Delhi District Court
Mohd. Rafat Khan vs Veena Ahir Ors on 30 July, 2024
IN THE COURT OF MR. SATYABRATA PANDA, DJ-04,
PATIALA HOUSE COURTS, NEW DELHI
CS No. 57509 of 2016
Date of Institution : 04.04.2016
Final arguments heard : 03.06.2024
Date of Judgment : 30.07.2024
Mohd. Rafat Khan
S/o Mr. Mohd Zaheer Khan
A-64, SF/Back Ashoka Enclave-II
Sector-37, Faridabad, Haryana .....Plaintiff
VS.
1. Veena Ahir
W/o K.K. Ahir
R/o A-64, GF/Back
Ashoka Enclave-II
Sector-37, Faridabad-121003
2. Kuldeep Kumar Ahir
S/o Sri B.S. Ahir
R/o A-64, GF/Back
Ashoka Enclave-II
Sector-37, Faridabad-121003
3. Nitin Kumar Ahir
S/o K.K. Ahir
R/o A-64, GF/Back
Ashoka Enclave-II
Sector-37, Faridabad-121003
JUDGMENT
1. The plaintiff has filed the present suit against the defendants seeking damages for defamation and harassment/distress due to malicious prosecution.
CS No. 57509 of 2016Mohd. Fafat Khan Vs. Veena Ahir Ors. Page No. 1 of 55 PLAINT
2. The case of the plaintiff as pleaded in the plaint is as follows:
2.1. The plaintiff is aged about 47 years and is a responsible law abiding citizen. The plaintiff has more than 20 years of successful profession career in India and abroad working in managerial/ high status capacity, including with a UK based multi-
national IT company, and he is currently working as a consultant.
2.2. The plaintiff belongs to a highly respected family and his father is a retired Customs and Central Excise officer, his brother is a business for 25 years, and his wife is working with the office of the Directorate of Education, Govt. of NCT of Delhi from 2002.
2.3. The plaintiff's uncle retired as Deputy Director, DGS&D under Ministry of Commerce, Govt. of India, where the defendant no.2 is currently working as Assistant Director.
2.4. The plaintiff is having an unblemished character and is involved in charitable works for the poor children of the society by having a registered charity trust Shubham Soti Foundation, an NGO helping the poor and the needy of the society and encouraging CS No. 57509 of 2016 Mohd. Fafat Khan Vs. Veena Ahir Ors. Page No. 2 of 55 children of poor families to go to school.
2.5. The defendant no.1 aged about 56 years is a government servant working as Assistant General with the Council of Scientific Research and Industrial Research (CSIR), New Delhi.
2.6. The defendant no.2 aged about 59 years is a government servant working as an Assistant Director with DGS&D, Parliament Street, New Delhi.
2.7. The defendant no.3 aged about 30 years is the son of the defendant no.1 and defendant no.2.
2.8. The plaintiff is the registered owner and resident of the second floor, backside of property bearing no. A-64, Ashoka Enclave-II, Sector-37, Faridabad and the defendants are owners and residents of the ground floor/backside. The flats are built in dual units of ground floor, first floor and second floor on plot size of approx. 506 sq. yards and as per registered deeds dated 17.05.2004, the plaintiff has the right to park his car inside the joint gated common passage/corridor.
2.9. The plaintiff and the defendants have been living together as neighbors since 2005 without any enmity and the plaintiff has always considered and respected the defendant no.1 as his aunty/mother CS No. 57509 of 2016 Mohd. Fafat Khan Vs. Veena Ahir Ors. Page No. 3 of 55 figure.
2.10. The good character and the behaviour of the plaintiff is evident from the statement dated 18.05.2015 given by the defendant no.2 to the police during police verification for issuance of a new passport to the plaintiff.
2.11. Since 08.08.2015, suddenly the defendants jointly and individually started harassing and defaming the plaintiff on one pretext or the other with mala fide intentions and tried to instigate the general public and public officers against the plaintiff and his family with various tirades.
2.12. After continuous provocations and illegal acts committed by the defendants, the plaintiff was forced to file police complaints, and also filed a complaint u/s. 200 of the Code of Criminal Procedure against the defendants in the court of Ld. ACJM Faridabad which is pending adjudication.
2.13. On 01.10.2015, a police team led by the SHO visited the residence of the parties to investigate the complaint dated 30.09.2015 filed by the plaintiff against the defendants no.1 and 2, and the defendant no.3 to the utter shock of the plaintiff maliciously told the police that the plaintiff had indecently touched the defendant no.1 by stating that: "usne meri mummy se ashleel harkat kiya". The said CS No. 57509 of 2016 Mohd. Fafat Khan Vs. Veena Ahir Ors. Page No. 4 of 55 slander was also published by the defendant no.3 in front of the public assembled on the road and the same was also witnessed by a neighbour Mr. Vinay Kumar.
2.14. On 02.10.2015, when the parties were assembled at the police station, the defendants had openly threatened and made verbal derogatory statements against the plaintiff and his family in front of the public including one Mr. Giri Raj Sharma and one Mr. Jitender Yadav. The defendant no.1 stated that:
"isko to hum chutki mein masal denge isko maloom nahin hai ab hamari sarkar hai, is ki koi bhi nahin sunega". The defendant no.2 stated that: "agar yeh complaint wapas nahin leta hai to abhi apni ministry ko phone laga kar iski khaal khichwa doonga".
2.15. Ultimately, the defendants admitted their wrongdoings by withdrawing the false complaints and gave a written statement to the police assuring that the defendants would not repeat such acts/mistakes in future against the plaintiff.
2.16. The plaintiff being aggrieved by the rash acts of the defendants did not withdraw his complaint dated 30.09.2015 and served a legal notice dated 06.10.2015 to the defendants to tender an unconditional apology for defamatory and false and malicious comments against the plaintiff and to pay CS No. 57509 of 2016 Mohd. Fafat Khan Vs. Veena Ahir Ors. Page No. 5 of 55 damages on account of defamation/mental agony, harassment and humiliation suffered by the plaintiff. Even though the legal notice was duly received by the defendants on 07.10.2015, no reply was ever given by the defendants.
2.17. To the shock of the plaintiff, a notice dated 10.10.2015 was received by the plaintiff pursuant to a counter complaint filed by the defendant no.1 in the Woman Cell (Mahila Thana) with malice alleging that the plaintiff had outraged her modesty and sexually hurt her dignity.
2.18. As the plaintiff's complaint dated 30.09.2015 and 05.10.2015 against the defendants was under
investigation, the defendant no.1 on 15.10.2015 again approached the woman cell of Faridabad Police and falsely complained that since some time:
"yeh wyakti (plaintiff) building ke under aksar aate jate abhadar wa ashleel haav-bhaav se mujhe ghoorta hua nikalta hai ...aur mere uper abhadra aur ashleel shabd bolte hue meine paya hai"
(translation- this man while passing through the way to the building makes indecent gesture at me and I have hard him passing lewd comments at me) and further that: "Madam kindly save my dignity as woman from wrong intentions of the plaintiff."
2.19. On 01.10.2015, the defendant no.1 falsely stated CS No. 57509 of 2016 Mohd. Fafat Khan Vs. Veena Ahir Ors. Page No. 6 of 55 that: "Rafat Khan caught my shoulder and pushed me aside" and upon defendant no.1's objection, plaintiff "replied with besharmi 'Abhi to sirf hath pakda hai zyada bolegi to kuch aur bhi ho sakta hai..." derogatorily declared to the police and neighbors about the plaintiff as "badtameez insaan"
and "Rafat Khan bahut behuda kism ka vyakti hai"
and "save my dignity after his serious misconducts/sexual harassment acts against a woman".
2.20. The defendants no.1 and 2 repeatedly from 08.08.2015 to 07.11.2015 used derogatory language against the plaitniff like "dekho kaise kutte ki trah ja raha hai ... 'yeh to awara hai' isko to police aur court ke liye time hai hum sarkari officers hai... yeh zaroor koi galat kaam karta hai" and other disgusting and sham statements to the neighbors and police against the plaintiff.
