Patna High Court
Narain Pande And Ors. vs Gaya Rai And Ors. on 8 November, 1937
Equivalent citations: 174IND. CAS.388, AIR 1938 PATNA 147
JUDGMENT Fazl Ali, J.
1. This appeal arises out of a suit for malicious prosecution which was dismissed by the trial Court but decreed on appeal. It appears that the plaintiff-respondents; were prosecuted for having committed a dacoity on March 22, 1931, and though the Police submitted a charge sheet against them they were discharged by the Magistrate on May 25, 1931. Subsequently they brought the present suit against the appellants claiming damages from them on the ground that the latter had conspired to implicate them in a false case out of malice. The short point which is urged on behalf of the appellants in the appeal is that there is no evidence to prove that the criminal proceedings against the plaintiffs were, to use the words of their Lordships of the Judicial Committee in Balbhadar Singh v. Budri Sah 7 P.L.T. 591 : 95 Ind. Cas. 329 : A.I.R. 1926 P.C. 46 : 24 A.L.J. 453 : 3 O.W.N. 499 : 43 C.L.J. 521 : 28 Bom. L.R. 921 : (1926) M.W.N. 482 : 51 M.L.J. 42 : 30 C.W.N. 866 : 29 O.C. 163 : 1 Luck. 215(P.C.), invented and instigated by the appellants. It may be stated here that the first information upon which the Police started the investigation of the dacoity was lodged by a chaukidar, the names of the dacoits not being mentioned therein. The Police Officer, however, who investigated the case being satisfied that a prima facie case had been made out against the respondents submitted a charge sheet. This was the origin of the proceedings against the plaintiffs.
2. The obvious flaw in the plaintiffs' case is that they have neither tendered in evidence the deposition of the defendants nor have they examined the Investigating Officer. Thus there is no proof on the record either of the actual statements made by the defendants before the Police or of the fact that it was as a result of the statement made by them that the Police submitted a charge sheet in the case. The plaintiffs, however, attempted to prove by direct evidence that the defendants had conspired to bring a false charge against them and the witnesses examined by them went to the length of stating that they had actually heard certain conversations held among the defendants which were sufficient to establish the charge of conspiracy. These witnesses, however, were totally discredited by the trial Court and no reference has been made to their statements by the learned Subordinate Judge who heard the appeal from its judgment. The learned Subordinate Judge, however, has referred to the following circumstances which; in his opinion, are sufficient to prove conspiracy: (1) that although in Paragraph 5 of the plaint it was definitely stated by the plaintiffs that with a view to harass them, the defendants had conspired together and falsely stated before the Police that they had participated in the dacoity; this statement has not been specifically denied by the defendants; (2) that the defendants have admitted that their statements before the Police and the Criminal Court were true and (3) that defendant No. 1 who is the priest of defendant No. 2 is inimical with the plaintiffs, and defendants Nos. 3 to 6 are raiyats of defendant No. 1. A mere reference to the written statement filed on behalf of the defendants will show that the, first proposition is entirely incorrect. In the written statements filed both on behalf of defendants Nos. 1 and 2 and 3 to 6 there is a clear assertion that the defendants did not enter into any conspiracy with a view to harass or implicate the plaintiffs in a false case.
3. The second proposition stated by the learned Subordinate Judge is entirely inconclusive. The mere fact that the defendants have stated in their written statement or in their evidence that the statements made by them before the Police were correct does not necessarily show either that they conspired together to implicate the plaintiffs or that the Police were induced to submit a charge sheet in consequence of their statements. The third proposition does not also necessarily lead to the conclusion which the learned Subordinate Judge seems to have drawn from it. It was pointed out in Ramdhuri Choudhary v. Deonandan Prasad Singh 3 P.L.T. 501 : 77 Ind. Cas. 957 : A.I.R. 1922 Pat. 507 : 2 Pat. 65, that:
Where certain facts are found and an inference is drawn from the facts so found, it is open to the Court in second appeal to consider whether as a matter of law such inference is justified by the facts found.
