Daulat Ram Sud vs Kamaleswar Dutt

Deb, J.—On May 30, 1947, the Plaintiff filed this suit with leave under Clause 12 of the Letters Patent after serving notice u/s 80 of the CPC claiming Rs. 1,01,563 as damages from the Defendant for maliciously prosecuting him in conspiracy with many Marwari merchants of Tinsukia. Material averments made in the plaint are briefly stated in the next paragraph.

The Plaintiff Mr. Sud was the chief goods clerk of Tinsukia Railway station. The Defendant Mr. Datta was the Additional Circle Inspector of Police of that area. Mr. Sud, during the Second World War, recovered more than Rs. 20,000 as undercharges from many Marwari merchants of Tinsukia including Shewchand Rai and Jagadish Prasad Modi. Many Marwari merchants including Shewchand and Jagadish, in violation of war restrictions and without any permit, brought huge quantities of prohibited goods by Railway to Tinsukia and those goods were detained by Sud and the Station Master with the result those merchants suffered a colossal loss and became his enemy, and to remove him from Tinsukia by procuring his dismissal from the Railway service they entered into conspiracy with Datta to institute and maliciously instituted a criminal case on false charges created by them against him and another Railway employee. Sud was acquitted from those false charges but was convicted on a different case made out by the trying Magistrate and was sentenced to rigorous imprisonment for six months on October 31, 1945. Due to the said conviction he was dismissed from his service with effect from October 31, 1945. But, thereafter he was honorably acquitted by the Appellate Court on March 31, 1946.

Sud also filed a suit in this Court being Suit No. 692 of 1947 against Jagadish and Shewchand claiming large sums of money as damages on the same cause of action and the reason why he could not make Datta a Defendant in that suit was that the notice u/s 80 of the Code was not then served on him.

These two suits were assigned to me for hearing and as. the counsel appearing for Datta did not agree to my suggestion for a joint trial so they were heard by me one after the other and I have just now delivered judgment in other suit. The fact that these two suits were heard separately has some importance which is later on indicated. Jagadish did not give evidence in both the suits. Shewchand gave evidence in the other suit but Datta did not call him as a witness in this suit and in the same way Shewchand did not call Datta in the other suit.

In this suit, Datta in his written statement did not deny nor admit those war restrictions including the animosity of those merchants towards the Plaintiff but he has denied all other allegations made in the plaint. Issues raised on behalf of Datta were accepted on behalf of Sud and they agreed to fight out this case on the following issues:

(1) Did the Defendant enter into and conspiracy with any Marwari merchants as alleged in the plaint ?

(2)(a) Did the Defendant prosecute the Plaintiff ?

(b) If so, was the Plaintiff maliciously and without any reasonable or probable cause prosecuted as a result of such conspiracy ?

(3) Did the Defendant act in good faith and without malice in the discharge of his duties as Police officer, as alleged in para. 16 of the written statement ?

(4) Did the Plaintiff suffer any damages ?

(5) Is the Plaintiff entitled to any general damages ?

(6) To what relief, if any, the Plaintiff is entitled ?

In 1917, Sud joined the Railway service as a tally clerk. Due to his loyalty and efficiency he was soon promoted to the post of goods clerk on an increased salary and later on he became the chief goods clerk. He served many Railway stations as the chief goods clerk with the benefit of a contract to work as a handling agent of the Railway administration on commission basis. During the Second World War he was the chief goods clerk of the Tinsukia Railway station on a salary of Rs. 120 per month with the benefit of the said subsisting contract under which he used to earn Rs. 500 per month on an average over and above his salary.

During the Second World War the whole of Tinsukia town was declared a protected area and the Railway station was placed directly under Military command. Major Summers was in-charge of the Railway station as the District Traffic Superintendent. Lt. Bentelman was the Assistant Traffic Superintendent and Md. Hossain, a King''s Commissioned Officer on active service, was the Station Master. One Ratna Bahadur, who was also on active service, was posted as chowkidar of the Railway goods shed.

Jagadish was a mill owner and a millionaire. He was one of the leading merchants of Tinsukia. Datta used to visit the shop of Jagadish regularly. Shewchand was another leading merchant of Tinsukia and Datta knew him since 1942. Another merchant was Bajranglal'' who used to carry on business under the name and style of Supplies Agency. Hardeodas Chamaria (hereinafter referred to as Chamaria) was a rich and influential leading merchant of Tinsukia and his son Gouri Sankar personally owned a soap factory.

The richest of all the Marwari merchants was Durgadatta Lohia who was a partner of M/s. Sonairam Dungarmull, and the Railway siding of Tinsukia was known as Sonairam Dungarmull siding where the merchants used to unload their goods at their own costs. IA 1941, several merchants, including Lohia and Shewchand, preferred claims for refund of unloading charges from the Railway administration involving nearly a million rupee. They further claimed that in future the Railway administration should bear the cost of unloading goods from that siding. This case was commonly known as Sonairam Dungarmull case, and apart from those claimants the merchants of Tinsukia were vitally interested in it as the decision on the future costs of unloading the goods would directly affect their trade.

The Railway administration appointed a Rates Advisory Committee in 1941 with distinguished men to decide this case. Sud took a leading part in it and the Committee''s decision ''on all points went against the merchants, and not only their claims for refund were rejected but they also became liable to bear the future costs of unloading the goods and Sud was highly appreciated for rendering valuable service which was recorded in his service book.

In December 1941, a criminal proceeding was instituted against Gouri Sankar for stealing a consignment of tallow oil in which proceeding Sud took a leading part and Gouri Sankar was convicted and had to visit jail.

In 1942, Datta was posted as the Divisional Circle Inspector of Police. He was in charge of five Police stations including three outposts. J. M. Dastidar was the officer-in-charge of Tinsukia P.S. and worked directly under the supervision of Datta.

Hearing of this suit was adjourned many times by me at the instance of Datta as he wanted to call Dastidar and the then Addl. Superintendent of Police, but those adjournments were misused and they were not called to give evidence in this Court and no steps were even taken to examine them on commission.

It is to be remembered that the Japanese forces were in occupation of Burma and the Second World War was heading towards its crucial stage between December 1943 and June 1944 on the entire eastern border of our country. Japanese forces launched a massive attack to cut off'' the Railway lines in Dimapur to encircle the Allied forces. Preparations for counter offensive from Lido area were going on vigorously and in June 1944 the Allied forces launched a massive attack from Lido area. [See Second World War, by Sir Winston Churchill vol. V, chap. 21]

Continuous supply to the Allied forces was the most important matter in Lido area and severe restrictions were imposed from February 9, 1944, not only by the Railway administration but also by the Department of War Transport, Government of India, under the Defence of India Rules, whereby bookings of various types of civilian goods towards the ''front line'' including Tinsukia were completely prohibited. In those days goods for the consumption of Army were carried in Railway wagons marked with the letter ''M'' and various kinds of civilian goods were not even allowed to go to Tinsukia through some Railway routes which were known as ''closed routes''.

In utter violation of those war restrictions and without any permit many rich and influential Marwari merchants of Tinsukia, including Jagadish, Shewchand, Bajranglal and Chamaria, in June and July 1944 brought huge quantities of prohibited civilian goods in 154 Military wagons without any permit and, so, Sud and the Station Master rightly detained their goods and refused to deliver them. These merchants made representations to Maj. Summers for releasing their goods, but Maj. Summers turned them down with the result they were suffering colossal losses as their detained goods like groundnuts were germinating in those wagons.

While those goods were germinating, 54 barrels of cocoanut. oil mysteriously arrived at Tinsukia in two wagons on July 7, 1944, from Amingaon without any connected papers. Those two wagons were flooded with oil and huge quantities of oil were leaking out from crevices of those two wagons. When Sud was informed about those facts he went to the yard and saw the conditions of those two wagons and immediately made a report to Maj. Summers. Telegrams were sent to Amingaon, Calcutta and Budge Budge reporting the conditions of those two wagons and calling for the connected papers, but no response came from those places. Major Summers and Lt. Bentleman inspected the conditions of those two wagons, and then on July 15 Maj. Summers directed Lt. Bentleman to sell those oil immediately by public auction at the market rate. On July 16 three public notices were issued informing the merchants about the auction to be held on the same day. Two of those notices were displayed in the notice boards of the Railway station and the goods shed respectively and the third one (hereinafter referred to as the public notice) was circulated by Ratna Bahadur and many merchants had signed it. This public notice was exhibited in the Criminal Court and also in this Court.

Lt. Bentleman held the auction on July 16 in which many merchants attended, but the highest bid did not reach the price fixed by him, and so he could not accept it, and then on the spot Arjunlal Agarwalla, a brother-in-law of Jagadish, bought those oil on actual regiment at the controlled rate of Rs. 45 per md. and those drums and paid Rs. 4,512-8-0 being the price of those goods to the head booking clerk Bose, and after receiving a receipt from him Arjunlal obtained delivery and removed those goods with the help of Rohini Kumar Dutt who was the manager of Jagadish. Copy of this receipt for Rs. 4,512-8-0 was exhibited in the Criminal Court and also in this Court and this document will, hereinafter, be referred to as the receipt. In the early morning of July 17 those two wagons were placed in the pit for washing and the entire sale proceeds was sent to Gauhati.

Sud said and Datta did not contradict the first series of meetings held by those merchants in the gaddi of Shewchand in which Jagadish, Bajranglal and Gouri Sankar with his father Chamaria were present and Sud was called in some of those meetings by Shewchand and was requested by them to release their detained goods, but Sud was unable to oblige them, and then they approached the Railway Inspector of Police, Bora, to institute a false criminal case against Sud in respect of those very oil sold to Arjunlal, but Bora refused to do so. Bora was examined as a witness of Sud in the other suit which was partly heard in 1959 by Mallick J. and he said all these facts, but I have left his evidence totally out of my consideration in coming to a conclusion in this suit. In this suit Sud said that he went to Tinsukia again to bring Bora to give evidence in this suit, but he could not find out Bora and no one could tell him about the whereabouts of Bora. In 1959, when Bora gave evidence before Mallick J. in the other suit, he was 73 years old and 10 long years have passed since then and in spite of diligent efforts Sud was unable to find out Bora, and so Bora could not be examined in this suit.

As a prelude to the subsequent events I will now briefly state a few facts and will later on discuss them in details along with the evidence of Datta. Those merchants again held meetings in the gaddi of Shewchand, and at least in two of such meetings Datta was present and Sud was called in those two meetings and was requested by Datta to release those detained goods, but Sud. refused to do so in view of those war restrictions. In the meantime, Maj. Summers went on leave for a fortnight and Maj. Blackney, a new man, started officiating as District Traffic Superintendent. After Sud refused to deliver those goods, Datta on August 23 came to the Railway station and met Maj. Blackney in his office and again met Maj. Blackney on August 25 and took away a file containing many papers in connection with that auction, and then on August 28 he filed F.I.R. against Sud and the Station Master, material portion of which is set out below:

In course of my enquiry in some other cases, I came to learn that 54 barrels of cocoanut oil were lying unclaimed at the Tinsukia Railway premises. Then, on 15th July, 1944, the D.T.''S. ordered to sell them in public auction at the market value. According to this order the goods clerk Mr. Daulatram Sud and the Station Master Mr. Hossein and others of Tinsukia Railway station sold them to one Jagadish Prosad Modi of Tinsukia town at Rs. 15,980, but only a sum of Rs. 4,512-8 was debited as sale proceeds of the said barrels. Both Station Master and the goods clerk together with some others have, therefore, criminally misappropriated the balance sum of Rs. 11,467-8. So I complain that the case u/s 406, I.P.C., may be registered and investigated.

In the Criminal Court, Datta refused to disclose the name of his alleged informer by saying, I am not prepared to disclose the name of the person from whom I received the information that the accused sold cocoanut oil for less than market price, but after a lapse of 25 years he voluntarily came out with a name from the witness-box of this Court and said that his informer was Mazibur Rahman and this Mazibur came to know of the alleged offences committed by Sud from a ticket collector Sen and then on August 28 Mazibur informed Datta about these offences committed by the Railway employees (Dqs. 9, 15, 63-4, 99).

In Qs. 155, 241-2, 254-5 Datta changed the name of that spy and Mazibur became Abdul. He also changed the date of alleged information and August 28 became August 25. In Qs. 322-28, 531-38 Datta further pushed back the date of his alleged information from August 25 to August 23 and then to August 21.

Mr. Routlage was the Superintendent of Police at that time and he left India in 1947. In Qs. 9, 23, 157-58, 215-22, 304-07 and Qs. 519-25 Datta said that the moment he was informed by that spy about the defalcation of money committed by Sud, he informed Mr. Routlage on phone and Mr. Routlage directed him to file a complaint with Dastidar and Datta did it immediately, but he did not remember the place where he wrote out F.I.R. and in the same breath, said that after he was informed by the spy he went to the house of Jagadish where he seized one khata. from Jagadish and, thereafter, came back to the Police station and then on phone contacted Mr. Routlage, and being directed by Mr. Routlage he filed the first information report with Dastidar.

In the case diary, Dastidar recorded that Datta had filed the F.I.R. at ''20 hours'' of August 28, and still Datta went on untruly saying that he filed the F.I.R. with Dastidar in the morning of August 28. In Q. 521 he said that he personally handed over the F.I.R. to Dastidar, but in Q. 1111 he said, I left the report on the table of O.C. Whether he was there or not at that time I cannot remember.

He said that Dastidar had committed a gross dereliction of duty by not recording the time the moment it was filed and for this gross dereliction of duty Dastidar should have been departmentally punished, but he admitted that he, as the superior officer, did not take any action against Dastidar.

Evidence of Datta on that spy is closely interlocked with what he said about the order of Mr. Routlage and the ticket collector Sen. In Qs. 99, 160-61, 179-81 and 465-69 Datta said that the name of the ticket collector was Mr. Sen who not only informed that spy about those offences committed by Sud and the Railway employees but also the very same Sen informed the Addl. S.P. about those offences committed by Sud and the Railway employees and still they did not call Sen in the Criminal Court to substantiate those charges.

In the Criminal Court, Datta refused to disclose the names of his associates and in this Court he treated a spy in Q. 15 and instantly killed him in Q. 16, but in Q. 329 he said that his understanding was that the spy was no longer alive. In Q. 1101 he denied that the spy was his imagination, and I reject his false denial.