2.21. The defendant no.2 also told the uncle of the plaintiff Mr. Masood Ahmed Khan, Ex-deputy Director DGS&D, New Delhi and colleague of defendant no.2, of the aforesaid imputations and that the plaintiff had touched his wife indecently and fought over the car parking.
2.22. It has also come to the knowledge of the plaintiff that the defendant no.2 had also circulated these CS No. 57509 of 2016 Mohd. Fafat Khan Vs. Veena Ahir Ors. Page No. 7 of 55 comments is his New Delhi office to give bad name to the plaintiff's uncle in the office.
2.23. Similar false imputations against the plaintiff were also made to Mr. Nasir Shamsi and his family who are known to the defendant no.3 and was a very long time friend of plaintiff's real brother.
2.24. The aforesaid imputations were not only false to the knowledge of all the defendants but were also patently imaginary, malicious and motivated with intolerance, hatred and jealous.
2.25. The aforesaid imputations made by the defendants against the plaintiff were per se defamatory as the same had the effect of lowering the social, moral and intellectual character of the plaintiff and exposed the plaintiff to hatred, ridicule and contempt.
2.26. Again, when the plaintiff did not succumb to the blackmailing tactics of the defendants, the defendant no.1 on 07.11.2015 withdrew her complaint from the SHO Woman Cell admitting that nothing of the sort as alleged had happened to her or was committed by the plaintiff as she had falsely alleged in her complaint dated 15.10.2015.
2.27. The plaintiff has earned good respect and commands good reputation and good respectability CS No. 57509 of 2016 Mohd. Fafat Khan Vs. Veena Ahir Ors. Page No. 8 of 55 amongst the people of the society as well as his relatives and in the profession. The defendants had developed a grudge towards the plaintiff and being motivated through jealousy and hatred, the defendants contemplated taking control of the legal parking rights of the plaintiff by force and hurting his dignity and the defendants for their wrongful gains caused harassment and defamation to the plaintiff.
2.28. Due to the aforesaid imputations, the plaintiff had to confine himself to his house and refrain from going for socializing causing him mental trauma. The malicious and false averments were published by the defendants with the intent of harassing the plaintiff and the defendants had succeeded in damaging the reputation and image of the plaintiff and have caused immeasurable mental as well as physical agony to the plaintiff and his family members and they had to face professional and social ostracism. The cumulative direct effect of the actions of the defendants was to totally ruin the career and reputation of the plaintiff.
2.29. A false statement against a person of high character like the plaintiff by the defendants that he had committed or had intention to commit sexual harassment and assault against the defendant no.1, a woman was ex facie defamatory.
CS No. 57509 of 2016Mohd. Fafat Khan Vs. Veena Ahir Ors. Page No. 9 of 55 2.30. In paragraph 39(E) of the plaint, the plaintiff has stated that he is entitled to damages of Rs. 5 lacs towards loss of reputation and damages of Rs. 5 lacs due to malicious and false prosecution.
2.31. On this basis, the plaintiff has filed the present suit seeking, firstly, damages of Rs. 5 lacs on account of defamation and loss of reputation, and, secondly, damages of Rs. 5 lacs for the harassment and distress caused by the defendants to the plaintiff due to malicious and false prosecution.
WRITTEN STATEMENT
3. The defendants have filed written statement seeking dismissal of the suit. The defence set up by the defendants may be summarised as under :
3.1. The plaintiff had not come with clean hands and had suppressed material facts.
3.2. The suit was based on surmises and conjectures.
3.3. The suit was based on a fabricated and manipulated story.
3.4. It is denied that the plaintiff has an unblemished character in the society.
3.5. There was a dispute between the plaintiff and the defendants for parking of the car of the plaintiff in CS No. 57509 of 2016 Mohd. Fafat Khan Vs. Veena Ahir Ors. Page No. 10 of 55 the portion of the defendants and the plaintiff had given a new color to the dispute by filing a false and frivolous suit in the court. The defendant no.1 was molested by the plaintiff when she objected to the plaintiff's parking of his car within the portion of the defendants and at that juncture, the plaintiff abused and manhandled and maltreated the defendant no.1 forcing the defendant to lodge a police complaint against the plaintiff.
3.6. The defendant no.1 was molested by the plaintiff for which a complaint was filed against the plaintiff in the police station Sarai Khwaja, Faridabad. The complaint was compromised with the intervention of common friends and on the assurance of the plaintiff not to repeat such incident.
3.7. It is denied that the defendant no.2 had ever stated that the plaintiff was having a good character and behaviour.
3.8. It is denied that any derogatory statements had been made as alleged in the plaint. It is denied that the defendants had made any derogatory statements to the police as alleged. It is denied that any derogatory statements were made in front of any public as alleged on 01.10.2015 or 02.10.2015.
3.9. The allegation against the plaintiff regarding outraging the modesty and sexually harassing the CS No. 57509 of 2016 Mohd. Fafat Khan Vs. Veena Ahir Ors. Page No. 11 of 55 dignity of the defendant no.1 were true and correct.
It is denied that the defendant no.1 had made a false complaint dated 15.10.2015 against the plaintiff. It is denied that the defendant no.1 withdrew her complaint admitting anything as alleged. The defendant no.1 for the sake of family reputation and for her dignity withdrew the complaint as the common friends of the plaintiff and defendants pressurised for amicable settlement but she had never admitted that the complaint was false before any authority at any point of time.
3.10. The defendants have denied the other allegations of having made defamatory statements as alleged in the plaint.
3.11. On this basis, the defendants have sought dismissal of the suit.
REPLICATION
4. The plaintiff has filed replication reiterating the averments made in the plaint and denying the averments made in the written statements.
ISSUES
5. Vide order dated 12.07.2017, the following issues were framed in the suit:
CS No. 57509 of 2016Mohd. Fafat Khan Vs. Veena Ahir Ors. Page No. 12 of 55
1. Whether the plaintiff is entitled for a decree of Rs. 5,00,000/- as damages on account of defamation, against the defendants? OPP
2. Whether the plaintiff is entitled to decree in the sum of Rs. 5,00,000/- as damages for mental agony and harassment caused by the defendants?
OPP
3. Whether the suit of the plaintiff is without any cause of action? OPD.
4. Whether this Court has territorial jurisdiction to entertain the present suit ? OPD.
5. Relief?
6. Both parties have led their respective evidence, both oral and documentary.
PLAINTIFF'S EVIDENCE
7. In support of his case, the plaintiff has examined himself as PW-1 and has tendered his affidavit in evidence as Ex. PW1/A in which he has deposed along the lines of the plaint. He was cross-examined by the defendants. The plaintiff has relied upon the following documents:
i. Copy of Webprint out of NGO is Ex.PW1/1.
ii. Copy of PVR is marked as Mark A.
iii. Attested Copy of the statement dated
CS No. 57509 of 2016
Mohd. Fafat Khan Vs. Veena Ahir Ors. Page No. 13 of 55
09.02.2016 is marked as Mark B.
iv. Carbon Copy of complaint withdrawn by the
defendant as Mark C.
v. Attested Copy of written complaint dated
05.10.2015 is marked as Mark D.
vi. Copy of legal notice with proof of delivery is
Ex.PW1/3 (Colly.).
vii. Carbon Copy of notice dated 10.10.2015 and
attested copy of complaint dated 30.09.2015 filed by the defendant no.1 are marked as Mark E and Mark F. viii. Attested Copy of closing report dated
08.10.2015 is marked as Mark G. ix. Copy of complaint to the Women Cell dated 15.10.2015 is marked as Mark H. x. Attested Copy of statement of defendant no.1 and police report dated 07.11.2015 are marked as Mark I and J.
xi. Attested copy of enquiry u/s 202 Cr.P.C. is marked as Mark K. xii. Affidavit u/s 65 (b) of Indian Evidence Act Ex.PW1/2.
DEFENDANT'S EVIDENCE
8. In support of their case, the three defendants have examined themselves as DW-1, DW-2 and DW-3 and they have also filed their respective affidavits in evidence. The CS No. 57509 of 2016 Mohd. Fafat Khan Vs. Veena Ahir Ors. Page No. 14 of 55 defendants were cross-examined by the plaintiff. The defendants have relied on the following documents: Copy of the police complaint dated 30.09.2015 is Ex. DW1/A.
