Ram Kishun Prasad vs Ram Narain Prasad

Wort, J.—This appeal arises out of an action for malicious prosecution. The appellant is the defendant. The two substantial questions which are raised in this appeal are first, whether the defendant prosecuted the plaintiff in a manner giving rise to an action for malicious prosecution, and the second whether the defendant was entitled to have notice u/s 80, Civil P.C. Shortly, the facts are these. I do not propose to state them in detail but merely to give the substance of the story which gave rise to the criminal prosecution.

It was alleged by the defendant that he placed a certain sum of money in the mail bag which was taken to the branch post office by a messenger, and that although he omitted to make a note in his books at his office of the sending of that money, on inquiry it was found that the money had not arrived. Information was given to the police in which it was stated that he, the defendant, along with one Deo Narayan left his office and went to the branch post office, and there asked the plaintiff whether he had received the money, (the plaintiff, I should have stated, is the postmaster of the branch office) and he stated that he did not receive it and then threatened him that is, the defendant, for having stated that he had received it. On that information inquiries were put on foot and the police eventually prosecuted the plaintiff. It is said in this case by the defendant that he did not institute the prosecution against the plaintiff.

Two authorities are relied upon by the plaintiff-respondent to establish the fact that he, the defendant, had prosecuted him. One is the case of Gaya Parshad Tewari v. Bhagat Singh (1908) 30 All 525 and the other, also a case before the Judicial Committee of the Privy Council, the case of Balbhaddar Singh v. Badri Sah, a report of which appears in the AIR 1926 P.C., 46. A passage from the opinion of Lord Dunedin in latter case is relied upon in this connexion and it is to this effect:

Of course there is nothing in the point which seems to have been taken in the Courts below, but which was not urged before their Lordships that here de facto the appellants were not prosecuted by the respondent, In any country where, as in India, prosecution is not private, an action for malicious prosecution in the most literal sense of the word could not be raised against any private individual. But giving information to the authorities which naturally leads to prosecution is just the same thing.

In my judgment, nothing in that case nor in the case of Gaya Prashad Tewari v. Bhagat Singh (1908) 30 All 525, which is substantially the same on this point, assists the respondent. The point that the Judicial Committee of the Privy Council was dealing with in both these cases was this: that it is nonetheless a prosecution by a party even if the actual prosecution is not set in motion by that party but by the police when the fact is that information has been given to the police which leads them to prosecute the person named. The matter arose by reason of somewhat different circumstances in England other than those obtaining in India.

But I need not go into details with regard to that point; it will be sufficient to say that at any rate so far as India is concerned a person can be said to have prosecuted if information is given to the police directed against the person who is ultimately prosecuted as a result of the investigation and the decision of the police. But the point of substance raised by the appellant in this case on this particular question is this: that the information given by the defendant was not directed against the plaintiff. Apart from the passage which I have read from the opinion of the Judicial Committee it is said that the plaintiff threatened the defendant when the defendants accused the plaintiff of having seized the money.

There does not seem to be very much in the information given to the police to indicate that the defendant was even suspicious of the plaintiff. But the real point it seema to me is whether this is a question of law or a question of fact. If it is a question of fact, then as the Courts below have come to a conclusion in the matter, it becomes final for this Court. In the view that I take, the question is partly a question of fact and partly a question of law. In so far as the point becomes relevant in this case it seems to me to be clearly a question of fact, the question of fact being: Did the information given by the defendant lead the police to prosecute the plaintiff? It seems to me therefore that this point must be decided against the defendant-appellant.

The other question is whether a notice was necessary u/s 80, Civil P.C. Both the Courts below decided that it was not. One point incidentally is raised, namely that this question was not raised in the pleadings, but as it has been decided by both the Courts below, in my judgment it is a matter which is necessary for this Court to dispose of. Section 80, Civil P.C., provides:

No suit shall be instituted against a public officer in respect of any act purporting to be done by such public officer in his official capacity until expiration of two months next after notice in writing has been delivered to him at his office.

No notice was given in this case and it is contended on behalf of the defendant that it was necessary and on behalf of the plaintiff-respondent that it was not. As I have already said both the Courts below have decided that it was not. They appear to have decided that such notice was not necessary by reason of the finding that the information was false and therefore mala fide. There are a number of authorities on this question, the most exhaustive of which is the Full Bench decision of the Madras High Court in Koti Reddi v. P. Subbiah AIR 1918 Mad 62. That was a case where a Munsif had issued certain processes mala fide, and it had been contended, and in fact been decided, that, as the Munsif was acting mala fide, he could not be said to purport to act as a public officer within the meaning of Section 80, Civil P.C. The Full Bench of the Madras High Court however decided otherwise.

There was a later decision in the Calcutta High Court which followed the decision of the Madras High Court, the case of Dakshina Ranjan Ghose Vs. Omar Chand Oswal, .

Sanderson, C.J., there says, in a case in which there had been a decision to the effect that Section 80 governed only those acts which had been done bona fide:

The decision of the learned Subordinate Judge implies the importation of words into the section which cannot be found there. He would read the section as if it were in respect of any act purporting to be done by such public officer bona fide in his official capacity.

There is a third decision of the Allahabad High Court, to the case of Abdul Rahim v. Abdul Rahman AIR 1924 All 851. That was a case of a police officer entering a person''s name on a history sheet. Now in each of the cases to which I have referred it might reasonably be argued that Section 80 applies in any event, because the acts purported to be done were acts which were within the scope of the public officer''s employment: they were acts which those officers did from day to day. But a distinction is sought to be drawn in this case because it is said that the filing of the false information as to the embezzlement or theft of money was not in the ordinary course of the Postmaster''s employment.

But the question is to be asked: Assuming that money had in fact been stolen, would it or would it not be the duty of the officer to give information to the authorities of the fact? It seems to me that the only answer to be given to that is in the affirmative. But it is said that it can never be the duty of the officer, nor can it be a duty in the ordinary course of his employment to give false information. That in my judgment leads me back to the authorities to which I have referred. If the argument of the respondent regarding the false information in this case is to be supported, it would seem to me to equally apply to the cases to which I have made reference. Let me repeat. It is said that although it may be the duty in the course of the officer''s employment to give information that an actual theft of money had taken place and that he could be said to purport to act in his official capacity when giving such information, that he could not be held to purport to act in his official capacity, if he has given false information. It would seem that if that be the true view of the case, it would have been held in the Madras case that although the Munsif was acting in the course of duty as a Munsif when he bona fide issued the various processes connected with a restraint, yet he could not be said to be acting in the course of his duty if he issued those processes mala fide.

It seems to me that there is no escape from that position if the argument of the respondent in this case is to be accepted.

In my judgment therefore the notice u/s 80, Civil P.C., was necessary and as it was not given the action should have been dismissed. This appeal therefore is allowed with costs. As this is a point of some importance, there will be leave to appeal.