Delhi District Court
Mohd. Naeem Qureshi vs Dost Mohd. @ Dosi And Ors on 18 July, 2024
IN THE COURT OF DISTRICT JUDGE-05, CENTRAL DISTRICT,
TIS HAZARI COURTS, DELHI
Presided by:-
Sh. Abhishek Srivastava, DHJS
RCA DJ No. 48/2017
CNR No. DLCT01-002433-2017
Mohd. Naeem Qureshi
S/o Late Babuddin
R/o 98-99, Chhatta Lal Mian,
Darya Ganj, New Delhi ........Appellant
Vs.
1. Dost Mohd. @ Dosi
S/o Late Swhaleen
2. Faizan
S/o Late Swhaleen
3. Smt. Rehana
W/o Late Swhaleen
All R/o C-6, Umar Apartment,
Gali Chaman Wali, Delhi ......Respondents
Date of Institution : 15.02.2017
Date of Judgment: 18.07.2024
Appeal against the judgment dated 09.01.2017 passed by Ld. Civil Judge, Central
Tis Hazari Courts, Delhi in Suit No. 08/2014 titled as "Mohd. Naeem Qureshi Vs.
Dost Mohd. @ Dosi & Ors."
RCA DJ No. 48/2017 1/27
Mohd. Naeem Qureshi Vs. Dost Mohd. @ Dosi & Ors.
dated 18.07.2024
JUDGMENT
1. This is the first appeal challenging the judgment dated 09.01.2017 (henceforth 'impugned judgment'), passed by the Court of Ld. Civil Judge, Central District, Tis Hazari Courts, Delhi (henceforth 'Ld. Trial Court') in Suit No. 08/2014, Mohd Naeem Qureshi V/s Dost Mohd @ Dosi and Ors. (henceforth 'Subject suit'), whereby, the Suit of the appellant/ plaintiff (in Suit No. 08/2014) for damages of Rs. 2,00,000/- (Rupees two lakh only) was dismissed. Appellant herein was the plaintiff and the respondents (No. 1 to
3) herein were defendants (No. 1 to 3) in Trial Court proceedings. BRIEF FACTS OF THE CASE
2. Case of the appellant/ plaintiff is that he along with his family was residing in a part of property No. 98 and 99, Chhatta Lal Mian, Darya Ganj, New Delhi and that the defendants were also residing there. That the defendants illegally and without authorisation from the concerned department had demolished a part of property No. 98 and had done some construction work in property No. 99. This led to the filing of a complaint with police/ MCD at the instance of the plaintiff against the defendants. Since no steps were taken by the authorities, the plaintiff had to file a Suit for permanent injunction before the Ld. Civil Judge, Tis Hazari Courts against the defendant No. 1, the defendant No. 3 and the MCD wherein an injunction order was passed vide order dated 18.02.2012 restraining the defendants from further construction. Subsequent to the passing of the injunction order, the attitude of the defendants became more hostile and aggressive toward the plaintiff and they started extending threats to the plaintiff. Plaintiff as such had to lodge complaints with the police. Thereafter, as a counter-blast the RCA DJ No. 48/2017 2/27 Mohd. Naeem Qureshi Vs. Dost Mohd. @ Dosi & Ors.
dated 18.07.2024 defendant No. 3 along with her son defendant No. 2 lodged a false complaint against the plaintiff and his brothers. Plaintiff and his brothers were detained in a police station for a very long time. A kalandara under Section 107 read with Section 150 Cr.P.C. was prepared and the same was forwarded to the Ld. Special Executive Magistrate (Ld. SEM). Later, the plaintiff and his brothers were eventually discharged in the said case. The plaintiff alleged that he had to bear the ignominy of being detained by the police which tarnished his and his family's reputation. In order to redeem his lost prestige and to penalise the defendants for maliciously prosecuting him, the plaintiff filed the present suit for recovery of damages for malicious prosecution.
3. Defendants appeared in response to the summons of the suit. Written statement was filed on behalf of the defendants. Defendants questioned the locus standi of the plaintiff to file the present suit, stating that the plaintiff had failed to disclose in the plaint as to in what capacity he was residing in property No. 98 and 99, Chhatta Lal Mian, Darya Ganj, New Delhi and on the basis of which documents, was he claiming a right therein. Defendants further refute the plaintiff's version that they had demolished the entire structure of the property No. 98 and raised a new structure, in contravention of building bye-laws. They assert that they had undertaken only repair works in the existing structure. The defendants also refused that they had been extending threats to the plaintiff. In fact, it was the plaintiff who was trying to arm-twist the defendants to relinquish their claim in the property and deliver the possession thereof to the plaintiff. Defendants claim that the plaintiff had filed a false complaint against the defendants with a malafide intent to intimidate them into handing over the vacant possession of the RCA DJ No. 48/2017 3/27 Mohd. Naeem Qureshi Vs. Dost Mohd. @ Dosi & Ors.
dated 18.07.2024 property. Defendants pleaded that since complaints of the plaintiff were without substance, authorities including police did not act on them. Defendants vehemently denied the charge that they had filed a false complaint against the plaintiff after deliberately inflicting injuries on themselves.
