Rai Jung Bahadur vs Rai Gudor Sahoy

This appeal arises out of an action for malicious prosecution brought by the Plaintiff under the following circumstances :--The Plaintiff and the Defendant are both residents of a place called Bakhra, in the District of Mozufferpore. They are close neighbours, and appear also to be distantly connected. But admittedly there is a long-standing feud between them, which has given rise to various civil and criminal proceedings. At Bakhra, there reside also several other relatives of the Defendant, one of whom is a person named Bujrung Bahadur. On the 17th of August 1891, which happened to be a Monday, there seems to have been a dispute between the Defendant''s men on the one side and Bujrung''s men on the other, in respect of a tree. Bujrung''s men had attempted to cut down the tree. They were stopped by the Defendant''s men, and there is no doubt that considerable bad blood was created between the parties in consequence of this attempt. On the 19th of August, which was a Wednesday, there is also, no doubt, that a riot took place, in which some men of Bujrung Bahadur''s party were wounded. How the riot originated, it is unnecessary for the purpose of the present case to enquire into. That day, at about 5 or 6 in the afternoon, Bhagwat Pershad, an old servant of the Defendant, who seems to have held the office of Dewan in his service, laid an information at the thana, in the course of which, he admits, he mentioned that Gudor Sahoy and Bujrung Bahadur had made preparations and collected men to the number of 300 or 400, for the purpose of committing a riot, &c. He states in his evidence that he left his master''s premises at half-past one or thereabout, to go to the thana, which is a few miles off from Bakhra, but he does not seem to have reached it according to his own version until about 5 o''clock in the afternoon, and for some unaccountable reasons the police did not appear on the spot until late that evening, when a further information was lodged concerning the riot; and on 20th of August, a formal petition was presented in the Criminal Court by two admitted servants of the Defendant, certainly admitted to have been in his service then, namely, Dhanukdhary and Dilwa, distinctly charging Gudor Sahoy with having been present at the riot, and with having used abusive language towards "the petitioner''s master," meaning the Defendant in this case. In the petition, it is stated, that "before the occurrence, information was given to the Bara police-station on the part of the petitioner''s master through Bhagwat Sahoy Karpurdaz as to the probability of a breach of the peace," and Bhagwat admits that it was he who got this petition written and presented to the Criminal Court. In consequence of the information given to the police by Bhagwat Pershad and the complaint of Dhanukdhary and Dilwa, the Plaintiff and several of his servants were prosecuted in the Criminal Court. They were committed to the Sessions, and on the 8th February 1892, the Plaintiff and his co-accused were acquitted by the Sessions Judge, who tried the case with the assistance of assessors. Upon his acquittal, the Plaintiff brought this action against the Defendant for malicious prosecution, asking for damages for the injury to which he had been subjected and the expenses he had incurred. He alleges in his plaint that the Defendant was the real prosecutor in the case, that the proceedings in the Criminal Court were at the Defendant''s instance and conducted at his expense, and that he had no reasonable or probable cause for prosecuting him, and that he was actuated by malice.

The Defendant denied that the prosecution was by him. The other matters set forth in his written statement do not require any particular reference.

On the pleadings and the statements of the parties, the following issues were framed by the Subordinate Judge---first, whether the Defendant prosecuted the Plaintiff? second, whether there was reasonable or probable cause for the prosecution ? third, whether the prosecution was maliciously made ? and fourth, what damages, if any, is the Plaintiff entitled to recover ? It is admitted that these four issues cover all the questions arising between the parties.

At the trial in the Court below, the Plaintiff tendered the Sessions Judge''s order of acquittal, but it appears to have been rejected by the Subordinate Judge as irrelevant. Mr. Gregory, on behalf of the Plaintiff, again tendered it here. Mr. Bonnerjee, who appeared for the Defendant, said he had no objection to the Court reading the judgment of the Sessions Judge, but he objected to its being received in evidence. There can be no doubt, however, that the order of acquittal is admissible in evidence. And as regards the judgment, although the reasons of the Sessions Judge for coming to the conclusion expressed in the order are not binding or conclusive, we see no reason why the judgment may not be looked into for the purpose of seeing what the circumstances were which culminated in the acquittal. The order has been admitted by us, and placed in the record.

