleging that one Police Officer who was in charge of Police post has registered a false, vexatious and malicious report against a person and another officer who was Station House Officer had filed the challan in the Court against him and another accused on the basis of the said report was filed after expiry of three months from acts complained of, it colour of office of the said officers and would fall within the ambit of S.140 (1) of Delhi Police Act because it was the duty of the said first officer being in charge of Police Post to record the report and so also it was the duty of another officer to file the challan in Court. The acts complained of were, therefore, done under the colour of office of the said officers and fell within the ambit of Section 140(1) of the Act. In such a case, the period of limitation for institution of the suit would be that prescribed in Section 140 and not the period prescribed Art. 74 of the Limitation Act. The Limitation Act is an enactment which consolidates and amends the law of the limitation of suit and other proceedings connected therewith. It is a law which applies generally to all suits and proceedings. therefore, in the nature of a general enactment governing the law of limitation. The Delhi Police Act has been enacted for the purpose of amending and consolidating the law relating to regulation of Police in the Union Territory of Delhi. The Act is a special enactment in respect of matters referred to therein, Section 140 of the Act imposes certain restrictions and limitation in the matter of institution of suits and prosecutions against Police Officers in respect of acts done by a Police Officer under colour of duty or authority or in excess of such duty or authority. Since the Act is a special law which prescribes a period of limitation different from the period prescribed in the Schedule to the Limitation Act for suits against persons governed by the Act in relation to matters covered by Section 140, by virtue of S.29(2) of the Limitation Act, the period of limitation prescribed for such suits and not the period prescribed in the Schedule to the Limitation Act.


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*1993 Cr.L.J.3531





S.P.Vaithianathan vs K.Shanmuganathan*

Facts


Complainant made complaint to higher Police Officer regarding involvement of a particular Police Officer in illegal distillation. The aggrieved Police Officer through summons called the complainant his office and tortured him. No. action was taken by senior official against this ill-treatment of the complainant. He then filed Crimiinal Complaint under Section 341, 342, 323, 363, 364, 506 Part II and 307 of the IPC. The learned CJM issued process, to this an objection was raised that the prosecution was barred by limitation in view of the provision in Sec.53 of the T.N.District Police Act, 1869, High Court upheld this contention and quashed the order by which process was issued.


The Supreme Court reversing the judgment of Madras High Court.


Held


It must be realized that in order to avail of the benefit of Sec.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 relation ship is established between the provision of law ‘under’ which the respondent purports to act and the misdemeanor complained of, the provision of Sec.53 will not be attracted.

HC (Karnataka) Perjury - Two irreconcilable statements proves

HC (Kar) Perjury - Two irreconcilable statements proves perj

Read in this Judgment:

6. I have already referred to Illustration (b) of S. 236 Cr.P.C. which
states that a person may be charged in the alternative and convicted of
intentionally giving false evidence, although it cannot be proved which
of the contradictory statements was false. Sri Vijaya Shankar has also
relied on Umrao Lal v. State, , which is an authority
for the proposition that in a prosecution under S. 193 IPC. if the
prosecution succeeds in proving that the accused in the witness box
deliberately made two statements which are so contradictory and
irreconcilable with each other, that both cannot possibly be true, he
can be convicted of perjury even without its being proved which one of
them was not true.


and

"giving false evidence in any stage of the judicial proceeding". What is a 'judicial
proceeding' is defined in S. 4(m) Cr.P.C. it reads thus:

"'Judicial proceeding' includes any proceeding in the course of
which evidence is or may be legally taken on oath."


Gangawwa vs State Of Mysore on 17/2/1967

ORDER

1. The petitioner has been convicted of an offence under section 193
I.P.C. by the Judicial Magistrate, Ist Class, Bijapur, and sentenced to
suffer one year's R. I. In the appeal filed by the petitioner against
the said conviction and sentence to the Sessions Judge of Bijapur, the
conviction was confirmed, but the sentence was reduced to three months'
R. I. The petitioner has come up in revision to this Court questioning
the correctness and legality of the said order of the Sessions Judge
confirming her conviction.

2. In P. R. Case No. 5/1963, in a proceeding under section 512 Cr.P.C.
the petitioner examined as a witness by the Judicial Magistrate, I
Class, Bagewadi, and made a certain statement on oath. When the
petitioner was examined in the committal proceedings in P. R. Case No.
2/65, she made another statement wholly irreconcilable and
contradictory to the previous statement. After issuing show cause
notice, the learned Magistrate directed that a complaint be filed
against the petitioner under S. 193 IPC. After the trail, the Judicial
Magistrate, I Class, Bijapur, convicted her of an offence under S. 193,
IPC.

