Death in custody case: Court dismisses family's appeal


PUTRAJAYA: The Court of Appeal on Thursday (Oct 19) rejected a family's appeal to set aside the High Court's decision which dismissed their legal action against the government over a police detainee P. Karuna Nithi's death in 2013.

A three-member bench comprising Court of Appeal judges Datuk S. Nantha Balan, Datuk Mohd Nazlan Mohd Ghazali and Datuk Dr Choo Kah Sing, in an unanimous decision said that the originating summons by the family was the same as the one earlier filed at the Seremban High Court in 2018.

In February last year, the Kuala Lumpur High Court dismissed the family's second law suit, which was filed in 2021.

Reading out the decision, justice Mohd Nazlan said while the second suit tried a different approach by seeking relief over alleged contravention of fundamental rights under the Federal Constitution, the said suit still in essence was seeking compensation from the government over Karuna Nithi’s death.

"In our judgment, while the cause of action for the second suit appears different from the first legal action, it is inaccurate to say that the current suit would not be a matter of the earlier suit.

"Given the similarity of the two actions, the appellants (family) could have included the present claim in the earlier suit but they failed to do so.

"The court found that Section 2(a) of the Public Authorities Protection Act (PAPA) is not ultra vires Article 8 of Federal Constitution.

"Therefore, we dismiss the appeal with no order as to cost," he said adding that the legal principle of res judicata comes into effect in this case.

Res judicata is a legal maxim meaning a thing or matter that has been finally juridically decided on its merits and cannot be litigated again between the same parties.

Karuna Nithi's family was represented by counsel T. Manoharan while Senior federal counsel Donald Joseph Franklin represented the 16 respondents including policeman and the government.

Karuna Nithi’s widow R. Kaliamah and her two sons K. Yugesh Varan and K. Kisho Kumar filed the originating summons on Jan 26, 2021 against 16 defendants including 14 policeman and the government to compensate for Karuna Nithi's death.

Karuna Nithi was arrested on May 28, 2013 but died in custody on June 1, 2013, with 49 fresh injuries on his body.

In January 2015, the coroner's open verdict ruled that Karuna Nithi's death was due to several factors, including beatings by the police, as well as other inmates, resulting in him sustaining the 49 injuries.

Following an inquest, the family filed a suit for negligent and assault against the defendants for causing the death of the deceased at the High Court in Seremban on Jan 25, 2018.

However, the court dismissed the family's suit on grounds that it was filed out of time in 2018, which was far longer than three years after Karuna Nithi’s death in custody in 2013. The Court of Appeal also maintained the decision.

The Federal Court in December 2020 also dismissed the family's appeal on grounds that the suit was time barred under Section 2(a) PAPA, as cause of action should start from the date of the death of the deceased and not from the date of the inquest verdict. - Bernama

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