IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 1ST DECEMBER 2010 / 10TH AGRAHAYANA 1932 AS.No. 58 of 2000() ------------------- OS.56/1994 of SUB COURT, PAYYANNUR .................... APPELLANT(S)/PLAINTIFF ------------------------------- ANTONY PALAKUNNEL, S/O. JOSEPH, RETIRED TRACHER, 62 YEARS, RESIDING AT POOVAM IN PANNIYOOR AMSOM DESOM, THALIPARAMBA TALUK. BY ADV. SRI.O.V.MANIPRASAD RESPONDENT(S)/DEFENDANTS ------------------------------------ 1. T.A. LUKOSE, AGED ABOUT 45 YEARS, CIRCLE INSPECTOR OF POLICE, TALIPARAMBA. 2. K. SIDDIQUE, POLICE CONSTABLE, 40 YEARS, RESIDING AT PUSHPAGIRI, NOW WORKING AT C.I'S OFFICE, TALIPARAMBA POLICE STATION. 3. RAGHAVAN, (P.C.2600), POLICE CONSTABLE, 38 YEARS, NOW WORKING AT TOWN POLICE STATION, KANNUR. BY ADVS. SRI.C.KHALID SRI.N.GOPINATHA PANICKER THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 01/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs/ M.N.KRISHNAN, J ---------------------------- A.S.NO.58 OF 2000 ---------------------------------- Dated this the 1st day of December, 2010 JUDGMENT This is an appeal preferred against the judgment and decree of the Subordinate Judges Court, Payyannur in O.S.No.56 of 1994. The suit is one for damages. The plaintiff is a retired teacher and his grievance is that on 27-06-1993 under the leadership of defendant one, two and three came to the house and directed him to accompany them to the Police Station and apprehending danger he accompanied them to the Police Station and thereafter he was asked to remove his shirt and dothi and an attempt was made to fist at his chest and later he was thrown in to lock-up room and was detained in the said room till 8.00 a.m on the next morning and thereafter was asked to come and sit in a bench and by 12.30 p.m on 28-6-1993 he was asked to go home. According to the plaintiff all these things were done at the instance of Thomaskutty who was on inimical terms with plaintiff and therefore, the said action of the Police Officials had caused him mental agony and damages. In other words, his case is that he was taken into the illegal custody without any reason and that has created the problem for him. A.S.NO.58 OF 2000 2 On the other hand, defendants would contend that they had not taken the plaintiff to illegal custody on 27-06-1993 nor had trespassed into the house of the plaintiff and had taken him forcibly to the Police Station. The alleged demand for removal of cloth is also denied. It is contended that on 28-06-1993 a search was made by the Sub Inspector of Police in the house of the plaintiff under the preservation of alleged explosion in his house. It is also contended that Section 64(3) of the Police Act bar the case on the ground of limitation. In the trial Court PWs 1 to 8 and Dws 1 to 3 were examined , Ext.A1 to A14 and B1 and B2 were marked. On analysis of evidence the trial Court had dismissed the suit and it is against that decision the plaintiff has come up in appeal. Heard the learned counsel for the plaintiff as well as the respondents. The learned counsel for the appellant would submit before me that the trial Court had not appreciated the matter properly and had not analysed the evidence available and therefore, it requires interference at the hands of this Court. On the other hand, the learned counsel for the respondents would submit before me that the court had considered each and every aspect and had A.S.NO.58 OF 2000 3 arrived a correct decision and he had further submitted and that the courts finding under Section 64(3) of Police Act is not correct. Plaintiff is not an ordinary man, he is a retired Headmaster of a L.P. School. It can be seen from the evidence he had been in the middest of litigation after litigations and not an ordinary man who does not know about the nuances of the litigation. According to the plaintiff the alleged incident occurred on the mid-night at about 11.00 p.m on 27-06-1993. It is the version that Thomaskutty along with Romeo S Vettom and Basanio S Vettom and the defendants had come in front of the plaintiff's house and thereafter the first defendant Circle Inspector had knocked at the door and the plaintiff came out and there was a direction to him to accompany them to the Police Station. It is not revealed that the plaintiff did ask even one question regarding the necessity to accompany. It is equally important to note that even in subsequent stages he did not point out any acceptable reason for his apprehension. The attempt made is that he was on absolute logger heads with Thomaskutty and it was at the instance of Thomaskutty he had been taken to the Police Station. It is also his case that after taking into the Police Station and putting him in the lock up, the three persons with one of A.S.NO.58 OF 2000 4 the defendants again came to the house of plaintiff and removed the