Full Judgment Text
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
TH
MONDAY, THE 18 DAY OF MAY 2026 / 28TH VAISAKHA, 1948
RSA NO. 853 OF 2020
AGAINST THE JUDGMENT AND DECREE DATED 05.03.2020 IN AS
NO.98 OF 2018 OF ADDITIONAL DISTRICT COURT II KOZHIKODE
ARISING OUT OF THE JUDGMENT AND DECREE DATED 05.08.2017 IN
OS NO.337 OF 2013 OF II ADDITIONAL SUB COURT,KOZHIKODE
APPELLANTs/RESPONDENTS 1 TO 3/DEFENDANTS 1 TO 3:
1 K.K.BIJU
AGED 47 YEARS
S/O. NARAYANAN NAIR, CIRCLE INSPECTOR OF POLICE,
CHEVAYUR POLICE STATION, CHEVAYUR, CALICUT, NOW
WORKING AS INSPECTOR SHO, ELATHUR POLICE STATION,
KOZHIKODE.
2 P.BABURAJAN,
,AGED 59 YEARS, S/O.IMBICHUTTY, ADDITIONAL SUB
INSPECTOR,CRIME DETACHMENT WING,CALICUT CITY,NEAR
CITY TRAFFIC POLICE STATION,NAGARAM AMSOM
DESOM,CALICUT-673 001,RESIDING AT PUTHIYORATH
HOUSE,PULIBAZAR,POST PALATH,CHELANNUR
VILLAGE,KOZHIKODE.
3 M.A.KABEER,
AGED 60 YEARS,S/O.A.M.ISMAIL,SUB INSPECTOR OF
POLICE,SBCID,KOLLAM,RESIDING AT
K.S.VILLA,ADAYAMAN,ANADANNUKKU,PAZHAYAKUNNUMMEL
VILLAGE,POST ADAYAMAN,THIRUVANANTHAPURAM-695 614.
BY ADVS.
SHRI.V.V.SURENDRAN
SRI.P.A.HARISH
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TH TH
RESPONDENTS/APPELLANTS AND 4 RESPONDENT/PLAINTIFFS & 4
DEFENDANT:
1 SHAJIR ARAFATH
AGED 43 YEARS
S/O.HAMZA, RESIDING AT KARAD, BILATHIKULAM COLONY
ROAD, KACHERI AMSOM DESOM, POST ERANHIPALAM,
CALICUT-673006
2 K.MUJEEB REHMAN
AGED 47 YEARS, S/O.HAMZA, RESIDING AT KARAD,
BILATHIKULAM COLONY ROAD, KACHERI AMSOM DESOM,
POST ERANHIPALAM, CALICUT-673006
3 K.P JAMEELA
AGED 63 YEARS, W/O.HAMZA, RESIDING AT KARAD,
BILATHIKULAM COLONY ROAD, KACHERI AMSOM DESOM,
POST ERANHIPALAM, CALICUT-673 006
4 STATE OF KERALA
REPRESENTED BY DISTRICT COLLECTOR, KOZHIKODE,
POST CIVIL STATION, CALICUT-673 020
BY ADV SHRI.SHYAM PADMAN (SR.) FOR R1-R3
SMT.LAYA MARY JOSEPH FOR R1-R3 (B/O)
SRI.ASWIN SETHUMADHAVAN FOR R4
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION
ON 8.4.2026, THE COURT ON 18.05.2026 DELIVERED THE FOLLOWING:
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EASWARAN S., J.
------------------------------------
RSA No.853 of 2020
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th
Dated this the 18 day of May, 2026
J U D G M E N T
Defendants 1 to 3 in a suit for damages, have come up with the
present appeal aggrieved by the judgment and decree of the first
appellate court in reversing the dismissal of the suit by the Addl. Sub
Court-II, Kozhikode.
2. The brief facts necessary for the disposal of the appeal are
as follows:
On 17.02.2010 near Tagore Centenary Hall, Kozhikode, the first
plaintiff was stopped by the driver working under the first defendant.