4. Plaintiff thereafter filed the replication wherein averments made in the plaint have been reiterated and contents of written statement have been denied.
5. On the basis of the pleadings of the parties, the following issues were settled by the Ld. Trial Court vide order dated 15.04.2014:-
(1) Whether the plaintiff is entitled to a decree of damages, as sought in the prayer clause (A) of the plaint ? OPP (2) Whether the plaintiff is entitled to any interest on the damages ? If yes, at what rate and for what period ? OPP (3) Relief.
6. In order to substantiate his case, the plaintiff examined five witnesses.
Plaintiff had examined himself as PW1; Mohd. Naseem, his younger brother, as PW2; Sh. Rajesh Kumar, JJA, Record Room (Civil), Tis Hazari Courts, Delhi, as PW3; ASI Ali Jaan, PS Chandni Mahal, Delhi, as PW4; and HC Sikandar Singh, PS Kamla Market, Central District, Delhi, as PW5. On the other hand, from the side of the defendants, Sh. Mohd. Faizan, the defendant No. 2, was examined as DW-1.
FINDINGS OF THE LEARNED TRIAL COURT
7. After hearing arguments on behalf of both the parties and upon appreciation of evidence led on their behalf, Ld. Trial Court vide impugned judgment dated 09.01.2017, while deciding both the issues against the plaintiff, RCA DJ No. 48/2017 4/27 Mohd. Naeem Qureshi Vs. Dost Mohd. @ Dosi & Ors.
dated 18.07.2024 dismissed the Suit of the plaintiff. Findings of the Ld. Trial Court may be summarised as follows:-
(a) Mere preparation of a kalandara can not be termed as malicious prosecution of the plaintiff. Proceedings before police authorities do not constitute prosecution and hence, the question of malicious prosecution will not arise. In the present case, as no judicial authority had stepped in per se, it can not be said that the plaintiff had been maliciously prosecuted by the defendant.
(b) The plaintiff relied on the MLC of Rehana (defendant No. 3) and Faizan (defendant No. 2) to show that the injuries to the defendants were self inflicted, however the plaintiff failed to summon and examine the doctor who had prepared the MLC. In the absence of the doctor being cross-examined, the evidentiary value of the MLCs placed on record are considerably eroded.
(c) Plaintiff has failed to prove the damage that actually caused to him, a fact, proof of which is a prerequisite for a success in a suit for malicious prosecution.
(d) The plaintiff has failed to examine any witness to the effect that his reputation had been tarnished or that his image had suffered a blow in the eyes of rightful thinking and respectable members of the society.
(e) The plaintiff has failed to place on record any documentary proof regarding the fact that the plaintiff and his brothers were detained in a police station for a very long time.
(f) Though there are a few infirmities in the case of the defendants too, however, it is a well settled legal proposition that the plaintiff's case RCA DJ No. 48/2017 5/27 Mohd. Naeem Qureshi Vs. Dost Mohd. @ Dosi & Ors.
dated 18.07.2024 should rest on independent and sure foundations and the plaintiff can not be entitled to a decree only on the basis of the deficiencies in the case of the defendants.
GROUNDS OF APPEAL
8. The aforesaid judgment has been challenged by the plaintiff in the present appeal inter alia on the following grounds :-
(A) That the Ld. Trial Court failed to appreciate that the Kalandara is not a complaint to police. Kalandara is forwarded for adjudication to Special Executive Magistrate and as per the provisions of Cr.P.C., Special Executive Magistrate (SEM) is a Court. (B) The finding of the Ld. Trial Court that in the absence of the doctor being cross-examined, the evidentiary value of the MLCs placed on record are considerably eroded is contrary to the evidence on record. PW5 HC Sikander Singh had appeared from the Court of Ld. SEM, Kamla Market, Delhi to prove the facts related to Kalandara proceedings including the MLCs of the defendants. The MLCs were exhibited as PW5/6 and Ex.PW5/7. It is a matter of record that the MLCs, which were used to falsely implicate the plaintiff, were part of judicial proceedings before the Ld. SEM and its authenticity were never challenged/ questioned at any point of time including during cross-examination of PW5. (C) Finding of the Ld. Trial Court that the plaintiff has failed to prove the damage that actually caused to him is liable to be reversed (i) because the plaintiff in his examination-in-chief had specifically stated that the plaintiff is a highly reputed person belonging to well RCA DJ No. 48/2017 6/27 Mohd. Naeem Qureshi Vs. Dost Mohd. @ Dosi & Ors.
dated 18.07.2024 connected and reputed family and the plaintiff had suffered loss due to harm caused by the defendants to the reputation and goodwill of the plaintiff and no cross-examination was done on this aspect and not a single suggestion is given to the witness, (ii) because in support of his case the plaintiff examined his younger brother Mohd. Naseem as PW2 who deposed in the same line as of the plaintiff and nothing came on record in cross-examination damaging his credibility, (iii) because the plaintiff had summoned a witness PW4 from PS Chandni Mahal to prove his complaints made against the defendants, who deposed that the records have been destroyed. However, this itself shows that the complaints were in fact made by the plaintiff against the defendants, and (iv) because the issue as to whether the plaintiff has failed to prove the fact that the plaintiff and his brothers were detained in a police station for a very long time is to be examined in the light that the defendants have failed to bring on record anything contrary to the case of the plaintiff, either by cross-examination or by leading any positive evidence.