valuable documents and other credentials and that has also given raise to another complaint. According to the plaintiff on 28- 06-1993 he was released from the police Station, but we find the first complaint in writing being sent to the Deputy Superintendent of Police only on 07-07-1993. A person who had been conducting litigation after litigations should not have ordinarily kept quite for such a long time if really he had been affected by the illegal action of a police officials. The case developed is that, after taking the plaintiff to the Police Station the wife goes to the residence of doctor Sivaraman and calls the plaintiff's brother-in-law to come. He comes on the next day then discussed with first defendant and then got the plaintiff is released. The son who is said to have gone to attend a marriage had come back at that night itself. It has come out in evidence that he used to ride motor cycle and when the mother told the son about the father being taken into illegal custody, the son replied if they had taken him they will send back him also. The blood relationship of a father and son and especially under the circumstances, where they were expecting danger to the life of the father should not have been of this nature especially in the back A.S.NO.58 OF 2000 5 drop that after the first incident it is alleged that again some people came back and removed the articles. Even then neither the son nor the other people rushed to the Police Station to find out anything regarding what is happening to the father. It is only after the arrival of the person from Kozhikode they go to the Police Station and get him released. This is not an ordinary course of human conduct. Now the conduct of the plaintiff assumes importance in the sense that in order to accept his evidence the court should have the satisfaction of the credentials of this evidence. Now it has to be stated that after the second incident it is alleged that the Police had forced him to sign an agreement and on the basis of that agreement there was a litigation and in the litigation the plaintiff took the stand that he had not executed such an agreement but the court found that he had entered into such an agreement and when the matter was pending in appeal before the appellate court the parties settled the matter and put an end to that. So also is a document Ext.A6 which is said to be written by Thomaskutty to the plaintiff in August 1993 narrating and admitting all the facts which the plaintiff had spoken. Thomaskutty in the earlier suit before the compromise of the case has stoutly denied the writing of Ext.A6 A.S.NO.58 OF 2000 6 letter. Now a situation had arisen whether the enemies have settled the matter and now the Police officials preface the music. When the evidence of the plaintiff is read as a whole it has to be stated that he had been after litigations both on the Civil side and Criminal side and there was desperate fight for the property and ultimately even according to him that 1 ½ acres of lands were assigned him for a consideration of 4 lakhs and another 2 acres of lands were assigned free of cost. So the fight for the immovable properties between the two close friends whose friendship started in the year 1982 came into absolute enmity by the time of 1993. So, I am also in agreement with the learned trial judge when he did not give much credence to the evidence of PW1. PW2 is the wife of PW1. The way in which she even attempts to identify the witnesses appears to be quite artificial. She admits that the Circle Inspector of Police is not known to her personally. According to her when on a day she had gone to the Church there was one Molly. The Circle Inspector came and then Molly told her that he was a Circle Inspector. So far as one of the defendant is concurred it is said that one of the person's called by his name and that is how she came to know about Raghavan. So these are all A.S.NO.58 OF 2000 7 quite artificial which does not satisfy the conscience of the court. It is the settled principle that it is the intrinsic reliability and inherent probability of the evidence that makes it acceptable. It is not the quantum of evidence but the quality of evidence that matter. If really PW1 was taken illegally detained on 27-06-1993 that should have been the first complaint and not the complaint regarding taking away of credentials. So the conduct of PW1 and 2 keeping absolute silence for a period of about 10 days to put this matter in writing creates a strong suspicion in the mind of an ordinary thinking man. It has to be remembered that it is the case for the defendants that on 28-06-1993 there was a search in the house of the plaintiff in connection with the apprehension that explosive were kept in that house by the Sub Inspector of Police. It is true that he did not recover anything but the fact