9. Both the parties have also made their respective submissions.
PLAINTIFF'S SUBMISSIONS
10. The plaintiff has made his submissions in person. The plaintiff has referred to the relevant pleadings and evidence in his support and has submitted that he would be entitled to decree. It is submitted that through the evidence led, the plaintiff has been able to establish that the defendants had made the derogatory and defamatory statements as alleged in the plaint. It is further submitted that in the written statement, the defendants were not disputing that they had not made the defamatory complaint to the police but it was the case of the defendants that the allegations regarding molestation were true. It is submitted that the defendants have failed to show that the allegations of molestation were true and correct. It is submitted that when the allegations of molestation were false, these statements were defamatory in nature per se.
11. It is submitted that through the statement of the defendant no.1 dated 07.11.2015 Mark-I whereby the defendant no.1 withdrew her complaint to the police and the consequent police report dated 07.11.2015 Mark-J closing the molestation complaint, the plaintiff has been able to show CS No. 57509 of 2016 Mohd. Fafat Khan Vs. Veena Ahir Ors. Page No. 15 of 55 that the defendants has falsely accused the plaintiff of molestation. It is submitted that in her statement dated 07.11.2015 Mark-I to the police, the defendant no.1 admitted that the dispute was only in respect of the parking space.
12. It is submitted that the defendants had filed the malicious complaint only to blackmail the plaintiff in respect of the car parking space. It is further submitted that the defendants were fully aware of the plaintiff's rights to the car parking space and had filed the false molestation complaint only to blackmail the plaintiff and take over his car parking space. It is further submitted that the defendants had filed the molestation complaint only as a counter-blast to the complaint filed by the plaintiff against the defendants nos. 1 and 2 for assault and damage to the car.
13. It is submitted that the defendants failed to prove that the publications made by them were not defamatory in nature or that they had published the truth or that they were justified in publishing such statements. It is submitted that, hence, the plaintiff would be entitled to the damages as prayed in the suit.
14. The plaintiff has relied upon Baregowda & Ant. Vs. C.D. Devaih. MANU/KA/0344/1999 and argued that when the statements are defamatory per se then no further proof is necessary and the person making the statements must CS No. 57509 of 2016 Mohd. Fafat Khan Vs. Veena Ahir Ors. Page No. 16 of 55 suffer damages.
15. The plaintiff has relied upon A.K. Subbaiah Vs. B.N. Garudachar ILR 1987 KAR 100 and argued that freedom of speech and expression is not unfettered to allow defamatory statements.
16. The plaintiff has relied upon State of Bihar Vs. Lal Krishna Advani AIR 2003 SC 3357 and argued that right to reputation is a facet of right to life.
17. The plaintiff has relied upon Surendra Nath Vs. Bageshwari PD AIR 1961 PAT 164 and argued that reputation and honour are most precious to good men and that as a rule an action lies for malicious publication of statements which are false in fact and injurious to the character of another.
18. The plaintiff has relied upon Subhas Chandra Vs. Knight & Sons. AIR 1929 CALCUTTA 69 and argued that the defendants failed to prove that the allegations were true.
19. The plaintiff has relied upon Mitha Rustomji Vs. Nusserwanji Nowroji AIR 1941 BOM 278 and argued that the burden of proof that the defamatory statements were true was on the defendants and they failed to prove the statements.
20. The plaintiff has relied upon Nicholas Priamal Ltd. Vs. Cultor Food Science Inc. AIR 2003 AP 254 and argued CS No. 57509 of 2016 Mohd. Fafat Khan Vs. Veena Ahir Ors. Page No. 17 of 55 that when the truth of the allegations was not established then the defendants were bound to pay damages.
21. The plaintiff has relied upon Indian Express Newspapers Vs. Jagmohan AIR 1985 BOMBAY 229 and argued that it is not a defence to show that the defendant did not intend to defame the plaintiff, if responsible people think the statement to be defamatory.
22. The plaintiff has relied upon K.P. Narayanan Vs. Mahendrasingh AIR 1957 NAGPUR 19 and argued that when the statements are proved to be defamatory, the plaintiff is entitled to damages even without proving actual loss sustained by him.
23. The plaintiff has relied upon S.N.M. Abdi Vs. Prafulla Kr.
Mahanta AIR 2002 GAUHATI 75 and argued that deciding the question of compensation, the court would take into consideration the conduct of the plaintiff, his position and standing, nature of libel, absence or refusal of any retraction or apology, and the whole conduct of the defendant from date of publication of libel to date of decree.
24. The plaintiff has also relied upon Ram Jethmalani v.
Subramaniam Swamy AIR 2006 DELHI 300 and argued that when the statements were defamatory ex facie, and actual malice was shown, and the defendant refused to apologize and withdraw the defamatory statement, then the plaintiff was entitled to damages.
CS No. 57509 of 2016Mohd. Fafat Khan Vs. Veena Ahir Ors. Page No. 18 of 55 DEFENDANT'S SUBMISSIONS
25. On the other hand, ld. Counsel for the defendant has submitted that the suit for defamation of the plaintiff was essentially based on a complaint to the police which was subsequently withdrawn and that, as such, the suit was not even maintainable. In this regard, Ld. counsel has referred to the decision of the Hon'ble High Court of Delhi in Imtiaz Ahmed Vs. Durdana Zameer 2009 (109) DRJ 357. Ld. counsel has further submitted that although the plaintiff claims to have been defamed, however, the plaintiff has not examined any witness to prove that any defamatory statement had been made as alleged or the reputation of the plaintiff had been lowered in the eyes of other members of society. It is submitted that the plaintiff has led no evidence to the effect that any defamatory statement was made or that the reputation of the plaintiff had been lowered in the minds of the members of the society. It is submitted that the plaintiff has not even examined his uncle to whom the plaintiff claims that defamatory statements were made. It is further submitted that in so far as the police complaint is concerned, the defendant had made the complaint of the true and correct facts which had taken place, however, since the matter was compromised between the parties, the complaint was withdrawn. As such, it is submitted that the present suit is liable to be dismissed.
CS No. 57509 of 2016Mohd. Fafat Khan Vs. Veena Ahir Ors. Page No. 19 of 55 PLAINTIFF'S REJOINDER SUBMISSIONS
26. The plaintiff has in rejoinder submitted that the defendants had failed to discharge the onus to prove that the defamatory statements were true and correct. It is further submitted that the nature of the defamatory statements was such that the court would presume that the reputation of the plaintiff would have been lowered in the minds of the right thinking members of society and that as such the plaintiff was not required to call any witness to prove that the reputation of the plaintiff had been lowered. In response to the contention of the ld. Counsel for the defendants regarding maintainability of the suit being based on a police complaint, it is submitted that the suit was not for defamation simpliciter but was also a suit for damages for harassment caused by the defendants by their malicious actions.
27. I have considered the submissions of the Ld. Counsels for the parties and I have perused the record.
28. My issue-wise findings are as follows.
ISSUE-WISE FINDINGS Issue No.4. Whether this Court has territorial jurisdiction to entertain the present suit ? OPD.
29. The onus to prove this issue was on the defendants. The defendants have not made any submissions in this regard.
CS No. 57509 of 2016Mohd. Fafat Khan Vs. Veena Ahir Ors. Page No. 20 of 55 Accordingly, it is taken that the defendants are not pressing this issue. In any case, it has not been disputed by the defendants nos.1 and 2 that their office address is within the territorial jurisdiction of this Court. Hence, it is held that this Court would have territorial jurisdiction to entertain the present suit.
30. The issue on territorial jurisdiction is decided accordingly.
Issue No.1. Whether the plaintiff is entitled for a decree of Rs. 5,00,000/- as damages on account of defamation, against the defendants? OPP Issue No.2. Whether the plaintiff is entitled to decree in the sum of Rs. 5,00,000/- as damages for mental agony and harassment caused by the defendants? OPP Issue No.3. Whether the suit of the plaintiff is without any cause of action? OPD.
