Sheikh Mufez vs Md. Jakaria

P. Sarkar, J.—This is an appeal by the Defendants against a: decree for damages for malicious prosecution.

The suit was instituted by the Plaintiff claiming damages amounting to Rs. 2,100 against 47 Defendants. Two of these Defendants compromised the case, with the Plaintiff in the trial court and the trial court decreed the suit for Rs. 180 only on compromise against the said Defendants and on contest against the appearing Defendants and ex-parte against the others Thirty-nine out of the 47 Defendants appealed against this decree and the Plaintiff also filed a cross-objection. The Appellant was allowed in part and the decree passed by the trial court was modified. The Plaintiff was awarded a decree for Rs. 30 only against the Appellants and the proforma Respondents Nos. 4 to 9 jointly. The cross-objection was dismissed. The liability of the two Defendants who had compromised the suit with the Plaintiff was not, however, affected by this decree and the Plaintiff was entitled to recover Rs. 100 from them under the terms of the said compromise embodied in the decree of the trial court. The same Defendants who had appealed in the first instance have preferred this second appeal against the aforesaid decision.

The only question which was argued in this appeal was whether there had been a criminal prosecution of the Plaintiff entitling him to claim damages for malicious prosecution. Both the courts below have concurrently found that there was a prosecution, that the prosecution was malicious and that there was no reasonable and probable cause for the same. The prosecution was not initiated by way of a petition of complaint alleging commission of any offence under the Indian Penal Code. The petition which the Defendants filed against the Plaintiff was for action against him under the chapter of the Code of Criminal Procedure relating to prevention of offences. Certain allegations were made in the petition with a prayer that proceedings might be instituted against the Plaintiff under Sections 107 and 110 of the Code of Criminal Procedure. After receipt of this petition, the Subdivisional Magistrate, Suri, issued notice upon the Plaintiff. The Plaintiff thereupon appeared and showed cause. Thereafter on November 19, 1948, the learned Magistrate passed the following order:

I have carefully gone through the petition of the first party "and the cause shown by the second party. I am not convinced "that there are sufficient grounds to proceed against the second "party u/s 107 Code of Criminal Procedure, for alleged extortion and "refusal to allow use of the tank induced by the second party. "Specific cases may be filed by the person interested. There is "hardly any occasion for breach of the peace, or disturbing public "tranquility File.

It is not necessary for me to deal with the various allegations in the petition as the findings of fact regarding the malicious nature of the allegations and the want of reasonable and probable cause for the same have not been challenged before me and de not arise in second appeal.

That an application filed against a party making false and malicious allegations of breach of the peace by the latter for the purpose of initiating proceedings u/s 107 of the Code of Criminal Procedure against him amounts to a prosecution for which damages may be claimed is new well settled. Reference may be made to the decisions in the case of C.H. Crowdy v. L.O. Reilly (1912) 17 C.W.N. 554 and the case of Bishun Persad Narain Singh v. Phulman Singh (1914) 19 C.W.N. 935, In both these cases it was held that a proceeding maliciously instituted against a person to compel him to furnish security to keep the peace may be made the foundation of a suit for damages for malicious prosecution.

Mr. Sarkar, however, argued that in the present case no prosecution had really been instituted because the learned Magistrate directed the application of the Defendants to be filed without taking any action. That is not, however, quite correct. The learned Magistrate had issued notice upon the Plaintiff to show cause against the petition and the latter had actually shown cause. On perusing the cause shown by the Plaintiff, the learned Magistrate became convinced that there was no apprehension of a breach of the peace to be committed by the Plaintiff and he, therefore, directed the application to be filed. The portion of the order which directed the Defendants to file separate cases against the Plaintiff has been referred to by Mr. Sarkar. But this portion only meant that if the Defendants, that is, the Petitioners before the learned Magistrate so desired, they could separately prosecute the Plaintiff for the offences mentioned in the petition. Mr. Sarkar next referred to the decision of the Judicial Committee in the case of Mohamed Amin v. Jogendra Kumar Banerjee (1947) 51 C.W.N. 723, 731 (P.C.), and drew my attention to the following observation at p. 731:

To found an action for damages for malicious prosecution "based upon criminal proceedings, the test is not whether the "criminal proceedings have reached a stage at which they may be correctly described as a prosecution, the test is whether such ''''proceedings have reached a stage at which damage to the "Plaintiff results. Their Lordships are not prepared to go as "far as some of the courts in India in saying that the mere "presentation of a false complaint which first seeks to set the "criminal law in motion will per se found an action for damages "for malicious prosecution. If the Magistrate dismisses the "complaint as disclosing no offence with which he can deal, it "may well be that there has been nothing but an unsuccessful "attempt to set the criminal law in motion, and no damage to the Plaintiff results.

Mr. Sarkar contended that if followed from the above observations that where a complaint was simply dismissed by a Magistrate without taking cognisance of it or without taking any action thereon and no damage to the Plaintiff resulted, that should not be a ground for a suit for damages for malicious prosecution. But such was not the fact in the case before me It is to be noted that in the case before their Lordships the Magistrate had taken cognisance of the complaint, examined the complainant, held an enquiry in open court which the Plaintiff attended and then dismissed the complaint. The Plaintiff had to incur costs to defend himself and their Lordships held that the action was well founded. The facts of the present case are similar if not stronger. Here the Plaintiff was directed by the Magistrate to show cause and he did show cause; he had to appear before the Magistrate and incur costs for appearance and showing cause. Thereby he sustained damage. Therefore, the test laid down by their Lordships in the above decision has been satisfied in this case.

Finally, Mr. Sarkar argued that the lower appellate court should not have awarded any damage against the Appellants because the Plaintiff had been amply compensated by the sum of Rs. 100 which two of the Defendants, Nos. 8 and 12, had agreed to pay him by the compromise decree. The lower appellate court accepted the figures of damages assessed by the trial court under two heads, viz., loss of reputation and costs incurred by the Plaintiff in showing cause, and awarded Rs. 50 under the first head and Rs. 80 under the second head. The Plaintiff''s claim for damages for mental suffering which was assessed at Rs. 50 and allowed by the trial court was disallowed by the lower appellate court. As the Plaintiff would get Rs. 100 from Defendants Nos. 8 and 12 by virtue of the compromise decree, the figure of damages payable by the Appellants was assessed by the lower appellate court at Rs. 30. It would appear, therefore, that this sum was awarded by way of costs only. In these circumstances, I do not think that any complaint can be made about the amount of damages.

The appeal accordingly fails and it is dismissed with costs.