(D) That since the Ld. Trial Court in accordance with the CPC, 1908 has failed to draw a decree, the impugned judgment is liable to be set-aside.
REPLY
9. Respondent Nos. 1 to 3 (Defendant Nos. 1 to 3 in the Suit) filed their joint reply on 30.10.2017. Respondents in their reply, supported the impugned RCA DJ No. 48/2017 7/27 Mohd. Naeem Qureshi Vs. Dost Mohd. @ Dosi & Ors.
dated 18.07.2024 judgment and prayed for dismissal of appeal with costs stating that it is devoid of merit.
ARGUMENTS
10.Arguments were heard on behalf of the appellant and the respondents which was concluded on 06.05.20024. Ld. counsel for the appellant during arguments questioned the judgment of the Ld. Trail Court on the grounds referred above and prayed for its setting aside. Per Contra, ld. Counsel for the respondents submitted that the Ld. Trial Court rightly dismissed the Suit of the plaintiff and prayed for the dismissal of the present appeal with costs.
11.This Court has considered the submissions and material on record.
REASONING
12.Malicious prosecution, a very ancient action, regarded as a remedy as a distinctive action ex delicto for the recovery of damage to person, property or reputation shown to have proximately resulted from a previous civil or criminal proceeding which was commenced or continued without probable cause but with malice and which has terminated unsuccessfully.
13.In general, to authorise the maintenance of an action for malicious prosecution, the following elements must be shown: (i) the prosecution of the plaintiff, (ii) by, or at the instance of, the defendant, (iii) that the prosecution ended in favour of the plaintiff, (iv) that the defendant prosecuted without reasonable and probable cause, (v) that the defendant in prosecuting was actuated by malice, and (vi) that the plaintiff suffered injury or damage as a result of the action or prosecution complained of. Strict compliance with all of the above elements must be shown before an action may be maintained.
RCA DJ No. 48/2017 8/27Mohd. Naeem Qureshi Vs. Dost Mohd. @ Dosi & Ors.
dated 18.07.2024
14.Let us examine the plaintiff's case on each count. THE PROSECUTION OF PLAINTIFF
15.The case of the plaintiff is that the defendant No. 3 along with her son, the defendant No. 2 lodged a false complaint against him and his brothers with police, whereupon a Kalandara Under Section 107 read with Section 150 Cr.P.C. was prepared and sent to the Special Executive Magistrate (Ld. SEM). That the plaintiff and his brothers were summoned to appear before the Ld. SEM. Thereafter, notices under section 111 Cr.P.C. were issued to them to show cause against the proposed action to be taken under the relevant provisions under which the proceedings were started. Reply was filed by them. Thereafter proceedings were dropped and the plaintiffs were discharged.
16.I at this stage am not examining as to whether the plaintiff has been able to prove on record that the defendant No. 3 along with the defendant No. 2 had lodged any complaint (on 16.05.2012) against the plaintiff and his brothers with the police or not. I will deal with this issue after some time. For now, it is a fact that a Kalandara proceeding was initiated against the plaintiff and his brothers before the Ld. SEM.
17.The question is whether a proceeding under Section 107 read with Section 150 Cr.P.C. can be held to be a prosecution for the purpose of maintaining a Suit for damages for malicious prosecution ?
18.While answering the above stated question in affirmative, the Hon'ble Punjab & Haryana High Court in Jagdev Singh and Others V/s Pritam Singh and Another; 1969 SCC OnLine P&H 184 : ILR (1971) 1 P&H 338, held;
RCA DJ No. 48/2017 9/27Mohd. Naeem Qureshi Vs. Dost Mohd. @ Dosi & Ors.
dated 18.07.2024 (8) I shall first deal with R.S.A. No. 596 of 1959. wherein only two points were urged on behalf of the defendants-appellants. It was contended in the first instance that the proceedings under section 107 of the Code of Criminal Procedure did not amount to a prosecution as understood in the law of torts and that allegations of the commission of an offence were necessary before an accusation and the proceedings consequent thereupon could be considered to be prosecution of the type envisaged by that branch of the law. Reliance in this connection was placed on Kandasami Asari and others v. Subramania Pillai and Dhanjishaw Rattanji Karani v. Bombay Municipality and others. In the Madras case, Benson and Bhashyam Aiyangar, JJ., were of the opinion that to sustain an action for malicious prosecution, the prosecution by the defendant of the plaintiff must be for an offence. Security proceedings launched under sections 107 and 110 of the Code of Criminal Procedure were not considered to be a prosecution such as would give rise to damages. This authority was expressly dissented from in Inder Singh-Anup Singh v. Harbans Singh-Anup Singh, decided by Harnam Singh, J., which in my opinion, lays down the law correctly, if I may say so with all respect. Harnam Singh, J., expressed the view that proceedings under section 107 of the Code of Criminal Procedure were of a quasi-criminal nature and quoted with approval the following observations of Mookerjee, J., in C. H. Crowdy v. L. O'Reilly:
RCA DJ No. 48/2017 10/27Mohd. Naeem Qureshi Vs. Dost Mohd. @ Dosi & Ors. dated 18.07.2024 "I am not prepared to accept the contention that an action for damages for malicious prosecution should lie only when the original proceeding was a 'prosecution' in the sense in which the term is used in the Code of Criminal Procedure; it is not essential that the original proceeding should have been of such a nature as to render the person, against whom it was taken, liable to be arrested, fined or imprisoned."