31. These issues are taken up together for discussion.
32. The plaintiff has filed the present suit seeking damages on twofold grounds, firstly, on the basis of defamation and, secondly, on the basis of harassment caused by malicious prosecution. The plaintiff has specifically pleaded this in paragraph 39(E) of the plaint in which he is seeking damages of Rs. 5 lacs on account of loss of reputation due to defamation and is also seeking damages of another sum of 5 lacs due to harassment caused by the malicious and CS No. 57509 of 2016 Mohd. Fafat Khan Vs. Veena Ahir Ors. Page No. 21 of 55 false prosecution.
33. Insofar as the claim of damages for defamation is concerned, the plaintiff has alleged that he has been defamed by the defendants by two different modes. It is, firstly, the case of the plaintiff that he has been defamed through the complaint made by the defendant no.1 to the police in which she had falsely alleged that the plaintiff had sought to outrage her modesty, and, secondly, that he has been defamed by derogatory statements made in front of or to third persons such as neighbours, the public and common acquaintances.
34. Insofar as the contention of the plaintiff that he has been defamed by way of the complaint made by the defendant no.1 the police is concerned, it has been the submission of the defendants that the plaintiff cannot claim that there is defamation on the basis of a complaint made to the police. I have carefully considered this aspect of the matter. I would hold that this contention of the defendants that the plaintiff cannot maintain a suit for defamation on the basis of a complaint to the police ought to be upheld.
35. A survey of the law in India in this regard shows that, the Hon'ble High Courts in the country have consistently held that a complaint to the police cannot give rise to cause of action for defamation.
36. In Messrs Bapalal and Co. v. A.R. Krishnaswami Iyer , 1940 SCC OnLine Mad 184 : ILR 1941 Mad 332 : AIR CS No. 57509 of 2016 Mohd. Fafat Khan Vs. Veena Ahir Ors. Page No. 22 of 55 1941 Mad 26, the Hon'ble High Court of Madras held as under:
"This appeal arises out of a suit filed by the respondent against the appellants for damages for defamation. The facts may be stated very briefly. The respondent, a medical practitioner in Madras, took some diamonds from the appellants, a firm of jewellers, on approval in April 1936. On 25th May the appellants presented him with an invoice for their cost. By 27th September the diamonds had not been paid for. On that day the appellants sent a letter to the Inspector of Police, Flower Bazaar Police Station, which is claimed by the respondent to be defamatory, as being equivalent to a charge against him of criminal breach of trust. In their written statement appellants contended that this communication was privileged, having been sent bona fide with the sole purpose of protecting their own interests. The learned City Civil Judge held that the occasion was privileged and if the letter were in fact bona fide the suit must be dismissed, but he held further that the letter did not state the true facts, that there was an outright sale on 25th May, and that the appellants were maliciously referring to the police for investigation what they knew could be only the subject-matter of a civil claim. He accordingly decreed the suit.CS No. 57509 of 2016
Mohd. Fafat Khan Vs. Veena Ahir Ors. Page No. 23 of 55 In appeal an entirely new point has been taken with reference to the law of privilege. It is now contended that the letter in question was privileged absolutely, that is to say, that a civil Court is precluded from adjudicating upon the question whether it was sent maliciously or not. On a careful consideration of the authorities I think this contention must prevail.
The principal authorities to which I have been referred in the course of the arguments are Sanjivi Reddy v. Koneri Reddi [(1925) I.L.R. 49 Mad.
315.] , Golap Jan v. Bholanath Khettry [(1911) I.L.R. 38 Cal. 880.] , Madhab Chandra Ghosh v. Nirode Chandra Ghosh [I.L.R. (1939) 1 Cal. 574.] , and Majju v. Lachman Prasad [(1924) I.L.R. 46 All. 671 (F.B.).] . All these authorities are unanimous in holding that the common law of England which grants an absolute privilege to all statements made in the witness-box should be applied in India. That privilege extends in England to the preliminary examination of witnesses, e.g., by a solicitor to find out what they can prove; see Watson v. M'Ewan [[1905] A.C. 480.] . The question then is how far this principle derived from Watson v. M'Ewan [[1905] A.C. 480.] should be extended. Sanjivi Reddy v. Koneri Reddi [(1925) I.L.R. 49 Mad. 315.] dealt with a complaint to a Magistrate requesting him to take CS No. 57509 of 2016 Mohd. Fafat Khan Vs. Veena Ahir Ors. Page No. 24 of 55 action under section 107, Criminal Procedure Code, and to statements made by the complainant to a police officer investigating that complaint. Both were held to be absolutely privileged. No actual evidence was given in this the Magistrate eventually refused to take any action under section 107. In Golap Jan v. Bholanath Khettry [(1911) I.L.R. 38 Cal. 880.] a complaint laid before a Magistrate for criminal breach of trust which led to no trial but was dismissed under section 203, Criminal Procedure Code, was held to be absolutely privileged. In Madhab Chandra Ghosh v. Nirode Chandra Ghosh [I.L.R. [1939] 1 Cal. 574.] it was held that both a report to the police alleging the commission of a crime and evidence given in Court in support of the accusation were absolutely privileged. In Majju v. Lachman Prasad [(1924) I.L.R. 46 All. 671 (F.B.).] a distinction was drawn between a complaint to the police which in fact led to judicial proceedings and one which did not. A complaint in the latter case was held not to be privileged.
Now there is nothing in the three other decisions referred to above to suggest that this particular ground of distinction would find favour with the Madras or Calcutta High Courts. In Sanjivi Reddy v. Koneri Reddi [(1925) I.L.R. 49 Mad.
315.] and Golap Jan v. Bholanath Khettry [(1911) CS No. 57509 of 2016 Mohd. Fafat Khan Vs. Veena Ahir Ors. Page No. 25 of 55 I.L.R. 38 Cal. 880.] complaints to a Magistrate were held absolutely privileged, even though the Magistrate dismissed them. In Madhab Chandra Ghosh v. Nirode Chandra Ghosh [I.L.R. [1939] 1 Cal. 574.] the complaint to the police was no doubt followed by an actual trial, but there is nothing in the judgment to suggest that fact influenced the learned Judges in coming to their decision. Both Judges apply the principle of Watson v. M'Ewan [[1905] A.C. 480.] to a complaint to the police and Ghose, J. points out on page 580 that the reason for the privilege is stronger in the case of a complaint to the police than in the case of statements to a solicitor, for the question whether a prosecution shall follow upon the complaint is taken out of complainant's hands by his own action.
I am accordingly of opinion that the weight of authority is in favour of the view that a complaint to a police officer from its very nature as a statement which the complainant is prepared later, if called upon to do so, to substantiate upon oath is absolutely privileged. I must accordingly allow this appeal and dismiss the respondent's suit. As the main ground in the appeal was never pleaded in the Court of first instance, I make no order as to costs."
(Emphasis is mine) CS No. 57509 of 2016 Mohd. Fafat Khan Vs. Veena Ahir Ors. Page No. 26 of 55
37. In K. Ramadass v. P. Samu Pillai, 1968 SCC OnLine Mad 121, the Hon'ble High Court of Madras held as under:
"This second appeal arises out of a suit for damages for defamation. The defamation consists of a complaint by the appellant to the police which he had stated in connection with a theft, that the respondent alone was his enemy in all respects and that the theft might have been committed only by him to give trouble to him. The trial court took the view that the appellant bona fide and reasonably thought that the respondent (plaintiff) might have been responsible for the theft and could not, therefore, be said to have defamed the respondent. The lower appellate court took the view that the complaint does net admit of any other interpretation than that respondent must have committed that theft and, therefore, allowed the appeal and decreed the suit.