Datta admitted that in the morning of August 28 he with Dastidar went to the house of Jagadish and he admitted that he took a manufactured account book from Jagadish. He admitted that a seizure list of several empty drums was prepared at the house of Jagadish by Dastidar which was signed by him, Dastidar and Jagadish.

They knew that Arjunlal had purchased those oil (vide Ex. S) and then sold those oil to Jagadish and still they falsely recorded in this fictitious seizure list that Jagadish had purchased those empty drums which previously contained oil, directly from Sud and the Station Master.

Datta admitted that from the house of Jagadish they all went to the gaddi of Shewchand and he admitted that he took three manufactured books of account from Shewchand in the presence of many Marwari merchants and some of those merchants explained the entries from those books to him and he signed those pages. In the Criminal Court he further said that Shewchand explained those entries to him, and in both the Courts he admitted that another seizure list was prepared in the gaddi of Shewchand in respect of several empty drums and six drums containing oil. In this seizure list it was recorded that Shewchand had purchased those oil from Jagadish and this seizure list was signed by Datta, Dastidar, Jagadish and Shewchand, but it was not recorded that those oil were purchased by Jagadish from Sud and the Station Master.

Datta admitted that from the gaddi of Shewchand he with Jagadish and Dastidar went to Dibrugarh in a car of Chamaria which was driven by the convicted thief Gouri Sankar, and after reaching Dibrugarh Datta met the Addl. S.P. and, thereafter, he took Jagadish to the Magistrate and Jagadish made a statement on oath which was recorded by the Magistrate.

They knew that, Arjunlal had purchased those oil for Rs. 4,512-8-0 which was admitted by Jagadish in Ex. S, and still they falsely recorded in the statement of Jagadish made before the Magistrate that Jagadish had purchased those oil from Sud and the Station Master on July 17 for Rs. 15,980 and then all came back to Tinsukia in the same car driven by the same driver.

Arjunlal was not only the purchaser of those oil but also was the brother-in-law of Jagadish, and still to launch the said criminal proceedings, Datta and that Addl. S.P. fraudulently made Arjunlal a fictitious man. They did not stop there and to prove those false charges they called Arjunlal as a witness for the prosecution-and Arjunlal was later on rightly sent at jail for giving false evidence in the Criminal Court.

While Sud was in the witness-box it was not even whispered to his ears that there was such a ticket collector whose name was Sen. It was never put to Sud that there was such a spy whose tame was either Mazibur or Abdul and it was not even suggested to Sud that there was such an order of Mr. Routlage. In the Criminal Court Datta did not dare to invent this non-existent order of Mr. Routlage who was in Assam when the trial was going on, and now that Mr. Routlage is no longer in India, Datta invented this order from the witness-box and came out with an imaginary name Sen and also created a spy which he did not dare to do in the Criminal Court as there were no such persons.

I completely disbelieved Datta and hold that on August 28 at 8 p.m. he lodged fir. with Dastidar and he did so after coming back from Dibrugarh. He untruly said that he lodged the F.I.R. in the morning of August 28 in a vain attempt to fit it in with his untrue evidence regarding the non-existent order of Mr. Routlage and he falsely invented the alleged spy and the ticket collector to disassociate himself from his own associates.

In the Criminal Court Datta said:

I interviewed Maj. Blackney who was officiating as D.T.S. in place of Maj. Summers who was on leave. On August 23 I met Mr. Blackney for the first time in his office.... Maj. Blackney was alone in his office.... I did not examine papers of the D.T.S.''s office on 23rd.

He further said: I started confidential enquiry in this case from August 23", In this Court he, however, said To chief that the alleged spy informed him about the commission of the alleged: offence on August 28 and then he shifted that date to August 25 and then to August 23 and ultimately to August 21. In the Criminal Court, he said that he saw Maj. Blackney on August 23 and in Q. 360 he admitted that he went to the office of D.T.S. between August 23 and 25, but in Q. 367 he untruly denied that he visited the office of D.T.S. on those dates, and then in Qs. 548, 1061-64 again admitted that on August 23 he met the D.T.S. which he untruly denied in Q. 367 and further admitted that this D.T.S. was a new man. It is to be noticed here, that though Datta met Maj. Blackney on August 23, but he did not ask the Major to produce the file containing Railway documents in connection with the said auction.

It is to be remembered that Sud said that on August 25 Datta took away a file containing many Railway documents from Maj. Blackney and, thereafter, Datta surreptitiously destroyed some of those Railway documents. Datta, however, denied those charges and said in Qs. 55-64 that he never seized any document without any warrant. He went further and said that Dastidar seized 13 Railway documents in Calcutta and Budge Budge and thereafter those documents were handed over by Dastidar to him and Datta merely signed them in compliance with the Police practice. He further said that he did not take any document from Maj. Blackney on August 25, and in support of his untrue evidence he further said that on August 28,1944, he for the first time was informed by the alleged spy about the alleged offence committed by Sud and Railway employees, and so he had no occasion to seize those documents on August 25. It is to be noticed here that he gave up his alleged lapse of memory and came out with its complete revival by saying that he did not seize any Railway document on August 25.

In Q. 239, he came out with a partial truth by saying that he seized one register in the office of D.T.S. on August 25 and then made his memory dark by saying that he did not remember the name of D.T.S. from whom he took away that register and in Q. 245 as he said, ''I must have given a receipt to Maj. Summers'' he was asked:

Did you interview Maj. Blackney who was officiating as D.T.S. in place of Maj. Summers when he was on leave ?

That is correct. After so many years I do not remember the date.

And you asked him to show the connected papers, i.e. Exs. J-l to 13 ?

Yes.

From whom did you take those papers ?

I think the D.T.S. who was present then in the office.

Not Maj. Summers ? Not Maj. Summers.

One may say that further discussion on the alleged granting of receipt is wholly unnecessary at it has gone with the wind along with Maj. Summers, but still I will discuss his evidence on this aspect, and before doing so it is necessary to say here that at the request of Datta one Mr. Halhead of Assam Oil Company examined several drums of cocoanut oil which were pointed out by Jagadish to Datta and Mr. Halhead submitted a report to Datta regarding the condition of those drums.

This report of Mr. Halhead was suppressed by Datta which will appear from his own deposition of the Criminal Court, and though Mr. Halhead was cited as a witness for the prosecution he was not even called by the prosecutors. Mr. Halhead, however, gave evidence in the Criminal Court as a witness for the defence. In a number of questions Datta''s attention was drawn to his own evidence in the Criminal Court where he said that Mr. Halhead submitted a report to him on those drums, and still Datta untruly said that he did not remember that fact. He went further and said that he did not even remember whether Mr. Halhead gave evidence in the Criminal Court as a witness for the defence in spite of the fact that the deposition of Mr. Halhead was shown to him.

This evidence of Datta cuts at the very root of his honesty and clearly shows that he is such an untruthful man that no Court can act on his evidence. ''He deliberately suppressed the original report of Mr. Halhead and did not call Mr. Halhead though it was he who cited Mr. Halhead as a witness for the prosecution.

Datta said in the Criminal Court that on August 25 he again saw Maj. Blackney when nobody was present. He asked Maj. Blackney to produce the file in connection with the cocoanut oil which the Major did. Thereafter, Datta initialed those papers in the presence of the Major but he did not take the signatures of the Major on any of those papers. He took away the entire file without granting any receipt to the Major and without preparing a list of those papers. He further said that he studied those papers and three days thereafter he gave those papers to Dastidar. He said that it was a lie to suggest that he had suppressed the papers which were favorable to the accused. Then he said: / cannot say under what provision of law I seized the file. He further said that it was not a fact that he had destroyed the telegrams, copies whereof were shown to him.

In the Criminal Court he admitted that on August 25 he took away those 13 Railway documents, but in this Court he went on saying that he did not take away any document whatsoever from Maj. Blackney but ultimately admitted that he took away those 13 documents on August 25. In the Criminal Court he said that it was a lie to suggest that he had suppressed the papers which were favorable to the accused and he repeated the same thing in this Court. Sud, on the other hand, charged Datta with destroying many other Railway documents contained in that file, and so it is necessary to set out below a few important questions of Datta:

And you also said that you met him again on 25th and seized some papers ?

Yes.

Did you give him any receipt for that seizure ?

No, I just took them with the permission of the D.T.S. putting my initial there. But I did not remember whether I had given receipt or not.

Did you have any warrant to seize ? No, no seizure was prepared.

Did you have any warrant to seize ? No, I had not.

Are there any other documents you seized ? I cannot remember.

When you got hold of the documents did you go and see Jagadish ?

/ handed them over to the investigating officer.

Bit by bit the truth came out from the crackholes of falsehood and he could no longer deny that it was he who took away these 13 documents, but still he falsely said that after taking away those 13 documents he made them over to Dastidar although in the Criminal Court he said that he kept those documents for three days and studied them and then handed them over to Dastidar. In chief, he denied that he took away those 13 documents on August 25. He said that he must have given a receipt to Maj. Summers for those documents and then admitted that he took away those documents from Maj. Blackney on August 25. He firstly admitted that he did not grant any receipt to Maj. Blackney and then said that he did not remember whether he granted any receipt to Maj. Blackney, but in the Criminal Court he admitted that he did not give any receipt to Maj. Blackney and to support his atrocious acts and to mislead the Criminal Court he untruly said that Maj. Blackney did not demand any receipt.

Datta has no regard for truth and he untruly said, on oath, that Dastidar seized those 13 documents at Calcutta and Budge Budge and, thereafter, made over those documents to him and initialed those documents in compliance with the Police practice. On August 23 he did not ask for that file from Maj. Blackney, and why he did not do so and why he met Maj. Blackney on that day are clear like crystal. Datta as the head of the Police administration of that area paid a curtsey call to Maj. Blackney to make himself acquainted with the Major who was absolutely a new man not only to study him but also to decide his future course of action.

On August 23 he thoroughly studied Maj. Blackney and then on August 25 he again met the Major with an evil motive and surreptitiously took away the file containing many documents from this new man without granting him a receipt. He took them away without making any inventory. He took them away without any warrant and he took them away in utter violation of law. He knew the law and he knew that those Railway documents were the official documents. And with his eyes open he overstepped his mark and deliberately misused his power. He is a deliberate law breaker and an untruthful man. He has suppressed the original report of Mr. Halhead and I reject his untruthful testimony. I accept the evidence of Sud and hold that Datta surreptitiously took away the file from the Major containing more than 13 documents and fraudulently destroyed some of them as they would have completely destroyed the false case that he was going to institute against Sud.

It is to be remembered that on August 28 Datta lodged the F.I.R. and in the Criminal Court he said that he kept those 13 documents with him for three days and studied them and, thereafter, on August 28 he made them over to Dastidar. These documents conclusively prove that on July 16 those 54 drums of oil were sold on actual regiment for Rs. 4,512-8-0 and on July 17 the entire sale proceeds were sent to Gauhati. Now, let Datta say what he honestly believed after going through these 13 Railway documents:

Q. 268. Look at Exs. J-l to 13 once again--did you go through all the documents ? Then I had gone through.

Q. 269. Did you feel it was a case to go for prosecution ? No, I did not feel. / could not make out any case for prosecution.

He admitted that no case could be made out against Sud and the Railway employees from these documents. In other words, he admitted these documents showed that Sud did not commit any offence. In Q. 380 he admitted that the name of Sud was not even mentioned in these documents and still he falsely said that Sud had misappropriated the money because ''he was the goods clerk''. And I strongly resent and ponder to think that, if by virtue of his office Sud became an offender according to Datta, then what should be Datta by his life-long association with the, criminals ?

In the Criminal Court these 13 documents were not even challenged as false or fabricated, and in a number of questions Datta admitted that fact. In Q. 383 Datta admitted these documents were genuine and in Q. 384 after saying that these documents cannot, be false he falsely made them false and fabricated. His idea of falsehood compels me to reject his perverted evidence and I hold that all these documents are genuine and Datta knew that Sud and the Railway employees did not commit any offence whatever.

In the Criminal Court Datta said that on August 28 Jagadish voluntarily made over an account book to him. In this Court he said that Shewchand also voluntarily made over three account books to him on August 28. These books were not entered in any seizure list and were not sent to the Criminal Court along with the documents mentioned in the charge-sheets but were used at the time of trial and many entries from these books were exhibited in the Criminal Court as evidence against Sud. Shewchand did not give evidence in this suit and one of those books of Shewchand was tendered as aenaterial exhibit. Datta had put his signatures against many entries made in this book of Shewchand, and those entries were exhibited in the Criminal Court as Exs. 15A to 15F. Similarly, the account book of Jagadish was exhibited in the Criminal Court and was tendered as a material exhibit in this suit.

Nearly at the end of this book of Shewchand six consecutive pages are left completely blank and at the very bottom of the next page an entry (Ex. 15F in the Criminal Court) in pencil is made by keeping the blank space wholly above it. Entries of the next page were exhibited in the Criminal Court as Exs. 15A to 15E. Some of these entries are written in ink and some of them in pencil. Even some of them are written both in ink and pencil and several entries are struck out in such a way that no one can read them. These two pages were signed by Datta at the time he took this book from Shewchand. In this Court, Datta said that Shewchand voluntarily made over this book to him on August 28 and some Marwari merchants explained these entries to him. In the Criminal Court he further said that Shewchand explained these entries to him. In this Court he fled away from this book by its very sight and in a vain attempt caught hold of the account book of Jagadish.

Coming now to the book of Jagadish it is to be noticed that 119 consecutive pages are kept completely blank and then practically at the end of this book entries exhibited in the Criminal Court were-made. In the Criminal Court Rohini, as a witness for the prosecution, gave evidence on this book of Jagadish which was written by Neemchand Jain who also gave evidence as a witness for the prosecution with the result they were, later on, prosecuted and were sent to jail. Datta, after creating all sorts of lies in this Court, ultimately admitted in Qs. 628 and 632 that those two books of Shewchand and Jagadish were fabricated and he personally recorded that fact in the case diary.

