Delhi District Court
Sh. Dharamvir vs Smt. Raj Bala on 20 July, 2009
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IN THE COURT OF JITENDRA KUMAR MISHRA, ADJ
(CENTRAL)12, DELHI
Suit No. 07/03
Sh. Dharamvir
S/o Shri Nawal Singh
R/o Village Bankner
Post office Laam Pur
New Delhi ...........................Plaintiff
Versus
1 Smt. Raj Bala
W/o Late Sh. Ramesh
S/o Sh. Jeet Ram @ Jeeta
2 Sh. Inder Singh
S/o Sh. Jeet Ram @ Jeeta
Both R/o H. No. 437,Village Bankner
P. O. Laam Pur Delhi110040 ...........Defendant
Date of filing of suit: 07.01.2003
Reserved for judgment on: 08.07.2009
Date of pronouncement of judgment: 20.07.2009
Judgment
SUIT FOR RECOVERY OF RS. 4,90,000/
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1 This suit is filed by the plaintiff for recovery of damages for
amount of Rs. 4,90,000/. Brief facts as set in the plaint are:
(a) A complaint was filed on 27.08.1999 with
intend to cause injury to the plaintiff by defendants no.
1 to 4 and on the basis of this complaint, a case was
registered as FIR No. 267 dated 27.08.1999 u/s
376/511 IPC with Police Station Narela Industrial
Area, Narela, New Delhi.
(b) Defendant no. 1 in collusion with other
defendants and with common intention and object,
instituted the criminal proceedings against the plaintiff.
In pursuance of said FIR, plaintiff was arrested on
28.08.1998 at about 6.00 P.M. from his residence and
produced before the concerned Magistrate on
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29.08.1999 and was sent to jail and remained there up
to 03.09.1999.
(c) Prosecution was initiated against the plaintiff,
the case was tried and trial was concluded on
09.01.2002. Plaintiff was acquitted by Additional
Session Judge, Delhi vide judgment dated
09.01.2002.
(d) Plaintiff served a notice date 30.09.2002 through
his counsel to the defendant. Defendant no. 1 replied
this notice through her counsel on 25.10.2002 where
she refuted all allegations. She asserted that her
action against the plaintiff was right. Rest of the
defendant did not reply to the said notice. It is stated
that the prosecution was initiated by the defendant
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against the plaintiff which was terminated in his favour.
The said prosecution was without any reasonable and
probable cause. Defendants no. 3 and 4 were aware
with the false complaint was lodged by defendant no.
1 on behest of defendant no. 2 who was having enmity
with the plaintiff and wanted to take revenge from the
plaintiff. The said prosecution was initiated with a
view to harass the plaintiff in the society. Defendant
no. 1 is the wife of nephew of plaintiff. Defendant no.
2 is brother in law of (jija) of defendant no. 1 and both
are residing in the same house and husband of
defendant no. 1 who had expired and defendant no. 1
is dependent on defendant no. 2. Defendant no. 2
was having a grudge against the plaintiff as defendant
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no. 2 was involved in a criminal case FIR No.
113/1999 u/s 341/323 IPC which was registered on
10.04.1999 with the same Police Station and the trial
of the same is still pending in the court of concerned
Metropolitan Megistrate, Delhi. But plaintiff is one of
the important witness in that case and in order to
scare the plaintiff and to keep away from the witness
box against defendant no. 2, a case was got
registered by making influence upon the local police.
Defendant no. 2 used to give threats to the plaintiff
and the plaintiff had also made a complaint to the
local police.
(e) The acquittal of the plaintiff by trial court was on
merit which clearly established the injury caused to the
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plaintiff. For this reason, plaintiff is entitled to recover
damages for malicious prosecution initiated by the
defendant against the plaintiff.
2 Written Statement was filed by defendant no. 1 wherein she
stated that the complaint lodged by her against the plaintiff was
correct but she denied that the same was lodged with any
intention or object to cause any injury to the plaintiff. She further
states that the criminal proceedings were natural out come of the
criminal case and acquittal of plaintiff was, however, on technical
grounds and was a result of benefit of doubt. She denied that the
plaintiff has suffered any monetary loss or other losses for her
action. She denied rest of the allegations made by the plaintiff
against her.
