Patna High Court
Satdeo Prasad And Anr. vs Ram Narayan And Ors. on 1 May, 1968
Equivalent citations: AIR1969PAT102, 1968(16)BLJR441, AIR 1969 PATNA 102
JUDGMENT Raj Kishore Prasad, J.
1. Plaintiffs are the appellants. They have appealed from the concurrent decisions of the Court below dismissing their suit for damages for malicious prosecution on the ground that they had failed to prove that the criminal case instituted by defendant 1 was maliciously false and without reasonable and probable cause.
2. Admittedly, Plot 184 was a Gair-mazarua-am ditch, and water, which accumulated therein, was used for irrigating the adjoining lands. Plaintiffs alleged that the fishery right in the said ditch was never settled with anybody; but the defendants said that it is true so long Zamindari remained there was never any settlement of fishery right but since after the vesting of the estate, the State of Bihar began to settle the fishery right, year after year, and, at the time of the occurrence, which was on 24-4-1960, defendant 1 was the settlee from the State of Bihar.
3. Defendant 1 lodged a first information report with police to the effect that on 24-4-1960. the plaintiffs were stealing fish of the ditch, which he had taken settlement of from the State of Bihar, and, therefore, the plaintiffs had committed an offence of theft under Section 379 I. P. C. The plaintiffs were put on trial, but the criminal court acquitted the plaintiffs. Thereafter, the present suit was instituted by the plaintiffs for damages for malicious prosecution which has been dismissed by both the courts below, as stated above.
4. In second appeal, it was contended by Mr. Sidheshwar Prasad Singh who appeared for the appellants, that defendant 1, who was examined as D. W. 9, admitted that on the day and at the time of occurrence he was present at the spot and he remained standing there for 2 1/2 to 3 hours till the plaintiffs left the place with the caught fish but this admission of defendant 1 has not been considered by any of the two courts below. He contended that here was a case in which the defendant alleged that he was an eye-witness to the occurrence and if even then the plaintiffs are acquitted, the presumption would be not only that the plaintiffs were innocent but also that there was no reasonable and probable cause for accusation, and, therefore, the plaintiffs' suit should have been decreed, since the finding of the courts below that the criminal case was without reasonable and probable cause is illegal. In support of his contention, he relied on certain decisions.
5. The first case relied upon was Taharat Karim v. Malik Abdul Khaliq, AIR 1938 Pat 529 = 19 Pat LT 889 which was decided by Dhavle and Agarwala JJ. In that case it was held that where the accusation against the plaintiff was in respect of an offence which the defendant claimed to have seen him commit, and the trial ends in an acquittal on the merits, the presumption will be, not only that the plaintiff was innocent, but also that there was no reasonable and probable cause for the accusation- Their Lordships relied in this connection on the decision of the Privy Council in Balbhaddar Singh v. Budri Sah, AIR 1926 PC 46=ILR 1 Luck 215.
6. The next case relied upon was a Bench decision of the Allahabad High Court in Shubrati v. Shamsuddin, AIR 1928 All 337 = ILR 50 All 713. which was decided by Sulaiman and Kendall, JJ. Their Lordships held that it is not at all incumbent upon the plaintiff to prove that he was innocent of the charge upon which he was tried; but, if the defendant pleads that his complaint was true and leads evidence to substantiate it, the question of the truth or falsity of the complaint may arise at the instance of the defendant and when such facts are professed to be within the knowledge of the defendant, the question of the truth or falsity of the complaint may also determine the question of want of reasonable and probable cause. His Lordship Sulaiman, J., as he then was, who delivered the joint judgment of the Court, relied on Radhelal v. Munnoo, (1913) 11 All LJ 125=18 Ind Cas 280, in which it was held that "no question of reasonable or probable cause arises where the charge is such as must be true or false to the knowledge of the defendant"
7. Reliance was also placed upon a Bench decision of the Oudh Chief Court, presided over by Misra and Kidwal, JJ., in Mt. Vilayati Begam v. Nawal Kishore, AIR 1947 Oudh 116. In this case it was held that if a man acts on his own knowledge then the fact that the complaint was a false one will raise a presumption that there was absence of reasonable and probable cause and that malice existed, unless it is shown that his memory was defective or that there was some valid ground for a misapprehension. It was further held that in an action for malicious prosecution "malice" is not merely the doing of a wrongful act intentionally but it must be established that the defendant was actuated by malus animus, that is to say. by spite or ill-will or any indirect or improper motive; if however, the defendant had reasonable and probable cause for launching the criminal prosecution no amount of malice will make him liable for damages. Similarly, if the prosecutor honestly believed that the accused was guilty of a criminal offence he is not liable for malicious prosecution no matter how wrong-headed he might have been. It was further held that ordinarily speaking, damages in a suit for malicious prosecution are given on two bases, first, on the ground of a solatium for injury to the feelings of the party prosecuted; secondly, as a reimbursement for legitimate expenses incurred by him in his defence.