The detained goods of those smugglers were getting germinated and spoilt in 154 Military wagons and they were suffering huge losses and so they could not wait any further. Datta met Jagadish on August 25 with the Railway documents and, thereafter, these fictitious entries were brought into existence in these two books of Jagadish and Shewchand hurriedly so that Datta could immediately lay his hands on Sud and the Railway employees. In the other suit, after seeing and hearing Shewchand I have held that these entries were manufactured solely for the purpose of creating false evidence against Sud and the Railway employees and I find no reason to take a different view in this suit in view of what Datta himself had said.

In Q. 22 Datta said that he was completely satisfied in the guilt of Sud, and so let see under what circumstances and on Avhat materials Datta entertained ''an honest belief in the guilt'' [per Hawkins J. in Hicks v. Faulkner 8 Q.B.D. 167 (171) ] of Sud and Railway employees. In Q. 271 he said that with those Railway documents he went to the house of Jagadish and in Q. 274 he further said; that by seeing those very entries in that book of Jagadish he was convinced that there was a case against Sud and the Railway employees. In Q. 387 he was asked, ''And for that purpose in order to create your impression you looked into the book of Jagadish Prasad'', and he said, ''yes''. Now, it is necessary to set out below a few questions of Datta:

After seizing these documents you examined these papers and were satisfied that there was a case against the Plaintiff according to these papers ?

After examination of these papers with that khata of Jagadish Modi I was satisfied.

To Court:

You knew that you should be satisfied ?

I knew that I should be satisfied with the materials that I had in my possession then.

Did it raise any suspicion in your mind that why such an entry had been made in such a fashion ?

For leaving a few pages suspicion comes in.

Is that the book you took ?

Yes. We have also mentioned in the case diary that lot of pages were left blank--these were fabricated--they always do illegal business.

You have just now told me that these Marwari people did illegal business--for that purpose they kept these pages blank which was recorded in your case diary ?

Yes.

Still you believed these books for the purpose of framing your mind and forming your opinion that the Railway documents were false and fabricated ?

Yes, / was made to believe because I was concerned with the amount of misappropriation ; here we found the entry. To counsel:

Did not these books create any suspicion in your mind that they were forged and fabricated ?

No, they did not raise any suspicion because this led me to believe.

Datta admitted that he knew the law and he knew that he must be satisfied in the guilt of Sud on reasonable grounds and the materials which were in his possession before taking any action. In Q. 269 he said that he could not make out any case against Sud from those 13 documents. In a number of questions he admitted that those 13 documents and the receipt granted to Arjunlal were not challenged in the Criminal Court as false or fabricated. In Qs. 383-84 he said that these 13 documents were neither false nor fabricated and then falsely made them false. He admitted that the entries made in those books of Jagadish and Shewchand were all false and fabricated (Qs. 628, 632) and he personally recorded these facts in the case diary. And now he says that he formed his opinion as to the guilt of Sud on those very false and fabricated entries. Rohini, Neemchand and even Arjunlal were unable to create so many falsehoods in the Criminal Court as was done by Datta in this Court and still they went to jail for giving false evidence and I completely disbelieve Datta and reject his capriciously false and perverted evidence and hold that he never had any belief whatsoever in the guilt of Sud.

In Qs. 77-8 and 82 Datta said that even in his official capacity he never visited the gaddi or the house of Shewchand and in Q. 86 he went further and said that these allegations were completely, wholly and squarely incorrect, but in the Criminal Court he said that on August 28 he went to the gaddi of Shewchand and seized several drums. In this Court, after making all sorts of untrue statements he could imagine, he ultimately admitted in Qs. 405-9 that he went to the gaddi of Shewchand and seized those drums on August 28 and Dastidar prepared that seizure list. He is such an untruthful witness that he went on saying that he did not go with Jagadish to Dibrugarh on August 28 though in the Criminal Court he said that on August 28 he took Jagadish to Dibrugarh for recording the statement of Jagadish before the Magistrate. He even denied that they went to Dibrugarh on that day in the car of Chamaria in spite of the fact that his deposition of the Criminal Court was shown to him where he said that he with Jagadish and Dastidar went to Dibrugarh on August 28 in the car of Chamaria which was driven by Gouri Sankar. After flooding this Court with waves of lies he could no longer suppress the truth and in Qs. 446 and 750 he admitted that on August 28 Gouri Sankar drove his father''s car in which they all went to Dibrugarh for recording the statement of Jagadish.

And what a sight it was. A convicted thief in the car of his smuggler father, accompanied by another millionaire smuggler, was leading the custodians of law to Dibrugarh for recording a false statement of that millionaire to launch a criminal proceeding on glaringly false charges against the poor and innocent Railway employees.

In" the Criminal Court Datta said that he met the Additional S.P. at Dibrugarh and reported to him about the guilt of the Railway employees and thereafter jagadish went to the Magistrate who recorded the statements of Jagadish. In this Court Datta ultimately admitted that he produced Jagadish before the Magistrate and in his presence the Magistrate recorded the statements of Jagadish (Dq. 812). Sud said that Datta was the prosecutor, but Datta denied that fact and to show that he was not the prosecutor in Qs. 12, 18-21, 29, 30, 33-40, 48-51, 230-33 and 308, Datta repeatedly said that he did not take any part in the investigation which, according to him, was done by Dastidar under the direct supervision of the Addl. S.P. He went further and said he only made some preliminary enquiries and he did not even supervise the investigation as he had no locus standi to do so. In the Criminal Court it was Datta who said that the case was investigated by Dastidar ''under my supervision and though his attention was drawn to what he said in the Criminal Court, he is so much addicted to falsehood that in Q. 356 still he said that he did not supervise the said investigation, but in Qs. 420-22 and 437-41 he had to admit that he personally supervised the investigation and further confessed that what he said in answer to previous questions were all untrue.

On August 29 this Addl. S.P. came to Tinsukia and Datta ultimately admitted in Q. 824 that Shewchand made a complaint to the Addl. S.P. about the detention of his goods by Sud and made over five Railway receipts to the Addl. S.P. who later on returned them to Shewchand with the signatures of the District Commissioner and still Sud refused to deliver those goods to Shewchand.

Datta admitted that on August 29 he with this Addl. S.P. and Dastidar met Maj. Blackney and arrested Ratna Bahadur and seized several documents including the receipt and the public notice mentioned before. He, however, denied that he requested the Major to release Sud and other Railway employees holding key positions, for their arrest, but I refuse to accept his denial as he in Ex. QQ recorded that D.T.S. did not allow two civilian accused to be arrested when Datta recommended that they should be arrested with no provisions for bail. This recommendation of Datta was endorsed by that Addl. S.P., and in this exhibit Dastidar made a complaint to the Magistrate that Sud and Bose were not allowed to be arrested by D.T.S. and so warrants for their arrest should be issued with no provisions for bail. I hold that on August 29 Datta, Dastidar and the Addl. S.P. along with Shewchand and many merchants went to the Railway station for arresting Sud and other Railway employees holding key positions and Datta carried handcuffs with him as said by Sud.

It is to be remembered that Ratna Bahadm circulated that public notice and Bajranglal whose goods were detained by Sud was one of those merchants who approached Bora for instituting a false case against Sud, but Bora refused to do* so. In the Criminal Court Datta said, ''I seized this public notice and to me, it appeared to be false''. He further said, ''I sent some other signatories including witness Bajranglal to Magistrate for having their statements recorded''. In Qs. 423-25 he said that-after seizing the public notice he examined the signatories and those signatures appeared to him to be false and they were imaginary signatures. No man was traced out so far as my memory goes.

Datta expressed his regret for making reckless statements in Q. 119 but was not ashamed in making deliberate false statements from the witness-box. In Q. 1011 he admitted that he did not know whether those signatures were forged and added that he did not even know who were those signatories, but in the Criminal Court he said he sent some of these signatories to the Magistrate for recording for recording their statements. His attention was specifically drawn to the signature of one B. C. Ghose who gave evidence in the Criminal Court, on the very same document, as a defence witness where Ghose had said that Ratna Bahadur showed him the public notice on July 16 and he had signed that notice and attended the auction on July 16 and in his presence those very oil were sold for about Rs. 4,500, and still Datta untruly said in Qs. 1013-23 that he was for the first time hearing in this Court that Ghose was examined in the Criminal Court and Ghose must have given false evidence as Ratna Bahadur had told the Police that he did not circulate the notice. In Qs. 1024-32 he admitted that he did not examine Ghose at all and still he persisted on saying that all those signatories denied their signatures and then admitted that he did not even approach any one of those signatories and his enquiry was solely confined to Ratna Bahadur, but at the same time he said that he did not even examine Ratna Bahadur and ultimately said that he did not make any enquiry whatsoever to ascertain the genuineness of those signatures.

In a number of questions Datta untruly said that he did not know why Ratna Bahadur was arrested and went further and falsely said that Ratna Bahadur was not arrested for circulating the public notice to the merchants on July 16. He admitted he arrested Ratna Bahadur and he did not file any F.I.R. against Ratna Bahadur. He admitted that Ratna Bahadur was arrested by him and no charge-sheet was submitted by him against Ratna Bahadur.

Maj. Summers, after his return from leave, sent a report to the higher authorities complaining that Ratna Bahadur was falsely imprisoned and was tortured to such an extent by the those Police officers that Ratna Bahadur was forced to make an untrue statement as tutored by them regarding the public notice before the Magistrate. In this report, Maj. Summers further complained that those Police officers were Criminally intimidating the Railway porters to such an extent that they might run away from Tinsukia seriously affecting the supplies to the Army. Maj. Summers as a defence witness repeated these allegations in his deposition before the Criminal Court and he was cross-examined by the lawyers for the prosecution. Maj. Summers is no longer in India and his deposition and this report were tendered in this suit, but I will not take them into consideration in coming to a finding as there are enough materials on record to show that these Police officers were not the custodians of law but a band of criminals.

Datta said that the Addl. S.P. saw the account book of Jagadish and the Railway documents including the copy of the receipt for Rs. 4,512-8-0 recording the payment made to Arjunlal and also the public notice of auction circulated by Ratna Bahadur. Datta further admitted that those merchants used to carry on illegal trade and they had manufactured those books.

These Police officers knew that Arjunlal was the brother-in-law of Jagadish and it was Arjunlal who purchased those oil for Rs. 4,512-8-0 in the auction held on July 16, 1944. They knew that Jagadish did not purchase those oil in the Railway auction. They knew that not a single pie was paid by Jagadish to Sud and the Station Master and still this dishonest Addl. S.P. in connivance with those smugglers and his corrupted subordinate officers fraudulently made a report to the Deputy Inspector-General of Police saying that Arjunlal was a fictitious man. They did not stop there, and to prove the false case engineered by them against Sud they called Arjunlal as a witness for the prosecution to give false evidence for which he was rightly served.

This dishonest Addl. S.P. and Datta knew that Shewchand, Jagadish and a host of Marwari merchants had brought huge quantities of prohibited civilian goods in 154 Military wagons without any permit. They knew that those smugglers had violated the war restrictions and they knew that those Railway employees were upholding the law by detaining those contraband goods.

The Second World War by that time reached its most crucial stage in the entire eastern order of our country and the maintenance of continuous supply to the Allied forces was the most vital matter of the day. Tinsukia Railway station was the last main station for supply to the Army in Lido area. This station was directly under Military control and the Railway employees were acting under the direct command of the Military officers. The whole of Tinsukia town was a protected area.

These fraudulent Police officers knowing full well that Sud and the Railway employees including Ratna Bahadur were absolutely innocent, still on August 29 they went to arrest a host of Railway employees including Sud not only to support the illegal trade of these smugglers but also to help the enemies of our country by paralyzing the supplies to our Army. They acted like traitors and they behaved like fifth columnists. Maj. Blackney, realizing the gravity of the situation, rightly stopped those atrocious acts of those war criminals and refused to release Sud and the other Railway employees, but he made a blunder by releasing Ratna Bahadur without realizing that Ratna Bahadur was not at all amenable to the jurisdiction of the local Police.

Datta is not only an untruthful man but is also the worst type of a law breaker. Knowing full well that on July 8 Ratna Bahadur list circulated the public notice still he maliciously arrested Ratna Bahadur and falsely imprisoned him. In Q. 741, he admitted that he was the complainant against Sud. In Q. 438, he said that he was doing everything and took a leading part in it. In Q. 402, he said that he met many people and in Q. 1228, he said that he started the said criminal proceedings against Sud. And now it is necessary to say what led'' and ''made'' Datta to do all those heinous crimes.

During the relevant period Datta''s salary was only Rs. 250 per month but he used to draw a double of that amount as traveling and dearness allowances (Dq. 103-4) though even in his official capacity he always utilized the car of those dishonest smugglers. In Qs. 70, 71, 83 and 808, Datta said that he used to visit the electrical shop of Jagadish who was a mill owner and millionaire merchant of Tinsukia. In Qs. 72, 78, and 570, he said that since he came to Tinsukia in 1942 he knew that Shewchand was a merchant, but he suppressed the fact that Shewchand was one of the leading merchants of Tinsukia which was not only revealed by Sud but also was admitted by Shewchand in the Criminal Court.

Sud said in this Court that Datta was rewarded by those merchants for creating those false charges and maliciously prosecuting him, but Datta denied those facts and in his FIR said that he came to know of those offences committed by Sud in course of enquiry hi some other cases and so he was asked:

Q. 153. When you said in course of enquiry in some other cases, what was the enquiry referred to ?

These cases were relating to smuggled and contraband goods, opium, American cigarettes and woolen scarf�s by the Chinese people.

Q. 261. What happened to the other cases which you were investigating; in the early morning did you obtain information and straightway go to the Police Station ?

I did not go immediately after receipt of the information to the Police Station. I went to the D.T.S.''s office. / caught 67 Chinese and seized 632 trucks.

Q. 912. You have told me that the American and Chinese goods were being smuggled and you were conducting that case ?

I do not remember that.

Q. 1209. Did you receive any* jeep from the Marwaries ?

No, I got Rs. 1,000 and a jeep from the Americans. They also gave me a car.

Everything is suddenly washed away from his memory and with it 67 Chinese smugglers with their 632 trucks of smuggled goods were drowned into the unfathomed bottom of sea but Rs. 1,000, a jeep and a motor car remained in the field. In the Criminal Court Datta did not dare to create 67 Chinese nor could he find out 632 trucks of smuggled goods as the Police records would have completely belied him.