4. In my opinion, the inference which has been drawn by the learned Subordinate Judge does not follow from the facts found by him and his decision is, therefore, open to challenge on that ground in second appeal. The learned Advocate for the respondents contends that the case in Ramdhuri Choudhary v. Deonandan Prasad Singh 3 P.L.T. 501 : 77 Ind. Cas. 957 : A.I.R. 1922 Pat. 507 : 2 Pat. 65, was a case relating to fraud, whereas the question in the present case is whether there was any conspiracy among the defendants or not. He goes further and contends that it was not necessary for the plaintiffs to prove the alleged conspiracy. The answer to the first contention is that whether the evidence is directed to prove fraud or conspiracy, the principle enunciated by this Court in Ramdhuri Choudhary v. Deonandan Prasad Singh 3 P.L.T. 501 : 77 Ind. Cas. 957 : A.I.R. 1922 Pat. 507 : 2 Pat. 65, will equally apply because that principle applies to all circumstantial evidence and amounts simply to this, that the inference drawn from such evidence must be one which necessarily flows from it. As to the second contention, it is quite plain that if the charge of conspiracy is not proved, the plaintiffs cannot show that all the defendants were responsible for inventing and instigating the criminal proceedings and so their case must fail. As matters stand at present, all that we know is that the defendants persist in their allegation that the statements made by them before the Police were true and they also maintain that the story of the dacoity was a true one. We do not, however, know in what order these witnesses were examined before the Police, what specific statements were made by them and which of the plaintiffs were named by which of the defendants and whether the Police had, apart from their statements, other materials which would have been sufficient to induce them to submit a charge sheet or not. There is certainly nothing in the judgment of the lower Appellate Court to show that had it not been for the statements made by the defendants before the Police, the Police would not have instituted any proceedings against the plaintiff. In Balbhadar Singh v. Budri Sah 7 P.L.T. 591 : 95 Ind. Cas. 329 : A.I.R. 1926 P.C. 46 : 24 A.L.J. 453 : 3 O.W.N. 499 : 43 C.L.J. 521 : 28 Bom. L.R. 921 : (1926) M.W.N. 482 : 51 M.L.J. 42 : 30 C.W.N. 866 : 29 O.C. 163 : 1 Luck. 215(P.C.),their Lordships of the Judicial Committee have undoubtedly laid emphasis on the fact that inasmuch as in India prosecution is not private, an action for malicious prosecution will lie against even a private individual, if he is proved to have given information to the authorities which naturally leads to prosecution. But they clearly pointed out that there were in the particular case which was before them clear statements made by two persons named Teja and Raghunath which covered the same ground as that made by the principal defendant Badri Sah and observed:
But it must be kept in view that, so far as the Police were concerned, there was ample cause for the initiation of prosecution proceedings. There were the clear narratives of two people, Raghunath and Teja, concurrent in all necessary particulars. The appellants must, therefore, go the whole way. There is no halfway point of rest. They must show that Badri Sah invented the whole story as far as it implicated the appellants and tutored Raghunath and Teja to say it. That is a very heavy onus of proof, and unless they sustain it, the appellants must fail.
5. In my opinion the learned Subordinate Judge in deciding this case overlooked the true significance and meaning of these observations and did not apply his mind to the fact that there is in the present case a total absence of evidence to show that the statements made by the defendants before the Police were directly and primarily responsible for the prosecution of the plaintiffs. As this was one of the principal points in this action, the plaintiffs' suit is bound to fail on this ground alone, and it is not necessary to discuss the question of malice or want of reasonable and probable cause. There is, however, another Substantial point which arises in this appeal and it relates to the question of abatement. It appears that appellant No. 3 died on August 29, 1936, and her heirs have not yet been substituted. In law, therefore, so far as her appeal is concerned, it must be deemed to have abated Order XLI, Rule 4, however, provides that:
Where there are more plaintiffs or more defendants than one in a suit, and the decree appealed from proceeds on any ground common to all the plaintiffs or to all the defendants, any one of the plaintiffs or of the defendants may appeal from the whole decree, and thereupon the Appellate Court may reverse or vary the decree in favour of all the plaintiffs or defendants, as the case be.
6. This provision was construed by a Division Bench of the Calcutta High Court in Satulal Bhattacharjee v. Asiruddi Sheikh 61 C. 879 : 154 Ind. Cas. 147 : A.I.R. 1934 Cal. 703 : 59 C.L.J. 362 : 38 C.W.N. 743 : 7 R.C. 438, and it was held that it also applied to the case of an appellant whose appeal has abated by his death. With this view I respectfully agree, because the effect of the abatement is that to all intents and purposes there is no appeal on behalf of the appellant whose appeal has abated. The only question therefore which arises for consideration is whether in the present case the decree appealed from proceeds on any ground common to all the defendants or not. Now the case of the plaintiffs being that the defendants had conspired to implicate them falsely in the case, no decree could be passed against the defendants unless the charge of conspiracy was proved. The decree appealed from thus proceeds on a ground which is common to all the defendants and therefore in my judgment the provisions of Order XLI, Rule 4, are applicable to this case. In these circumstances I would allow this appeal, set aside the judgment and the decree of the lower Appellate Court and dismiss the plaintiffs' suit. The parties are directed to bear their own costs throughout. Leave to appeal under Letters Patent is refused.