8. The last case relied upon was Darsan Pande v. Ghaghu Pande, AIR 1948 Pat 167 decided by Das, J., as he then was. His Lordship, while dealing with the case of AIR 1938 Patna 529 - 19 Patna LT 889 (Supra), referred to the observations of Bowen L. J. in Abrath v. The North Eastern Railway Co. (1883) 11 Q. B. D. 440 and held that the decision in 19 Patna LT 889 = AIR 1938 Pat 529, referred to above was correct.
9. The observations of Bowen L. J., at page 462 in the aforesaid leading case, decided by the Court of Appeal in England on appeal from the judgment of Cave, J., which was upheld, can appropriately be read here also.
"Something has been said about innocence being proof, prima facie, of want of reasonable and probable cause. I do not think it is. When mere innocence wears that aspect, it is because the fact of innocence involves with it other circumstances which show that there was the want of reasonable and probable cause; as, for example, when the prosecutor must know whether the story which he is telling against the man whom he is prosecuting is false or true. In such a case, if the accused is innocent, it follows that the prosecutor must be telling a falsehood, and there must be want of reasonable and probable cause. Or if the circumstances proved are such that the prosecutor must know whether the accused is guilty or innocent if he exercises reasonable care it is only an identical proposition to infer that if the accused is innocent there must have been a want of reasonable and probable care. Except in cases of that kind, it is never true that mere innocence is proof of want of reasonable and probable cause. It must be innocence accompanied by such circumstances as raise the presumption that there was a want of reasonable and probable cause".
10. A Division Bench of this Court in Nagendra v. Etwari Sahu, ILR 36 Pat 786 = (AIR 1958 Pat 329), to which I was a party and in which the judgment of the Court was delivered by me and which case has been upheld on appeal by the Supreme Court, the principles governing an action for malicious prosecution have been thoroughly discussed and all its aspects and all the authorities on the point have been reviewed.
11. On a review of the cases above-mentioned, the principles, therefore, which emerge and which would apply here may be summarised thus :--
When the prosecutor must know whether the story which he is telling against the man whom he is prosecuting is false or true, in such a case, if the accused is innocent, it follows that the prosecutor must be telling a falsehood, and there must be want of reasonable and probable cause. Or if the circumstances proved are such that the prosecutor must know whether the accused is guilty or innocent, if he exercises reasonable care, it is only an identical proposition to infer that if the accused is innocent there must have been a want of reasonable and probable cause. Except in cases of that kind, it is never true that mere innocence is proof of want of reasonable and probable cause. It must be innocence accompanied by such circumstances as raise the presumption that there was a want of reasonable and probable cause. Where, therefore, the accusation against the plaintiff was, in respect of an offence which the defendant claimed to have seen him commit, and the trial ends in an acquittal on the merits, as is the case here, the presumption will be not only that the plaintiff was innocent, but also that there was no reasonable and probable cause for the accusation.