(9) Harnam Singh, J., therefore, repelled the contention that in a suit for malicious prosecution, the proceedings taken against the plaintiff by the defendant under section 107 of the Code cf Criminal Procedure could not give rise to a cause of action.
(10) Dhanjishaw Rattanji Karani v. Bombay Municipality and others (supra) also does not help the cause of the defendants. On the other hand, in my view, it fully supports the case of the plaintiffs. While interpreting the term 'prosecution' as used in the law of torts, Bhagwati J. observed: --
"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."
(11) It was further observed that the term "criminal charge" includes all indictments involving either scandal to reputation or the possible loss of liberty to person. Now, an application made to a Magistrate asking him to take action under section 107 of the Code of Criminal RCA DJ No. 48/2017 11/27 Mohd. Naeem Qureshi Vs. Dost Mohd. @ Dosi & Ors.
dated 18.07.2024 Procedure would certainly involve the possibility of the respondent to the application being deprived of his liberty and the proceedings consequent thereupon would, therefore, be a prosecution on a criminal charge as understood in the law of torts. Dhanijshaw Rattanji Karani v. Bombay Municipality and others, (supra) therefore, clearly goes against the contention raised on behalf of the defendants..." (Underlined by me)
19.Hon'ble High Court of Andhra Pradesh in Kambhampati Venkata Satyanarayana V/s Kambhampati Peda Subbarao & Others; 1967 SCC OnLine AP 146 took the similar view as Hon'ble Punjab & Haryana High Court in Jagdev Singh and Others Supra.
20.As such, a proceeding under Section 107 read with Section 150 Cr.P.C. is, in the considered opinion of this court, a prosecution for the purpose of maintaining a Suit for damages for malicious prosecution. Finding of the Ld. Trial Court on this point is reversed.
BY, OR AT THE INSTANCE OF, THE DEFENDANT(S)
21.The suit of the plaintiff was against three defendants; namely Sh. Dost Mohd. @ Dosi (defendant No. 1), Sh. Faizan (defendant No. 2) and Smt. Rehana (defendant No. 3). Para 16 of the plaint is being reproduced herein;
"16. That the cause of action for filing the present suit arose in favour of the plaintiff and against the defendants when the defendants filed a false and frivolous complaint dated 16.05.2012 thereby leveling false, frivolous, defamatory and scandalous allegations, on the basis of which a Kalandara under Section 107/ 150 Cr.P.C. was prepared against the plaintiff and his brother and implicated the plaintiff and RCA DJ No. 48/2017 12/27 Mohd. Naeem Qureshi Vs. Dost Mohd. @ Dosi & Ors. dated 18.07.2024 his brother in malicious proceedings. The cause of action also arose when the plaintiff and his brother were acquitted in the said false and frivolous case vide order dated 15.01.2013. The cause of action is still subsisting and continuing one."
22.Few things are required to be stated at the outset. There is no complaint dated 16.05.2012 filed by the defendants as pleaded by the plaintiff. From a perusal of trial court records it appears that on 15.05.2012, a PCR Call was made by the Smt. Rehana (defendant No. 3). Information regarding making this PCR Call was received by PS Chandani Mahal vide DD No. 23A. Neither the PCR form nor the DD No. 23A is on record. So, there is nothing on record to know as to what exactly defendant No. 3 complained of, by making a PCR Call.
23.Thereafter a DD No. 3A dated 16.05.2012 was made and investigation was entrusted to SI Rohtas. As per the DD No. 3A dated 16.05.2012 (Ex.PW5/2), SI Rohtas alongwith Constable Mahender reached over the spot where complainant Smt. Rehana had met who told that three boys namely Naved, Naeem and Butto @ Mobin, who were neighbours, had beaten her and her son Faizan and had absconded. Rehana and her son Faizan were medically examined. As per respective MLCs PW5/6 and PW5/7, they had received simple injuries. Doctor, however, opined in the MLCs that the possibility of self-inflicted injuries can not be ruled out. Thereafter, the statement of complainant and her son Faizan was recorded. It is further stated in the DD No. 3A dated 16.05.2012 that after some time the statement of Naved and his brother Naeem was also recorded. It is further recorded in the DD No. 3A that thereafter the IO SI Rohtas apprised the SHO who directed him to RCA DJ No. 48/2017 13/27 Mohd. Naeem Qureshi Vs. Dost Mohd. @ Dosi & Ors.
dated 18.07.2024 proceed under Section 107/ 150 Cr.P.C. What is relevant to note, that the respective statements of Naeem (plaintiff), Naved (brother of the plaintiff) and Mobin @ Butto (brother of the plaintiff) are on record as Ex.PW5/3, Ex.PW5/4 and Ex.PW5/5 whereas statement of Rehana (defendant No.3) and Faizan (defendant No. 2) are not filed on record. As such, there is nothing on record to appreciate as to what allegations were levelled by the defendant No. 3 or the defendant No. 2 against the plaintiff in her statement to the IO.