3. Sri Malimath learned counsel on behalf of the petitioner, has
contended that the charge framed against the petitioner is defective.
The charge simply says that either of the statements made by her in the
two different proceedings is false and it does not say which particular
statement made by her is false. He also argues that the charge framed
is not consistent with the complaint or the committal order in the
case. I see no force in the said contentions.

4. It is not necessary for the charge to state specifically which of
the statements made by the petitioner is false. As pointed out by Sri
Vijaya Shankar, learned counsel appearing on behalf of the State, it is
open to the Court under section 236 Cr.P.C. to frame alternative
charges against a person. Illustration (b) to section 236 Cr.P.C.
states that a person may be charged in the alternative and convicted of
intentionally giving false evidence, although it cannot be proved which
of those contradictory statements is false. The charge framed by the
Court must depend on the evidence in the case and does not depend on
either the complaint or the order passed in the committal proceedings.

Further, there is no inconsistency between the complaint filed and the
charge framed in this case. the complaint sets out the contradictory
statements made by the petitioner and states that the answers given by
her go to show that she has perjured. In any case, even assuming there
are defects in the charge, S. 225 Cr.P.C. states, that no error in
stating either the offence or the particulars required to be stated in
the charge and no omission to state the offence or those particulars
shall be regarded at any stage of the case as material, unless the
accused was in fact misled by such error or omission, and it has
occasioned a failure of justice.

5. Sri Malimath has next contended that the prosecution has failed to
establish which of the statements made by the petitioner is false and
therefore the petitioner cannot be convicted under S. 193 IPC. He has
strongly relied on Emperor v. Ningappa Ramappa Kurbar, 43 Bom LR 864 :
(AIR 1941 Bom 408) in support of his said contention. The facts of that
case were entirely different from the facts of the present case. their
Lordships were considering there the question whether it was expedient
to prosecute a person under S. 476, Cr.P.C. and not under S. 479A,
Cr.P.C. They were considering the statement made by the accused under
S. 164 Cr.P.C. in the committal Court.

6. I have already referred to Illustration (b) of S. 236 Cr.P.C. which
states that a person may be charged in the alternative and convicted of
intentionally giving false evidence, although it cannot be proved which
of the contradictory statements was false. Sri Vijaya Shankar has also
relied on Umrao Lal v. State, , which is an authority
for the proposition that in a prosecution under S. 193 IPC. if the
prosecution succeeds in proving that the accused in the witness box
deliberately made two statements which are so contradictory and
irreconcilable with each other, that both cannot possibly be true, he
can be convicted of perjury even without its being proved which one of
them was not true.

7. Sri Malimath also contends that the examination of the petitioner by
the learned Magistrate under S. 342 Cr.P.C., is not according to law
and it has gravely prejudiced the petitioner. He has relied on Ajmer
Singh v. State of Punjab, and Ramashankar Singh v.
State of W. B., . He argues that the questions put by
the Court to the petitioner were so long, involved and confusing that
it was not possible for the petitioner to understand the same and give
proper answers. If the petitioner had been properly questioned, she
would have come out with an explanation. There is no doubt, the
question put by the Magistrate are long and complicated. But the point
for consideration is whether the petitioner has been prejudiced in her
defence and whether it has caused failure of justice.

8. In Moseb Kaka v. State of W. B., , their Lordships,
in paragraph 8, page 540, have observed as follows:

"There can be no doubt that this is very inadequate compliance with
the salutary provisions of S. 342, Cr.P.C. It is regrettable that
there has occurred in this case such a serious lacuna in procedure
notwithstanding repeated insistence of this Court, in various
decisions commencing Tara Singh v. State, on a due
and fair compliance with the terms of S. 342 Cr.P.C. But it is also
well recognised that a judgment is not to be set aside merely by
reason of inadequate compliance with Section 342 Cr.P.C. It is
settled that clear prejudice must be shown. This Court has clarified
the position in relation to cases where accused is represented by
Counsel at the trial and in appeal. It is up to the accused or his
Counsel in such cases to satisfy the Court that such inadequate
examination has resulted in miscarriage of justice."

The charge which the petitioner was upon to meet was a simple one. The
case was that she made two totally contradictory statements on oath in
P. R. Case No. 5/63 and P. R. Case No. 2 of 1965. The petitioner denied
that she made the statement alleged in P. R. Case No 5/63. Hence, I am
of opinion that it cannot be said that the petitioner has been
prejudiced and it has resulted in miscarriage of justice.