He said that the Americans and not those merchants gave him Rs. 1,000, a jeep and a motor car. But the Americans did not want to prosecute Sud nor they were inimical towards Sud and the Railway employees. On the other hand, the Americans and the Chinese at that time were in the same camp and were fighting, tooth and nail, the Japanese forces. They were vitally interested in the continuous flow of supply to the Allied Army for successful prosecution of the War, and if the American had a mind to present anything to any one they would have given it to the Railway employees for maintaining supply to the Army and not to Datta who wanted to paralyze those supplies and acted like a war criminal.

Datta is a deliberate perjurer. I do not accept his imaginary Chinese smugglers and the fanciful benevolent Americans. He is such a crook that, by taking advantage of the present international situation including the political relationship between our country and China, he invented 67 Chinese from the witness-box and made them smugglers of 632 trucks of American products in a vain attempt to make me believe that his imaginary Americans rewarded him for arresting his imaginary Chinese. Circumstantial evidence on the other hand and the atrocious acts committed by him lead me to an irresistible conclusion that Datta with his satanic brain transformed - 154 wagons of smuggled Indian goods into imaginary American products of 632 trucks and substituted 67 imaginary Chinese in place of those wealthy Marwari smugglers and with a double substitution he converted those Marwari smugglers into imaginary Americans not only to ''satisfy'' his great hunger with Rs. 1,000, a jeep and a motor car but also these illegal gifts ''made'' and ''led'' him to drag Sud in the Criminal Court on that very false charges created by him and those dishonest traders.

Sud said that there was a clash of jurisdiction between Datta and Bora, but Datta untruly denied it and, falsely said in Q. 95 that the defalcation of money took place in the house of Jagadish which was within his jurisdiction though in Qs. 96-8 he said that no one was present at the time of such defalcation and to create his jurisdiction in Q. 960 he admitted, ''I have to say that the money transaction took place in the house of Jagadish Modi.'' Attention of Datta was drawn in Qs. 147-9 to a portion of his F.I.R. where it was recorded by Dastidar that the place of occurrence was Tinsukia Railway station which was half a furlong south of the local Police Station. In Q. 150, Datta falsely said that half a furlong south from the Police Station was within the jurisdiction of the local Police but then could no longer suppress the truth in Qs. 984-87 where he admitted that the distance from the Police Station and not from the Railway station is always recorded as the place of occurrence in F.I.R. I hold that there was a clash of jurisdiction between Datta and Bora as said by Sud and I further hold that Datta wrongfully usurped the jurisdiction of the Railway Police to prosecute Sud on those false charges created by him and those merchants.

In F.I.R. it is recorded that the date of occurrence of the offence was July 17, 194,4, and in Q. 166 Datta said, 7 do not know the place of sale if it was at all'', and in Q. 1035 he admitted that on July 16 those oil were sold, and in the morning of July 17 two wagons, by which those 54 barrels of oil came to Tinsukia, were placed at the pit for washing. This evidence of Datta not only runs counter to his F.I.R. but also it completely destroys the false charges created by him against Sud.

On August 28 Datta met Jagadish and in Q. 289 Datta admitted that Jagadish mentioned the name of Arjunlal to him in that meeting. In Q. 291 he said that he did not make any enquiry about Arjunlal and in Q. 293 he said that he did not even ask Dastidar to make any enquiry about Arjunlal. In Q. 294 he said that he did not remember whether Jagadish told him that those oil were purchased by Arjunlal, but in Q. 300 he suddenly remembered everything and said that Jagadish did not tell him that Arjunlal had purchased those oil, and in Q. 301 he said that Jagadish did not even tell him that he had purchased those oil from Arjunlal.

In Qs. 457, 460-61 Datta said that Arjunlal was not located at Rangia and no such person could be found out at all at Rangia. In Q. 458 he repeated that he did not make any personal attempt to find out Arjunlal and in Q. 462 from the witness-box he sent Dastidar to Budge, Budge and not to Rangia to find out Arjunlal. I do not believe a word he said in this Court as he in the Criminal Court said that he personally made enquiries about Arjunlal and for that purpose he met many people. Moreover, in Q. 527 he admitted that Arjunlal was cited as a witness for the prosecution though he and that Addl. S.P. made Arjunlal a fictitious man and still they called him to give false evidence in the Criminal Court.

Sud had pleaded in the plaint and in his evidence had said that Datta, Schewchand, Jagadish and many Marwari merchants entered into a conspiracy to remove him from Tinsukia by procuring his dismissal from the Railway service, and in pursuance of that conspiracy they instituted the said criminal proceedings against him on those false charges. Sud''s counsel has relied on a statement of Jagadish (part of Ex. S) to corroborate this charge of conspiracy, and before I come to this exhibit it is necessary to state some relevant facts.

Captain Williams held an enquiry to find out whether any Military officer was involved in those alleged offences and he called Jagadish and recorded his statement which was signed by Jagadish in which Jagadish, inter alia, said that in the auction of July 16 Arjunlal purchased those oil and the drums for Rs. 4,512-8-0 and then Arjunlal sold them to Jagadish at a profit. Jagadish further said that on July 17 he entered into an agreement with Shewchand for supplying those oil and other kinds of mixed oil of the value of Rs. 15,980 and Shewchand was to sell those goods at a commission of Rs. 2 per maund of oil. In this statement Jagadish, however, suppressed a few important facts which will be referred to at the appropriate stage. Major Summers, thereafter, started a departmental enquiry in which Sud was personally present and in his presence Jagadish and Shewchand gave evidence before Maj. Summers. Statements of Shewchand was recorded by Maj. Summers on September 24 and Shewchand had signed each and every page of this document (Ex. CC in this suit) which was also exhibited in the Criminal Court.

Shewchand in Ex. CC said that on July 16 he was informed by his Munim that the Railway choukidar came to his gaddi with the public notice of auction which was to be held on the same day, but Shewchand did not attend it, and on July 17 Arjunlal told him that he had purchased those oil for about Rs. 5,000 in the auction of July 16 and offered to sell them to him, but Shewchand was not agreeable to purchase those oil and so Arjunlal left his gaddi. Shewchand further said that on the same day Jagadish came to his gaddi and told him that Jagadish had purchased those oil from Arjunlal at a profit and after some discussions between them it was agreed that Jagadish would supply those oil and other kinds of mixed oil of the value of Rs. 15,980 to Shewchand and Shewchand would sell them at a commission of Rs. 2 per maund of oil.

In some pages of this exhibit Shewchand had put the date ''20th September 1944'' in Hindi though in the other pages he gave the correct date, viz. September 24, 1944. In the other suit, after seeing and hearing Shewchand, I have held that in order to get rid of this exhibit, if confronted in the Criminal Court, Shewchand had mala fide put the date September 20 in some pages and in the Criminal Court he falsely said that Maj. Summers forced him to put his signatures in those written pages and in this Court he changed that false case and had falsely said that his signatures were procured not by Maj. Summers but by Bora and Sud and not in these written pages but in several blank sheets of papers. Datta''s attention was drawn to this exhibit, but it is wholly unnecessary to discuss his untrue evidence given on this exhibit.

On September 27, 1944, the statements of Jagadish (part of Ex. S) were recorded by Maj. Summers and Jagadish signed each and every page of this exhibit in the presence of Maj. Summers and Sud. In this exhibit Jagadish repeated what he said before Capt. Williams and then said:

There were some misunderstanding between the merchants and the Railway staff on account of heavy amounts being recovered from the merchants as undercharges and also for detention of ground-nut consignment for want of permits. Plans were made to get the head goods clerk, Station Master and others removed from Tinsukia and to bring this about the assistance of the Inspector and the Officer-in-charge of local Police Station was sought.

Jagadish further said in this exhibit that on August 28 when Datta and Dastidar met him in his house he told them that Arjunlal had purchased those oil in the Railway auction held on July 16 but they forbade him to mention that fact to any one. He further said that on August 28 he and many merchants assembled in the gaddi of Shewchand and they entertained those two Police officers and, thereafter, he along with Dastidar went to Dibrugarh in the car of Chamaria which was driven by Gouri Sankar, and after reaching Dibrugarh he made a statement before the Magistrate which was recorded in the presence of Datta and Dastidar. He further said that whenever that Addl. S.P. came to Tinsukia he sent for Jagadish and told him to stick to what he had said before the Magistrate and not to divulge that Arjunlal was the purchaser of those oils.

Datta denied that he entered into any conspiracy with Shewchand, Jagadish and those Marwari merchants and his counsel contended that the above statement of Jagadish could not be used as evidence against Datta. These unmeritorious assertions led me to Section 10 of the Evidence Act which is set out below:

Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of such persons in reference to their common intention, after the time when such intention was first entertained by any one of them, is a relevant fact as against each of the persons believed to be so conspiring, as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such persons was a party to it.

Illustration:

Reasonable ground exists for believing that A has joined in a conspiracy to wage war against the Government of India.

The facts'' that B procured arms in Europe for the purpose of the conspiracy, C collected money in Calcutta for a like object, D persuaded persons to join the conspiracy in Bombay, E published writings advocating the object in view at Agra and F transmitted from Delhi to G at Kabul the money which C had collected at Calcutta, and the contents of a letter written by H giving an account of the conspiracy, are each relevant, both to prove the existence of the conspiracy, and to prove as complicity in it, although he may have been ignorant of all of them, and although the persons by whom they were done were strangers to him, and although they may have taken place before he joined the conspiracy or after he left it.

I find in Badri Rai and Anr. v. The State of Bihar A.l.R. 1958 S.C. 953 on August 24 two Appellants approached the Police Inspector and one of them Ramji requested him to hush up a case for reward and then on August 31 the other Appellant Badri paid Rs. 500 to the Inspector by saying that Ramji had sent that amount in pursuance of the talk that they had on August 24. The Inspector immediately arrested him and started the proceedings against the Appellants for entering into a conspiracy to offer him bribe. In delivering the judgment of the Supreme Court, B.P. Sinha J. (as he then was), after citing Section 10 of the Evidence Act, said as follows:

There cannot be the least doubt that the Court had reasonable, grounds to believe that the Appellants had entered into a conspiracy to commit the offence. That being so, anything said or done by any one of the two Appellants with reference to the common intention, namely, the conspiracy to offer bribe, was equally admissible against both of them. The statement made by the first Appellant on August 31 is admissible against the second Appellant not only to prove that the second Appellant had constituted the first Appellant his agent in the perpetration of the crime, as also to prove the existence of the conspiracy itself. The incident of 24th August is the evidence that the intention to commit the crime had been entertained by both of them on or before that date. Anything said or done or written by any one of the two conspirators on and after that date until the object of the conspiracy had been accomplished, is evidence against all of them.

In Bhagwan Swamp v. State of Maharashtra AIR 1965 S.C. 682 (687) I find that in delivering the judgment of the Supreme Court Subba Rao J. (as he then was) laid down the law in the following terms:

The conspiracy may be proved by direct evidence or may be inferred from acts and conduct of the parties or by circum stantial evidence. Section 10 of the Evidence Act will come into play only when the Court is satisfied that there is reasonable ground to believe that two or more persons have conspired '' together to commit an offence or an actionable wrong, that is to say, there should be a prima facie evidence that a person was a party to the conspiracy before his acts can be used against his co-conspirators. Once such a reasonable ground exists, anything said, done or written by one of the conspirators in reference to the common intention, after the said intention was entertained, is relevant against the others, not only for the purpose of proving the existence of the conspiracy but also for proving that the other person was a party to it. The expression ''in reference to their common intention'' is very comprehensive and it appears to have been designedly used to give it a wider scope than the words ''in furtherance of in the English law ; with the result, anything said, done or written by a co conspirator, after the conspiracy was formed, will be the evidence against the other before he entered the field of conspiracy or after he left it. It can only be used for the purpose of proving the existence of the conspiracy or that the other person was a party to it. It cannot be used in favour of the other party or for the purpose of showing that such a person was not a party to the conspiracy. In short, the section can be analyzed as follows: (1) There shall be a prima facie evidence affording a reasonable ground for a Court to believe that two or more persons are members of a conspiracy; (2) if the said condition is fulfilled, anything said, done or written by any one of them in reference to their common intention will be evidence against the other; (3) anything said, done or written by him should have been said, done or written by him after the intention was formed by any one of them; (4) it would also be relevant for the said purpose against another who entered the conspiracy whether it was said, done or written before he entered the conspiracy or after he left it; and (5) it can only be used against a co-conspirator and not in his favour.

I find in the famous case of R. v. Parnell and Ors. 14 Cox C.C 508 (515) Fitzgerald J. told the Gentlemen of the Jury as follows:

But I have now to inform you, as part of the law of conspiracy, there is no necessity that there should be express proof of a conspiracy such as that the parties actually met and laid their heads together, and then and there actually agreed to carry out a common purpose. It may be that the alleged conspirators have never seen each other- and have never corresponded; one may have never heard the name of the other, and yet by the law they may be parties to the same common criminal agreement. Thus in some of the Fenian cases one of the conspirators was in America, the other in this country, that they had never seen each other, but that there were acts on both the sides which led the Jury to the inference, and they drew it, that they were engaged in accomplishing the same common object, and when they had arrived at this conclusion the acts of one became evidence against the other.

The learned Judge further told the Gentlemen of the Jury: Again it has been suggested that secrecy was to some extent essential of conspiracy, and your attention has been repeatedly called to this that the proceedings of the Defendants were all above board, that they were unconcealed, that they were not carried on in the dark, and that there could be no guilty conspiracy, because it was done openly and above board. But, I have to inform you in point of law that though secrecy is frequently a characteristic of conspiracy it forms no essential element of the crime. The crime of conspiracy may be complete, though all the proceedings of the confederates have been open and above board and unconcealed. In this case the proceedings of the alleged conspirators, at least so far as they were known to us, were open, uncloaked, and unconcealed. Their meetings were open to the press, and they used means to give them every publicity. But notwithstanding all that, I am obliged to tell you that they may be guilty of the crime of conspiracy though their proceedings were thus open and unconcealed. I ask you to discharge from your minds altogether the argument that the proceedings of the Defendants accused were open and unconcealed. In point of law secrecy or darkness form''s no element in the crime of conspiracy. This law of conspiracy is not an invention of modern times. It is part of our common law; it has existed from time immemorial:

Coming now to the civil law I find that it is now well established that a conspiracy is an independent tort and, if the victim has suffered damages in consequence of such conspiracy, he is entitled to a compensation from the conspirators: Crofter Harries Tweed and Company v. Veitch (1942) A.C. 435 Since the above decision of the House of Lords, all jurists on the law of Torts are unanimously of the Opinion that the conspiracy is an independent civil wrong. I find that Prof. Winfield has said:

When two or more persons combine for the purpose of inflicting upon another person and injury which is unlawful in itself, or which is rendered unlawful by the mode in which it is inflicted and in either case the other person suffers damages, they commit the tort of conspiracy.