12. When the evidence is read in the light of the above presumption, it becomes clear that the learned Subordinate Judge erred in favour of the defence when dealing with the question of reasonable and probable cause. Hence, the First information Report which was lodged by defendant 1 was based on his own knowledge as he himself saw the occurrence being committed by the plaintiffs. In the instant case, defendant 1. who was examined as D. W. 9, clearly admitted that he was present at the time of occurrence for 2 1/2 to 3 hours until the plaintiffs left the place of occurrence with the caught fish. This admission of defendant 1 clearly shows that he was an eye-witness to the occurrence and still the plaintiffs were acquitted. This fact shows that the defendant had no probable and reasonable cause for instituting the criminal case against the plaintiffs. The court of appeal below has mentioned in paragraph 14 that P. W. 3 admitted that on the day of occurrence other villagers caught fish, and, therefore, it was not unreasonable to think that the plaintiffs also caught the fish and as such he concluded that there was no wonder that the defendant 1 thought that plaintiffs were also catching the fish at the time of occurrence. The learned Judge in paragraph 10 mentions that it was admitted that the Khata was a Gairmazarua-am Khata, and, therefore, he says that the plaintiffs had good reason to catch the fish as being one of the members of the village and the defendant 1 had equally good reason to think the plaintiffs to be the thieves as the fishery right was settled with him. In these circumstances, on the findings of the court of appeal below itself, it is clear that the finding that the criminal case was not without reasonable and probable cause is not correct. When defendant 1 saw with his own eyes, as admitted by him as D. W. 9, and also as mentioned by the learned Judge of the Court of appeal below, and, still the criminal case terminated in favour of the plaintiffs, and they were acquitted on the merits, the presumption will be not only that the plaintiffs were innocent but also that there was no reasonable and probable cause. In such a situation the defendant certainly cannot be said to have reasonable and probable cause for instituting the case. Therefore, the defendant 1 had no reasonable and probable cause for instituting the case.
13. The malice which is essential in an action for malicious prosecution does not necessarily connote personal spite or ill-will, but only means an indirect or improper motive, rather than a desire to vindicate the law.
14. The learned Subordinate Judge, in paragraph 7 of his judgment, found that the defendants were not actuated with malice in filing the criminal case. But the First Information Report lodged by the defendant 1 against the plaintiffs was dearly unjustified when the plaintiffs were acquitted on the merits of the charge of theft under Section 379 I. P. C. This clearly shows that the defendant 1 had an indirect and improper motive rather than a desire to vindicate the law. Malice in this sense is clearly established as against defendant 1 in respect of the plaintiffs. This view is supported by AIR 1938 Pat 529, referred to before.
15. For the reasons given above, I hold, in disagreement with the court of appeal below, that the plaintiffs had established that their prosecution by defendant ] was without any reasonable and probable cause and that it was actuated by malice. On these findings, therefore, the plaintiffs were entitled to a decree against defendant 1.
16. The plaintiffs impleaded all the defendants 6n the ground that they were members of a joint family of which defendant 1 was the Karta, but it cannot be said that defendant 1, who made the accusation, did so on behalf of the whole family. In this view, the prosecution of the plaintiffs must be deemed to have been made by defendant 1 himself in his personal capacity and, as such, the other defendants are not liable at all.
17. As regards the claim for damages the courts below have found that the claim was not at all exaggerated, but as the plaintiffs failed to prove their case, their claim was dismissed. On my above finding, the plaintiffs are entitled to a decree for damages against defendant 1 only; but, to me, it appears, that in view of the fact that the defendant 1-respon-dent 1 is a Dusadh by caste and belongs to the Scheduled caste, and there is no evidence that he possessed enough properties from which claim could be realised, 1 think the claim should be reduced. In this view, therefore, I would reduce the claim to a nominal sum of Rs. 100, which would be sufficient to vindicate the rights of the plaintiffs.
18. It may be mentioned that none of the principal respondents appeared and contested this appeal. Only Deputy Registrar, guardian for minor respondent 6, appeared and argued on behalf of the minor respondent.
19. The result, therefore, is that the appeal is allowed, the judgments and decree of the courts below as against defendant 1 are set aside; but, as against defendants 2 to 6 are affirmed. As the appeal has not been contested, there will be no order for costs of this Court.