In this court, the only point taken befor me is that the complaint given by the respondent is absolutely privileged and that therefore, the lower appellate court was wrong in having allowed the appeal and decreed the respondent's claim. Clearly this contention has got to be upheld in view of the decisions of this court in Bapalal & Co. v. Krishnaswami Iyer(1) King, J., after an exhaustive review of all the decisions on the CS No. 57509 of 2016 Mohd. Fafat Khan Vs. Veena Ahir Ors. Page No. 27 of 55 question, held that a complaint to a police officer from its very nature as a statement which the complainant is prepared later, if sailed upon to do so, to substantiate upon oath is absolutely privileged. Abdur Rahman, J., in a case reported in the same volume at page 538 Vettappa Kone v. Muthukaruppa(2) also took the same view. Both the learned Judges referred to an earlier Bench decision of this court in Sanjeevi Reddi v. Koneri Reddi(3) in which Coutts Trotter, C.J., and Viswanatha Sastri, JJ., took the view that statement made in a complaint to a Magistrate under S. 107 Crl. P.C. and a repetition of the same statement before a police officer to whom the Magistrate referred the complaint for enquiry and report are absolutely previleged and no action for defamation in respect of such statement is maintainable. In that case though the original complaint was before a Magistrate and therefore absolutely privileged, it could plausibly be argued, that a statement made before a police officer, when a complaint made to a Magistrate is referred by him to the police for investigation, should be held to be equally privileged like the statement or the complaint before the Magistrate. All the same the view of the law taken by the Bench is categoric. At, page 319 Coutts Trotter, C.J., puts the principle thus--
"I am, therefore, of opinion that the CS No. 57509 of 2016 Mohd. Fafat Khan Vs. Veena Ahir Ors. Page No. 28 of 55 statements made by the police officer which could only be made with a view to their being repeated on oath before the Magistrate were absolutely privileges".
The learned Judge referred to the statement of law in Watson v. M' Ewan(4) in which Lord Halsbury stated--
"It is very obvious that the public policy which renders the protection of witnesses for the administration of justice must as a necessary consequence involve that which is a step towards and is part of the administration of justice, namely, the preliminary examination of witnesses to find out what they can prove".
After referring to the statement of law by Lord Halsbury, Coutts Trotter, C.J., proceeded--
"I take that as clearly implying that all statements made by a potential witness as a preliminary to going into witness box are equally privileged with the statements made when actually in the box in Court."
Viswanatha Sastri J. referred to the Bench decision in In re Muthuswamy Naidu(5), where it was held that a defamatory statement in a complaint to a CS No. 57509 of 2016 Mohd. Fafat Khan Vs. Veena Ahir Ors. Page No. 29 of 55 magistrate was absolutely privileged and while discussing the question whether any such privilege would be claimed in respect of statements made to the police the learned Judge referred to the decision of Seshagiri Aiyar, J. In re Kakimara Anjaneyalu(6), to the effect that the rule of law that parties before the court are absolutely privileged cannot be extended to the case of complaints to a police constable. Then he went on to refer to the case in Watson v. M' Ewan(4), already referred to and held that where a magistrate referred a matter to the police for investigation, statements made to the police were also absolutely privileged. Tbe cane in Sanjivi Reddi v. Koneri Reddi(3), as I mentioned, was a case of a complaint made to a Magistrate which was referred to the police for investigation and therefore it could be said that as the statement made to the police was only following a complaint made to a Magistrate that was privileged. But the statement of law as laid down by. Coutts Trotter C.J. is categoric and this was accepted by King, J. The Calcutta High Court Madhabchandra Gose v. Nirode Chandra Gose(1), to the same view, In fact Ghose, J. referring to the decision in Watson v. M' Ewan(2), stated that in a sense statements made to the police appear to be on stronger ground than statements made to a solicitor, as reported in the case CS No. 57509 of 2016 Mohd. Fafat Khan Vs. Veena Ahir Ors. Page No. 30 of 55 of Watson v. M' Ewan(2). That also was a case where the complaint was made to the police in the first instanse. The decision of this court relied upon by the respondent in T. Ayyangar v. K.S. Ayyangar(3), cannot help him. In that case the petition which was sought to be made the basis of a claim for dsfamation was held, on the facts, not to be a petition where an action was sought to be taken under Sec. 107 Crl. P.C. and that in the absence of the basis for any belief by the defendant that he was making these statement with a view to repeat them on oath at subsequent judicial proceeding to be taken by the Deputy Inspector General of Police the defendant was not free from liability for damages. In Majju v. Lakshman Prasad(4), a distinction was drawn between a complaint to the police which in fact led to judicial proceedings and one which did not and the complaint in the latter case was held not to bs privileged. As would be observed from the Calcutta decision and the decisions of this court such a ground of distinction is not made either by this court or by the Calcutta High Court. Reliance was placed on behalf of the respondent on the dicision of the Bombay High Court in Marogi Sathasiv v. Godubai Narayanarao(5). The learned Judge who decided that case refers to the Calcutta High Court decision and this court's decision and prefers to follow the earlier decision of the Bombay CS No. 57509 of 2016 Mohd. Fafat Khan Vs. Veena Ahir Ors. Page No. 31 of 55 High Court in Gangapagounda v. Basayya(6), But it is not open to me to do so and I am bound to follow the decision of this court and following the decision, I hold that the complaint by the appellant to the police was absolutely privileged. The appeal therefore, has got to be allowed. It is accodingly allowed and the suit will stand dismissed. But in view of the uncertain position of law, both parties will be directed to bear their own costs throughout."
(Emphasis is mine)
38. In Prof. Imtiaz Ahmad v. Durdana Zamir, 2009 SCC OnLine Del 477, the Hon'ble High Court of Delhi has held as under:
"11. Moreover, the defendant had a right to make complaints of her grievances to the authorities. Whenever a person makes a complaint against someone to the lawful authorities and in that complaint he makes imputations against the person complained of, it cannot be considered that the person has publicized or publicly made defamatory averments against a person. If a prosecution is initiated against the person on the basis of such averments and the person is acquitted holding that the complaint was false, then only a cause of action arises against the complainant for launching a case for false prosecution or for damages on other CS No. 57509 of 2016 Mohd. Fafat Khan Vs. Veena Ahir Ors. Page No. 32 of 55 grounds. Until and unless a competent court holds that complaint was false, no cause of action arises. Approaching a competent authority and praying that the authority should come to the rescue of the complainant and prevent inference of the plaintiff in the family affairs of the defendant cannot amount to a defamatory imputation per se and even if it is published, it does not tend to show that the defendant had intended to lower the reputation of the plaintiff."
(Emphasis is mine)
39. In Vijay Gulati v. Radhika, 2010 SCC OnLine Del 3514 :
(2010) 119 DRJ 482, the Hon'ble High Court of Delhi has held as under:
"27. The learned counsel for defendants No. 1 in support of his contention has also referred to Bira Garari v. Dulhin Somaria, AIR 1962 PATNA 229 wherein it has been observed by the Division Bench that in a case of defamation on the basis of registration of a cognizable offence, it could not be said that the person has been defamed unless and until the said complaint is tested before the appropriate forum. In other words, once a person has a legitimate grievance and he puts criminal law into action, the other side cannot lodge and bring about a suit for defamation so as to stop those CS No. 57509 of 2016 Mohd. Fafat Khan Vs. Veena Ahir Ors. Page No. 33 of 55 criminal proceedings. The appropriate remedy for him would be either to get a case for damages for malicious prosecution or to get a case registered under Section 182 Cr. P.C. in case the charge sheet is not filed on the basis of the report or if he is able to earn acquittal, then a specific finding to the effect that the allegations against him were false. The said judgment, in my view, aptly applies to the facts of the present case also that till the time the present criminal complaint which has been initiated by defendant No. 1 is not finally rejected, the maintainability of the present suit on the ground of the plaintiff being defamed is premature and therefore lacks cause of action apart from being barred by limitation."
(Emphasis is mine)
40. In Mahavir Singh v. Surinder Singh, 2010 SCC OnLine P&H 9094, the Hon'ble High Court of Punjab and Haryana held as under:
"The petitioner/plaintiff has preferred this revision petition under Article 227 of the Constitution of India against the order dated 14.5.2009 passed by Civil Judge (Jr. Division), Jind, rejecting his plaint in the suit filed by him for the recovery of damages from Surinder Singh - respondent/defendant.