24.After investigation, Kalandara under Section 107/ 150 (Ex.PW5/1) was prepared and forwarded to the Ld. SEM. It was concluded in the Kalandara that there is a dispute between both the parties regarding construction of the house and a Civil Suit is pending. Both the parties are complaining against each other and there are chances of altercation/ clash between both the parties which might result in breach of peace or disturb the public tranquility. As such, Kalandara under Section 107/ 150 Cr.P.C. is prepared against both the parties and being forwarded to you. It is requested that both the parties be bound down for a long period with heavy amounts.
25.I have discussed it in some detail to show that firstly, there was a PCR call by the defendant No. 3, contents of which is not proved on record, and that no complaint was filed on 16.05.2012 by the defendants as pleaded by the plaintiff; and secondly, that it appears that during investigation, statements of the defendant Nos. 2 and 3 were recorded, however, same were not on record.
26.In this backdrop, the issue is as to whether the defendants can be said to be the prosecutor in the circumstances of this case ?
RCA DJ No. 48/2017 14/27Mohd. Naeem Qureshi Vs. Dost Mohd. @ Dosi & Ors.
dated 18.07.2024
27.Hon'ble Kerala High Court in Kunhutty Sahib V/s Veeramkutty; 1959 SCC OnLine Ker 127 dealt with this issue in extenso. I am referring paras 45, 61 and 62 from the judgment:
45. Their Lordships of the Privy Council considered this aspect of the matter and after referring to the observations of the Madras High Court in ILR 26 Mad 362 which I have already extracted earlier in this judgment, observe at 533 as follows:
"The principle laid down is sound enough if properly understood, and its application to the particular case was no doubt justified; but in the opinion of their Lordships, it is not of universal application. In India, the Police have special powers in regard to the investigation of criminal charges, and it depends very much on the result of their investigation whether or not further proceedings are taken against the person accused. If, therefore, a complainant does not go beyond giving what he believes to be correct information to the Police and the Police without further interference on his part (except giving such honest assistance as they may require), think fit to prosecute, it would be improper to make him responsible in damages for the failure of the prosecution. But if the charge is fake to the knowledge of the complainant; if he misleads the Police by bringing suborned witnesses to support it; if he influences the Police to assist him in sending an innocent man for trial before the Magistrate -- it would be equally improper to allow him to escape liability, because the prosecution has not, technically, RCA DJ No. 48/2017 15/27 Mohd. Naeem Qureshi Vs. Dost Mohd. @ Dosi & Ors. dated 18.07.2024 been conducted by him. The question in all cases of this kind, must be -- Who was the prosecutor -- and the answer must depend upon the whole circumstances of the case. The setting of the law in motion is not the criterion; the conduct of the complainant before and after making the charge, must also be taken into consideration. Nor is it enough to say, the prosecution was instituted and conducted by the Police. That again is a question of fact. Theoretically all prosecutions are conducted in the name and on behalf of the Crown, but in practice this duty is often left in the hands of the person immediately aggrieved by the offence, who pro hac vice represents the Crown."
61. There is one other decision of the Privy Council given in 1926 and that is the one which is reported as AIR 1926 PC 46. In that case the respondent before the Privy Council was prosecuted by the appellants for malicious prosecution. According to the appellants, the respondent had tutored two persons to give confession, implicating the appellants in a murder case, i.e., the appellants charged the respondent as having invented and instigated the whole proceedings for prosecution. Therefore, it will be seen that the respondent had not actually given any complaint at all to the Police or to the Magistrate in that case. Their Lordships observe at p. 51 as follows:
"Have the appellants proved that Badri Sah invented and instigated the whole proceedings for prosecution? Of course there is nothing in the point which seems to have been taken in RCA DJ No. 48/2017 16/27 Mohd. Naeem Qureshi Vs. Dost Mohd. @ Dosi & Ors. dated 18.07.2024 the courts below, but which was not urged before their Lordships, that here de facto the appellants were not prosecuted by the respondent. In any country where, as in India, prosecution is not private, an action for malicious prosecution in the most literal sense of the word could not be raised against any private individual. But giving information to the authorities which naturally leads to prosecution is just the same thing. And if that is done and trouble caused an action will lie."