remains that there had been strong reason for the plaintiff to have fight with the Police people on this ground. It is only after this one would find that complaints after complaints being filed. Therefore, this is also a very strong circumstance to show that the evidence of PW2 also does not inspire much confidence. Even regarding the act of taking into custody by force etc. there are inconsistency between the versions A.S.NO.58 OF 2000 8 of PW1 and 2. Therefore, the evidence of PW1 and PW2 does not lead us anywhere to render a finding in favour of them. Now the grievance of the appellant is that the court below has not considered the evidence of other witnesses. It is true that the court had not separately considered the evidence of PW3 to 8 specifically, I will refer to them as well. PW3 is a committee member of the Communist Party of India Marxist, who was therein connection with the DYFI picketting on 28-06-1993 and he would depose that he had seen the plaintiff there after 10.00 a.m or 10.30 a.m on that day. PW4 is one Damodaran Nair who would depose before the court that he had also seen the plaintiff in the Police Station and he would further add that he had even seen him sitting in the lock up with trousers. Even PW1 had no such case. PW5 is the Advocate with whom the plaintiff used to have the consultation. He had deposed that the plaintiff was his client and he had come to him complaining about the Circle Inspector of Police to which he said he will enquire and submit. But unfortunately nothing materialised thereafter and he has not even contacted him. PW6 who is the brother-in-law of PW1 whose evidence is to the effect that on information from the sister he had gone to the Police Station A.S.NO.58 OF 2000 9 and had met the Circle Inspector of Police and thereafter got PW1 released. It has to be remembered that the son who was very much therein the place did not have the earnestness to see his father and to take him out of the Police Station. PW7 was the local MLA at the point of time and his evidence is also to the effect that he had seen the plaintiff sitting on a bench in the Police Station. PW8 is a person who is a loading worker who did not go to his house but waited in saw mill and witness the incident. It has to be remembered that the Police has got a case that there was the search in the house of the plaintiff on 28-06-1993. All these persons are seeing him in the Police Station only on 28-06-1993. Further majority of the witnesses only speak about this person sitting in a bench in the police station and nobody knows for what purpose he has come. Therefore, the analysis of the evidence of PW3 to PW8 when done in conjunction with that PW1 and 2 it has to be held that it will not improve the case of the plaintiff. It is in this context it is desirable to refer to the evidence of DW3, the Deputy superintendent of Police. He had stated that he had received a complaint about two weeks after the alleged incident and he had conducted an enquiry and it was found to be false. He A.S.NO.58 OF 2000 10 had also stated that the Sub Inspector of police had conducted a search with respect to the explosive on 28-06-1993 and that he had filed a statement before the Advocate General Office for furnishing the same before the High Court of Kerala regarding the incident. To a question why the report is not produced he answers that he does not know whether it is still presented or destroyed. So the evidence of DW3 a person who had conducted an enquiry immediately after the compliant also does not throw light in favour of the plaintiff. So from the cumulative analysis it has to be held that the evidence on the side of the plaintiff is acceptable. Now lastly, learned counsel for the respondent had argued before me about the scope of Section 64(3) of the Police Act. Learned Subordinate Judge had taken a view that as the police had denied the entire case the question of good faith will not give and to Section 64(3) will not apply. A Division Bench of the Kerala High Court in the decision reported in 2002 KLT 827 (Pathumma v. State of Kerala) was considering a case of custodial death and in that the Division Bench held that the limitation will be applicable only if there is something to show that the alleged Act was connected with the duties of the officer concerned. Taking a person A.S.NO.58 OF 2000 11 into illegal custody is not expected if a police officer and therefore, it is not a part of discharge of his duty and therefore, I also concur with the finding of the Subordinate Judge Section 64(3) will not be a bar to a proceedings. From these discussions, I hold that the judgment and decree of the trial court do not call for any interference. The appeal fails and the same is dismissed but under the circumstances, without any order as to costs. M.N.KRISHNAN,JUDGE pm