Police Don T Owe Indira Duty Of Care Court Of Appeal Hears

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The Court of Appeal heard today that the police do not owe M Indira Gandhi any duty of care, in the case of locating her Muslim convert former husband Riduan Abdullah and their abducted daughter Prasana Diksa.
Senior federal counsel Nur Ezdiani Roleb told the panel of judges, led by Zaini Mazlan, that the police’s duty of care is only applicable to those within their custody.
A duty of care refers to a legal or moral obligation to avoid causing harm to others.
“We submit that the respondents (the former inspector-general of police and the police) only have a duty to abide by the mandamus order issued by the Federal Court to locate K Pathmanathan (Riduan’s Hindu name) and their daughter.
“Even if the court is of the view that there is a duty of care, we did not think so, because as of now, we did not know where Pathmanathan is, as the investigation to locate him is still ongoing,” said Nur Ezdiani.
In her written submissions, she said the authorities had exhausted all efforts and actions necessary to execute the committal warrant issued by Ipoh High Court in 2016 to locate Riduan after he failed to return Prasana to her mother.
However, Indira’s lawyer Rajesh Nagarajan said the authorities, especially the police, have a duty of care for all Malaysians.
He submitted that the police had failed to perform the duties required to locate Riduan, especially as they had deployed the now-defunct Special Task Force on Organised Crime (Stafoc) in their investigation.
“It defies logic that the authorities had used Stafoc to locate Pathmanathan as he is not involved in an organised crime, or executing Ops Noda, a police operation to combat vice activities.
“The police had also failed to submit their evidence in court, including their investigation diary, to prove that the investigation to locate him is ongoing,” Rajesh said.
He further submitted that the authorities knew where the Muslim convert was, especially when the latter was believed to have paid a traffic summons in 2020.
Indira’s suit
He also submitted that the high court judge was wrong to dismiss Indira’s suit when he considered that a tort of nonfeasance needs elements of malice and bad faith to stand.
“This is clearly a misapplication of law by the learned judge, and invites appellate intervention from this court,” Rajesh told the panel, which was also presided over by Faizah Kamaludin and Radzi Abdul Hamid.
Ipoh High Court had issued a committal order on May 30, 2014, against Riduan after he failed to return Prasana to her mother, while on Sept 12 the same year, the same court issued a mandamus order against the first defendant to compel them to execute the mandamus order.
The Federal Court later affirmed the mandamus order on May 5, 2015.
Former inspector-general of police Abdul Hamid BadorADSFive years later, on Oct 28, 2020, Indira filed an RM100 million suit, which she named former IGP Abdul Hamid Bador, the police, the Home Ministry, and the government as the defendants, after receiving no news about her daughter’s whereabouts.
She claimed that Hamid, during his tenure as the IGP, as well as the police, had committed the tort of nonfeasance, and alleged that he intentionally neglected to carry out their duties in locating Riduan and Prasana.
In her statement of claim, she said her daughter’s abduction had caused her anxiety from constantly worrying for the 17-year-old's safety and well-being.
Indira also sought RM100 million in general, exemplary and aggravated damages against all the named defendants.
However, the High Court dismissed her suit after finding that Hamid and the police had exercised their duties in executing the Federal Court’s mandamus order. - Mkini

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