The plaintiff filed suit for damages against the CS No. 57509 of 2016 Mohd. Fafat Khan Vs. Veena Ahir Ors. Page No. 34 of 55 defendant on the ground that the defendant got lodged FIR No. 677 dated 18.12.2007, under Sections 167, 420, 467, 468 and 471 IPC in Police Station City Jind. He was working as Sub Inspector, whereas the defendant was working as conductor in Haryana Roadways. It was in the discharge of his official duties that he checked the buses of Haryana Roadways, including the bus, on which the defendant was the conductor, and during that checking it was found that the defendant had issued the tickets of less value to the passengers and thereby embezzled the money. The matter was reported to the General Manager and on that account the defendant was nursing a grudge against him and the said FIR was the outcome of that grudge. In that FIR the defendant levelled false, concocted and defamatory allegations regarding forgery and making of incorrect statements. The information made in the FIR amounts to defamation for which he is entitled to recover the damages. In the suit, the defendant filed application for rejection of the petition on the ground that the plaint does not disclose the cause of action. The mere registration of the FIR does not give rise to cause of action to file a suit for defamation. That application was contested by the plaintiff, who pleaded in his reply, that the contents of the FIR are false and as such those do amount to levelling of false imputation CS No. 57509 of 2016 Mohd. Fafat Khan Vs. Veena Ahir Ors. Page No. 35 of 55 against him. After hearing the arguments of both the sides the learned trial Court accepted that application and rejected the plaint.
I have heard learned counsel for the petitioner.
When the revision was taken up for preliminary hearing, it was submitted by learned counsel for the petitioner that even making of imputation in the FIR amounts to defamation giving rise to a cause of action for filing the civil suit for damages. He wanted to cite some judgments as precedent in support of his contentions, but has failed to do so.
It is well settled that merely lodging of the FIR, though it may contain false imputation, does not amount to defaming the person against whom FIR is lodged. There must be some publication in order to maintain suit for damages. The order passed by the trial Court does not suffer from any illegality and as such the same cannot be interfered while exercising the revisional jurisdiction.
Accordingly, the revision petition is dismissed."
(Emphasis is mine)
41. In A.N. Shanmugam v. G. Saravanan, 2015 SCC OnLine Mad 728 : (2015) 3 Mad LJ 802, the Hon'ble High Court of Madras held as under:
"13. A proper consideration of the above said CS No. 57509 of 2016 Mohd. Fafat Khan Vs. Veena Ahir Ors. Page No. 36 of 55 averments found in the plaint will make it clear that the plaint averments are not enough to spell out a cause of action for suing the petitioners for damages for the alleged commission of the tort of defamation. Furthermore, the filing of the suit, claiming damages to the tune of Rs. 10,00,000/- for the respondent, his brother and his family members who were facing the criminal trial will make it clear that the suit itself has been filed as an abuse of process to escape from the criminal prosecution and also to make the second petitioner to come to terms in the matrimonial cause that is pending before the Family Court at Chennai. If every complainant, who lodges a complaint with the Law Enforcing Agency for imputation against the persons accused are to face civil cases for defamation on the premise that the imputations, according to the accused, are false, many people fearing such actions on the part of the accused, may not come forward to lodge a complaint to the Law Enforcing Agency. When an imputation has been made in a complaint made to the Law Enforcing Agency with the belief that such Agency would take criminal action against the persons against whom such imputation are made, the same will provide a valid exception taking such act outside the scope of tort of defamation. Besides, the lodging of the complaint with the police could not be considered to be a publication of a CS No. 57509 of 2016 Mohd. Fafat Khan Vs. Veena Ahir Ors. Page No. 37 of 55 defamatory statement. If at all any wrong is committed by lodging a false complaint with the police and thereby setting the criminal law in motion, it may amount to malicious prosecution, for which action can be taken only after the disposal of the criminal case, wherein a specific finding shall be given to that effect."
(Emphasis is mine)
42. Hence, from the aforesaid decisions, the well settled principle of law which emerges is that mere filing of a complaint to the police would not give rise to cause of action for defamation. Thus, in so far as the plaintiff has claimed defamation based on the complaint filed to the police is concerned, the same has to be dismissed as not maintainable.
43. Insofar as the allegations by the plaintiff that he had been defamed by derogatory statements made by the defendants in front of or to third parties is concerned, the plaintiff has not called any such third party witnesses before whom the plaintiff claims that defamatory statements were made. Thus, the plaintiff has been unable to show that the defendants had made any defamatory statements to third parties.
44. The plaintiff has claimed in the plaint that defamatory statements were made on 01.10.2015 in front of the public assembled on the road and before neighbours. However, CS No. 57509 of 2016 Mohd. Fafat Khan Vs. Veena Ahir Ors. Page No. 38 of 55 the plaintiff has not examined any witnesses in this regard who are alleged to have been present at the time when the defamatory words were spoken.
45. The plaintiff has also alleged in the plaint that on 02.10.2015, the defendants had also made derogatory statements in front of the public and certain specific persons are named in the plaint to have witnessed the defamatory statements. However, again, the plaintiff has not called to examine any of these persons to prove that the defendants had spoken any defamatory statements.
46. The plaintiff has also alleged in the plaint that the defendants had made some defamatory statements regarding the plaintiff to the plaintiff's uncle Mr. Masood Ahmed Khan. However, again, the plaintiff has not called his uncle as a witness to depose to the fact that any defamatory statements were made by the defendants.
47. The plaintiff has also alleged in the plaint that defamatory statements were also made to one Mr. Nisar Shamsi and his family. However, again, these persons have not be called as witnesses by the plaintiff to prove any defamatory statements.
48. The result is that, apart from the plaintiff's own deposition that the defendants had made defamatory statements to third parties and that he had been defamed, there is no evidence from any person regarding any defamatory statements having been made by the defendants against the CS No. 57509 of 2016 Mohd. Fafat Khan Vs. Veena Ahir Ors. Page No. 39 of 55 plaintiff. Insofar as the allegation of the incidents on 01.10.2015 and on 02.10.2015 is concerned, when the defendants are alleged to have made defamatory statements to the plaintiff in front of the public, there is no evidence of any member of the public who is supposed to have witnessed the defamatory statements being made. Insofar as the allegation of defamatory statements made to the plaintiff's uncle and to Mr. Nasir Shamsi and his family is concerned, it is not the plaintiff's case that these defamatory statements were made in his presence. Hence, without having these persons, to whom the alleged defamatory statements were made, being called as witnesses, the plaintiff has failed to prove that the defendants had made any defamatory statements to the public or third parties.
49. Hence, the first leg of the plaintiff's suit for damages for defamation completely fails and is liable to be dismissed.
50. The second leg of the plaintiff's suit is for damages for harassment caused due to malicious and false prosecution.
51. It is the plaintiff's case that he had been harassed by a false and malicious complaint having been made by the defendant no.1 to the police regarding the plaintiff having allegedly outraged the modesty of the defendant no.1.
52. The undisputed position is that the defendant no.1 had subsequently withdrawn the complaint. The question arises whether the plaintiff would have a cause of action for CS No. 57509 of 2016 Mohd. Fafat Khan Vs. Veena Ahir Ors. Page No. 40 of 55 damages for malicious prosecution only on the basis of filing of a complaint by the defendants with the police without there being any further prosecution on the complaint. The answer would be in the negative. There is ample authority in support of this.
53. I would refer to two decisions from the Hon'ble Calcutta High Court in this regard.
54. In DeRozario v. Gulab Chand Anundjee, 1910 SCC OnLine Cal 230 : ILR (1910) 37 Cal 358, it was held that mere filing of a complaint before the magistrate without issue of process would not give rise to cause of action for malicious prosecution. The facts in this case were that the defendant made a complaint to the magistrate under section 380 IPC. The magistrate sent the case to the police for enquiry and report, but the defendant thereafter wrote to the police inspector stating that he did not want to proceed with the case. On these facts, the Hon'ble High Court held as under:
"The point argued is whether, on these allegations, a suit for malicious prosecution can lie. Mr. Chatterjee admits that the evidence is not enough to carry the case higher, but says that the plaintiff can on these allegations maintain the suit for damages for malicious prosecution.