3 Written statement was also filed by defendant no. 2 where it
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is stated that he has nothing to do with the present case as the
dispute was between the plaintiff and defendant no. 1 and he had
played no role. He admitted the fact that there was a rivalry
between him and the plaintiff. He stated that defendant no. 1 is
his near relative who is widow and it was his moral duty to assist a
widow lady. He denied the rest of the averments of the plaint.
4 Plaintiff filed separate replication to the written statements
of defendants no. 1 and 2 where he reiterated and affirmed the
contents of the plaintiff. Earlier, Sub Inspector Sh. Ravi Kant S. I.
and Sh. Sohan Vir Singh, Inspector jointly filed written statement.
However, My Ld. Predecessor by order dated 23.04.2004
dropped defendants no. 3 and 4 from the array of the parties and
their names were deleted from the memo of parties. Thus, as per
the amended memo of parties filed by plaintiff on 11.05.2004, this
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suit is survived only against defendants no. 1 and 2.
5 My. Ld. Predecessor by order dated 03.09.2003 framed
following issues:
Issue no. 1 Whether the suit is barred under section
140 of Delhi Police Act? OPD
Issue no. 2 Whether the suit is not maintainable in
its present form?
Issue no. 3 Whether the plaint does not disclose any
cause of action?
Issue no. 4 Whether the plaintiff is entitled to relief
claimed? OPP
Issue no. 5 Relief.
6 As already observed her in above that defendants no. 3
and 4 were already deleted from the memo of parties and thus
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issue no. 1 does not survive. Now only issues no. 2, 3, 4, and 5
have been survived for the purpose of adjudication.
7 To prove his case, plaintiff appeared as PW 1 and tendered
his affidavit in evidence. Constable Baldev Appeared as PW 2.
Mr. Shivinder Singh appeared as PW3 and Mr. Yashveer Singh
appeared as PW 4, ASI Sh. Ranbir Singh is appeared as PW 5
and thereafter plaintiff closed his evidence.
8 In defence, defendant no. 1 appeared as DW 1. Sh. Ranveer
Singh, UDC, Record Room Session, Tis Hazari Couts, Delhi
appeared as DW 2, Sh. B. K. Majumdar, Craft Instructor, Beggar's
HomeII, Lampur, Delhi appeared as DW 3, Constable Ashok
appeared as DW4, Constable Shiv Narayan appeared as DW5,
Sh. R. D. Dhaiya UDC, Department of Social Welfare Govt of NCT
of Delhi appeared as DW 6. Thereafter, defendant no. 1 closed
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her DE. Thereafter, defendant no. 2 appeared as DW 7. He was
examined, crossexamined and thereafter, defendant no. 2 closed
his evidence.
9 I have heard arguments of Sh. O. D. Gaur ld. counsel for the
plaintiff; Sh. B. S. Sharma, ld. counsel for defendant no. 1 and
Sh. Q. H. Khan, ld. counsel for defendant no. 2. I have gone
through the entire pleadings of the parties, appreciated the
evidence led by the parties and also perused the documents
proved by the parties. My issue wise findings are as under:
10 Issue no. 3 Whether the plaint does not disclose any
cause of action?
To decide this issue, first we have to understand the meaning
of phrase of 'malicious prosecution'. Since this issue revolves
around the crux of the controversy of the case, thus I am going to
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decide this issue first. Onus to prove this issue should be upon
the defendant. In the Law Lexicon by P. Ramanatha Aiyer,
second edition; Malicious prosecution is defined as :
'Malicious prosecution is a
prosecution on some charge of crime
which is wilful, wanton, or reckless, or
against the prosecutor's sense of duty
and right, or for ends he knows or its
bound to know are wrong and against
the dictates of public policy.