The Plaintiff has given his evidence in the case. He denies having been present at the riot, and he states he was ill at the time, and unable to leave his house. He speaks as to the enmity between himself and the Defendant. He disclaims all connections with the subject-matter of dispute which led to the riot, and he speaks to the annoyance and harassment to which he was subjected in consequence of the prosecution. He has examined several witnesses, who prove that the Plaintiff took no part whatsoever in the occurrence on the 19th of August. Other witnesses state that in their presence the Defendant gave orders to Bhagwat to lay a charge at the thana. With that we shall deal presently. The Plaintiff has also called the Assistant Surgeon to speak to his condition of health. This gentleman states that Gudor Sahoy was suffering from weak action of the heart and dropsical symptoms, and the presumption is that he had been so suffering for some time. The Plaintiff has also adduced evidence in respect of the expense incurred by him in his defence.

The Defendant has given his own evidence and has examined some of his retainers. The Defendant''s case is that he had no hand in the prosecution admittedly started by Bhagwat Pershad, his case further is that he left his house on Monday, and went to a place called Bhagwanpore, about twelve miles from Bakhra, and remained there until Thursday morning. He admits that he paid the expenses of the prosecution, and adds that if he had not paid the expenses, the case could not have been conducted. Bhagwat Pershad admits that he laid the charge at the thana, and he does not deny that he included Gudor Sahoy among the principal rioters. As a matter of fact, in his deposition in the Session Court which has been put in this case, he admitted having included Gudor Sahoy. In the warrant, which was issued against Gudor Sahoy on the 3rd of September 1891, Bhagwat Pershad is named as the complainant. Bhagwat'' Pershad and other witnesses on the Defendant''s side say in their evidence in this case that the Defendant was not present at Bakhra on Wednesday, but had gone to Bhagwanpore on Monday, as alleged by him. [Here their Lordships discussed the evidence.]

Upon a full consideration of the evidence we agree with the Subordinate Judge in holding that the story of the Defendant''s visit to Bhagwanpore is untrue. If he did go there at all, he must have gone there on Wednesday after the occurrence, in order to distract attention from himself or to create evidence of an alibi. The reason for changing Tuesday to Monday is obvious. The first dispute between Jung Bahadur and Bujrung had taken place on Monday. The witnesses had, in the Sessions Court, spoken of Tuesday as the day when Jung Bahadur left for Bhagwanpore, but that was just the day before the riot, and it was very probably thought that it was too near the riot on Wednesday to find credence, and so, without thinking that the month of Sawan that year consisted only of 29 days, and without thinking of what had already been said in the Sessions Court, they changed the day into Monday. The dispute had begun that day, and it was probably thought that if it was stated he went away that very day, it would not be believed, for no body would think Jung Bihadur to be so unconcerned with the matter as to go away from Bakhra upon an invitation, leaving the house in charge of his servants. [Here their Lordships further discussed the evidence.]

Let us suppose for a moment that he was not at Bhagwanpore on the day of the occurrence; he admits, however, that he received information about the riot late at night on the 19th, and on the 20th, when he was at Bakhra, a petition was put in by his servants regarding abuses against himself, and we find the Defendant paying the costs of the prosecution, retaining pleaders on behalf of his Defendants, and looking after the case as Bhagwat Pershad admits. These are elements which have always been regarded as furnishing the indicia for testing who the person is who initiates or carries on the malicious prosecution. Babu Sarada Charan Mitter contended that the Courts are precluded by the record from enquiring into the question whether the prosecution was Bhagwat Preshad''s, or that of the Defendant. In other words, inasmuch as Bhagwat Pershad''s name was on the record as prosecutor, the Court must accept that as conclusive, There is no warrant or authority for such a proposition which carried to its legitimate extent, would give absolute immunity to every person who puts forward some body of no substance whatever to bring a charge which turns out to be false, and which he himself carried to its termination, paying its costs and looking after its conduct. As we have said, there is no authority for such a proposition.

We find, therefore, in agreement with the Subordinate Judge, that the prosecution which ended with the acquittal of the Plaintiff, though it was conducted in the name of Bhagwat Pershad, was really the prosecution of the Defendant,

We now come to the other two questions argued by Mr. Bonnerjee and Babu Sarada Charan Mitter, namely, reasonable and probable cause and malice.