62. Though an objection appears to have been taken in the subordinate courts on behalf of the respondent therein that he cannot be a 'prosecutor' because he did not file complaint before the police or the magistrate, it appears that this contention was not pressed before their Lordships of the Privy Council. Though this objection was not raised before their Lordships, their Lordships deal with that aspect in the above observations. Therefore, it follows that giving information to the authorities which naturally leads to the prosecution, is just the same thing and if that is done and trouble is caused, an action will lie. Therefore, their Lordships of the Privy Council reiterate the same views expressed by the Privy Council in the earlier decision reported in ILR 30 All 525.
(Underlined by me) (Note: The Hon'ble Kerala High Court in para 45 referred and quoted the decision of Privy Council passed in Gaya Prasad V/s Bhagat Singh; ILR 30 All (PC)) RCA DJ No. 48/2017 17/27 Mohd. Naeem Qureshi Vs. Dost Mohd. @ Dosi & Ors.
dated 18.07.2024
28.In the light of the above test, can it be said that the defendants were the real prosecutors? The case of the plaintiff as appears is that the defendant No. 3 made a PCR Call to police and she and the defendant No. 2 were medically examined and thereafter their statements were recorded during investigation. There is no role at all assigned to the defendant No. 1. There is nothing on record connecting the defendant No. 1 with the prosecution of the plaintiff. As such, henceforth, I will examine the present case of malicious prosecution, under other heads, against the defendant No. 2 and the defendant No. 3 only.
THE PROSECUTION ENDED IN FAVOUR OF THE PLAINTIFF
29.The plaintiff must establish that his prosecution by the defendant ended in his favour. Termination in favour of the plaintiff does not mean the judicial determination of his innocence; it means absence of judicial determination of his guilt. A prosecution may end favourably not only by acquittal but also by discharge, discontinuance of proceedings excepting where it is due to impossibility or impracticability of bringing the accused to trial or dismissal of the complaint. Records show that the Ld. SEM vide order dated 15.01.2013 (Ex.PW1/17) dropped the proceedings and discharged the plaintiff and his brothers from the Kalanadara.
THE DEFENDANT PROSECUTED WITHOUT REASONABLE AND PROBABLE CAUSE
30.The plaintiff must show that the defendant prosecuted him without reasonable and probable cause. It is when he has led some evidence to this effect that the defendant can be called upon to show the existence of such a cause. The onus lies heavily on the plaintiff. This rule may appear to require RCA DJ No. 48/2017 18/27 Mohd. Naeem Qureshi Vs. Dost Mohd. @ Dosi & Ors.
dated 18.07.2024 the plaintiff to prove a negative, viz., that the defendant had not reasonable and probable cause for the prosecution. But in the words of Bowen, L.J. if the assertion of a negative is an essential part of the plaintiff's case, the proof of assertion still rests upon the plaintiff (Quartz Hill Gold Mining Co. V/s Eyre; (1883) L.R. 11 Q.B.D. 674).
31.Reasonable and probable cause means a genuine belief, based on reasonable grounds, that the proceedings are justified. In other words, in order to have reasonable and probable cause there must be an honest belief in the guilt of the accused. The term 'reasonable' shows that the causes must conform to the standards of a reasonable and prudent man and the term 'probable' shows that the causes may result in the proof of guilt. Therefore, a reasonable and probable cause can only mean that the grounds for the plaintiff's guilt are reasonable according to a reasonable and prudent man and that there are materials which might result in the conviction of the accused.
32.The plaintiff, in the considered view of this Court, failed to prove that the defendant No. 2 and the defendant No. 3 prosecuted him without reasonable and probable cause, for following reasons;
(i) As already stated that there is no written complaint filed by the defendants as pleaded by the plaintiff. This is a case where a PCR call was made by the defendant No. 3. The PCR form or the DD No. 23A is not on record. Even the statements of the defendant No. 3 and the defendant No. 2 recorded during the investigation are not filed on record. So, there is nothing on record from which the substance of accusations/ allegations can be gathered from.
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dated 18.07.2024
(ii) In the absence of actual statements (made by the defendants before the police) on record, it is not possible for this Court to examine as to whether the defendants had really implicated the plaintiff or not and if implicated, then for what offence. It is further not possible for this Court to examine whether the allegations levelled were false to the knowledge of the defendants or not.
(iii) On the contrary, from the conjoint reading of DD No. 3A dated 16.05.2012 (Ex.PW5/2), Kalandara under Section 107/ 150 Cr.P.C. (Ex.PW5/1), Notice under Section 107/111 Cr.P.C. (Ex.PW1/16) and Order dated 15.01.2013 of Ld. SEM (Ex.PW1/17), it appears that there was a dispute between both the parties regarding construction of the house and a Civil Suit was pending. That both the parties were complaining against each other and there were chances of altercation/ clash between both the parties. In this backdrop, if we see, it appears that the elements for proceedings under Section 107/ 150 Cr.P.C. was present. It may also be noted that the said proceeding was initiated against both the parties.