In malicious prosecution there are two
essential elements, namely, that no
probable cause existed for instituting
the prosecution or suit complained of,
and that such prosecution or suit
terminated in some way favorably to
the defendant therein.
The term 'malice,'as used in the
expression "malicious prosecution" is
not to be considered in the sense of
spite or hatred against an individual,
but of malus animus, and as denoting
that the party is actuated by improper
and indirect motives. (24A. 363=22
AWN 92 (Mitchell v. Jenkins, (1833), 5
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B and AD, 595 Fol.) see also 1 CWN
534.)
As a general rule of law, any person is
entitled though not always bound to
lay before a judicial officer information
as to any criminal offence which he
has reasonable and probable cause to
believe has been committed, with a
view to ensuring the arrest, trial, and
punishment of the offender. This
principle is thus stated in Lightbody's
case, 1882, 9 Rettie, 934. "When it
comes to the knowledge of anybody
that a crime has been committed a
duty is laid on that person as a citizen
of the country to state to the
authorities what he knows respecting
the commission of the crime, and if he
states, only what he knows and
honestly believes he cannot be
subjected to an action of damages
merely because it turns out that the
person as to whom he has given the
information is after all not guilty of the
crime. In such cases to establish
liability the pursuer must show that the
information acted from malie, i.e. 'not
in discharge of his public duty but from
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an illegitimate motive, 'and must also
prove that the statements were made
or the information given without any
reasonable grounds of belief, or other
information given without probable
cause ; and Lord SHAND added (p.
940): "He has not only a duty but a
right when the cause affects his own
property...........
MALICIOUS PROSECUTION means
that the proceedings which are
complained of, were initiated from a
malicious spirit, i.e, from an indirect
and improper motive, and not in
furtherance of justice. (10 CWN 253
(FB))'
Hon'ble Supreme Court in 'West Bangal State Electricity Board
Vs. Dilip Kumar Ray' reported as AIR 2007 SC 976 discussed it
in very detail. It is observed,
'MALICIOUS. Done with malice or
an evil design; wilful; indulging in
malice, harboring illwill, or enmity
malevolent, malignant in heart;
committed wantonly, wilfully, or
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without cause, or done not only
wilfully and intentionally, but out of
cruelty, hostility of revenge; done
in wilful neglect of a known
obligation.
MALICIOUS means with a fixed
hate, or done with evil intention or
motive; not the result of sudden
passion.
Malicious abuse of civil
proceedings. In general, a person
may utilize any form of legal
process without any liability, save
liability to pay the costs of
proceedings if unsuccessful. But
an action lies for initiating civil
proceedings. Such as action,
presentation of a bankruptcy or
winding up petition, an unfounded
claim to property, not only
unsuccessfully but maliciously and
without reasonable and probable
cause and resulting in damage to
the plaintiff. (Walker)
Malicious abuse of legal process.
A malicious abuse of legal process
consists in the malicious misuse or
misapplication of process to
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accomplish a purpose not
warranted or commanded by order
of Court the malicious perversion
of a regularly issued process,
whereby an improper result is
secured.
There is a distinction between a
malicious use and a malicious
abuse of legal process. An abuse
is where the party employs it for
some unlawful object not the
purpose which it is intended by the
law to effect; in other words, a
perversion of it.
Malicious abuse of process.
Wilfully misapplying Court process
to obtain object not intended by
law. The wilful misuse or
misapplication of process to
accomplish a purpose not
warranted or commanded by the
writ. An action for malicious abuse
of process lies in the following
cases, A malicious petition or
proceeding to adjudicate a person
an insolvent, to declare a person
lunatic or to wind up a company, to
make action against legal
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practitioner under the Legal
Practitioners Act, maliciously
procuring arrest or attachment in
execution of a decree or before
judgment, order or injunction or
appointment of receiver, arrest of
a ship, search of the plaintiff's
premises, arrest of a person by
police.
Malicious abuse of process of
Court.
Malicious act Bouvier defined a
malicious act as a wrongful act,
intentionally done, without cause
or excuse.