The case on which Mr. Chatterjee relies is the decision of Chandavarkar and Jacob, JJ.CS No. 57509 of 2016
Mohd. Fafat Khan Vs. Veena Ahir Ors. Page No. 41 of 55 in Ahmedbhai v. Framji Edulji [(1903) I.L.R. 28 Bom. 226.] , and there is no doubt that in that case the learned Judge did say that a prosecution commences when a complaint is made, and it is enough if the charge is made to the Magistrate. This statement is made on the authority of a statement taken from Addison on Torts, 8th edition, page 249.
The case referred to in Addison is Clarke v. Postan [(1834) 6 C. & P. 423.] , which has been considered by Lord Justice Cotton in the case of Yates v. The Queen [(1885) L.R. 14 Q.B.D. 648, 661.] .
The case of Clarke v. Postan [(1834) 6 C. & P.
423.] was a mere dictum of the Judge at Nisi Prius, and the case of Yates v. The Queen [(1885) L.R. 14 Q.B.D. 648, 661.] is a considered judgment of the Court of Appeal.
My opinion is that the decision of Lord Esher and Lord Justice Cotton in Yates v. The Queen [(1885) L.R. 14 Q.B.D. 648, 661.] is to be preferred on this point to the ruling in Clarke v. Postan [(1834) 6 C. & P. 423.] .
Looking to the provisions of the Criminal Procedure Code, it is obvious that process never issued at all. Section 200 is the first section in Chapter 16. Section 200 says what should be done on a CS No. 57509 of 2016 Mohd. Fafat Khan Vs. Veena Ahir Ors. Page No. 42 of 55 complaint. In section 202 the marginal note is postponement of issue of process, and states what is to be done in a case when the Magistrate, instead of issuing process, sent the matter to the Police to enquire and report. Then comes Chapter XVII, and the first section of which has the marginal note "Issue of Process," and the Chapter is headed "The commencement of Proceedings."
In this case the Magistrate never issued process. The plaintiff was not prosecuted. The only step taken was that the matter was sent to the Police for enquiry and report.
I think that the case of Ahmedbhai v. Framjee Edulji [(1903) I.L.R. 28 Bom. 226.] , which relies on the statement in Addison on Torts, that the prosecution commences from the date of complaint, is sufficiently explained by the case of Thorpe v. Priestnall [[1897] 1 Q.B. 159.] . This case shows that once summons is issued the commencement of prosecution relates back to the laying of the information or making of the complaint. It is to be noticed that the learned Judges in the Bombay High Court did not refer to the case of Yates v. The Queen [(1885) L.R. 14 Q.B.D. 648,
661.] , nor was such case cited to them in the course of the argument."
CS No. 57509 of 2016Mohd. Fafat Khan Vs. Veena Ahir Ors. Page No. 43 of 55 In these circumstances, I prefer to follow the decision of Yates v. The Queen [(1885) L.R. 14 Q.B.D. 648, 661.] rather than the decision of Ahmedbhai v. Framjie Edulji [(1903) I.L.R. 28 Bom. 226.] . I hold, therefore, that the plaint discloses no cause of, action, and the suit must therefore be dismissed with costs on scale No. 2."
(Emphasis is mine)
55. The next decision, I would refer to is Golap Jan v. Bhola Nath Khetry, 1911 SCC OnLine Cal 125 which is a decision of the Division Bench of the Hon'ble Calcutta High Court (Jankins, C.J. and Woodroffe, J.). In this decision also it was held mere filing of a complaint before the magistrate without issue of process would not give rise to cause of action for malicious prosecution. The facts in this case were that the defendant filed a complaint with the magistrate against the plaintiff for criminal breach of trust. The magistrate u/s. 202 of the Criminal Procedure Code referred the matter to the police for enquiry and finally dismissed the complaint. On these facts, the Hon'ble High Court held as under:
"... ... ... The question is whether assuming malice and lack of probable cause, there was such a prosecution as is necessary for the maintenance of a suit for malicious prosecution.
To determine whether or not there was a prosecution CS No. 57509 of 2016 Mohd. Fafat Khan Vs. Veena Ahir Ors. Page No. 44 of 55 regard must he had to the Criminal Procedure Code.
Chap. XV treats of the jurisdiction of the Criminal Courts in inquiries and trials and by sec. 191 it is provided (among other things) that a Magistrate may take cognizance of any offence upon receiving a complaint of facts which constitute such offence. Chap. XVI deals with complaints to Magistrates, and by the first section of this chapter (sec. 200) it is provided that a Magistrate taking cognizance of an offence upon complaint shall at ones examine the complainant upon oath.
Sec. 202 empowers a Magistrate, if he sees reason to distrust the truth of a complaint of an offence, to postpone the issue of process for compelling the attendance of the person complained against and to direct a previous local investigation to be made by a police-officer for the purpose of ascertaining the truth or falsehood of the complaint.
And then comes Chap. XVII which is headed "of the commencement of proceedings before Magistrates." Sec. 204 provides that if in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding and the case appears to be one in which a summons should issue in the first instance, he shall issue his summons for the attendance of the accused.CS No. 57509 of 2016
Mohd. Fafat Khan Vs. Veena Ahir Ors. Page No. 45 of 55 Now in this case the stage indicated in Chap. XVII, "the commencement of proceedings before the Magistrate," was never reached: the Magistrate dismissed the complaint under sec. 203. A series of decisions on the Code further shows that as process was not issued the Plaintiff, Golap Jan, never became an accused; he was not a party to the investigation held under sec. 202 of the Criminal Procedure Code; nor was he entitled to claim under sec. 304, the right to be represented by a pleader at that investigation. If, as is said, he was present and was represented by a pleader, that was not by compulsion of law but of his own free will. In my opinion therefore Pugh, J., rightly decided that matters had not advanced to the stage necessary to support a suit for malicious prosecution.
I have not thought it necessary to refer to the English authorities as they can throw no certain light on the effect of the provisions of the Criminal Procedure Code by which (as it seems to me) we must be guided in determining whether or not there was in the circumstances of this case a prosecution. Still as a matter of general comment it may be noticed that Cotton, L.J., in Yates v. The Queen [L.R. 14 Q.B.D. 648 at p. 661 (1885).] , remarked-"how can it be said that a prosecution is commenced before a person is summoned to answer a complaint." And when he made this remark he CS No. 57509 of 2016 Mohd. Fafat Khan Vs. Veena Ahir Ors. Page No. 46 of 55 obviously had in mind, Clarke v. Postan [6 C. & P. 423 (1834).] , on which reliance has beta placed by the Plaintiff on this appeal.
But if the conditions requisite to a suit for malicious prosecution have not been established, does the plaint disclose facts otherwise entitling him to relief.
It has been suggested before us that the facts are such as disclose injury and loss and therefore relief should be awarded.
There are it is true certain wrongs akin to malicious prosecution which entitle the person aggrieved to sue, as for instance malicious abuse of the process of the Court, malicious arrest, malicious search, and malicious execution. But none of them are applicable to the facts of this case.
What then is the Plaintiff's grievance? There was no interference with his property, he did not become an accused, and his freedom was not directly in jeopardy. The utmost that he can aver is that he was defamed.
Now apart from certain qualifying conditions defamation is a good cause of action; but even if the complaint to the Magistrate was defamatory still the complainant was entitled to protection from suit, and this protection was the absolute privilege CS No. 57509 of 2016 Mohd. Fafat Khan Vs. Veena Ahir Ors. Page No. 47 of 55 accorded in the public interest to those who make statements to the Courts in the course of and in relation to judicial proceedings. I therefore hold that the plaint does not disclose facts entitling the Plaintiff to relief.
The result then is that in my opinion this appeal must be dismissed with costs."
