PROF. SUMER CHAND versus UNION OF INDIA AND ORS.

Citation: [1993] SUPP. 2 S.C.R. 123 · Decided: 07-09-1993 · Supreme Court of India · Bench: KULDIP SINGH · Disposal: Dismissed

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Judgment (excerpt)

PROF. SUMER CHAND 
v. 
UNION OF INDIA AND ORS. 
SEPTEMBER 7, 1993 
[KULDIP SINGH AND S.C. AGRAWAL, JJ.] 
Delhi Police Act, 1978-Section 140-Suit for malicious prosecution 
against member of Delhi Police Force-Period of limitation-What is. 
Limitation Act, 1963-Article 74-Suit for malicious presecution 
against member of Delhi Polic~Whether applicable. 
Words and Phrases-Meaning of. 
'Colour of duty or authority'-Section 140(1) Delhi Police Act, 1978. 
A 
B 
c 
The appellant in the appeal was the plaintiff in a suit for malicious D 
prosecution. The appellant and six other accused were prosecuted before 
the Additional Sessions Judge, New Delhi on charges under Sections 148, 
365/149, 452/149, 308/149 and 506/149 IPC. The case was registered by 
respondent No. 4 who was the Police Inspector incharge of the police post, 
and after investigation the challan was filed in the Court by respondent E 
No. 3 S.H.O. of the police station. By judgment dated February 28, 1986 
the appellant as well as the other co-accused were acquitted by the Addi-
tional Sessions Judge. · 
On April 20, 1987, the appellant filed a Civil Suit in the High Court 
claiming Rs. 3,00,000 by way of damages for malacious prosecution. Apart F 
from the respondents who were impleaded as defendants nos. 1 to 4, 
another person was impleaded as defendant No. 5 in the said suit. In the 
joint written statement respondent Nos. 1 and 2 raised the plea that the 
suit was barred by limitation in view of Section 140 of the Delhi Police Act. 
The same plea was raised by respondent No. 3 in his written statement. It G 
was. further pleaded by Respondent No. 3 that the suit was not main-
tainable in view of Section 140(2) of the said Act as no prior notice of the 
filing of the suit was served on him. 
Respondent No. 4 tiled an Interlocutory Application for rejel;tion of 
the plaint under Order 7 Rule 11 and Section 151, CPC wherein it was H 
123 
124 
SUPREME COURT REPORTS [1993] SUPP. 2 S.C.R. 
A · submitted that the suit was one covered by Section 140 of the Act and since 
it had not been filed within a period of three months from the date of the 
impugned act and was filed more than one year after the acquittal, it was 
barred by limitation and had to be dismissed under Section 140. Another 
objection raised was that as per Section 140(2) the appellant was required 
B 
to give minimum one month's notice prior to filing of the suit and under 
Section 140(3), the fact of service of notice was required to be stated in the 
plaint, and that as the appellant had neither served any such notice nor 
made any averment about serving any such notice on respondent No.4 in 
the plaint, the suit had to be dismissed. 
C 
The Single Judge of the High Court framed a preliminary issue as 
to whether the suit was barred by Section 140 of the Delhi Police Act and 
by a judgment dated April 5, 1989 decided the preliminary issue against 
the appellant that in view of section 140 the suit was barred by limitation. 
It was further held that the appellant had admittedly not served any notice 
D prior to the filing of the suit or of his intention to file the suit as required 
by Section 140(2) and for that reason also the suit was liable to be 
dismissed as against the respondents. The suit was accordingly dismissed, 
and the appellant filed an appeal which was dismissed in limine by a 
Division Bench on July 12, 1989. 
E 
The appellant filed an appeal to this Court. It was contended on 
behalf of the appellant that Section 140 of the Delhi Police Act is in the 
nature of a general provision governing all suits in respect of offences or 
wrongs alleged to have been done by a police officer, and Article 74 of the 
Limitation Act prescribing the period of limitation for suits for compen-
F 
sation for a malicious prosecution is in the nature of a special provision, 
and since a special provision prevails over the general provision, the. 
limitation for the suit filed by the appellant against the respondent will 
have to be governed by Article 74 of the Limitation Act and ifthe limitation 
is so computed the suit was not barred by limitation. It was further 
contended relying on the decisions of this Court in The State of Andhra 
G Pradesh v. N. Venugopal and Others, [1964] 3 SCR 742 and The State of 
Maharashtra v. Narha"ao, [1966] 3 SCR 380, that the suit filed by the 
appellant does not fall within the ambit of Section 140 in as much as the 
acts of respondent Nos. 3 and 4 which have b

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