A malicious act is one committed
in a state of mind which shows a
heart regardless of social duty and
fatally bent on mischiefa wrongful
act intentionally done, without
legal justification or excuse.
'A malicious act is an act
characterised by a preexisting or
an accompanying malicious state
of mind.
Malicious Prosecution Malice.
Malice means an improper or
indirect motive other than a desire
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to vindicate public justice or a
private right. It need not
necessarily be a feeling of enmity,
spite or illwill. It may be due to a
desire to obtain a collateral
advantage. The principles to be
borne in mind in the case of
actions for malicious prosecutions
are these Malice is not merely the
doing a wrongful act intentionally
but it must be established that the
defendant was actuated by mains
animus, that is to say, by spite or
illwill or any indirect or improper
motive. But if the defendant had
reasonable or probable cause of
launching the criminal prosecution
no amount of malice will make him
liable for damages. Reasonable
and probable cause must be such
as would operate on the mind of a
discreet and reasonable man;
'malice' and 'want of reasonable
and probable cause' have
reference to the state of the
defendant's mind at the date of the
initiation of criminal proceedings
and the onus rests on the plaintiff
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to prove them.
OTHER DEFINITIONS OF
MALICIOUS PROSECUTION.
A judicial proceeding instituted by
one person against another, from
wrongful or improper motive and
without probable cause to sustain
it.
A prosecution begun in malice,
without probable cause to believe
that it can succeed and which
finally ends in failure.
A prosecution instituted wilfully
and purposely, to gain some
advantage to the prosecutor or
thorough mere wantonness or
carelessness, if it be at the same
time wrong and unlawful within the
knowledge of the actor, and
without probable cause.
A prosecution on some charge of
crime which is wilful, wanton, or
reckless, or against the
prosecutor's sense of duty and
right, or for ends he knows or is
bound to know are wrong and
against the dictates of public
policy.
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The term malicious prosecution
imports a causeless as well as an
illintended prosecution.
'MALICIOUS PROSECUTION is a
prosecution on some charge of
crime which is wilful, wanton, or
reckless, or against the
prosecutor's sense of duty and
right, or for ends he knows or is
bound to know are wrong and
against the dictates of public
policy.
In malicious prosecution there are
two essential elements, namely,
that no probable cause existed for
instituting the prosecution or suit
complained of, and that such
prosecution or suit terminated in
some way favorably to the
defendant therein.
1. The institution of a criminal or
civil proceeding for an improper
purpose and without probable
cause. 2. The cause of action
resulting from the institution of
such a proceeding. Once a
wrongful prosecution has ended in
the defendant's favour, lie or she
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may sue for tort damages Also
termed (in the context of civil
proceedings) malicious use of
process. (Black, 7th Edn., 1999)
The distinction between an action
for malicious prosecution and an
action for abuse of process is that
a malicious prosecution consists in
maliciously causing process to be
issued, whereas an abuse of
process is the employment of legal
process for some purpose other
than that which it was intended by
the law to effect the improper use
of a regularly issued process. For
instance, the initiation of vexatious
civil proceedings known to be
groundless is not abuse of
process, but is governed by
substantially the same rules as the
malicious prosecution of criminal
proceedings. 52 Am. Jur. 2d
Malicious Prosecution S. 2, at 187
(1970).
The term 'malice', as used in the
expression malicious prosecution
is not to be considered in the
sense of spite or hatred against an
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individual, but of malus animus,
and as denoting that the party is
actuated by improper and indirect
motives.
As a general rule of law, any
person is entitled though not
always bound to lay before a
judicial officer information as to
any criminal offence which he has
reasonable and probable cause to
believe has been committed, with
a view to ensuring the arrest, trial,
and punishment of the offender.