The question of reasonable and probable cause is a question of mixed law and fact, and in the well-known case of Hicks v. Faulkner L.R. 8 Q.B.D. 167, the phrase " reasonable and probable cause" has been denned somewhat elaborately. It is defined " to be an honest belief in the guilt of the accused based upon a full conviction founded upon reasonable grounds of the existence of a state of circumstances, which, assuming them to be true, would reasonably lead any ordinary prudent and cautious man placed in the position of the accuser to the conclusion that the person charged was probably guilty of the crime imputed. There must be, first, an honest belief of the accuser in the guilt of the accused; secondly, such belief must be based on an honest conviction of the existence of the circumstances which led the accuser to that conclusion; thirdly, such secondly-mentioned belief must be based upon reasonable grounds, by this I mean such grounds as would lead any fairly cautious man in the Defendant''s situation so to believe: fourthly, the circumstances so believed and relied on by the accuser must be such as amount to reasonable ground for belief in the guilt of the accused." Now, in this case, the Plaintiff has proved that he had absolutely no connection with the subject-matter of the dispute on Monday, the 17th August, and that fact is admitted on behalf of the Defendant. It is admitted by the Defendant that the Plaintiff is an old man, over sixty years of age. So far as any prima facie case relating to the absence of reasonable and probable cause was concurred, it is sufficiently made out on behalf of the Plaintiff. It rested on the Defendant to show the reasonable and probable cause upon which his defence was based, so as to preclude the Plaintiff from recovering damages in this action. Having regard to the principles which have been laid down and to which we have just referred, there is absolutely nothing shown by the Defendant to suggest that he had any reasonable and probable cause for having that charge made against the Plaintiff, On the contrary, his action, the defence he has raised in this case and the manner in which the case was conducted in the Court below, all lead to the conclusion that there was no such ground for instituting that prosecution, and we agree therefore with the Subordinate Judge in holding that the prosecution was without any reasonable and probable cause. We also agree with the Subordinate Judge in the conclusion that ordinarily the absence of a reasonable and probable cause in instituting a proceeding which terminates in favour of the Plaintiff would give rise to the inference of malice. Baron Parke in the case of Mitchell v. Jenkins (2) points out what "malice" means in this form of action. He says :--" The term ''malice'' in this form of action is not to be considered in the sense of spite or hatred against an individual, but of mains animus, and as denoting that the party is actuated by improper and indirect (2) 5 Barnewall and Adolphus 595. motives." In the present case there is abundant evidence to show that the Defendant was actuated by improper moitves in allowing or directing the information to be given and in conducting the prosecution started at his instance. The Plaintiff and the Defendant were long at feud with each other. As Bhagwat Pershad admits the enmity between Jung Bahadur and Gudor Sahoy is more bitter than that between Jung Bahadur and his cousin Bujrung Bahadur, and we see no reason to differ from the Subordinate Judge in thinking that the Defendant considered this a splendid opportunity to include Gudor Sahoy also in the prosecution, in which Bujrung was involved at the instance of the Defendant or his servants. We think, therefore, that the conclusion arrived at by the Subordinate Judge, so far as this action is concerned, is well founded, and that there is no reason to take a different view.

We now come to the question of damages. The Plaintiff has proved damage and injury to himself. Ordinarily speaking, damages in this form of action are given on two bases--first, on the ground of a solatium for injury to the feelings of the party prosecuted; secondly, as a reimbursement for legitimate expenses incurred by him in his defence. The Subordinate Judge has awarded the Plaintiff Rs. 2,000 as a solatium. Had he, as a Judge of fact, been inclined to give more, probably this Court would not have interfered with his award; but sitting in appeal, we do not feel disposed to increase the amount given by him by way of a solatium. As regards the costs awarded to the Plaintiff and included in the amount of damages, one or two observations are necessary. Each case must be governed by its own circumstances. Ordinarily speaking, the Plaintiff, in a successful action for malicious prosecution, is entitled to recover all costs necessarily incurred by him in his defence in the previous prosecution. There may be a case of sufficient importance and intricacy, which may justify an accused to bring an eminent, counsel and to pay him very heavy fees. That would be a matter for consideration in that special case in assessing damages. What we have to see in this particular case is whether the costs incurred by the Plaintiffs were such as would bring the matter under the ordinary rules to which we have referred. Now we find that the learned counsel engaged in this case was paid 9,000 rupees--5,000 rupees being for the'' first day. Learned counsel may be perfectly entitled to damand and receive any fee which he may consider proper for the retention of his services, but it does not seem to us that the case against the Plaintiff was of any such extraordinary character as would justify the Court in giving 9,000 rupees for costs. We think that the ends of justice would be fully met if we assess the costs at 6,000 rupees. The amount of damages, therefore, will be 8,000 rupees, instead of the 12,055 rupees awarded by the lower Court. We accordingly affirm the judgment of the Subordinate Judge, and modify the decree so as to reduce the damages to 8,000 rupees. Subject to this modification, the appeal is dismissed. The costs in this Court will be in proportion to the amounts decreed and dismissed. We do not interfere with the costs awarded in the Court below.