K.V.K. Rajendra Prabhu vs Narayana Doss and Others

Sethuraman, J.—This appeal has been filed by the Plaintiff in Original Suit No. of 1969 a suit claiming damages for malicious prosecution.

The Plaintiff was an elected member of the Chettikurichi Panchayat. The first Defendant was the President of the same Panchayat. Both of them

contested for the Presidentship and the votes secured by either of them were the same, so that a lot had to be cast for choosing the President and

as a result of the casting of the lot, the first Defendant became the President. The relationship between the Plaintiff and the first Defendant was far

from cordial since then. The Panchayat had to co-opt a woman member. The first Defendant''s nominee was oat Ramalakshmi Ammal, the wife of

the second Defendant, who was the village munsif, while the Plaintiff and other supported the co-option of one Sarojini Ammal. The Sub-Collector

did not approve the nomination of Ramalakshmi Ammal and, therefore, Sarojini Ammal was co-opted. The result was that the Plaintiff and six

other members who supported him constituted a majority. They moved the Sub-Collector for passing a resolution of no-confidence alleging certain

irregularities against him. The meetings of the Panchayat were held on 21st December, 1965 and 27th July, 1966. But the President kept the

Panchayat Beard Office locked with the result that the Plaintiff and the other members supporting him could riot attend the meetings. There was a

third meeting to be held on 31st August, 1966. The Plaintiff and his supporters were anxious to attend the meeting, as otherwise they would lose

their membership by reason of continued absence for three consecutive meetings. They had sent a petition on 30th August, 1966 marked as exhibit

A-9 requiring the presence of the Sub-Collector and the Panchayat Extension Officer at the said Meeting. We are not concerned with what

happened at the meeting on that day. However, when the Plaintiff and his six supporters went to the Panchayat Board to attend the meeting, the

first Defendant and one Thannasi were inside the Office. According to the Plaintiff they were armed with stick and knife and required the plain, tiff

and others to get out. The Plaintiff and his friend protested and they were beaten and driven out by Thannasi. The Plaintiff preferred a complaint

marked as exhibit B-2, al the Aruppukottai Police Station at 11 a.m. The first Defendant, in alleged collusion with the second Defendant and

others, made a complaint to the second Defendant as the village munsif alleging that the Plaintiff and the six other members had broken open into

the office of the Panchayat Board and committed theft of the records and cash of Rs. 75 kept by him. The first Defendant was not satisfied with

the action taken by the police on such complaint by merely, referring the case, and he, therefore, preferred, a complaint before the Additional First

Class Magistrate, Virudhunagar, who convicted the Plaintiff. However, on appeal preferred by the Plaintiff, he was acquitted and the acquittal was

confirmed by this Court, The Plaintiff, therefore, came for ward with the present suit claiming damages of Rs. 16,000 for malicious prosecution

consisting of Rs. 12,000 for mental agony and shock and Rs. 4,000 for expenses incurred in the criminal case. Defendants 2 to 6 had figured as

witnesses in the said prosecution.

The first Defendant in his written statement contended that the Plaintiff and other members had actually broken open the Panchayat office and

had committed theft of the record s and cash of Rs. 75, and that he as the President of the Panchayat had to make a complaint when the

Panchayat records had been lost and damage caused to the Panchayat. There was, he stated, no malicious intention in making the complaint and

taking further proceedings.

Defendants 2 to 6 in their written statement denied that they had conspired with the first Defendant in preferring a false complaint against the

Plaintiff and stated that they had only given evidence with reference to matters within their knowledge before the Additional First Class Magistrate,

Virudhunagar, who believed and accepted their evidence. All the Defendants claimed that they were not liable for any financial loss, mental agony

and shock. While the first Defendant claimed that the suit was bad for want of notice u/s 170, the second Defendant contended that the suit was

bad for want of notice u/s 80 of the Code of Civil Procedure. The first Defendant relied also on Section 171 of the Panchayat Act in defence.