The attempt was to collect fine for traffic offences. The aforesaid act
was questioned by the first plaintiff. The matter was not precipitated
there. On 26.02.2010, third defendant and another Assistant Sub-
Inspector of Police came to the residence of the first plaintiff and at
that time he was not available in the house. The police officials
informed the third plaintiff (mother) that they want the first plaintiff
and his vehicle at the police station immediately. On enquiry, the first
plaintiff came to know that on 21.02.2010, the first defendant
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registered an FIR against the first plaintiff for alleged offence
punishable under Section 176 of the Indian Penal Code based on a
complaint by the Civil Police Officer, Suresh Babu. The first plaintiff
approached the Commissioner of Police and higher officers and
informed them about the misuse of power by the first defendant.
Later the first defendant submitted a final report in the aforesaid
crime and the court had taken cognizance of the final report and the
case was numbered as CC No.491/2010 before the Judicial First Class
Magistrate's Court-IV, Kozhikode. Later the prosecution withdrew
the case. On 02.03.2010 at 12.45 p.m., a team of police officials from
the Nadakkavu Police Station under the leadership of defendants 1 to
3 came to the first plaintiff's residence and enquired about the first
plaintiff. On the same day evening at 07.00 p.m. the defendant Nos. 1
to 3 with a police force, including women police constables and a
mobile crane, came to the residence of the plaintiffs and seized a car
bearing registration No.KL-16/9 to the police station. When the first
defendant demanded the key of the car, the second plaintiff
demanded a receipt. The first defendant was outraged by the request
of the second plaintiff demanding receipt, and he manhandled and
assaulted the second plaintiff. Defendants 2 and 3 caught hold of the
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second plaintiff enabling the first defendant to assault and abuse him.
On witnessing this incident, the third plaintiff fainted and fell down
and thereafter, the second plaintiff was not even permitted to take her
to the hospital, but was permitted only after the keys of the car were
handed over to the first defendant. The plaintiff nos. 2 and 3 were
hospitalized and later the first plaintiff approached the Judicial First
Class Magistrate's Court-IV, Kozhikode with CMP No.1495/2010
under Section 451 of the Code of Criminal Procedure for release of the
vehicle from the interim custody. The petition was allowed, but the
first defendant refused to release the vehicle. Later CMP
No.1676/2010 was filed for production of vehicle before the court and
on 25.03.2010, the first plaintiff went to the police station for release
of the vehicle, but the same was not done and later, it was released
through the court. The defendants 1 to 3 entered appearance and
contested the suit, contending that the suit is barred by Section 64 of
the Kerala Police Act, 1960 inasmuch as the suit has been filed beyond
the period of limitation prescribed under the said Act. It was further
contended that the Police Authorities had genuinely entertained a
belief that the vehicle was involved in an offence, especially since it
was not registered within the vicinity of Kozhikode District and the
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apprehension of the vehicle was genuinely done. It was further
contended that the first defendant or anyone else under him had not
acted beyond the powers and therefore the allegations against them
were misconceived. On behalf of the plaintiffs, Exts.A1 to A48 (a)
documents were marked and PW1 to PW7 were examined. On behalf
of the defendants, Ext.B1 to B4(a) documents were marked and DW1
was examined. Exts.X1 to X7(b) are the third party exhibits. The trial
court firstly framed the following issues for consideration:
“1. Whether the suit is maintainable?
2. Whether the plaintiff is entitled to realise damages from
the defendants as claimed for?
3. Whether the plaintiff is entitled for a mandatory
injunction as prayed for?
4.
Reliefs and Costs?”
But, on consideration of the material facts and law set out in the
pleadings, it recast the issues as follows:
“1. Is the seizure of the vehicle bearing No.KL.16/9 was
done by the defendants in good faith and are they
protected under Section 64(1) of the Kerala Police
Act, 1960?
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2. Is the seizure of the vehicle done by the defendants
was in pursuance of any authority conferred on them
by any law for the time being in force?
