Antulal vs Kunwarpal Singh

A.H.Khan, J.—In a suit for malicious prosecution, the plaintiffs asked for Rs. 2000/- as damages. Both the Courts Below dismissed the suit on the ground that the plaintiffs had failed to establish want of reasonable and probable cause. Aggrieved by this decision, the plaintiffs have filed this second appeal.

In ground No. 1 of the memo of appeal it is said that the courts below erred in law in thinking that the burden of proof of want of reasonable and probable cause lies on the plaintiffs and in support of this, Mr. Motilal Gupta, learned counsel for the appellant relies upon, a case reported in AIR 1952 310 (Nagpur) .

In a Division Bench case, Mohanlal vs. Lachhman Singh reported in 1960 JLJ 509. I had occassion to consider the point now argued before me. I also considered the case reported in AIR 1952 310 (Nagpur) on which Mr.motilal Gupta relies. But I found myself unable to agree with the observations of Deo J. I am of the opinion that want of reasonable and probable cause is a necessary ingredient in an action for malicious prosecution, and, that innocence pronounced by a criminal Court does not relieve the plaintiff from the necessity, of adducing evidence of want of reasonable and probable cause.

This point was also later on considered by Dixit J. and Pandey J. in 1961 JLJ 332 (Rishabhkumar vs. K.C. Sharma) in which my Lord the Chief Justice said that "the prosecution ended jn the acquittal of accused can never come into the determination of the question of reasonable and probable cause" He overruled the decision given in AIR 1952 310 (Nagpur) which corresponds to ILR 1953 Nag. 529 (Sitaram vs. Dudharam). The contention of the learned counsel that the burden of proof of want of reasonable and probable cause should lie on the defendant cannot, therefore be accepted.

Another point urged by learned counsel for the.appellant is that the Additional District Judge is not right in assuming that if an accused is discharged (and the plaintiff was discharged in the case under consideration) he is not entitled to maintain an action for malicious prosecution

There is force in the contention put forward. The action for damages for malicious prosecution is branch of English Common Law. The reason for an action is the abuse of the process of the Court by setting the law in motion. The basis for damages is to discourage the perversion of the legal machinery and also to compensate the person whose reputation has suffered in consequance of wrongful action of the complainant. The real test in such cases is whether the criminal proceedings have reached a stage, where the accused has to face consequences and inour expenses in defending himself In this view of the law, whether the accused is acquitted or discharged he can successfully maintain an action for malicious prosecution, provided of course the other essentials are proved. I find support for the view I have taken in ILR 6 Bom 376 (Venue vs. Coorya Narayan).

In the present case,although the plaintiff can maintain the action. yet he cannot succeed because he failed to prove the absence of reasonable and probable cause.

Other points urged by the learned counsel for the appellant relate to questions of fact. But it is not open to this Court to attempt to reappreciate the evidence relating to them. (See 1960 JLJ 870 : AIR 1961 S.C. 1097 Raruhasingh vs. Achalsingh and others).

For reasons stated above, the appeal is dismissed with costs.