This principle is thus stated in
Lightbody's case, 1882, 9 Rettie,
934. When it comes to the
knowledge of anybody that a crime
has been committed a duty is laid
on that person as a citizen of the
country to state to the authorities
what he knows respecting the
commission of the crime, and if he
states, only what he knows and
honestly believes he cannot be
subjected to an action of damages
merely because it turns out that
the person as to whom he has
given the information is after all
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not guilty of the crime. In such
cases to establish liability the
pursuer must show that the
informant acted from malice, i.e.
'not in discharge of his public duty
but from an illegitimate motive,
and must also prove that the
statements were made or the
information given without any
reasonable grounds of belief, or
other information given without
probable cause; and Lord SHAND
added (p. 940) He has not only a
duty but a right when the cause
affects his own property.
Most criminal prosecutions are
conducted by private citizens in
the name of the Crown. This
exercise of civic rights constitutes
what with reference to the law of
libel is termed a privileged
occasion but if the right is abused,
the person injured thereby is, in
certain events, entitled to a
remedy. (See H. Stephen,
Malicious Prosecution, 1888,
Builen and Leake, Prec. P1., Clerk
and Lindsell. Torts, Pollock, Torts;
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LQR. April 1898; Vin, Abr., tit.
Action on the Case Ency. of the
Laws of England.)
MALICIOUS PROSECUTION
means that the proceedings which
are complained of were initiated
from a malicious spirit, i.e., from
an indirect and improper motive,
and not in furtherance of justice.
(10 CWN 253 (FB))
The performance of a duty
imposed by law, such as the
institution of a prosecution as a
necessary condition precedent to
a civil action, does not constitute
malice. (Abbott v. Refuge
Assurance Co., (1962) 1 QB 432.)
Malicious prosecution thus differs
from wrongful arrest and
detention, in that the onus of
proving that the prosecutor did not
act honestly or reasonably, lies on
the person prosecuted. (per
Diplock U in Dailison v. Caffery,
(1965) 1 QB 348)). (Stroud, 6th
Edn., 2000).
'Malice' means and implies spite
or illwill. Incidentally, be it noted
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that the expression mala fide is not
meaningless jargon and it has its
proper connotation. Malice or mala
fides can only be appreciated from
the records of the case in the facts
of each case. There cannot
possibly be any set guidelines in
regard to the proof of mala fides.
Mala fides, where it is alleged,
depends upon its own facts and
circumstances. See Prabodh
Sagar v. Punjab State Electricity
Board and others, (2000) 5 SCC
630. 2000 AIR SCW 1656
The legal meaning of 'malice' is ill
will or spite towards a party and
any indirect or improper motive in
taking an action. This is
sometimes described as malice in
fact. Legal malice or malice in law
means something done without
lawful excuse. In other words, it is
an act done wrongfully and willfully
without reasonable or probable
cause, and not necessarily an act
done from ill feeling and spite. It is
deliberate act in disregard of the
rights of others. See State of A.P.
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v. Govardhanlal Pitti, (2003) 4
SCC 739. 2003 AIR SCW 1430
The word malice in common
acceptation means and implies
spite or ill will. One redeeming
feature in the matter of attributing
bias or malice is now well settled
that mere general statements will
not be sufficient for the purposes
of indication of illwill. There must
be cogent evidence available on
record. In the case of Jones Bros.
(Hunstanton) Ltd. v. Stevens,
(1955) 1 QB 275 (1954) 3 All ER
677 (CA), the Court of Appeal has
reliance on the decision of Lumley
v. Gye, (1853) 2 E and B 216 22
LJQB 463 as below For this
purpose maliciously means no
more than knowingly. This was
distinctly laid down in Lumley v.
Gye, (1853) 2 E and B 216 22
LJQB 463 where Crompton, J.
said that it was clear law that a person who wrongfully and maliciously, or, which is the same thing, with notice, interrupts the relation of master and servant by 25 Page of 40 26 harbouring and keeping the servant after he has quitted his master during his period of service, commits a wrongful act for which he is responsible in law.
Malice in law means the doing of a wrongful act intentionally without just cause or excuse Bromage v.