In a conspiracy some conspirators may supply the brain and some may pull the strings from behind the scene and some may take direct action. Their original plan may be altered or modified from time to time due to the changed circumstances, and so long their ''common intention'' and evil design are not fulfilled it does not matter that some of them had deserted his associates, after taking some action in pursuance of their common intention and scheme and all of them including the deserters are jointly and severally liable for participating in the conspiracy and they are answerable to the victim of their conspiracy in a civil action for causing damages to him.

Whenever there is a reasonable ground to believe the existence of a conspiracy, Section 10 of the Evidence Act is immediately attracted, and not only it makes the oral and written statement of one conspirator made with reference to their common intention admissible as evidence against his co-conspirators but also rips open the secrecy, if any, of their conspiracy, it also allows any overt and covert act of one conspirator to be admissible as evidence against his co-conspirator.

Section 10 of the Evidence Act and its illustrations are of far-reaching importance. Until the common evil intention of the conspirators are fulfilled, whatever statements are made by one conspirator in reference to their common intention, after such intention was first entertained by them, are admissible as evidence for the purpose of proving the existence of such a conspiracy and to show who were the parties to such conspiracy. The only pre-condition laid down as to the admissibility of such statements and acts are that there must be some reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong.

Facts and circumstances of the case discussed before and specially the atrocious acts that have come to light from the darkest corner of Tinsukia and Dibrugarh clearly demonstrate, beyond a shadow of doubt, that Datta, Shewchand and Jagadish with many Marwari merchants entered into a conspiracy against Sud and they created those false charges against him and on those very false charges they started the said criminal proceedings in pursuance of their conspiracy against Sud which is an actionable wrong. I hold that u/s 10 of the Evidence Act the statements of Jagadish and Shewchand made before Maj. Summers are admissible as evidence against Datta not only for the purpose of proving that he was a co-cons-Law of Tort by Prof. Winfield, 5lh ed., p. 434 partner of Shewchand, Jagadish and those Marwari merchants but also for the purpose of proving the existence of such conspiracy.

The statements of Jagadish read with the evidence of Sud Conclusively show and I hold that Jagadish, Shewchand and many Marwari merchants entered into the conspiracy with Datta who was supported by Dastidar and the Additional Superintendent of Police to remove Sud from Tinsukia, and in pursuance of their common intention and evil plan they made out a false case against Sud and dragged him in the Criminal Court on those very cooked up and false charges.

Jagadish divulged their conspiracy before Maj. Summers but omitted to put the dates at random in his statements as was done by Shewchand who mala fide created a ground as stated above. In the fictitious seizure list prepared in his house and in the F.I.R. it was falsely recorded that Jagadish had purchased those oil from Sud and the Station Master, but in the fictitious seizure list prepared in the gaddi of Shewchand it was nowhere stated that those 15 barrels were purchased by Jagadish from Sud and the Station Master and the name of Shewchand was not even mentioned in the false F.I.R. Jagadish continued with these mendacities in his statements on oath before the Magistrate on August 28, but on September 27 he could no longer repeat those lies before Maj. Summers and made the most damaging statement against their own interests by divulging their evil plan to implicate Sud and the Station Master. Evil plan that originated in the vile brain of Datta in conspiracy with those wealthy smugglers and given a concrete shape by Datta with the help of Dastidar and ably supported by that dishonest Additional Superintendent of Police was seriously endangered by Jagadish, and before discussing what crooked steps they took to retrieve their position it is necessary to say what Datta had said in the Criminal Court.

In the Criminal Court Datta said that on September 27 Jagadish was arrested and was kept in the Tinsukia thana. He and Dastidar took Jagadish to Dibrugarh in a car on September 28 and he produced Jagadish before the Magistrate for recording a confession of Jagadish. Now coming to this Court in Q. 561 Datta said that no warrant of arrest was issued against Jagadish and in Q. 836 he said that on September 28 the same convicted thief Gouri Sankar again drove his father''s car and took Jagadish and Datta to Dibrugarh. In Q. 838 he admitted that he used the cars of these Marwari merchants for his official works and in Q. 849 he admitted that there was a regular train service between Tinsukia and Dibrugarh and still in Q. 839 he falsely said that he was not friendly with those Marwaris nor he was in the hostile group. There is no evidence on record either oral or documentary to show that those Marwari merchant whose cars Datta always utilized had any enemy other than Sud and that Railway employees who were responsible for detaining those smuggled goods and for realizing undercharges from those smugglers. Moreover, Sud took a leading part in the conviction of Gouri Sankar for stealing the consignment of tallow oil mentioned before and now Datta clearly admits that there was a ''group'' which'' was ''hostile'' to Sud, but he untruly denied that he was in that ''hostile group''.

In the Criminal Court Datta said that he produced Jagadish before the Magistrate for recording his statements, and even after reading his own deposition recorded in the Criminal Court he falsely said in this Court that he did not accompany Jagadish for recording his statement.

I am not unmindful to the fact that Sud and Datta had said that Jagadish was arrested on September 27, but Datta in a number of questions not only turned round and denied that fact but also went further and even threw a challenge to the cross-examining counsel to show him the papers about the alleged arrest of Jagadish, and to find out why Datta took up such a glaring inconsistent attitude it is necessary to set out below some important questions asked of him:

Q. 1177. In your first charge-sheet did you cite Jagadish Modi as a witness ? Yes.

Q. 1180. And in the second charge-sheet was he made the accused ? Yes.

Q. 1181. Was there any first information report against Jagadish ?

No, in the same F.I.R. he was made accused.

Q. 555. What was the charge against him ?

He was an abettor in this case.

Q. 556. He made a statement before you--at that time was he an abettor ?

I do not think that he was an abettor; I thought that he was a witness.

Q. 557. When you examined the books of account did not you think him to be an abettor ?

No, I did not think that.

Q. 558. When he made the statement before the Magistrate at Dibrugarh did you not also think that he was an abettor ?

No, I did not think so.

Q. 561. Was any warrant of arrest issued against him ?

No, Q. 797. Can you deny the statement that has been made by the Learned Counsel that after Jagadish made the statement before Summers he was arrested?

I deny.

Q.1176. So he must have been arrested after he made the statement ?

As it appears from the statement he must have been arrested after the statement was recorded by the Military officer.

Q. 1187. He was conspiring with whom and in what matter ?

That must be written in the case diary and not in the Police diary.

Q. 1188. Do you know anything about that ?

No.

Q. 1189. You were the complainant and you got him arrested and still you do not know anything about it ?

I know that he was involved in the conspiracy.

Q. 1191. On what basis you came to the conclusion that he was a conspirator although he was with you all the time ?

He was not with us all the time. But on what basis it was done that I cannot tell you. I do not remember.

Q. 1195. Whoever made any statement in favour of Sud and the Railway staff they became conspirators according to you and they were arrested ?

They made different statements at different times leading to the party of the accused persons. When we know that the accused persons were guilty then we take them as conspirators. Q. 1196. You thought all these people conspired but the Marwari people who had serious grievances did not conspire ?

Jagadish belonged to them and he was found. He was a Marwari.

In the presence of Datta, on September 28, of all persons it was Jagadish who made a voluntary confession before the Magistrate by falsely saying that he had abetted the offences committed by Sud and the Railway employees and it was Datta who as the complainant started the said criminal proceedings against Sud and Bose by making Jagadish a conspirator with them for abetting those false offences, and still Datta told me that he did not. know why Jagadish was made a conspirator and with whom he conspired.

In spite of this voluntary confession Jagadish pleaded not guilty in the Criminal Court and remained miles apart from the witness-box. No attempt was even made in the Criminal Court to bring home those faked up charges against Jagadish. Not a single witness for the prosecution said anything against Jagadish. Datta was the complainant against Jagadish and Dastidar sent the supplementary charge-sheet against Jagadish and they too like faithful servants did not say anything against their millionaire masters.

On August 25 Datta surreptitiously took away some of those Railway documents from Maj. Blackney and met Jagadish with those documents. According to Datta, the principal man to prove those charges against the Railway employees was Jagadish and on that day Jagadish was neither an abettor of the alleged offence nor a co-conspirator of Sud.

Datta again met Jagadish on August 28 when his millionaire master made over that manufactured khata voluntarily to him, and then Datta and Dastidar prepared that fictitious seizure list which was signed by them along with Jagadish and in that meeting Jagadish was neither an abettor of the alleged offence nor a co-conspirator of Sud.

From Jagadish''s house they all came to the gaddi of Shewchand where many smugglers assembled and those dishonest Police officers were entertained by them. In the presence of all those smugglers Shewchand voluntarily handed over those manufactured books and a statement of account to Datta, and in the same way another fictitious seizure list was prepared which was also signed by Jagadish, but in the presence of those smugglers Jagadish was neither made an abettor of those offences nor a co-conspirator of the Railway employees.

On August 28 the convicted thief Gouri Sankar took Dastidar, Datta and Jagadish to Dibrugarh and after reaching there Datta met that Additional S.P., but still Jagadish was neither made an abettor of those alleged offences nor a conspirator with the Railway employees. Jagadish went to the Magistrate accompanied by Datta and on oath he repeated those false and cooked up charges created by them and still Jagadish was not an offender on that day.

On August 29 Datta seized several Railway documents and one of them was a copy of the receipt issued in favour of Arjunlal, the brother-in-law of Jagadish. On August 29 Datta maliciously arrested Ratna Bahadur for circulating the public notice. And even on that day Jagadish was neither made an abettor nor a conspirator although according to their false case Rs. 15,980 was paid by Jagadish to Sud and the Station Master. According to Datta, in this Court, and not in the Criminal Court, the receipt granted to Arjunlal was a fictitious document and he made that receipt fictitious from the witness-box with a number of somersaults. Datta and that Addl. S.P. made Arjunlal a fictitious man and still they called Arjunlal as a witness for the prosecution, and on August 29 Jagadish neither became an abettor of the alleged offences nor a conspirator with Sud.

Jagadish told Capt. Williams that Arjunlal had purchased those oil in the auction of July 16 for Rs. 4,512-8-0 and had sold those oil to Jagadish on July 17, but he did not divulge their conspiracy to Capt. Williams, and so on that day Jagadish did not become a conspirator.

On September 23 Dastidar wrote out charge-sheet against Sud and other Railway employees, and similarly on that day Jagadish remained an innocent man.

On September 24 Shewchand made those statements recorded in Ex. CC by putting false date ''20th September 1955'' and on that very same day Dastidar finalised the charge-sheet against Sud and the Railway employees, but even on that day Jagadish did not make himself an abettor of those false offences nor did he become a co-conspirator of Sud.

Charge-sheet against Sud and the Railway employees was finalised, but it was not sent to the Criminal Court as Jagadish was still awaiting his turn to appear before Maj. Summers and they had to wait and see how he would fare before the Major, and now that Jagadish divulged their evil plan on September 27 without putting the dates at random like Shewchand and seriously endangered and upset their evil plan, he must spend the whole night with Datta in the Police Station and on the following day he must go with Datta to Dibrugarh in the same car driven by the same thief for making himself an accused.

On August 28 Jagadish, on oath, falsely said before the Magistrate that he had purchased those oil for Rs. 15,980 from Sud and the Railway employees on July 17, and thereafter he not only twice came out with the true facts but also divulged their evil plan before Maj. Summers and he was bound to be confronted in the Germinal Court with his own statements made before Maj. Summers. He had deliberately committed perjury on August 28, 1944, before the Magistrate. It is a crime to set the criminal law in motion on deliberate false charges against an innocent man and Jagadish had no means to save his own skin except by voluntarily making himself a co-conspirator with the Railway employees and then to remain, as an onlooker, by pleading not guilty in the safe hands of his associates.

When on September 27 Jagadish miserably failed before Maj. Summers by divulging their secret plans they could no longer wait even for the sanction of the Governor-General for instituting the criminal case against Sud. They overtly and covertly worked together for all these days and finalised their evil scheme, but Jagadish had seriously endangered it, and so to shatter this fetter on their intrigues and machinations they had to modify their evil plan, and with a show of arrest Jagadish made himself an accused by his false confession before the Magistrate on the following day.

No warrant was issued against Jagadish for his arrest. No F.I.R. was filed against Jagadish nor was he arrested for smuggling those goods. And still Datta untruly said that Jagadish conspired with the Railway employees and had abetted their attendee. In the supplementary charge-sheet Jagadish must now be described as a conspirator of the Railway employees and an abettor of their false offence. In Q. 839, Datta said that those Marwari merchants formed a ''hostile group'' against Sud and the Railway employees and in Q. 1196 without denying that those Marwari merchants, including Jagadish, had serious grievances against Sud and the Railway employees and they were conspirators, he said that Jagadish was a Marwari and was a conspirator, but he changed the nature of the conspiracy and the conspirators.

Their evil scheme was endangered and so it had to be modified. New devices had to be. invented and they formed their seeds in the cultivated vile brain of Datta and he with his guile trickery made Jagadish a conspirator with the Railway employees. Jagadish made a voluntary confession before the Magistrate falsely saying that he had abetted the offence pursuant to their modified evil scheme and voluntarily became a co-accused with the Railway employees. And to remove all hindrance to their evil scheme and to the illegal trade of those wealthy smugglers Datta unleashed the criminal law corruptly and vindictively against those poor and innocent Railway employees. His millionaire master Jagadish had nothing to be afraid of and remained safely and peacefully in his hands, and to save Jagadish his two paid servants and his brother-in-law along with a hired perjurer went to jail.

