Charan Singh vs Dev Raj and others

Manmohan Singh Liberhan, J.—This is an appeal arising cut of the judgment of the District Judge, Jullundur, who confirmed the finding of the trial Court and dismissed the suit of the Plaintiff for malicious prosecution by the Defendants

The Plaintiff claimed, that he was criminally prosecuted, for an offence of conspiracy to murder one Bhagu, on the statements of Defendants No. 1 and 2, u/s 161 of the Code of Criminal Procedure (hereinafter referred to as the Code). It was set out in the plaint that the first information report was lodged by Hazara Ram, and the name of the Plaintiff did not find mention. The Plaintiff was acquitted by the criminal Courts The Plaintiff contended, he was falsely implicated without any reasonable or probable cause by Defendants, he had to suffer jail for fifteen days before he was released on bail. The Plaintiff claimed Rs. 5,000/- as damages for malicious prosecution.

The Defendants denied the claim of the Plaintiff. It was stated by the Defendants that they were not prosecutors, it was the police-State who through their investigation found Plaintiff to be a conspirator, and prosecuted him. They had not even appeared as prosecution witnesses during the trial. In sum and substance, the malicious prosecution by the Defendants was denied.

The trial Court came to the conclusions that Defendants No. 1 and 2 did not prosecute the Plaintiff, no suit for damages for malicious prosecution was maintainable. Resultantly the suit was dismissed.

The lower appellate Court found; that the Defendants did not lodge any report with the police against Charan Singh Plaintiff; they had made statements before the police only when examined during the investigation, had not appeared as witnesses during the trial, the Defendants were not the prosecutors and they could not be held liable for malicious prosecution. The appeal was, therefore, dismissed.

Counsel for the Appellant contends that the Defendants were the prosecutors. It was on their statements to the police u/s 161 of the Code, on the basis of which the Plaintiff was charged for the offence of conspiracy to murder, and was detained for fifteen days. The allegations were false and were made without any reasonable and probable cause. The statements were alleged to have been made because of malice of the Defendants towards the Plaintiff. It was further contended, that their non-appearance during the trial was of no consequence.

Malicious prosecution is a wrong inflicted by a person on another by abusing the process of the Court of law. Before a person succeeds in his suit for damages for malicious prosecution and the liability can be fixed for the same on the Defendants, it has to shown by the Plaintiff that:

(i) the Defendant prosecuted him,

(ii) the prosecution ended in favour of the Plaintiff,

(iii) the prosecution was devoid of reasonable and probable cause; and

(iv) the Defendant acted maliciously.

It has been observed by Salmond on the law of Torts Fourteenth Edition as undre:

In order that an action shall lie for malicious prosecution or the other forms of abusive process which have been referred to, the following conditions must be fulfilled:

(1) The proceedings must have been instituted or continued by the Defendants;

(2) He must have acted without reasonable and probable cause;

(3) He must have acted malicious;

(4) In certain classes of cases the proceedings must have been unsuccessful-that is to say, must have terminated in favour of the Plaintiff now suing.

These principles had been accepted till day in numerous judgments of the Supreme Court of India and of other High Courts.

It was not disputed at the bar that, the basis for suit for malicious prosecution were the statements of the Defendants recorded by the police u/s 101 of the Code, the Plaintiff was not named in the first information report, he was put to charges only because during the investigation by the police he was found guilty of conspiracy. Section 161 of the Code reads as under:

Examination of winesses by police:

(1) Any police officer making an investigation under this chapter, or any police officer not below such rank as the State Government may, by general or special order, prescribe in this behalf, acting on the requisition of such officer, may examine orally any person supposed to be acquainted with the facts and circumstances of the case.

(2) Such person shall be bound to answer truly all questions relating to such case put to him by such officer, other than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture.

(3) The police officer may reduce into writing any statement made to him in the course of an examination under this section; and if he does so, he shall make a separate and true record of the statement of each such person whose statement he records.

Section 162 of the Code reads as under:

Statements to police not to be signed: Use of statements in evidence:

(1) No statement made by any person to a police officer in the course of an investigation under this Chapter, shall, if reduced to writing, be signed by the person making it; nor shall any such statement or any record thereof, whether in a police diary or otherwise or any part of such statement or record, be used for any purpose, save as hereinafter provided, at any inquiry or trial in respect of any offence under investigation at the time when such statement was made:-

Provided that when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, any part of his statement, if duly proved, may be used by the accused, and with the permission of the Court, by the prosecution, to contradict such witness in the manner provided by Section 145 of the Indian Evidence Act, 1872 (1 of 1872); and when any part of such statement is so used, any part thereof may also be used in the re-examination of such witness, but for the purpose only of explaining any matter referred to in his cross-examination.

(2) Nothing in this section shall be deemed to apply to any statement falling within the provisions of Clause (1) of Section 32 of the Indian Evidence Act 1872 (1 of 1872), or to affect the provisions of Section 27 of that Act.

Explanation.-An omission to state a fact or circumstance in the statement referred to in Sub-section (1) may amount to contradiction if the same appears to be significant and otherwise relevant having regard to the context in which such omission occurs and whether any omission amounts to a contradiction in the particular context shall be a question of fact.

The sole question for determination in this case is whether the witnesses who made statements to the police u/s 161 of the Code of Criminal Procedure shall be deemed to be the prosecutors. For determining the said question one has to look into the circumstances and facts of each case One has to keep in view what part such a person played in the prosecution of the Plaintiff. Whether he was instrumental in putting the law in motion, whether he interfered with the prosecution or assisted the prosecution, whether he has actively participated in the prosecution, whether the legal proceedings were commenced or continued by him, did the Defendant invent the crime and instigated the police to commence the proceedings for prosecution ? The entire conduct of the Defendant has to be looked into and it is after taking into consideration the totality of the part taken by the Defendant that one is to determine whether he was the prosecutor or not.