Prosser, (1825) 1 C and P 673 4 B and C 247. Intentionally refers to the doing of the act; it does not mean that the defendant meant to be spiteful, though sometimes, as for instance to rebut a plea of privilege in defamation, malice in fact has to be proved. See State of Punjab v. U.K. Khanna and others, (2001) 2 SCC 330. 2000 AIR SCW 4472 Malice in law. Malice in law is however, quite different. Viscount Haldane described it in Shearer Shields, (1914) AC 808 as A person who inflicts an injury upon another person in contravention of the law is not allowed to say that he did so with the innocent mind he is taken to know the law, and 26 Page of 40 27 he must act within the law. He may, therefore, be guilty of malice in law, although, so far the state of mind is concerned, he acts ignorantly, and in that sense innocently. Malice in its legal sense means malice such as may be assumed from the doing of a wrongful act intentionally but without just cause or excuse, or for want of reasonable or probable cause. See S. R. Venkataraman v.
Union of India, (1979) 2 SCC 491.
AIR 1979 SC 49 Maliceper common law. Malice in common law or acceptance means ill will against a person, but in legal sense means a wrongful act done intentionally without just cause or excuse. See Chairman and M. D., B.P.L. Ltd. v. S. P. Gururaja and others, JT 2003 (Suppl 2) SC 515 and Chairman and MD, BPL Ltd. v. S. F. Gururaja and others, (2003) 8 SCC 567. 2003 AIR SCW 5298 While it is true that legitimate indignation does not fall within the 27 Page of 40 28 ambit of 2000 AIR SCW 3826 malicious act, in almost all legal inquiries, intention, as distinguished from motive is the all important factor. In common parlance, a malicious act has been equated with intentional act without just cause or excuse. See Jones Bros. (Hunstanton) v.
Stevans (1955) 1 QB 275 (1954) 3 All ER 677 (CA). Kumaon Mandal Vikas Nigam Ltd. v. Girja Shankar Pant and others, (2001) 1 SCC 182.
11 Now, I have to consider the evidence led by the parties in this case in the light of law laid down by superior courts. Affidavit of plaintiff, given in the evidence is on the line of contents of the plaint. In the cross examination, he admitted that he was given a benefit of doubt in the criminal case by the court of Smt. Bimla Makin, Additional Session Judge, Delhi. He admitted that he never made any complaint to the superior officer of the police 28 Page of 40 29 department that a false case was registered against him deliberately and maliciously by the defendants. I also perused Ex.
PW1/A which is certified copy of FIR bearing no. 267/99 registered with Police Station Narela Industrial Area, Delhi. The said FIR was registered at the information of defendant no. 1 where she stated that defendant no. 1 to outrage her modesty attacked upon her. However, no where she stated that plaintiff did any act towards any attempt to commit her rape. It was only an information about the fact of outrage of the modesty of defendant no. 1 it was only the police officials who got registered FIR for attempt of rape.
12 Now, I have to again consider the legal position in this case. In para 15 of judgment 'Surat Singh Vs Delhi Municipal Corpn.' AIR 1989 DELHI 51 it was observed :
29 Page of 40 30 "Malice in its ordinary meaning is the wish, desire or intention to hurt one. In Salmond and Heuston Law of Torts the learned authors say that "malice means the presence of some improper and wrongful motivethat is to say, an intent to use the legal process in question for some other than its legally appointed and appropriate purpose. It can be proved either by showing what the motive was and that it was wrong, or by showing that the circumstances were such that the prosecution can only be accounted for by imputing some wrong or indirect motive to the prosecutor." In certain circumstances want of reasonable cause has been held to be sufficient evidence of malice when there is sufficient evidence that here was no genuine belief in the accusation made..............."
It is further observed in para 14 of this judgment, "In a suit for malicious prosecution in order to succeed the plaintiff must prove that the following conditions have been fulfilled : (1) that the criminal proceedings were instituted by the defendant; (2) that in doing so the defendant acted without 30 Page of 40 31 reasonable and probable cause; (3) that the defendant acted maliciously and (4) that the criminal proceedings terminated in favour of the plaintiff in his acquittal or discharge and that the defendant was unsuccessful.........