The learned Subordinate Judge framed several issues arising out of the pleadings. He held that malice was writ large in the conduct of the first

Defendant in making a false complaint of house breaking and theft as against the Plaintiff and that prosecution was without reasonable and

probable cause. He found that the Plaintiff had no cause of action against the other Defendants who had only given evidence in the criminal case

and that, therefore, Defendants 2 to 6 were not liable for any damages. He, however, dismissed the suit as against the first Defendant also holding

that having regard to the duties and obligations which the first Defendant had as President of the Panchayat Boards the complaint given by him to

the village munsif and the subsequent complaint before the Additional First Class Magistrate were in his official capacity so as to fall within the

scope of Section 170 of the Tamil Nadu Panchayat Act, 1958. Accordingly the suit was held to be not maintainable as against the first Defendant

for want of notice under action 170 of the Panchayat Act. As regards quantum of damages he found that a sum of Rs. 1,000 for mental age my

and shock and Rs. 1,500 for the expenses of the litigation totalling in all Rs. 2,500 would be the appropriate amount if damages had to be

awarded. Against this dismissal of the suit against all the Defendants that the Plaintiff had come forward with the present appeal.

The appeal falls into two parts (i) against the first Defendant who actually launched the prosecution against the Plaintiff and (ii) against the other

Defendants, who gave the evidence. The question is whether there is any cause of action against Defendants 2 to 6. As pointed out by the learned

Subordinate Judge the mere fact that certain persons had given evidence on behalf of the prosecution does not make them liable for damages. The

complaint fed been given only by the first Defendant and the second Defendant had acted only in his capacity as the village munsif in forwarding the

complaint to the police. Defendants 3 to 6 had given only evidence in the criminal case. They cannot be said to have launched any prosecution

against the Plaintiff. Therefore, the learned Subordinate Judge rightly held that, they were not liable for any damages as such.

This leaves for consideration only the case against the first Defendant. As already pointed out, the Plaintiff gave a complaint at Aruppukottai

Police Station at about 11 a.m. The first Defendant gave his complaint much latter to the village munsif. Subsequently the same was forwarded by

the village munsif at about 12.30 p.m. and it reached the Aruppukottai Police Station at 4.45 p.m. The learned Counsel for the Respondents did

not dispute the fact that though the Additional First Class Magistrate, Virudhunagar, convicted the Plaintiff but he was acquitted in the appeal and

the acquittal was confirmed by this Court. The Court below has found that the prosecution was actuated by malice. The following are the words

used by the learned Subordinate Judge in paragraph 10 of his judgment in giving this finding:

It will be clear that the first Defendant in making his complaint to the Village Munsif in the first instance and latter before the Additional First Class

Magistrate, Virudhunagar, was not prompted by any desire to vindicate public justice and was solely guided by spite and ill-will to cause

harassment and injury to the Plaintiff. Malice is writ large in the conduct of the first Defendant in making a false complaint of house breaking and

theft as against the Plaintiff. In the result, I find on issue No. 1 that the prosecution in Criminal Case No. 237 of 1966 was without reasonable and

probable cause. On issue No. 2, I find that the prosecution was instituted with malice.

It may be mentioned that the first Defendant has not filed any cross-objection and did not also contest this finding of the learned Subordinate Judge

before me.

Thus, on the basis that the Plaintiff has otherwise established his case for malicious prosecution, the question that arises for consideration is

whether the present suit fails by. reason of the provisions of the Tamil Nadu Panchayat Act, 1958. Two provisions are relied on in this connection

by the Respondents. The first is Section 171, running, to the extent relevant, as follows:

No suit or other legal proceeding shall be brought against the chairman Commissioner, President...in respect of any act done or purporting to be

done under this Act...if such act was done, or such neglect or default occurred in good faith but any such proceeding shall, so far as it is

maintainable in a court, be brought against the panchayat union council or the panchayat except in the case of suits brought u/s 173.

