Daulat Singh vs Sujan Singh and 6 others

S.K. Dubey, J.

The Appellant-Defendant has filed this second appeal against the judgment and decree passed by the Additional District Judge, Guna, confirming the judgment and decree passed by the Additional Civil Judge Class-I, Guna, for malicious prosecution u/s 107 of the Code of Criminal Procedure, altering the amount of damages to Rs. 652.50 instead of Rs. 862.50 awarded by Trial Court.

Shri U. K. Jain, learned Counsel for the Appellant, raised two contentions:-that complaint u/s 107, Cr. P. C. was dismissed for want of evidence and as such, there was no cause of action for Plaintiffs. Reliance was placed on a Division Bench decision of Madras High Court in Sanjivi Reddi v. Kondagari Kaneri Reddi AIR 1926 Mad 521. Other contention raised is that the proceedings u/s 107 Cr. P. C. are not penal in nature. Therefore, the suit could not have been decreed by the trial Court for Rs. 862.50 and the appellate Court could not have altered the decree to the extent of Rs. 562.50, because there was no prosecution for the offence as proceedings u/s 107, Cr. P. C. do not involve any such prosecution resulting in conviction or acquittal and termination of these proceedings in favour of a Plaintiff does not give rise to any cause of action for a suit for malicious prosecution.

The Respondents, though served remained unrepresent d in this case.

After hearing the counsel and perusing the records of the case. I am of the opinion that this appeal has no merit. As regards the first contention, the decision of the Madras High Court in Sanjivi Reddi (supra) is of no help. In that case, the Petitioners were put to trial under the proceedings initiated u/s 107, Cr. P. C. but the proceedings were dropped without notice to the Plaintiff and, therefore, it was held that the Plaintiff had no cause of action for malicious prosecution. In the present case, the Plaintiffs were noticed they shown cause and defended the action but Appellant Defendant even after several opportunities, did not produce any evidence, and for wart of evidence the case initiated at the instance of Defendant u/s 107, Cr P. C. was dismissed and the proceedings so initiated were terminated in favour of the Plaintiffs.

The other contention of the learned Counsel also has no merit. The object of Section ''07, Cr. P. C. was considered by the Apex Court in case of Ram Narain Singh and Others Vs. State of Bihar, , and it was held therein as under:

Under Section 107 of the Code of Criminal Procedure a Magistrate of the First Class may require a person to show cause why he should not be ordered to execute a bond, with or without sureties, for keeping the peace for a period not exceeding one year as the Magistrate thinks fit to fix, if such Magistrate is informed that the said person is likely to commit breach of peace or disturb public tranquility or to do any wrongful act that may occasion breach of peace, or disturb public tranquility and if the Magistrate is further of the opinion that there is sufficient ground for proceeding against that person. The underlying object of the section is designed to enable the magistrate to lake measures with a view to prevent commission of offences involving breach of peace or disturbance of public tranquility. Wide powers have been conferred on the Magistrates specified in this section and as the matter affects the liberty of the subject who has not been found guilty of an offence, it is essential that the power should be exercised strictly in accordance with law. (Underlined by me).

The proceedings u/s 107, Code of Criminal Procedure are of a quasi-criminal nature. It may or may not be an offence, according as the people choose to look at it, but the proceeding is one prescribed by and taken under the Code of Criminal Procedure, on initiation, the criminal law is set in motion, and all the proceedings, the machinery and the result of that section are, in their nature, penal. Liberty of a person is involved. A Magistrate may proceed with in the manner prescribed, if the proceedings are decided against such person, he is to be bound down in large sums with or without sureties, which undoubtedly is extremely embarrassing and put him into discredit and injure his reputation. It is, therefore, a quasi-criminal proceedings, which affects the liberty of the subject who has not been found guilty of an offence.

A Division Bench of the Andhra Pradesh High Court in case of Kambhampati Venkata Satyanarayana Vs. Kambhampati Peda Subbarao and Others, , considered similar objection in a suit for damages for malicious prosecution on termination of proceedings u/s 107, Cr. P. C, and held that the proceedings initiated under the Cr. P. C. is to see whether notices have been issued to the Plaintiffs and in fact whether they were asked to show cause against the proposed action to be taken under the relevant provisions under which the proceedings were started and if these things are found it will amount to prosecution may not be considered that if a person is found guilty u/s 107, Cr. P. C. and the person is not punished but is whereby to execute a bond to maintain peace for the period prescribed in the bond.

The case of Madras High Court in Sanjivi Reddi (supra) relied upon by the learned Counsel also supports the view, wherein it has been held that if a notice u/s 107 is issued and a party appears and contests and then the proceedings disposed of in his favour, there ''cause of action'' arises for damages for malicious prosecution, certainly if the Plaintiffs are able to make out a case for malicous prosecution.

The proceedings u/s 107, Cr. P. C. are of quasi-criminal nature and it cannot be doubted that these proceedings affect the liberty of the subject who has not been found guilty of an offence, on termination of such proceedings in favour of the person against whom the notice is issued, and who has shown cause, and thereafter, the proceedings are terminated in his favour, such a person is entitled for damages for malicious prosecution if he makes out a case in his suit for damages for malicious prosecution. The view of different High Courts that is Allahabad, Calcutta and Punjab, in earlier cases, namely, Muhammad Niazullah Khan Vs. Jai Ram alias Ram Chandra, ; Bishun Per-hash Naraln Singh v. Fulman Singh AIR 1915 Cal 79, Inder Singh Anup Singh Vs. Harbans Singh Anup Singh, , is also the same as taken in Kambhampati Venkata Satya-Narayana''s case (supra) by the Division Bench of Andhra Pradesh High Court. I am also of the opinion that on termination of proceedings u/s 107, Cr. P. C. in favour of a person, a cause of action arises and such a person as Plaintiff can maintain a suit for damages of malicious prosecution if he can make out a case for the same.

The two Courts have arrived at concurrent findings of fact about the malice on the part of the Appellant/Defendant, and in fact on evidence, the proceedings being without reasonable and probable cause, the suit for damages was rightly decreed. In view of this, no interference is warranted and second appeal deserves to be dismissed and is hereby dismissed.

No order as to costs.