13 If tests laid down in this judgment be applied in the present case then it emerges out that circumstances pointed towards the fact that there was reasonable cause of institution criminal prosecution against the plaintiff when it is himself admitted by the plaintiff that plaintiff torn away the clothes of defendant no. 1 during the cross examination of DW1. A suggestion was put by the plaintiff to DW 1 that plaintiff torn away her cloths and the said suggestion was admitted by DW1. He further suggested that the fact of attempting molestation is mentioned in her FIR. It is further suggested that on the date of incident she was rescued by Vijay.
31 Page of 40 32 Thus, it is the case of the plaintiff himself that there was an attempt of molestation by the plaintiff. He further suggested to DW 1 that there was compromise between him and the plaintiff and the said suggestion was denied by DW 1. Thus, plaintiff has put his case to the extent of compromise of dispute which indicates that there was reasonable and probable cause for criminal proceedings initiated by DW 1 and to avoid that prosecution, he was even ready for compromise prior to any litigation between the parties. Similar suggestion was also given to DW 7 by the plaintiff when it was suggested that defendant no.
2 along with defendant no. 1 and Sh. R. K. Khatri, got framed a criminal case for attempt of rape against the plaintiff instead of a case under Section 323, 353 and 354 IPC.
14 Thus, it is the case of the plaintiff himself that the case was 32 Page of 40 33 ought to be registered against the plaintiff under Section 323, 354 IPC but it is nowhere suggested by the plaintiff to any of the witness of the defendant that a case under Section 376, 511 IPC was registered against the plaintiff by any cogent effort of defendants no. 1 & 2. Admitted fact is that defendant no. 1 made information to the police about the incident where it was not reported that an attempt of rape was committed but only the police official registered a case under Section 376/511 IPC against the plaintiff.
15 Judgment given by our Hon'ble High Court in 'Vijeder Kumar Vs Ved Prakash Gupta' 141 (2007) DLT 814 where it was held :
"'Malicious prosecution' means that the proceedings which are complained of were initiated from a malicious spirit, i.e., from an indirect 33 Page of 40 34 and improper motive, and not in furtherance of justice. (10 CWN 253 (FB))."
16 If this judgment is to be applied to the facts of the present case then it can be safely said that the prosecution against the plaintiff was not malicious or malafide motive rather it was based upon an incident occurred and admitted by the plaintiff himself during the evidence of defendant no. 1 i.e. DW 1. I have no hesitation to observe that there was not an act of malice of defendant no. 1 against the plaintiff.
17 In another case 'C. M. Agarwalla Vs Halar Salt and Chemical Works and others', AIR 1977 CALCUTTA 356. Where in para 6 it is observed.
"........Although the decision of the criminal court is not binding on a Civil Court for the purpose of coming to the 34 Page of 40 35 conclusion whether the prosecution was malicious or not and the Civil Court will have to go itself in the question of reasonable and probable cause and also of malice but the acquittal of the plaintiff in the criminal case is a sure proof of the termination of the criminal proceedings in favour of the plaintiff. The plaintiff will have to make out his case independently and the Civil Court has to conduct an independent enquiry as to the presence or absence of reasonable and probable cause. 'Malice' in an action for malicious prosecution does not mean wrongful intention or recklessness but it is construed more narrowly to show that the prosecution was inspired by some motive other than a desire to bring to justice a person whom he honestly believes to be guilty. In case where charges are found to be false and false to the knowledge of the defendants not only lack of reasonable and probable cause is there but also malice may be inferred. As malice is a question of fact on the evidence laid before a court 35 Page of 40 36 it will have to decide whether there was malice or not."
18 If I apply this judgment to the facts of the present in this case then also I have to come upon the conclusion that there was reasonable cause for defendant no. 1 to prosecute the plaintiff as she reported about the incident of outrage of her modesty but it was only the police officials who registered criminal case of attempt of rape against the plaintiff.