3.
Is the suit is barred under the law of limitation
provided under Section 64(3) of the Kerala Police Act,
1960?
4. Did the defendants cause any loss, damage or
hardship to the plaintiffs?
5. Whether the plaintiffs are entitled to get
compensation from the defendants for the loss
sustained?
6. Did the defendants illegally seized the documents
relating to the vehicle bearing No.KL.16/9?
st
7. Whether the 1 plaintiff is entitled for a decree of
mandatory injunction?
8. Reliefs and costs?”
On appreciation of oral and documentary evidence, the trial court
concluded that the suit is barred by limitation under Section 64 of
Kerala Police Act, 1960. As regards the physical assault and the
resultant injury, the trial court concluded that since Exts.X6 to X7
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were not proved by examining the doctors who issued the same, the
same cannot be accepted in evidence. Accordingly, the suit was
dismissed. Aggrieved the plaintiffs preferred AS No.98/2018. The
first appellate court on reappreciation of evidence, concluded that
Exts.X6 & X7 were summoned by the defendants themselves and
therefore they cannot raise an objection that the signatories to
Exts.X6 & X7 must be examined by the plaintiffs to prove the same.
As regards the initiation of the criminal prosecution against the first
plaintiff, the first appellate court found that there was no occasion to
seize the vehicle for an offence under Section 176 of the IPC.
Therefore, with the material evidence on record, the first appellate
court found that the plaintiffs have clearly demonstrated the misuse
of the power by the defendants 1 to 3. Accordingly, on a material
assessment of the records, it came to the conclusion that the plaintiffs
are entitled to succeed and accordingly reversed the findings of the
trial court, decreed the suit in part and granted compensation on the
basis of a reasonable assessment at Rs.5,00,000/- with 6% interest
from the date of suit till realization and that the defendants 1 to 4 are
jointly and severally held liable for the amount. Aggrieved, defendant
1 to 3 alone have come up in the present appeal.
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3. Heard Sri.P.A.Harish, the learned counsel appearing for
the appellants and Sri.S.Shyam Padman, the learned Senior Counsel
appearing for the respondents/plaintiffs, assisted by Smt.Laya Mary
Joseph.
4. Sri.P.A.Harish, the learned counsel appearing for the
appellants primarily contended that no notice under Section 80 of the
Code of Civil Procedure was issued to the defendants. It was further
submitted that the suit was filed on 17.5.2013, whereas the alleged
incident occurred on 2.3.2010. He further pointed out that in terms
of Section 64 (3) of the Kerala Police Act, 1960, the suit ought to have
been filed within six months from the date of incident. He further
pointed out that no notice has been issued under Section 64(4).
Moreover, when criminal proceedings have been initiated in respect
of the same cause of action, the suit for the same cause of action is
barred in terms of the proviso to Section 64. He reiterated the stand
that Exts.X6 and X7, which are the medical records, have not been
proved through the doctor who examined the plaintiffs 2 and 3. He
further contented that in terms of Article 72 of the Limitation Act,
1963, a suit for compensation based on an illegal seizure of a movable
should be filed within one year from the date of the alleged seizure.
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He further pointed out that Exts.X6 and X7 would show that the
plaintiffs have miserably failed to prove their case against the
defendants since the allegations of an assault and manhandling by the
first defendant have been disproved by the contents of the documents
itself.