9. Sri Malimath has further contended that the statement under S. 512
Cr.P.C. made by the petitioner cannot be made use of when the
petitioner is alive and can give evidence. Further, he contends S. 512
Cr.P.C. is only a mode of recording evidence. It is neither an enquiry
nor a trial. The petitioner was not a witness when her statement was
recorded under S. 512 Cr.P.C. He also argues that a complaint could not
be made under S. 479A Cr. P.C. by the Committal Court. It could be made
only by the Sessions Court to whom the accused is committed. There is
no final order disposing of the case when the accused is committed to
the Court of Session for trial. Committal proceedings are not
independent proceedings, but only a stage of the judicial proceedings
before the Sessions Judge who and it is only the Sessions Judge who has
jurisdiction to file a complaint under S.479-A Cr.P.C. If the Committal
Court and the Sessions Court both have jurisdiction to pass an order
under S. 479A, this would result in conflicting orders.

9A. It may be pointed out that the contentions mentioned above have not
been urged either in the trial Court or in the appeal before the
Sessions Court. This Court has not got the benefit of the views of the
Courts below on these questions. Since Sri Malimath argues that they
are questions of law and could be raised revision, I will deal with
these points shortly.

10. With regard to the contention that the statement under S. 512
Cr.P.C. cannot be made use of when the petitioner is alive and could
give evidence, it may be pointed out that this has reference only to
the absconding accused in the said proceedings. There is no prohibition
for making use of a statement given by the petitioner under section 512
Cr.P.C. against herself in proceedings instituted under section 193
IPC. With regard to the contention that S. 512 proceedings are neither
inquiry, nor trial, it may be pointed out that S. 479A Cr.P.C. does not
refer to any inquiry or trial. All that it states is "giving false
evidence in any stage of the judicial proceeding". What is a 'judicial
proceeding' is defined in S. 4(m) Cr.P.C. it reads thus:

"'Judicial proceeding' includes any proceeding in the course of
which evidence is or may be legally taken on oath."

Explanation 2 to S. 193 IPC. states that even an investigation directed
by law, preliminary to a proceeding before a Court of Justice, is a
stage of a judicial proceeding, though that investigation may not take
place before a Court of Justice. Explanation 3 to the same section also
states that an investigation directed by a Court of Justice according
to law, and conducted under the authority of a Court of Justice, is a
stage of a judicial proceeding though that investigation may not take
place before a Court of Justice. It is therefore clear that both under
the Code of Criminal Procedure and the Indian Penal Code, a proceeding
under section 512 Cr.P.C. comes within the definition of 'judicial
proceeding.'

11. Sri Malimath has also contended that when a person is examined
under S. 512 Cr.P.C. he is not deposing as a witness. He has relied on
in re: Ramalingam, AIR 1965 Mad 100 in support of his contention. What
was decided in that case was that section 479A, Cr.P.C. applied only to
person appearing before Court as witnesses and does not apply to a case
where a person does not appear as a witness before Court but only files
an affidavit without entering the box. Here, it cannot disputed that
the petitioner had appeared before Court in both the proceedings as a
witness.

12. Sri Malimath has argued that committal proceedings are only a stage
of the judicial proceedings before the Sessions Court and that only the
Sessions Judge has got the power to take proceedings under S. 479A,
Cr.P.C. and not the Committal Court. He has strongly relied on the
observations made by their Lordships of the Supreme Court in Shabir
Hussain Bholu v. State of Maharashtra, in support of
his contention. The question which their Lordships were considering in
the said case was, in a case where proceedings under S. 479A Cr.P.C.
should have been taken, whether it was open to the Court to proceed
under S. 476 Cr.P.C. Their Lordships held that the provisions of S. 476
are totally excluded where the offence is of the kind specified in S.
479A. In that particular case, the accused had made conflicting
statements before the Committal Court and the Sessions Court.

Their Lordships held that the committal proceedings were not
independent proceedings and it was only the Sessions Court which decide
whether proceedings under S. 479A could be taken against the accused.
It may be pointed out in this case, the petitioner was never examined
in the Sessions Court. Hence the question of Sessions Court taking
proceedings S. 479A did not arise. The question of conflicting orders
by the Sessions Court and the Committal Court also does not arise in
the case.

13. There is equally no force in the contention of Sri Malimath that in
the committal proceedings there is no final order disposing of such
proceedings. So far as the Committal Court is concerned once it commits
an accused to the Sessions Court, there is final disposal of the
proceedings before it. In Dastagiramma v. State, it
has been held that committal proceedings are final so far as they
result in discharge or in committal. Such an order would be final order
disposing of such proceedings within the meaning of S. 478A Cr. P.C.

14. Finally, Sri Malimath has contended that the statement made by the
petitioner was not intentional and that she is an illiterate woman. It
is not possible to accept this contention. The learned Magistrate, who
recorded the evidence in both the proceedings has been examined as a
witness. He has stated that the petitioner after being administered
oath, made the above mentioned contradictory statements. The evidence
given by her was read over and explained to her and she admitted the
statements to be correct. There is, therefore, no force in any of the
contentions urged by Sri Malimath on behalf of the petitioner.

15. In the result, there is no merit in this revision petition and the
same is dismissed.

16. Petition dismissed