I hold that Jagadish was not really arrested and it was merely a show of his arrest which had completely misled Sud. I further hold that Datta modified his evil scheme not only to remove all hindrance created by the statements of Jagadish made before Maj. Summers but also to save Jagadish from the dire consequence of making false statement on oath before. the Magistrate on August 28 and by fully utilizing his vile, satanic and corrupted brain he fraudulently perverted the course of justice.

Assuming, however, that Jagadish Was really arrested still when he was produced before the Magistrate he was a free man and as a free man he could speak the truth without any fear or favour. He could repeat the truth in the same way as he did before Maj. Summers, but he did not choose to do so and created further falsities by making a false confession. There is no evidence even to show that Jagadish was forced to make that false voluntary confession. His false voluntary confession before the Magistrate removed all hindrance to their evil scheme and, instead of breaking up, it further strengthened their conspiracy. Moreover, the arrest of Jagadish, even if true, is of no moment so far as Section 10 of the Evidence Act is concerned and it does not matter in the least that Jagadish was "afterwards made an accused or that he left the field of conspiracy.

In whatever way the matter can be looked at, in my opinion, the statement of Jagadish recorded by Maj. Summers is admissible as evidence against Datta, but the portion of that statement where Jagadish had recorded that he was forced by Datta and other Police officers to make an untrue statement against the Railway employees cannot be used in favour of Jagadish and Datta for the purpose of showing that they were not parties to the conspiracy. Moreover, there is no evidence on record to show that Jagadish was compelled by Datta to make those untrue statements as recorded by Jagadish in his statement before Maj. Summers.

After their evil plan was modified, then and then only Dastidar on September 29 sent the charge-sheet in the Criminal Court against the Railway employees and a supplementary charge-sheet dated September 29 against Jagadish at the instance of Datta who was the complainant in both the charge-sheets and with the main charge-sheet many documents were sent to the Criminal Court but not the manufactured account books of Jagadish and Shewchand. Many witnesses including Jagadish, Shewchand, Chamaria, Bajranglal, Datta, Dastidar and that Addl. S.P. were cited in the main charge-sheet and a few more witnesses were added in the supplementary charge-sheet in which the witnesses cited in the main charge-sheet were included.

In the main charge-sheet it was alleged that Sud and Bose conspired with four Military officers and shown as disposed of 54 barrels of cocoanut oil in alleged auction on July 16, 1944, at Rs. 4,512-8-0, whereas there was no auction sale on that date, but sold them on the next day (17.7,44) to Jagadish Modi at Rs. 15,980 and they misappropriated, the sum of Rs. 11,467-8-0. It was further stated that the offence u/s 408/120(B), I.P.C., having been proved against all the accused mentioned above, I send them up for trial under the said sections. Accused Daulatram Sud and Sachindra Nath Bose are civilian accused. Warrants of arrest may kindly be issued for execution against them. The date of hearing of the case may kindly be fixed.

In a number of questions including Q.487 Datta said that permission of the Governor-General necessary before submitting this charge-sheet against Sud and Bose and further said that no proceeding could even be started in the Criminal Court against them without prior sanction of the Governor-General, but it is not necessary to refer to those questions at all. Whatever may be the legal position according to his own understanding of law, such a sanction of the Governor-General was absolutely necessary, but still Datta could no longer wait for the said sanction in view of the statements of Jagadish recorded by Maj. Summers, and to steal a march on Maj. Summers before he could send that statement to the_ sanctioning authority which would frustrate their evil plans, Datta directed Dastidar to send those charge-sheets to the Criminal Court, and in a hurry Dastidar forgot to strike out the name of Jagadish as a witness for the prosecution from the main charge-sheet, and not only in the main charge-sheet Dastidar prayed for the arrest of Sud and Bose but in the forwarding letter Datta also recommended for their arrest with no provisions for bail.

In the Criminal Court as Dutta said, "at my suggestion O/C. Dastidar submitted charge-sheets"--it is wholly unnecessary to discuss his evidence in this Court where he went on untruly denying what he said in the Criminal Court. Datta was the complainant and he recommended the prayer of Dastidar in Ex. QQ for issuance of warrant of arrest against Sud without any provision for bail, and on the same day the Magistrate issued a warrant of arrest against Slid directing Maj. Summers to arrest Sud and to produce him in Court.

Sud said that he was arrested by Maj. Summers in execution of that warrant and was produced in the Criminal Court on October 11 which is fully corroborated by the records of the Criminal Court. Sud further said Datta procured his arrest, but Datta denied this fact. Sud is a victim of a most heinous crime committed by Datta and with liquid eyes and sobbing voice Sud distinctly remembered those horrible incidents, and I have no hesitation in rejecting the untrue and perverted evidence of Datta and hold that Datta procured the arrest of Sud on those very false charges created by him in conspiracy with those wealthy smugglers. But Sud somehow managed to furnish bail and thereby saved his flesh from this hungry cannibal.

Datta repeatedly said that the case against Sud was a very simple one, but to prove this simple case a number of local Marwari merchants whose goods were detained by Sud were called to give false evidence as witnesses for the prosecution. The manufactured khata of Jagadish and Shewchand were fully utilised to bring home |hose false charges. Four witnesses for the prosecution were later on rightly sent to jail for committing perjury, and although, in my Opinion, all of them should have visited the same place still Datta denied that he tutored Jagadish to make those false statements in the fictitious seizure list and twice before the Magistrate. He further denied that he (tutored Shewchand or any witnesses for the prosecution to give false evidence in the Criminal Court.

Sud said that Datta procured perjured witnesses, but Datta with so many convictions on his side and still with no sign of repentance and with a step towards the other world denied this fact, and so to ascertain the truth it is necessary to start with one question of Datta which is set out below:

Q. 1046. What about the other people for the prosecution, were they influenced ?

Some of the...unless I see the records I cannot say.

When in an unguarded moment the truth was accidentally escaping through his perjured lips he suddenly realised it and immediately sealed his lips, and so he was asked:

Q. 1047. You wanted to say ''some of the...what did you want to say by that ?

I beg your pardon ? What a cold blooded perjury and a false pretence without a wrinkle on his face ! And so he was again asked:

Q. 1048. You just now said ''some of the.... What do you mean by that--why didn''t you finish that--fell me what did you want to say and then did not say ?

I wanted to say some of the prosecution witnesses might have been influenced by the accused party.

Q. 1049. And not by the prosecution ? No. We did not influence anybody.

In Q. 1046 he was going to say that some of the witnesses for the prosecution were influenced by the prosecutors and then real sing it did not complete his answer and wanted to see the records of the Criminal Count, but the records of the Criminal Court will not show that he had tutored any witness but will reveal four witnesses for the prosecution were later on convicted for committing perjury. He sealed his lips to kill the truth and to take time to create further lies and then opened his wide mouth and came out by falsely saying "some of the prosecution witnesses might have been influenced by the accused party" and "we did not influence anybody."

In Q. 1242 Datta said, "when a Police case is sent up we are also interested for the successful termination of the case" and I say that they ''sent up'' the ''Police case'' against Sud and they were vitally ''interested'' in its ''successful termination''. In this Court he said that Dastidar was carrying out his order and In the Criminal Court he said that at his suggestion Dastidar sent the charge-sheets against Sud. In Q. 1243 he said, "when a man is guilty we know conclusively well, we want his conviction, that is the Police aim when they submit charge-sheet." And I hold that they submitted charge-sheets against Sud on those false allegations created by them and they wanted ''his conviction'' which was their sole ''aim''.

In Qs. 1245-46 he, inter alia, said, "even when there is no evidence we cannot submit charge-sheet" and he further said, ''unless there is evidence'' he ''cannot proceed with that man'', and than in. Q,. 1247 when he was asked, ''so evidence was required}'', in no uncertain terms he said ''yes''. And I repeat that he created those false offences against Sud and so he ''required'' the false evidence of a gangster of reckless perjurers and a number of fictitious book entries from those smugglers to substantiate those false charges. And he not only had them but also tutored those perjurers so foolishly that four of them had to visit the very same place where he wanted to send Sud.

It is a mandate of the civilization that every Police officer must be fair and impartial. Every Police officer is a public servant and he cannot be equated with a private prosecutor. He is the custodian of law and owes a paramount duty and a fundamental obligation to the Court. His paramount duty is to place before the Court all relevant facts and documents fairly and honestly be they favorable or unfavorable to the prosecution. His fundamental obligation to the Court is to refrain from doing anything which may in any way affect the course of justice. A Police officer is in no way concerned or interested in the conviction of an accused and all that he is required to do is to discharge his duties and obligations faithfully and impartially to the Court.

Datta was a Police officer of high rank and he knew his duties and obligations and still he slaughtered them in the alter of corruption to remove all hindrance to (the illegal trade of those smugglers. He created those false offences and set the criminal law in motion against Sud. He wrecked his own conscience and suppressed the original report of Mr. Halhead in the Criminal Court, and in the same way he suppressed many Railway documents which he fraudulently took away from Maj. Blackney. He is a fraudulent Police officer and he had overstepped his marks in every possible way, and by misleading the trial Court by means of manufactured documents and perjured witnesses he fraudulently procured the conviction of Sud which was rightly set aside on appeal.

And still it was said by Datta''s counsel that as Datta in his evidence had said that he believed in the guilt of Sud, so it should be taken as conclusive and this Court is debarred from going into the merits of this assertion of Datta. This self-destructive un-meritorious contention led me to find out the law on the subject and I find in Herniman v. Smith (1938) A.C. 305 (316-7) it was said by Lord Atkin:

If there is any evidence of a lack of honest belief in the guilt of the accused on the part of the prosecutor, the fact whether he honestly believed or not is a disputed but essential fact on which the Judge is to draw his conclusion and is a question for the Jury. Questions may arise as to what the true facts are upon which the prosecutor acted. Were the statements, which he says were made to him, in fact made ? Were the documents, which he says he saw, in fact seen by him and in the form in which he says he saw them ? If the evidence on which he acted for any cause reasonably apparent to him might be unreliable or incomplete, was he aware or should he in the circumstances of the particular case have been aware (that there was other reliable evidence available ? If there are specific points of genuine dispute between the parties in regard to such circumstances, the facts should be ascertained by the Jury. But to ask the general question whether the Defendant took reasonable care to inform himself of the true state of the facts appears to me in many cases merely to ask the Jury what the Judge has to decide for himself. The facts upon which the prosecutor acted should be ascertained ; in principle, other facts upon which he did not act appear to be irrelevant. When the Judge knows the facts operating on the prosecutor''s mind, he must then decide whether they afford reasonable or probable cause for prosecuting the accused.

I also find that our Court of Appeal in Bharat Commerce and Industries Ltd. Vs. Surendra Nath Shukla and Others, said: We should, therefore, try to find out whether the Appellant commenced the prosecution without any honest belief of the Plaintiff''s guilt and whether it failed or neglected to take reasonable care to inform itself of the true facts before commencing or proceeding with the prosecution.

While I am on this judgment of the Appeal Court I will refer to another passage which has an important bearing on another aspect of the case. Their Lordships at p. 394 of the report quoted with approval what was said by the learned Judges of the Madras High Court in Brojo Reddy v. Perumal Reddy I.L.B. 26 Mac 306 (508) which is set out below:

We think that the true principle is, as stated by Pollock at p, 605 in his ''Treaties on the Law of Torts'', 6th edition, that the action will lie if the Plaintiff was ultimately acquitted on appeal by reason of the original conviction having proceeded on evidence known by the complainant to be false or on the willful suppression by him of material information.

The law laid down by the House of Lords and our Court of Appeal completely negatives the contention of Datta''s counsel and coming now to the self-destructive assertion of Datta, I find in Haddrick v. Heslop 116 E.R. 869 (871-2) Lord Denman C.J. said:

It would be quite outrageous if, where a party is proved to believe that a charge is unfounded, it were to be held that he could have reasonable and probable cause. Reference has been made to Turner v. Ambler, where there was an allusion to a decision of my brother Maule, upheld afterwards in the Common Pleas, to the effect that reasonable and probable cause cannot exist without belief. There may possibly be some difficulty in distinguishing the case last mentioned from some others: but I think that belief is essential (to the existence of reasonable and probable cause: I do not mean abstract belief, but a belief upon which a party acts. Where there is no such belief to hold that the party had reasonable and probable cause would be destructive of common sense. Proof of the absence of belief is almost always involved in the proof of malice.

In the same case (Supra p. 872) Erie J. said:

The Defendant made the charge upon information given to him: it was left to the Jury whether he believed that information: and they found that he did not. It would be monstrous to say he had reasonable and probable cause.

In Balbhaddar Singh v. Badri Sah 30 C.WN. 866 (872) in delivering the opinion of the Judicial Committee, I find Viscount Dunedin said:

The question is: Have the Appellants proved that Badri Sah invented and instigated the whole proceedings for prosecution ?

...And if that is done and trouble caused an action will lie.

I further see in Gaya Parsad v. Bhagat Singh 35 I.A. 189 (194-5) in delivering the opinion of the Board Sir Andrew Scoble said:

The charge was a false one to the knowledge of the Respondents, and they must abide the consequences of their misconduct....

In the opinion of their Lordships it would be a scandal if the remedy provided by this form of action were not available to innocent persons aggrieved by such unfounded charges.

I also find in Glinski v. Mclver (1962) A.C 726 (742-3) Viscount Simonds said:

The Judge, equipped with the information which at the relevant date the prosecutor had, has to decide, adopting the standard of the reasonable man, whether there is reasonable and probable cause. How can that information include something which the prosecutor knows to be false, or at least knows not to be true ?

In the same case Lord Radcliffe in his speech said (Supra pp. 753-4): I take it to be settled law that if the Defendant can be shown to have initiated the prosecution without himself holding an honest belief in the truth of the charge must, of course, refine on this phrase later) he cannot be said to have acted upon reasonable and probable cause the ultimate question is not so much whether there is reasonable or probable cause in fact as whether the prosecutor, in Launching his charge, was motivated by what presented itself to him as a reasonable and probable cause. Hence, if he did not believe that there was one, he must have been in the wrong.