5. Per Contra , Sri.Shyam Padman, the learned Senior
Counsel appearing for the plaintiffs submitted that the appeal itself is
not maintainable inasmuch as the fourth defendant State, which has
been found to be vicariously liable for the acts committed by the
defendants 1 to 3 had not chosen to file an appeal. He further pointed
out that when a suit for alleged commission of tort is filed within the
period of limitation as provided under the Limitation Act, 1963, the
right to sue cannot be circumscribed by operation of sub-section (3)
of Section 64. In other words, according to the learned Senior
Counsel, in order to apply Section 64, the alleged act must be
committed in pursuance to any official duty. Since the alleged
misconduct or the assault has been committed by the appellants 1 to
3, not in pursuance to their official duty, the application of Section 64
is not attracted in the present case. In support of his contention, relied
on the decisions of the Supreme Court in State of A.P. v. Challa
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Ramakrishna Reddy and Others [(2000) 5 SCC 712] ;
P.K.Pradhan v. State of Sikkim, represented by the Central
Bureau of Investigation [(2001) 6 SCC 704] ; Prithipal Singh
and Ors. v. State of Punjab and Ors. [(2012) 1 SCC 10] and this
Court in Pradeep K. v. State of Kerala and Another [2015 KHC
274] & Edison v. State of Kerala [2006 KHC 187]; Abdul
Asees v. State of Kerala [2010 (4) KLT 261] and The State of
Andhra Pradesh v. N.Venugopal and Others [AIR 1964 SC
33] .
6. I have considered the rival submissions raised across the
bar, perused the judgments rendered by the courts below and also the
records of the case.
7. Before proceeding further, this Court must notice the fact
that this appeal has not been yet admitted. However, based on an
undertaking given by the learned counsel for the respondents 1 to 3,
the decree of the first appellate court has not been put to execution.
In the present circumstances, the endeavour of this Court is only to
see as to whether any substantial question of law arises for
consideration in the appeal so as to warrant a detailed consideration
of the matter. No doubt, the findings of the courts below are divergent
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in nature. Merely because, the findings rendered by the first appellate
court is divergent from that of the trial court, admission of the appeal
is not automatic.
8. Be that as it may, this Court does not propose to delve
further on the question as to why the appeal was not admitted till date
on the substantial questions as sought to be raised by the learned
counsel for the appellants. But instead, it has given an anxious
consideration as to whether, the questions now raised qualify
themselves as substantial questions of law.
9. In Mujeeb K.P. v. Micheale Fathima [2025 KLT
OnLine 2088] , this Court had occasion to examine what constitutes
a substantial question of law. Merely because the appellants had
sought to raise certain questions which according to them are
germane to the facts of the case, that by itself will not qualify as a
substantial question unless otherwise it appears to this Court that the
questions are necessarily of public importance.
10. The attempt made by the appellants before this Court
must be judged in the above context and also the principles laid down
by the Supreme Court in various decisions.
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11. What is now canvassed before this Court is that the suit
itself is barred by limitation. The argument of Sri.P.A Harish is that,
the suit must be filed within a period of six months from the date of
incident under sub-Section (3) of Section 64 of the Kerala Police Act,
1960. However, it must be remembered that, going by the law of
Limitation, the period prescribed for initiating a civil action claiming
damages for a tortious act is three years from the date of the alleged
incident. The period provided under a Central Statute cannot be
obliterated by a State enactment prescribing a lesser period of
limitation. Hence, the contention to the contrary is liable to be
rejected.
12. As regards the further plea that the suit for compensation
for damages, for seizure of a vehicle must be filed within a period of
one year and that the present suit is beyond the period of one year as
provided under Article 72, this is of the considered view that the
present suit is for damages on account of a tortious act committed by
the appellants. Admittedly the period for filing the suit is three years.
Incidentally, the claim for damages is not on account of the illegal
seizure of the vehicle, though the said act is also alleged to be a cause
of action. Therefore, when a suit encompassing a relief governed by a
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lesser period of limitation is filed and is covered by a larger period of
limitation, it cannot be said that the suit is barred by limitation by
application of an article which provides for a lesser period of
limitation.
13. It must be further noticed that the suit is not filed for
claiming compensation on account of an alleged seizure of the vehicle,
but a series of incidences which led to the seizure of the vehicle and
also the alleged assault on the plaintiffs by the defendants 1 to 3.
14. Equally so, this Court does not find any merit in the
argument that notice under Section 80 of the Code of Civil Procedure
had not been given to the third appellant. The records indicate that
the notice under Section 80 was issued by registered post. Therefore,
applying the presumption under Section 27 of the General Clauses
Act, it must be held that the notice is properly served. Therefore, this
Court is inclined to hold that the plea based on non-service of notice
under Section 80 is untenable.