In another judgment 'Ram Singh Batra Vs Sharan Premi' 133 (2006) DLT 126 observed that:
"Law is clear. Malicious prosecution is actionable as a tort. But, ingredients to be proved by the plaintiff in an action for malicious prosecution are:
(i) that plaintiff was prosecuted at he instance of the defendant;
(ii)that the prosecution terminated in favour of the plaintiff;
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(iii)that the prosecution was malicious; and that it was without reasonable and probable cause."
19 Thus, it can be safely and surely said that the defendant no. 1 was justified to institute criminal prosecution against the plaintiff when it looked into the light of suggestions put by the plaintiff during the cross examination of defendants' witnesses and document proved by the plaintiff as Ex. PW1/A. 20 Ld. counsel for defendant further relies upon 'Hussenuddin Vs. Kisan' AIR 1929 Nagpur 260 where it is observed:
'.......The plaintiff can establish the other facts necessary to entitle him to damages without proving his innocence; but if he relies on the falsity of the complaint to establish those other facts he must, in fact prove his innocence by proving the complaint to be false; and he cannot 37 Page of 40 38 do this, as has been held in Gobardhan Singh v. Ram Badan Singh (2) by simply putting in the judgment of the criminal Court which acquitted him.'
21 Ld. counsel for defendant further relies upon para 7 of 'Bharat Commerce and Industries Ltd. Vs. Surendra Nath Shukla and others' AIR 1966 Calcutta 388 (V 53 C 66) as observed:
'In the suit for malicious prosecution, the plaintiff must prove (1) that the defendant prosecuted him, and (2) that the prosecution ended in the plaintiff's favour, and (3) that the prosecution lacked reasonable and probable cause, and (4) that the defendant acted maliciously. In the instant case, admittedly there was a prosecution and an acquittal. The only question that we shall have to find out on the facts and circumstances of this case is whether the prosecution under Ss. 408 and 420 I.P.C. lacked reasonable and probable cause and 38 Page of 40 39 whether Bharat Airways Ltd. acted maliciously. In the past, "malice" was identified with 'lack of reasonable and probable cause"" and often malice was inferred from lack of reasonable and probable cause and vice versa. But the present state of law seems to be that the concept of malice is to be kept distinct from the concept of lack of reasonable and probable cause.
Ordinarily, malice denotes spite or hatred against an individual but it is often difficult to infer spite or hatred from the conduct of a person. It is said that the devil does not know the mind of man. Therefore, the ordinary meaning of malice cannot be determined by any subjective standard........' 22 Now, the factual position emerges out that it was not the defendant no. 1 who has registered a case of attempt of rape.
She had only reported the incident of molestation or outrage of her modesty but it was the police officials who had registered the 39 Page of 40 40 case of attempt of rape. However, case against the police official already dropped by order dated 23.04.2004 and said order is remained unchallenged.
23 In view of the observations made herein above, I decide this issue in favour of defendants and against the plaintiff as there is no cause of action to institute a case against defendant by the plaintiff. Accordingly this issue is decided in favour of defendant and against the plaintiff.
24 Issue no. 2 Whether the suit is not maintainable in its present form?
Since issue no. 3 is already decided in favour of defendants and for this reason this issue is also decided in favour of defendants keeping in view the observations made during the adjudication of issue no. 3. This issue is also decided against the plaintiff.
40 Page of 40 41 25 Issue no. 4 Whether the plaintiff is entitled to relief claimed? OPP Since, issue no. 3 is already decided against the plaintiff where it is already observed that plaint does not disclose any cause of action against the defendants and for this reason plaintiff is not entitled for any relief to claim damages. Thus, this issue is also decided against the plaintiff and in favour of defendants.
26 In view of the observations and discussions made herein above, this suit is dismissed without order of costs. Decree sheet be drawn accordingly. File be consigned to record room.
Announced in open court on 20.07.2009 Jitendra Kumar Mishra ADJ (Central)12, Delhi 41 Page of 40 42 42 Page of 40 43 43 Page of 40