Coming now to the judgment of Lord Denning, I find it was said:

Honest belief in guilt is no justification for a prosecution if there is nothing to "found it on. His belief may be based on the most flimsy and inadequate grounds which would not stand examination for a moment in a Court of law. In that case he would have no reasonable and probable cause for the prosecution. He may think he has probable cause, but that is not sufficient. He must have probable cause in fact. (Page 759) Again Lord Denning said:

Secondly, there are some cases where the prosecutor is personally involved, so much so that his own evidence is the very basis of the case for the prosecution: and it is flatly contradicted by the evidence of the accused. The issue then appears simple. If he was speaking the truth, there was good cause for the prosecution. he was lying, there was no cause for it. (Pages 760-1) In the same case Lord Devlin in his speech said:

It must be remembered that the question is not whether there was in the abstract reasonable and probable cause but whether the Defendant had such cause. That is how it should be framed. If it were framed in the other way, the test would be purely objective and the Defendant''s belief in anything immaterial, but it is common ground that the Defendant must believe in something. There must therefore be both actual belief and reasonable belief. (Page 775) Now, I will recall what Sir John Beaumant said in Tohamed Amin v. Jogendra Kumar Banerjee 74 I A. 193 (201):

No man can be heard to say that he lodged a false complaint maliciously without any justification in the belief that, though supported by his own oath, the Magistrate would have no difficulty in detecting its falsity and in dismissing it without calling on the accused.

Datta has put his belief in issue from the witness-box and his counsel having supported Dana''s belief still wants to lay an embargo on this Court by saying that the Court is powerless to go into this question. This contention has no substance and is devoid of all merits. In our country a Judge, trying a civil cause, is to decide all questions of fact and law and when the prosecutor''s honest belief in the guilt of the accused is put forward as a defence in this form of action it has to be determined by him like any other issues of fact.

The prosecutor''s mere assertion that he honestly believed in the guilt of the accused can never be accepted as a proof that he had really entertained such a belief. The very facts, upon which he asserts his belief is formed, have to be looked into to ascertain the truth of his assertion. If those facts fail to carry any conviction to the mind of a reasonable and prudent man in the guilt of the accused, it can never be said that the prosecutor still had such a belief. Obvious absence of reasonable and probable cause for launching criminal proceedings automatically leads to the conclusion that the prosecutor did not really entertain any such belief which he asserts.

The facts and circumstances should be such as would lead a reasonable and prudent man to entertain an honest belief that the, accused has probably committed the offence with which he is going to be charged. If a reasonable and prudent man placed under the same situation as that of the prosecutor could entertain an honest belief that the accused has probably committed the offence and his conviction is based on reasonable grounds, then no further question can arise at all and the Court must necessarily hold that there was no want of reasonable and probable cause for launching the criminal proceedings against the accused.

A Judge is supposed to be a reasonable and prudent man and he will place himself in the position of the prosecutor and will consider those very facts upon which such a belief is asserted by the prosecutor to find out whether he could himself entertain any such honest belief in the guilt of the accused. It is true, as said by Lord Atkin in Hemiman''s case (Supra), that the prosecutor has no duty to ascertain the defence but that does not entitle the prosecutor to run away capriciously from those facts which will destroy his belief and he must not wantonly make himself blind to those facts which will take away the very foundation of his belief.

It is also true, as said by Lord Atkin, that the prosecutor need not have to test ''every possible relevant fact before he takes action'', but again that does not mean that the prosecutor will not weigh the facts which are personally known to him and of those facts which have subsequently come to his knowledge from reliable sources before he starts the ball rolling. No man has any right to put the criminal law in motion against another man and to endanger his liberty and reputation on a mere suspicion and conjecture.

The prosecutor should, at least, have an honest belief in the guilt of the accused before taking any action and to form such a belief if he shuts his eyes to facts which would make any reasonable man infer that the accused party''s conduct was not criminal, [per Prof. Win-field in his Text Book on the Law of Torts and followed in Bharat Commerce if Industries'' case ( Supra )] it can never be said that the prosecutor honestly or reasonably entertained any such belief.

If the prosecutor personally knows that no offence was committed by the accused it will be an utter perversity of justice to hold that the prosecutor still had an honest belief in the guilt of the accused. In the same way, if the charge against an innocent man is false and it is false to the knowledge of the prosecutor, it is not only ''monstrous'' and ''outrageous'' but is also a horrible savagery even to imagine that the prosecutor had any such belief. False charge created by the prosecutor himself destroys every iota of his faked up belief, not to speak of his very honesty, and all foundation of the alleged reasonable and probable cause vanishes in the air of setting the criminal law in motion against the accused.

The law of the jungle let loose by Datta conclusively shows that he in conspiracy with those Marwari merchants created those false charges and had fraudulently set the criminal law in motion against Sud on those very false charges. Datta had fraudulently procured the arrest of Sud on those very false charges and had secured the sanction of the Governor-General by deliberate misrepresentation of facts. Datta had procured untruthful witnesses after witnesses and had suppressed material documents after documents in the Criminal Court. Datta had utilized fictitious entries after entries from the fabricated and manufactured books of Jagadish and S Kewchand.

To hold Datta honestly believed in the guilt of Sud is to destroy the very foundation of civilization, and I refuse to be a party to it. Datta''s own evidence has destroyed each and all the planks of his faked up reasonable and probable cause for dragging Sud in the Criminal Court, and I hold that Sud had proved to the hilt that Datta never had any belief whatever in the guilt of Sud and that Datta had instituted the said criminal proceedings without any reasonable and probable cause.

Still relying on the sanction of the Governor-General it was said that Datta had reasonable and probable cause for instituting the said criminal proceedings against Sud, but Sud was arrested before the said sanction was obtained and this ground is alone sufficient to reject this contention.

Moreover, this defence is not available when such a sanction is procured by false misrepresentation or deliberate suppression of real facts. The Governor-General was entitled to rely on the Police officers that they had done their duties fairly and honestly and had without any prejudice considered all material facts available to them including the facts personally known to them. The Governor-General was entitled to assume that all those relevant facts and materials were reasonably considered by the Police^ officers and they had honestly incorporated their views in the report for obtaining the said sanction. This confidence reposed by the Governor-General was capriciously betrayed by Datta and he fraudulently procured the said sanction of the Governor-General by submitting a report falsely stating therein that all Railway documents were false and fabricated and the account books of Jagadlsh were genuine (D Qs. 612-15). Datta deliberately created those falsehoods against Sud and fraudulently misled the sanctioning authority. This fraud of Datta had vitiated the very sanctity of that sanction and it can never be used as a defence to this action.

It is to be remembered that before the hearing of these two suits were started I repeatedly requested the counsel of Datta and his instructing Solicitor who were present in the Court for watching the proceedings in the other suit that these two suits should be heard together to avoid duplication of evidence and to minimize huge expenses of litigation. I told them that evidence of those witnesses who had already given evidence before Sharp J. and Mallick J in the other suit should be treated as evidence in this suit and I would recall those witnesses, if available, for being cross-examined by the counsel of Datta, but if they were no longer available, their evidence would not be treated as the evidence in this suit. I further told them that full opportunities would be given to cross-examine all the witnesses that might be produced by Shewchand and Sud, and under my direction the Solicitor of Sud sent the copies of the depositions of the witnesses examined before Sharp J. and Mallick J. respectively to the Solicitor of Datta and then I was told by them that they had no instruction to agree to my suggestions. With the result these two suits were heard separately. In the other suit, many facts did not come to light and on the materials then available I came to a conclusion that the Addl. S.P. in connivance with Data falsely procured the sanction of the Governor-General. I cannot utilize the evidence of Datta in the other suit and in the same way I cannot use the material on record of the other suit in this suit. In these circumstances there must necessarily be some conflicting finding of facts which cannot >be avoided.

It was further contended that as Sud was convicted by the trial Court there was a reasonable and probable cause for Datta to institute the said proceedings; I am unable to accept the contention. In Niaz Mohammed v. Alfred Morries 52 CWN 494 it was said that conviction by the trial Court though set aside on appeal was a strong evidence of reasonable and probable cause for instituting the criminal proceedings against the accused, but ''there are certainly some exception to this rule'' as said by the Court of Appeal in the Bharat Commerce 6- Industries'' case (Supra p. 294) their Lordships cited with approval the passage quoted above from Brojo Reddy''s case (Supra ) which conclusively demolishes this unmeritorious contention.

Moreover, Sud was falsely charged with misappropriation of Rs. 11,467-8-0 and the trial Court honorably acquitted Sud from that false charge. The Additional District Magistrate, however, being deliberately misled by the prosecutors committed a serious and sad mistake in convicting Sud On a wholly imaginary offence and what a fantastic imagination it was. His unruly imagination converted Rs. 11,467-8-0 into a part of those oil and caused Sud to misappropriate those oil and had them sold through none but Arjunlal and put the imaginary proceeds of those fanciful misappropriated oil into the pockets of Sud. He convicted Sud and sentenced him to six months rigorous imprisonment and he did so without framing any charge against Sud for committing those fanciful offences. He convicted Sud without any evidence and he convicted him on mere surmises and conjectures. He did not apprise Sud of the case which he made out in his judgment and he did not give any opportunity to Sud to meet it. His judgment and the order were rightly set aside by the Appellate Court and Sud was honorably discharged.

It is true that the Code of Criminal Procedure empowered him to amend or alter the charges, but it did not confer on him any jurisdiction to create an absolutely different offence out of his own sweet will. Assuming it can be said that he inherently possessed that power but it was his fundamental duty to appraise Sud about the new offence that he was going to create against him. The law enjoined him to give full and adequate opportunity to Sud to meet those imaginary offences. It is a fundamental principle of our criminal law that no man can ever be convicted without any opportunity being given to him to meet the charges made out against him as the power of Court is always subject to the limitation that no course should be taken by reason of which the accused may be prejudiced either because he is not fully aware of the charges made or is not given full opportunity of meeting it and putting forward any defence open to him on the charge finally preferred. [Per Lord Porter in Thakursing v. Emperor AIR 1943 P.C. (195)].

It is also the law of this country that no man can ever be convicted unless there is evidence on record to justify his conviction. Conjectures, surmises and suspicions are not the substitute for evidence nor can they fill in the lacuna in evidence. The law dictates that the liberty of a man should never be endangered unless there is a reasonable and probable cause for setting the criminal law in motion against him. A Police officer is not concerned with the conviction of the accused and it is his duty to lay all the relevant facts fairly and honestly before the Court. The civilization will be destroyed if the motivated Police officers are permitted to institute false criminal proceeding against an innocent man. It is a crime to procure false evidence and to use them in a Court of law. It is a crime to use manufactured documents, knowing them to be manufactured, in any Court of law. And it is the worst type of crime to procure the conviction of an innocent man by misleading the Court deliberately by means of perjured and fraudulent witnesses and by means of manufactured documents. When such a conviction is procured and is set aside on appeal it can never be set up as a defence in an action for malicious prosecution.

Datta cooked up those false charges against Sud and he utilized manufactured books of accounts of Jagadish and Shewchand. He procured untruthful witnesses to give evidence against Sud and by misleading the trial Court he fraudulently secured the conviction of Sud, and this defence set up from the Bar is not a bar to this action at all and is devoid of all substance. Moreover, the reasonable and probable cause for setting the law in motion must relate to a particular offence and it will not lie in. the mouth of the Defendant to say that though he had no reasonable and probable cause for dragging the Plaintiff to the Criminal Court on that particular offence and still the Plaintiff should be non-suited as he was convicted on a totally different offence which was wholly unknown to the Defendant and of which the Defendant could never have any belief.

Sud had said that he was prosecuted by Datta, but Datta had denied it. In Q. 741, Datta admitted that he was the complainant against Sud. In Q. 1228, Datta admitted that he started that criminal proceedings against Sud. In Q. 402, Datta admitted that he met many people in connection with that case, and in Q. 438, ''he admitted that he took a leading part in it. I outright reject this denial of Datta and hold that he was one of the prosecutors and he prosecuted Sud on those false charges.

But Datta''s counsel joined issue and said that as Datta was merely carrying out the order of Mr. Routlage in lodging that complaint against Sud and so Datta cannot be said to be the prosecutor. I have already rejected the evidence of Datta about the alleged order of Mr. Routlage and I now reject this contention of his counsel. Assuming there was such an order still Datta cannot take advantage of it as it was he who created those false offences against Sud and procured the alleged order, if any, by fraudulently misleading Mr. Routlage.

Datta''s counsel with vehemence still said that Datta could not be the prosecutor as he was only obeying the orders of the Addl. S.P. But this Addl. S.P. and Datta had worked hand in glove from August 28, and assuming that Datta had merely obeyed the orders of that Addl. S.P. still he cannot escape from the consequence of his own illegal acts, and I reject this unmeritorious defence. Blind, unquestioning obedience is the law of tyrants and of slaves. It does not yet flourish on English soil [Per Lord Simonds in Christie v. Leachinsky (1947) 1 All E.R. 567 (575)].

And I add that so long the Rule of Law will prevail in our ''soil'', even an illegal order of any person, however high and mighty he may be, directing a Police officer to proceed against an innocent man, can never be set up as a defence in a Court of law. The days are long gone when a fraudulent Police officer could be told to lay his hands on an innocent man, and if he does not restrain his paws the law will neither spare him nor his dictator. If Datta was not the prosecutor as contended by his counsel, then the term ''prosecutor'' as interpreted by the Judicial. Committee by a long catena of decisions starting from Gdya Prasad''s case (Supra ) and culminating in Md. Amin''s case (Supra ) had to be set at naught which I refuse to do and I hold that Datta was the prosecutor and he had prosecuted Sud.

Sud has proved that Datta prosecuted him which is one of the essential elements required to be proved in a suit for malicious prosecution. Sud has proved that Datta falsely procured his arrest in that criminal proceedings and has thereby satisfied another ingredient though not an essential one to be proved in this form of action. Sud has fulfilled another essential requirement of this form of action by proving that he was acquitted from the charges with which he was dragged in the Criminal Court and has further proved that he was honorably acquitted by the Appellate Court from the imaginary offences created by the trial Court. He has further proved that Datta dragged him to the Criminal. Court without any reasonable and probable cause and has thereby satisfied one of the most vital conditions, but this want of reasonable and probable cause standing alone will not entitle Sud to get a verdict in his favour. And so Sud said that Datta bore malice towards him. But malice, however great it may be, by itself is insufficient in this form of action as said by Lord Denning:

Even though a prosecutor is actuated by the most express malice, nevertheless he is not liable so long as there was reasonable cause for the prosecution. [See Tempest v. Snowden (1952) 1 KB. 130 (140)]

Want of reasonable and probable cause is the root and malice is the gist in this form of action and they must combine together to constitute a cause of action for malicious prosecution. Want of reasonable and probable cause cannot be inferred from malice, but malice may, however, be implied or inferred as a fact from the want of reasonable and probable cause, and in applying this principle one must not forget that want of reasonable and probable cause does not necessarily imply malice, but it is an element which is considered as some evidence though not a conclusive one in inferring malice.