(Emphasis is mine)
56. Next, I would refer to the decision of the Hon'ble High Court of Madras in Vattappa Kone v. Muthukaruppan Servai, 1940 SCC OnLine Mad 392, in which the Hon'ble High Court also held that a suit for malicious prosecution was not maintainable merely on the basis of a complaint to the magistrate. The facts in this case were that the defendants made a complaint to the magistrate against the plaintiff of theft. The magistrate ordered an enquiry by the police which made a report that the complaint was false. The magistrate thereupon declined to take any further action and dropped the proceedings. In these facts, the Hon'ble High Court held as under:
"From the facts which have been given above it would be clear that the plaintiff was not prosecuted and he could not for that reason, bring an action for damages for malicious prosecution. If any authority is required for that view, it would be found in Sheik Meeran Sahib v. Ratnavelu Mudali1 and in a later CS No. 57509 of 2016 Mohd. Fafat Khan Vs. Veena Ahir Ors. Page No. 48 of 55 decision of a Division Bench of this Court in Sanjeevi Reddy v. Koneri Reddy2. These two decisions were followed by Sir Owen Beasley in Arunachalam Mudaliar v. Chinnaswami Chetty3."
57. Thus, in the above authorities of the Hon'ble High Courts it was held that mere filing of complaint to the magistrate without issue of process would not give rise to cause of action for malicious prosecution. On a similar basis, I would hold that the mere filing of complaint to the police without anything more happening and the complaint having been withdrawn, there was no cause of action for malicious prosecution.
58. Next, I would refer to the decision of the Hon'ble Mysore High Court in Bolandanda Pemmayya v. Ayagadara Kushalappa, 1965 SCC OnLine Kar 19, ILR 1965 Mys 73 : AIR 1966 Mys 13 : (1965) 1 Mys LJ 389 . The facts in this case were that the defendants filed a complaint for theft against the plaintiff before the police and the police took no further action on the ground that it was false. In these facts, the Hon'ble High Court held as under:
"... ... ... Mr. G.P. Shivaprakash the learned Advocate appearing for the appellant has submitted that the plaintiff had no cause of action for his suit for malicious prosecution as the mere institution of a complaint before the Police does not amount to CS No. 57509 of 2016 Mohd. Fafat Khan Vs. Veena Ahir Ors. Page No. 49 of 55 prosecution for an offence. He further submitted that in order to entitle an agrrieved party to sue for malicious prosecution, he must show that some person or authority clothed with Judicial power was moved for action and that as a result of that action, which has been found to be false and suspicious, the plaintiff had proved to have suffered some damage. In support of this argument, he has relied upon the following passage from the judgment of the Judicial Committee of the Privey Council in Mohamed Amin v. Jogendra Kumar [A.I.R. 1947 P.C. 108.] :
"To found an action for damages for malicious prosecution based upon criminal proceedings the test is not whether the criminal proceedings have reached a stage at which they may be correctly described as a prosecution; the test is whether such proceedings have reached a stage at which damage to the plaintiff results. Their Lordships are not prepared to go as far as some of the Courts in India in saying that the mere presentation of a false complaint which first seeks to set the criminal law in motion will per so found an action for damages for malicious prosecution * * *."
3. In Dattatraya Panduranga v. Hari Keshav [A.I.R. 1949 Bom. 100.] the defendants lodged a first CS No. 57509 of 2016 Mohd. Fafat Khan Vs. Veena Ahir Ors. Page No. 50 of 55 information to the Police of a theft in their shop expressing their suspicious against the plaintiff who was their employee in the shop. The Police investigated into that offence, arrested the accused and finally discharged him as no evidence was forthcoming to show that the employee-plaintiff had committed the alleged theft. After his discharge the plaintiff instituted the suit for damages for malicious prosecution. It was held that the facts did not warrant a finding that there was a prosecution of the plaintiff by the defendants. In arriving at this decision the Court referred to the following passage from an earlier judgment of that Court in Dhanjishaw Karani v. Bombay Municipality [A.I.R. 1945 Bom. 320.] :
"To prosecute is to set the law in motion, and the law is only set in motion by an appeal to some person clothed with judicial authority in regard to the matter in question. The defendant must be the person who set the law in motion against the plaintiff. * * * Similar views have been expressed by this Court in Pandurang v. Dhondiba [1963 (1) Mys L.J. 292.] . The learned Advocate for the appellant has drawn my attention to the following passage from the judgment of Mr. Justice Kalagate:CS No. 57509 of 2016
Mohd. Fafat Khan Vs. Veena Ahir Ors. Page No. 51 of 55 "Then what is the real meaning to be given to the word 'prosecution'? It must be remembered that the institution of a legal proceeding by the defendant against the plaintiff maliciously and without reasonable and probable cause is actionable in tort on proof of damage either to his reputation or to his property. * * * In Clerk and Lindsell on Tort, 7th Edition, at page 637, there will be found the following passage:
'To prosecute is to set the law in motion and the law is only set in motion by an appeal to some person clothed with judicial authority in regard to the matter in question'.
In Halsbury's Laws of England Vol. 19, page 670, the word 'prosecution' is thus defined:
'A prosecution exists where a criminal charge is made before a judicial officer or Tribunal'.
These decisions clearly establish that the mere filing of a complaint before the Police, where such complaint is ordered to be filed in that office only and no judicial authority is set in motion as a consequence of such complaint, does not amount to prosecution. Reference may also be made to the decision cited by the learned Advocate for the CS No. 57509 of 2016 Mohd. Fafat Khan Vs. Veena Ahir Ors. Page No. 52 of 55 appellant, of the Madras High Court in S.T. Sahib v. Hasan Chani [A.I.R. 1957. Mad. 646.] .
4. Mr. Shivashankar Bhat appearing for the respondent submitted that on receipt of the complaint, the Sub-Inspector of Police had taken action by way of recording statement of the accused-plaintiff and by taking a search of the house. According to the learned Advocate, such action is virtually prosecution of that person for the offence complained of. The decisions which he has relied upon in support of his argument do not lend support to the view propounded by him. I have already quoted from the decision of the Bombay High Court in Dhanjishaw Karani v. Bombay Municipality [A.I.R. 1945. Bom. 320.] where the meaning of the word 'prosecution' has been explained with reference to the decisions of the British Courts. I may also point out that it has been clearly laid down in this decision also that the "gist of an action for malicious prosecution is that the defendant sets the Magistrate in motion."
There is nothing in the judgment which sustains the argument that the institution of a complaint with the Police by itself can form the foundation for an action claiming damages for malicious prosecution."
CS No. 57509 of 2016Mohd. Fafat Khan Vs. Veena Ahir Ors. Page No. 53 of 55 (Emphasis is mine)
59. Hence, as per the aforesaid authority, mere filing of a complaint to the police when no judicial authority is set into motion as a consequence thereof would not lead to cause of action for malicious prosecution.
60. In this view of the law, the plaintiff has no cause of action for malicious prosecution on the mere basis of filing of a criminal complaint to the police by the defendants which undisputedly came to be withdrawn by the defendants.
61. Furthermore, the defendant no.1 had deposed in her examination-in-chief by way of affidavit that for the sake of family reputation and family dignity and on the request of the plaintiff, she had made the statement to the investigating officer on 07.11.2015 with the intention to withdraw the complaint as the friends of the plaintiff and defendants pressurised her for amicable settlement. The defendant no.1 was cross-examined by the plaintiff himself who has prosecuted the suit in person. The plaintiff has not cross-examined the defendant no.1 at all on this aspect. Even no suggestion was given to the defendant no.1 suggesting that the withdrawal of the complaint was not due to the reasons as stated by the defendant in her affidavit. Once when the plaintiff has at the time of her cross-examination not impeached the version of the defendant no.1 that she had withdrawn the complaint due to pressure from common friends to CS No. 57509 of 2016 Mohd. Fafat Khan Vs. Veena Ahir Ors. Page No. 54 of 55 amicably settle the matter, even otherwise I would dismiss the claim of the plaintiff for malicious prosecution.
62. The Issues No. 2, 3 and 4 are decided accordingly.
DECISION
63. In the result, the suit is dismissed.
64. In the facts and circumstances of the case, parties to bear own costs.
65. Let the decree-sheet be drawn up accordingly.
66. File be consigned to record room after due compliance.
Digitally
signed by
Satyabrata
Satyabrata Panda
Panda Date:
2024.07.30
17:06:03
+0530
(SATYABRATA PANDA)
District Judge-04
Judge Code- DL01057
PHC/New Delhi/30.07.2024
CS No. 57509 of 2016
Mohd. Fafat Khan Vs. Veena Ahir Ors. Page No. 55 of 55