(iv) Lastly, It is a settled principle that findings of the criminal Court by themselves are no evidence either for proving want of reasonable and probable cause or for proving malice and it is for the civil Court to go into all evidence and decide for itself whether such want of reasonable and probable cause or malice existed or not. Yet, it can be noted that there is nothing in the Order dated 15.01.2013 of Ld. SEM doubted the case of the defendants. Relevant portion of the order of Ld. SEM is reproduced herein below;
RCA DJ No. 48/2017 20/27Mohd. Naeem Qureshi Vs. Dost Mohd. @ Dosi & Ors.
dated 18.07.2024 "I have considered the entire proceeding and it appears to me that there is a private dispute amongst both the parties which can not occur under this section and same will be subjudice before appropriate court. There is no scope of the provisions of section 107 Cr.P.C. The purpose of Section 107 Cr.P.C. is prevention of public peace and tranquility. This Section does not confer any power on the Special Executive Magistrate to adjudicate like as or to decide the dispute of civil nature. The exercise of this power must be in aid of those rights and against those who interfere with the lawful exercise. In these circumstances the Sec. 107 does not come to be attracted. As far as the breach of peace is concerned no untoward incident took place as well as no fresh complaint hs been received against the respondents during the course of proceedings. On the other hand the proceeding is going on to complete its period of six months itself by today while the proceeding is incomplete. At this stage, I am of the view do not have any apprehension of breach of peace at the hands of respondents. Keeping in view, whole of the facts and circumstances I come to conclusion that the proceeding is deserved to be dropped. I, therefore, drop the proceedings against the respondents (in their absence) in view of above facts as the matter is time barred. Consequently the respondents are discharged from this Kalandara. File be consigned to record room."
THE DEFENDANT IN PROSECUTING WAS ACTUATED BY MALICE
33.Now come to malice which is the last ingredient in a suit for malicious prosecution, and that the defendant was actuated by malice in prosecuting RCA DJ No. 48/2017 21/27 Mohd. Naeem Qureshi Vs. Dost Mohd. @ Dosi & Ors.
dated 18.07.2024 the plaintiff has also got to be proved by the plaintiff. Malice means the presence of some improper and wrongful motive-that is to say an intent to use legal process, in question for some other than its legally appointed and appropriate purpose. It means an improper or indirect motive other than a desire to vindicate public justice or a private right.
34.The plaintiff's case is that he along with his family was residing in a part of property No. 98 and 99, Chhatta Lal Mian, Darya Ganj, New Delhi and that the defendants were also residing there. That the defendants illegally and without authorisation from the concerned department had demolished a part of property No. 98 and had done some construction work in property No. 99. This led to the filing of a Suit for permanent injunction before Ld. Civil Judge, Tis Hazari Courts against the defendant No. 1, the defendant No. 3 and the MCD by the plaintiff wherein an injunction order was passed vide order dated 18.02.2012 (Mark A) restraining the defendants from further construction. Plaintiff has to lodge various complaints as well against the defendants. And as a counter-blast the defendant No. 3 along with her son defendant No. 2 lodged this false complaint against the plaintiff and his brothers. Plaintiff to prove these facts examined himself as PW1, his brother Mohd. Naseem as PW2.
35.Further contention of the plaintiff is that there is an observation of the doctor on the MLCs of the defendant Nos. 2 & 3 viz., Ex.PW5/6 and Ex.PW5/7, that possibility of self-inflicted injury can not be ruled out . Plaintiff's argument is that it clearly shows that the defendants after harming themselves made a call to police for falsely implicating the plaintiff. It is submitted that PW5 HC Sikander Singh had appeared from the Court of Ld. RCA DJ No. 48/2017 22/27 Mohd. Naeem Qureshi Vs. Dost Mohd. @ Dosi & Ors.
dated 18.07.2024 SEM, Kamla Market, Delhi to prove the facts related to Kalandara proceedings including the MLCs of the defendants. That the authenticity of the MLCs were never challenged/ questioned at any point of time including during cross-examination of PW5. This argument of the plaintiff is liable to be rejected. The fallacy in this argument of the plaintiff is that if this argument is accepted, the effect would be transposing the opinion of the doctor (who otherwise never appeared in the witness box for deposition and was cross-examined either in earlier criminal proceeding or in this malicious prosecution case) as malice on the part of the defendants. Further, mere production of certain documents through PW5 is not sufficient to prove a fact that the injury caused to the defendants were self-inflicted. The argument of the plaintiff is that no cross-examination was done of PW5 by the defendants and it led to the proving of records brought by PW5. I am not prepared to accept this argument. After all, PW5 is neither the doctor who opined the injury nor the Investigating officer who investigated the offence. He merely produced the document. PW5 deposed in cross examination that I have no personal knowledge about the present case file which I have brought today. PW5 was not a medical person who could answer the questions on the medical aspects of injuries and their nature.
36.So far as the argument that the present case is a counter-blast to the plaintiff's complaint against the defendants is concerned, this court is of opinion that existence of other matters/ complaints between the parties can not be the ground to arrive at a conclusion that the present case has been instituted with malice and the incident as alleged could not have taken place. It has already been observed that the elements for proceedings under Section RCA DJ No. 48/2017 23/27 Mohd. Naeem Qureshi Vs. Dost Mohd. @ Dosi & Ors.
dated 18.07.2024 107/ 150 Cr.P.C. was present and the said proceeding was initiated against both the parties.