Section 173 refers to the liability of the president and others for loss, waste or misapplication of the Panchayat property. This is not such a case. In

order to attract Section 171, the act complained of must have been done or purported to have been done in good faith. When once it is found that

there was no good faith and that the whole prosecution was engineered out of malicious motive, there is no protection afforded by Section 171 of

the Act. This view is supported by a decision of this Court in K. Chidambara Mudaliar and Others Vs. A.P. Arunachala Mudaliar, In that case the

provision under consideration was Section 108 of the Madras Village Panchayat Act, 1950, which runs in terms identical with Section 171 of the

1958 Act. This Court pointed out that the protection u/s 108 of the 1950 Act, from legal; proceedings did lot cover acts which though purporting

to be done in exercise of official power, were committed with mala fides.

The matter now requires to be examined only in the light of Section 170 of the Act, running so far as it is material as follows:

70(1) Subject to the provision of Section 171, no suit or other legal proceedings shall be brought against any panchayat or its president .in respect

of any act done or purporting to be done under this Act...until the expiration of two months next after notice in writing, stating the cause of action,

the nature of the relief sought, the amount of compensation claimed and the name and place of residence of the intended Plaintiff has-been left at

the office of the panchayat...and if the proceeding is intended to be brought against any such president...also delivered to him or left at his place of

residence.

The provision is similar to Section 80 of the Code of Civil Procedure. The contention on behalf of the Appellant was that in the present case the

complaint given by the first Defendant was not any act done or purporting to be done under the statute, he contended that the act nowhere

contemplated a false complaint being given by the President, and merely because the first Defendant put on the cloak of-his President ship in giving

the complaint it did not mean that he was entitled to notice u/s 170. The learned Counsel for the Respondents vehemently argued that the question

of motive in what the first Defendant did as the President of the Panchayat Was irrelevant at any rate, at the stage of notice, and that so long as he

had given the complaint in his capacity as the President, the provision of Section 170 would be attracted. His point was that Section 170 merely

required a notice to be given and that, therefore, no injustice was likely to result by reason of this requirement of a notice being enforced in a case

like this.

Numerous cases have arisen under the provisions of Section 80 of the Code of Civil Procedure, Section 197 of the Code of Criminal

Procedure and the parallel provision of the Panchayat''s Act. The learned Counsel for the Plaintiff drew my attention to several decisions. It is

enough for my purpose to refer to a few of the highest authority and also to a decision of Ismail J., which has considered most of them.

Section 197 Code of Criminal Procedure provides for the sanction of the appropriate authority when any person, who was a Judge within the

meaning of Section 19, Indian Penal Code or when any Magistrate, or when any public servant who was not removable from his office save by or

with the sanction of a Provincial Government or some higher authority was accused of any offence alleged to have been committed by him while

acting or purporting to act in the discharge of his official duty. No court was to take cognizance of such offence except with the previous sanction

of the appropriate authority. The words while acting or purporting to act in the discharge of his official duty are more or less similar to Section 170

of the Act extracted already.

In Hori Ram Singh v. Emperor (1939) F.C.R. 159, the Federal Court considered the necessity for sanction u/s 170 of the Government of

India Act, 1935, similar in terms to Section 197(1) of the Criminal Procedure Code. The fact in that case were that a Sub-Assistant Surgeon was

charged u/s 409 Indian Penal Code with having dishonestly removed certain medicines from a hospital, which was under his charge, to his own

residence, and u/s 477-A, Indian Penal Code with having failed to enter them in the stock book. The sanction of the Government had not been

obtained for the prosecution u/s 270 of the Government of India Act and the point for decision was whether it was necessary. It was held that the

charge u/s 477-A required sanction as the official capacity is involved in the very act complained of as amounting to a crime, but that no sanction

was required for a charge u/s 409, because the official capacity is material only in connection with the entrustment and does not necessarily enter

into the latter act of misappropriation or conversion, which is the act complained of in the course of his judgment Varadachariar, J., discussed the

scope of Section 197(1) of Code of Criminal Procedure and after observing that the decisions on that section were not uniform, proceeded to

group them into three categories, viz, (i) those which had held that sanction was necessary when the act complained of attached to the official

character of the person doing it; (ii) those which had held that it was necessary in all cases in which the official character of the person gave him an

opportunity for the commission of the crime and (iii) those which had held it necessary when the offence was committed while the accused was

actually engaged in the performance of official duties. The learned Judge expressed his agreement with the first of the three views.