15. Coming to the plea that no separate notice under sub-
section (4) of Section 64 of the Kerala Police Act, 1960 has been
issued, this Court finds that once a notice under Section 80 of the CPC
is issued, no separate notice under sub-Section (4) of Section 64 is
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required to be issued. Therefore, the contention to the contrary is
rejected.
16. Now what remains to be considered is as to whether the
plaintiffs have been successful in proving the alleged assault by the
appellants. The records would indicate that certain unsavoury
incidents took place which led to the seizure of vehicle on 2.3.2010
and the presence of plaintiffs in the Nadakkavu police station. The
argument of the learned counsel for the appellants that based on
Exts.X6 and X7, no injury is made and therefore the alleged assault is
not proved, cannot be sustained. The presence of plaintiffs 1 to 3 at
the Nadakavu Police Station on the fatal day is proved beyond doubt.
Even from the version of the defendants, it is evident that the third
plaintiff fainted on the said day and DW1 offered to take her to the
hospital. The records indicate that the discomfort complained by
plaintiffs 1 and 2 were allegedly due to the assault committed by the
defendants. They were advised for follow-up actions.
17. In these circumstances, the Court cannot insist on a strict
proof regarding the alleged assault and will have to go by
preponderance of probabilities especially in civil proceedings.
Further, this Court cannot remain oblivious of the fact that, a
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departmental enquiry was conducted by the officials of the same
Government and the appellants were found guilty of the charges
levelled against them and recommended under Ext.A15 enquiry
report of action. Though the learned counsel for the appellants
submitted that the penalty imposed against them has been dropped
on appeal by the appellants, the fact remains that the findings in
Ext.A15 enquiry report stands unimpeached. If that be so, the
argument raised by the appellants that the medical records do not
indicate an alleged assault by the appellants 1 to 3 cannot be accepted.
18. But as regards the contention that the proviso to Section
64 of the Kerala Police Act, 1960 operates as a bar for instituting a
civil proceedings, especially when a criminal action against the
appellants 1 to 3 has been initiated by the plaintiffs, this Court must
notice the fact that what is intended to be prohibited under the
proviso to Section 64 is prosecution for any act in pursuance to the
official duty of the police officers. The alleged assault on the plaintiffs
1 to 3 in the present case cannot be considered as one done in
pursuance to the official duty at any rate.
19. It is beyond cavil that for an offence under Section 176 of
the IPC, the presence of the seizure of vehicle is an absolute
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requirement. Since appellants had not been able to substantiate as to
why the seizure of the vehicle was necessitated on 02.03.2010, the
entire argument built upon the defence under the proviso to Section
64 of the Kerala Police Act, 1960 must fail.
20. Lastly, this Court is required to consider as to whether the
first appellate court was justified in fixing the compensation as has
now been done. In this context, this Court finds considerable force in
the argument of the learned Senior Counsel of the respondents that
going by the decision of the Division Bench of this Court in Abdul
Asees (supra) and also the decision of Single Bench in Edison
(supra), fixation of the compensation has to be done on the basis of
a reasonable assessment. Once it is shown that the first appellate
court has exercised its discretion by fixing the compensation on the
basis of a reasonable assumption, it is not open for the High Court
exercising its powers under Section 100 of the Code of Civil Procedure
to overturn the said findings, unless it finds that the said fixation is
unreasonable or disproportionate. It does not appear to this Court
that the fixation of compensation in the present case is in any way
unreasonable or disproportionate. Hence, the contention as regards
the fixation must necessarily fail.
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On a cumulative assessment of the facts involved in this case,
this Court is not persuaded to hold that, any substantial question of
law arises for consideration in the present appeal. Accordingly, the
appeal fails and it is dismissed. No costs.
Sd/-
EASWARAN S.
JUDGE
jg