37.Even otherwise malice alone is not sufficient. There must be a concurrence of malice and want of reasonable and probable cause. Hon'ble Calcutta High Court in M/s. Bharat Commerce and Industries Ltd V/s Surendra Nath Shukla and others; 1965 SCC OnLine Cal 79 observed;
"18 ....As stated earlier, although 'malice' and want of reasonable and probable cause are interrelated, they do not have an identical connotation. Malice may follow from the fact that the accuser has no reasonable and probable cause in prosecuting the plaintiff, but the converse is not true. Further, a party may be actuated by personal consideration or improper motive, that is a motive other than that of securing justice, yet there may be reasonable and probable ground for prosecution. The proposition has been correctly stated in Johnstone v. Sutton, (1786) 1 TR 510: "From the most express malice, the want of probable cause cannot be implied."
19. This position is also stated by Clerk and Lind-sell on Torts, 12th Edition p. 1725 where it is stated: "As already stated, if reasonable and probable cause is found the question of malice or no malice is irrelevant. Even though a prosecutor is actuated by the most express malice, nevertheless, is not liable so long as there is reasonable and probable cause for prosecution."..."
(Underlined by me) THE PLAINTIFF SUFFERED INJURY OR DAMAGE AS A RESULT OF THE ACTION OR PROSECUTION COMPLAINED OF RCA DJ No. 48/2017 24/27 Mohd. Naeem Qureshi Vs. Dost Mohd. @ Dosi & Ors.
dated 18.07.2024
38.One of the grounds to challenge the decision of the Ld. Trial Court is that it erroneously recorded a finding that the plaintiff has failed to prove the damage. I have recorded in detail the contention of the Ld. counsel for the appellant in para 8 (C) supra.
39.In the considered opinion of this court, once the plaintiff has failed to prove that the prosecution complained of was without any reasonable and probable cause or it was instituted with malice, there is no occasion for the plaintiff, at the first place, to allege that he suffered damage as a result of prosecution by the defendants. As, no damage is caused by a prosecution which is not malicious or which is instituted by a defendant having reasonable and probable cause.
40.Hon'ble Madhya Pradesh High Court in Mohanlal Raghunath Prasad V/s Diwan Lachhman Singh and another; 1960 SCC OnLine MP 51, held;
"10. The wrong known as malicious prosecution consists in causing damage by perversion of the machinery of law. A wrong prosecution of a person causes unnecessary harassment and is regarded as an abuse of the process of the Court and as such from mediaeval times in English legal history, it has given rise to an actionable claim for damages. The gist of the action is damage because a wrong prosecution has three damaging aspects:
11. One, it damages a man's fair name; Two, it puts one in jeopardy of his liberty; and Three, one is forced to spend money in defending one self. (See Savile v. Roberts, (1698) 12 Mod. Rep 208). An action for malicious prosecution bears some analogy to an action for defamation, inasmuch as it is an action in vindication of character, RCA DJ No. 48/2017 25/27 Mohd. Naeem Qureshi Vs. Dost Mohd. @ Dosi & Ors.
dated 18.07.2024 which is necessarily involved in a criminal charge by throwing a cloud over one's name."
(Underlined by me)
41.The person claiming damages for malicious prosecution must not only allege but must go further to prove that the defendant acted maliciously and without probable cause. Since, the plaintiff has failed to prove that the prosecution complained of was without any reasonable and probable cause or it was instituted with malice, there is nothing to examine on this aspect viz. damage caused to the plaintiff. So far as the plaintiff's allegation is that he and his brothers were detained in a police station for a very long time and it caused damage to him and his reputation, suffice to say that even otherwise there is nothing on record showing illegal detention. CONCLUSION
42.It is frequently said that the action for malicious prosecution is not favoured in law but a better way of expressing the idea is to say that the action should be properly guarded and its true principles strictly adhered to since public policy favours the exposure of a crime which a recovery against a prosecuter obviously tends to discourage.
43.As noted above that the plaintiff has failed to prove that the prosecution complained of was without any reasonable and probable cause or it was instituted with malice, the plaintiff as such is not entitled to any damages.
44.The present appeal is thus dismissed and the impugned judgment dated 09.01.2017 passed by the Court of Ld. Civil Judge, Central District, Tis Hazari Courts, Delhi in Suit No. 08/2014 is upheld. Parties to bear their own costs.
RCA DJ No. 48/2017 26/27Mohd. Naeem Qureshi Vs. Dost Mohd. @ Dosi & Ors.
dated 18.07.2024
45.Decree sheet be prepared accordingly.
Digitally signedAnnounced in the open court on this 18th day of July, 2024. ABHISHEK by ABHISHEK SRIVASTAVA This judgment consists of 27 number of signed pages. SRIVASTAVA Date:
2024.07.18 16:54:24 +0530 (Abhishek Srivastava) District Judge-05, Central, THC, Delhi RCA DJ No. 48/2017 27/27 Mohd. Naeem Qureshi Vs. Dost Mohd. @ Dosi & Ors. dated 18.07.2024