The need for sanction u/s 197 of the Code of Criminal Procedure was raised in H.H.B. Gill v. The King (1948) L.R. 75 IndAp 41, There the

accused was charged u/s 161 with taking bribes and u/s 120-B with conspiracy. On the question whether sanction was necessary u/s 197(1) it

was held by the privy Council that there was no difference in scope between that section, and Section 270 of the Government of India Act, 1935

and while approving the statement of the law by Varadachariar J., in Hori Ram Singh v. Emperor (1939) F.C.R. 159, the Privy Council observed

as follows:

A public servant an only be said to act or to purport to act in the discharge of his official duty if his act is such as to lie within the scope of his

official duty...The test may well be whether the public servant, if challenged, can reasonably claim that, what he does, in virtue of his office.

It was held accordingly that as the receipt of the bribe with which the accused was charged could not be justified as done by virtue of his office no

sanction was necessary. This view of the Privy Council was followed by its in Albert West Meads v. The King (1948) L.R. 75 IndAp 185, and

reaffirmed in Phanindra Chandra v. The King (1949) L.R. 76 IndAp 10, and adopted by the Supreme Court in Ronald Wood Mathams Vs. State

of West Bengal, .

In a criminal prosecution against a Sub-Divisional Officer in the Public Works Department, in charge of certain works wherein he was alleged

to have paid amount to fictions persons as wages and misappropriated them Charge were framed u/s 465 Indian Penal Code forging the thumb-

Impression and u/s 409 Indian Penal Code for criminal misappropriation. The need for prosecution u/s 197 was examined by Venkatarama Ayyar

J., in Amrik Singh Vs. The State of Pepsu, , Speaking for the Supreme Court at page 1307 he thus summed up:

It is not every offence committed by a Public servant that requires sanction for prosecution u/s 197(1) of the Code of Criminal Procedure; nor

even every act done by him while he is actually engaged in the performance of its official duties; but if the act complained of is directly concerned

with his official duties so that, if questioned, it could be claimed to have been done by virtue of the office, then sanction would be necessary; and

that would be so, irrespective of whether it was in fact, a proper discharge of his duties, because that would really be a matter of defence on the

merits, which would have to be investigated at the trial, and could no arise at the stage of the grant of sanction, which must precede the institution

of the prosecution.

On the facts of that case the Supreme Court held at page 1310 as follows:

The accused does claim to have paid the amount to Parma, and the acquaintance roll records the payment, and there is an acknowledgment

thereof a thumb-impression, as against his name. If what appears on the face of the roll is true, and whether it is true or not is not a matter relevant

the stage of sanction--then the acts with which the Appellant is charged fall within the scope of his duties, and can be justified by him as done by

virtue of his office. Clearly therefore, sanction was required u/s 197(1) of the Code of Criminal Procedure before the Appellant could be

prosecuted u/s 409, and the absence of such sanction is fatal to the maintainability of the prosecution.(under lining mine).