Malice is a state of mind and no man can enter into the mind of another man, and so in many cases it is not feasible to adduce direct evidence of malice. Acts, conduct and utterances of a man generally indicate his feelings towards another man. The feeling of a man towards another man can only be ascertained from his behavior, acts and speeches in relation to the other man. A. man''s acts and conduct are the best index to his intention and are the manifestation of what had passed in his mind. Secret intention can only be inferred from external acts judged in the light of surrounding circumstances. External acts, conduct and utterances of a man reveal his mind and bring out the internal secrets of his heart. The law judges the mind of a man from his acts by invoking the well-known principle acta exteriara indicant interior secret.

I find:

The term ''malice'', in an action for 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: per Parke J. (as he then was) in Mitchell v. Jenkins (1833) 5 B & DD 588 (595) : 110 E.R 908 (910).

I also find in Fitzhon v. Mackinder 142 E.R. 199 (209) Cockburn C.J. said:

I cannot entertain a doubt that to indict an innocent man on a false charge to the knowledge of the party preferring it, no matter what may have originally been the motive, must necessarily be malicious.

And as said by Lord Denman:

Proof of absence of belief is almost always involved in the proof of malice. [Haddrick v. Heslop ( Supra)]

Actual malevolence or corrupt design is not ah. essential element to constitute malice and malice is proved the moment it is shown that criminal proceeding was wantonly instituted on false charges ''from some indirect motive'' [per Lord Macnaghten in Pestonji Muncherji Mody v. The Queens Insurance Company ILR Bom. 332 (335)] or for some ''improper purpose'' [per Sir John Beaumont in M.d. Amin''s case (Supra)] and as said by Parke J. They can never be any reasonable and probable cause for prosecution if the charges are false to the knowledge of the prosecutor. Similarly, intentional launching of criminal proceeding on the false charges cooked up by the prosecutor himself to injure an innocent man is the worst type of malice that one can ever think of. Big purses of those smugglers had effectively restrained the enforcement of war restrictions, but those huge quantities of smuggled goods were getting germinated in the 154 Military wagons. Leaving aside his official acts and duties this high and mighty Divisional Circle Inspector of Police pawned his vile brain and joined their meetings and twice he asked Sud to release those goods, but the honesty and integrity of Sud stood against corruption and he squarely refused to violate war restrictions.

The pomps and vanities of the wicked world'' were lowered but his powers were greater and he mischievously used it. He surreptitiously took away the Railway file from Maj. Blackney and created these false charges against Sud and made Arjunlal a fictitious man in connivance with that fraudulent Addl. S.P. He capriciously arrested Ratna Bahadur and in conspiracy with those smugglers he fraudulently made Jagadish a co-conspirator of Sud and wantonly procured the arrest of Sud on those very false charges.

Leaving aside everything, those atrocious acts and fraudulent conduct of Datta had brought out the internal secrets of his heart and they conclusively demonstrate that he had a worst type of malice against Sud as understood even in common parlance. They further conclusively prove (that Datta had a great malice against Sud as understood in law in this form of action. I hold (that Datta''s sole intention and motive were to remove Sud from Railway service and with this ''improper'' and ''indirect motive'' he wantonly instituted the said criminal proceedings on those false charges created by him and had thereby maliciously prosecuted Sud without any reasonable and probable cause and fraudulent!) procured his arrest on those false charges and corruptly secured his conviction by misleading the trial Court which was rightly quashed on appeal.

The history of human civilization shows that the common people have broken the chains of slavery and though their dreams are yet to be fulfilled, still they have to a great extent, secured for every man the greatest right of inviolability of person. The greatest of all the heritages (that they have inherited from their forerunners is the heritage of personal liberty which cannot be touched except by authority of law. The law is no longer a silent spectator and it zealously protects this inviolable right of every man and will never tolerate any unlawful encroachment on (the civil liberty of a man. Personal liberty of a man is sacred and can never be touched nor be threatened except by due process of law. And transgression on the personal liberty is not only an offence under the criminal law but also an actionable wrong, and the transgressor cannot escape from the consequences of his evil doings.

Datta had butchered these mandates of civilization like a savage and had violated all canons of law like a tyrant. He laid his unclean hands on Sud and so he must suffer its consequences.

Every man has an absolute right to have his reputation preserved inviolate and for any wrongful disparagement of his good name he shall have his redress. Honesty and integrity are the jewels of every man and the reputation of possessing them is cherished by all. A man''s living often depends on his reputation and a reputation of being honest, faithful and trustworthy are the predominating factors in every sphere of life including the employments be they Governmental or private. Datta had robbed these jewels of Sud and he must now restore them to Sud.

More than two hundred and a three quarter of a century ago in Saville v. Roberts 91 E.R. 1147 (1149) Lord Chief Justice Holt laid down: There are three sorts of damages, any of which would be sufficient ground to support this action. (1) The damage to a man''s fame, as if the matter whereof he is accused be scandalous. (2) The second sort of damages, which would support such an action, are such as are done to the person, as when a man is put in danger to lose his life, or limb, or liberty which has been always allowed a good foundation of such an action. (3) The third sort of damages which will support such an action is damage to a man''s property as where he is forced to expend his money'' in necessary charges, to acquit himself of the, crime of which he is accused.

In the Mohamed Amin''s case (Supra p. 202), after summarizing the above statement of law laid by the great Master it was said by Sir John Beaumont:

a criminal charge involving scandal to reputation or the possible loss of life or liberty to the party charged does necessarily and naturally involve damage and in such a case damage to reputation will be presumed.

There is no yardstick to measure the wrongful degradation of reputation of a man in terms of money and in assessing damages to his reputation the Court will take into consideration the nature of wrongful accusation made against him, his status and all other facts and circumstances that may seem fit and proper.

Sud was the chief goods clerk and the Railway administration reposed trust and confidence in him. Sud was the custodian of all consignments and was also the repository of confidence and trust. His services depended on his honesty, integrity and above all his reputation as a trustworthy person. Datta capriciously violated the honour of Sud and marred his reputation to such an extent that Sud was dismissed from his service. Datta depicted Sud as a conspirator of a worst type and a mis-appropriator of Railway funds and had thereby wantonly lowered his good name not only before the Railway officers but also his image before the public. Sud had to attend the Criminal Court as a conspirator and a thief for a number of days and was thus publicly humiliated. Datta came with chains to rob his liberty and endangered his reputation not only in the presence of those dishonest Marwari merchants but also before the Railway employees. Datta maliciously persisted with those false charges created by him against Sud not only in the Criminal Court but also in this Court and he did so with no sign of repentance. And he has deliberately added insult to injury of Sud.

Sud has claimed Rs. 40,000 for injury to his credit and reputation. He was honorably acquitted by the Appellate Court. He was not reinstated in his service at the time he came to this Court for justice. During the pendency of the suit he was, however, reinstated with all arrears of salary. His good reputation was restored so far as the Railway officers and his colleagues were concerned. His acquittal has further restored his reputation to some extent before the public and still he is entitled to receive compensation for disparagement of his good name. Considering all the facts and circumstances including the nature of accusation I hold that Sud has suffered Rs. 10,000 as damages to his reputation caused by Datta and Datta must pay it to Sud.

Coming now to the question of damages to Sud''s person first thing to be remembered is that Datta was a Police officer of high rank and he knew his powers and duties. He had deliberately slaughtered all canons of law in the altar of corruption. He capriciously abused his powers and mala fide overstepped his mark. He created those false charges and surreptitiously procured the arrest of Sud. He dragged Sud to the Criminal Court on those false charges, and Sud has to appear times without number for defending himself in the trial Court. Datta corruptly procured the conviction of Sud and caused him to be sentenced to rigorous imprisonment for six months by the trial Court. Thereafter, Sud had to attend the Appellate Court on a number of occasions for justice until he got it on March 31, 1946. During the trial he was suspended from his service without any pay and after his wrongful conviction he was dismissed from his service. His funds were not sufficient and he had to sell his only property to raise money for defending himself. His unfettered liberty was wrongfully endangered and was maliciously taken away during the long drawn trial and the protracted hearing of the appeal. Datta had maliciously violated and usurped the personal liberty of Sud. Sud is an innocent victim of the worst type of machinations and evil doings of Datta and Datta had caused such a great physical inconveniences and mental agony to Sud that his looks revealed that he was still being haunted by those nightmares.

Physical inconveniences and mental agony suffered by an innocent victim of an unlawful arrest and malicious prosecution cannot be measured by any rigid formula/ and the Court will award such damages as it may think just and proper in the facts and circumstances of each case. Considering all the facts and circumstances I hold that Sud has suffered Rs. 10,000 as damages to his person and Datta is liable to pay this amount to Sud.

Sud is entitled to the actual costs incurred by him in defending the criminal proceeding from the prosecutor under the head ''damage to property''. Sud was residing at Tinsukia and he had to attend the Criminal Court at Dibrugarh and so his traveling expenses should also be included in his cost of defence. Sud engaged lawyers for his defence both in the trial Court and in the Appellate Court and these proceedings went on for a large number of days. He has proved the receipted bills which were all tendered in evidence. He has also proved the particulars of expenses incurred by him which were recorded by him in his note book. I am satisfied on evidence on record at Sud had actually spent and is entitled to Rs. 20,754-9-6 for defending the said criminal proceeding and is entitled to recover this amount from Datta as damages.

Sud was suspended from his service which was the direct consequence of the said conspiracy and the said criminal proceeding. He came down to Calcutta to implead the higher officers to withdraw his suspension, but all his efforts were unsuccessful.

He had sent Rs. 209 for coming down to Calcutta from Tinsukia and for in Calcutta solely for this purpose and he should have it damages from Datta.

He has further claimed Rs. 14,000 as special damages for loss of his immovable property situate at Karimganj. Sud has proved that he was suspended without any pay and he had to procure money not only for his own living but also for defending the said criminal proceeding. He has proved the deed of sale of his property and has further proved that he had received Rs. 10,000 for selling it. In the recital of this exhibit it is stated that Sud was in need of money for defending himself in the Criminal Court and for that purpose he was selling that property. It is true that it is stated in this document that he had received proper value of his property but no purchaser will ever record in any sale-deed that he had purchased any property at an undervalue. Sud further said, in his evidence, that value of the said property at the time of the sale was between Rs. 20,000 and Rs. 25,000 and I find no reason to disbelieve him.

I find in Wigmore on Evidence (3rd. ed., vol. Ill, Section 714) it is said, "The owner of land is deemed to be qualified to speak to its value", and this statement is based on a number of decisions of the Courts of United States and I hold that Sud is competent to say what was the value of his property at the time of such sale. After considering the evidence on record I hold that Sud has suffered a loss of Rs. 9,000 for selling that property which he was forced to sell at Rs. 11,000 though the price was Rs. 20,000. This loss he has suffered due to the direct result of the said conspiracy and the said malicious criminal proceedings and I hold that Sud is entitled to this sum of Rs. 11,000 from Datta as special damages suffered by Sud.

Sud has proved that he was making a profit of Rs. 500 per month on an average under the handling contract that he had with the Railway administration. He has further proved that this contract was terminated due to his conviction by the trial Court and this termination was the direct result of the said conviction. In my opinion, Sud is entitled to damages from November 14, 1945, on which date the said agreement was terminated, at the rate of Rs. 500 per month upto May 2� 1947, when he was reinstated in his service. On this count Sud is entitled to Rs. 8,783-33 calculated on the basis of 17 months 17 days at the rate of Rs. 500 per month as special damages, but he is not entitled to any further damages for the subsequent period. Sud is not entitled to the arrears of salary as they were paid after his reinstatement nor is he entitled to any amount spent by him for making the representation for his reinstatement at Tinsukia as that damage is too remote.

After considering the evidence on record and also the law on the subject my answers to the issues are as follows:

Issue No. 1: Yes.

Issue No. 2(a): Yes.

Issue No. 2(b): Yes.

Issue No. 3: No.

Issue No. 4: Yes.

Issue No. 5: Yes.

Issue No. 6: The Plaintiff is entitled to a total sum of Rs. 58, 746-92 as damages and the costs of the suit as hereinafter mentioned.

Datta was sufficiently rewarded for his monstrous activities by his patrons. Sud is the innocent victim of the vile brain and guile trickery of Datta and Datta must suffer the consequences < his evil doings and wrongful acts.

There will be a decree for Rs. 58,746-92 being the total of the sum mentioned before and as this amount has been decreed in Suit No. 692 of 1947 (Daulalram Sud v. Jagadish Prasad Modi and Anr. the judgment of which has just now been delivered by me) the Plaintiff will be entitled to realize a total sum of Rs. 58.746-92 in execution of both the decrees apart from the costs of both the suits In other words, he will not be entitled to realize more than Rs. 58,746-92 in execution of these two decrees but he will be entitled to realize all costs of these two suits in addition to Rs. 58,746-92.

The Plaintiff will be entitled to realize all costs of this suit from the Defendant to be taxed by the Taxing Officer of this Court as between Attorney and client including all fees actually paid to all the counsel who appeared on his behalf and there will be a decree accordingly for such costs against the Defendant.

It is now necessary to record here that the untrue evidence given by Datta in this Court was not sought to be justified by his counsel at all, and his counsel repeatedly requested me not to draw up any proceedings against Datta under the Code of Criminal Procedure for committing perjury in this Court, There cannot be any doubt that Datta has committed perjury and he should visit and taste the salt of the place where he intended to send Sud, but considering his old age I accede to the prayer of his counsel and do not wish to see him spending his last few years of life with his wrecked conscience behind the prison bar, and so I let him off with a warning not to commit any perjury in future.