It is established that as general policy of law a witness is privileged and to deprive him of this privilege it has to be shown that he acted out of malice and without reasonable and probable cause and he has used the process of Court of law not for the purpose of justice or for the good of the State or the society but for his ulterior urge to inflict the injury on a party by abusing the legal process meant for giving justice to the people. In Hargreaves v. Bretherton (1958) 3 All. ER. 122, the following observation of Lord Mansfiled made in R. V. Skinner 1772 Left 54 was referred to with approval:

What Mr. Lucas has said is very just; neither party, witness, counsel, jury, or judge, can be put to answer, civilly or criminally, for words spoken in office.

It is true that sometimes people are brought to give evidence and can be compelled to give evidence. It is obvious from a reading of Section 161 of the Code that any police officer investigating a case may examine orally any person supposed to be acquainted with the facts and circumstances of the case and the person is bound to answer truely all questions relating to the case put to him by such officer other than questions exposing him to criminal charge. The police officer has been authorised to record such statements in writing Section 162 of the Code provides that the statement recorded u/s 161 of the Code, in case it is reduced in writing, is not be signed by the person making it. It further provides that the said statement cannot be used for any purpose other than provided by Section 162, that is, when the witness is called for the prosecution in enquiry or trial and his statement has been duly proved, it can be used by the accused and with the permission of Court by the prosecution to contradict such witness in the manner provided by Section 145 of the Indian Evidence Act. It may be used for re-examination of such witness for the purpose of explaining any matter referred to in cross-examination. A statement u/s 161 cannot be used for any other purpose.

In Evans v. London Hospital Medical College (1981)1 All. E. R. 745, Drake J. quoted with approval the following passage from Clerk and Lindsell on Torts (14th Edition. 1975 para 1887):

The 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.... If a charge is made to a police constable and he thereupon makes an arrest, the party making the charge, if liable at all, will be liable in an action for false imprisonment, on the ground that he has directed the arrest and therefore, it is his own act and not the act of law.

It was further observed:

The cases show clearly that a witness in criminal proceedings enjoys absolute immunity from any form of civil action in respect of evidence given by him during those proceedings, and, further, that such immunity extends to cover statements made by him in preparing a proof of trial or in a report to the DPP.

Drake J. has also referred to the following observation made in Marrinan v. Vibrat (1962) 3 All. F. R. 381:

Whatever form of action is sought to be dervied from what was said or done in the course of judicial proceedings must suffer the same fate of being barred by the rule which protects witnesses in their evidence before the court and in the preparation of the evidence which is to be so given.

Position emerges the imunity to the witness, is to prevent disgruntled person from seeking to have retrial in civil Courts and also for the benefit of public since the administration of justice would be greatly impeded if witnesses were to be in fear that any disgruntled person against whom they gave evidence might involve them in a litigation subsequently.

It is well known that police collects statements of witnesses before any person is charged or even before it is known whether any offence has been committed. It is after collecting the evidence that the police officers assess the evidence and the material collected by them including the interview held by them with possible witnesses to arrive at the conclusion whether any charge is made out. It is only after the decision has been arrived at by the police that the prosecution is launched and a person is charged for an offence

It has been observed in T.V. Lakshmojirao Vs. Somavarapu Venkatappaiah, :

...merely showing that the complainant knew that the complaint made by him was false would not be sufficient to make him liable for damages. In order to fix the liability on him, the further facts that he influenced the police to assist him in sending an innocent man for trial and that he misled the police by bringing suborned witnesses, has to be proved.

To similar effect are the observations made in Jogendra Garabadu and Others Vs. Lingaraj Patra and Others, , as well as in Radhu Naik Vs. Dhadi Sahu,

Taking the totality of the circumstances brought out on the record it is fair to infer the following facts as proved; the Defendants made statements u/s 161 of the Code to the effect that they had seen the Plaintiff taking weapons from one place to another, which led to a reasonable inference that the crime was committed with the weapons supplied by the Plaintiff to the accused persons, the information was given to the police during investigation when the Defendants were asked to answer the questions Defendants were never examined in the Court as witnesses. No other act was attributed to the Defendants. There is not an iota of evidence on the record to show that the Defendants instigated a prosecution against the Plaintiff. They are attributed an act of only giving information to the police on the basis of which the police is further alleged to have recorded discovery statements u/s 27 of the Indian Evidence Act. Prosecution was commenced by the police in exercise of their own discretion.

Taking into consideration totality of facts on record, the Defendants cannot be said to be prosecutors of the Plaintiff Mere presence of malice or likelihood of malice on the part of the Defendants simplicitor is of no consequence.

Further, it is obvious that the Defendants were bound to give statements u/s 161 of the Code and the said statements could not have been used for any other purpose except specified in Section 162. The trial of the Plaintiff was a result of combination of various facts including his disclosure statement u/s 27 of the Evidence Act, which was found to have not been proved in the criminal trial.

There is nothing on record to show that either proceedings or prosecutor were instituted by Defendants or were continued by them.

In view of my observations, I confirm the findings of the Courts below that the Defendants were not the prosecutors of the Plaintiff much less malicious prosecutors. There was no reliable evidence to prove the absence of reasonable and probable cause for giving the statements. Resultantly, this appeal is dismissed with no order as to costs.