In a case arising under the Madras Village Panchayats Act of 1950 the Supreme Court in P. Arulswami Vs. The State of Madras, had

considered the necessity for sanction u/s 197 on the following facts. The President of the Panchayat Board was found to have encased certain

National Man Savings Certificates wrongfully and, therefore, he was found guilty of an offence punishable u/s 409 Indian Penal Code. The accused

relied on Section 196 of the Madras Village Panchayat Act, 1950 for showing that sanction was necessary before be was proceeded with. After

reviewing the authorities the Supreme Court held that the sanction of the State Government was not necessary for prosecution u/s 409 on the

ground that the act of Criminal misappropriation was not committed by the accused while he was acting or purporting to act in discharge of his

official duty and that offence had no direct connection with the duties of the Appellant as a public servant, and the official status only furnished him

with an occasion or an opportunity of committing the offence.

Ismail J., in Maniam Palanisami Gounder v. Karuppa Gounder (1972) 1 M.L.J. 43, was dealing with a case where the President of the

Panchayat Board had sent a complaint of theft of audit vouchers, muster rolls and other records of the Panchayat Board premises by certain

persons. The complaint was dropped by the police as false and the persons proceeded against filed a suit for damages without giving a prior notice

as required by Section 170 of the Act with which I am now concerned. It was held that the notice u/s 170 was necessary for instituting the suit.

The principle deduced from the authorities as set out as follows at page 48:

From these decisions it is clear that the test is, whether a public servant, if challenged, can reasonably claim that what he did was in virtue of his

office. In this particular case, I have already referred to the status of the Respondent as the President of the Panchayat being also the Executive

Authority u/s 40(2) of the Act, and his duties and obligations with reference to Sections 33 and 173 of the Act. Having regard to these duties and

obligations which the Executive Authority and the President of the Panchayat have under the provisions of the Act, the complaint given by him on

26th December, 1963 was certainly in his official capacity, and, therefore, will fall within the scope of Section 170 of the Act.

In all these cases the question is whether the person concerned acted or purported to act in his official capacity The word purport means

intended to seem, (to do). (See. Concise Oxford Dictionary) and Koti Reddi v. Subbiah I.L.R.40 Mad. 792 what was his intention at the time

when the complaint was given? Did he act in his official capacity? The truth or otherwise of the complaint has not to be considered at that stage. If

the facts show at the threshold of the enquiry that a person has committed an offence which is unrelated to his office. then sanction would be

unnecessary. The Privy Council has given instances of a Judge receiving a bribe or a doctor picking the pocket of a patient as acts unrelated to the

office, But where a police officer searches the premises of a person, with a forged warrant it is taken to be an act requiring notice. The test

propounded was could the public servant, if challenged, reasonably (or prima facie), claim that what he did was in virtue of his office. If so, then

sanction would be needed if he could not and if the Offence fell outside his duties en t prima facie consideration, then no notice would be

necessary. In the present case examined in this light it is true that his duties do not comprehend concoction of complaints. But we have to put

ourselves back at the time when the complaint was given. At that stage the President could state that he gave the complaint by virtue, of his office.

He complained of something alleged to have been done in the Panchayat Office. The truth or otherwise of the complaint at that stage is irrelevant.

Even the motive behind the complaint is irrelevant because that would have to be gone into only subsequently. This is not something which is

unrelated to his office. Mr. T.R. Mani contended that as in the decision in Maniam Palanisami Gounder v. G Karuppa Gounder (1972) 1 M.L.J.

43, if there was real theft, but if the person suspected in the complaint bad been falsely implicated, then the position would perhaps be different.

According to him in this case, there was no theft at all and therefore, that decision would not apply. The line between the cases requiring sanction

and not needing sanction is somewhat thin. Giving a complaint if the facts were true, would be within the scope of the President''s duties. Whether

the facts were true or not is beside the point. Viewed in this light, the conclusion of the court below that notice was necessary cannot be said to be

wrong. As rightly pointed out by the learned Counsel for the Respondents the President in this case is not immune from being proceeded against.

The only requirement on the basis of which the present suit fails is that he was not given the statutory notice. It is indeed unfortunate that the first

Defendant is getting away with a concocted complaint. But it cannot be helped. It is unnecessary, in this view, to go into the quantum of damages.

The appeal is accordingly dismissed. But there will be no order as to costs.