Shyamanandan Sahay and Others vs Ram Jivan Lal

Das, J.—These analogous appeals arise out of a suit instituted by the respondent against the appellants for the recovery of Rs. 5,200 as damages for a malicious search held in his house. In order to understand the dispute between the parties it is necessary to set out some of the antecedent facts.

One Jadunandan Sahai was the owner of considerable properties known as the Baghi Estate. He died in May 1915 leaving Musammat Hazari Kuer, his widow, and three sons who are cited as defendants Nos. 2, 3 and 4 in this action. The sons being minors, Musammat Hazari Kuer was appointed the guardian of their person and property.

Sometime in February 1917 Musammat Hazari Kuer filed an application before the Collector of Muzaffarpur, inviting the Court of Wards to take over charge of the Baghi Estate. In connection with those proceedings she appointed the plaintiff as her Mukhtear, and it is the case of the plaintiff that the defendant No. 2 was opposed to the idea of the Court of Wards taking over charge of the Baghi Estate and resisted every attempt made by the plaintiff on behalf of Mussammat Hazari Kuar to induce the Court of Wards taking over charge of the estate. As a matter of fact, in May 1917. Mt. Hazari Kuer withdrew her application, and thereupon the Court of Wards gave up the idea of taking over charge of the estate.

Mt. Hazari Kuer died on the 24th June, 1917. After her death a dispute seems to have broken out between Mt. Atar Kuer and Mt. Sham Peary Kuer on the question as to who was to be appointed the guardian of the minors. It is important to remember this fact in order to appreciate some of the subsequent events.

Shortly after the death of Mt. Hazari Kuer defendant No. 2 produced a letter before the Collector alleged to have been written by Mt Hazari Kuer authorising him to withdraw certain sums of money amounting to Rs. 64,000 in half notes which Mt. Hazari Kuer appears to have deposited with the Collector for safe custody. Upon the production of that letter, the Collector made over Rs. 64,000 in half-notes and the key of the iron safe to defendant No. 2. This seems to have given great offence to Mt, Sham Peary Kuer whose case was thafe the letter of the 23rd June, 1917, on the strength of which the defendant No. 2, withdrew the half-notes from the Collector was not in fact written by Mt. Hazari Kuer and that it was a forgery. She seems to have consulted Mr. Patel on the subject and it appears that Mr. Patel drew up a petition on the 4th August, 1917, inviting the Collector to enquire into the matter and to start proceeding against defendant No. 2. In all these matters the plaintiff ranged himself on the side of Mt. Sham Peary Kuer. As I have just mentioned, the petition was drawn up on the 4th August, 1917, and on the 6th August a complaint was filed by Mr. Blake, the Manager of the Baghi Estate, before the Magistrate of Muzaffarpur which is the immediate cause of the suit out of which this appeal arises.

In his petition which Mr. Blaka filed before the Collector he alleged that Mt. Hazari Kuer before she left Muzaffarpur for Mussoorie entrusted her mother Musammat Sham Peary Kuer and her brothers Baijnath Prasad and Jadunath Prasad, with Rs. 30,000 or more in Government currency notes, sovereigns and silver coins, besides ornaments, jewellery and clothes worth about Rs. 25,000 and he stated that there was grave apprehension of these properties being lost to the estate unless an immediate search was made for them in the residential houses of the persons named in his petition and also in their lodgings in Muzaffarpur. The relevant portion of the petition is in these words:

That to the best of your petitioner''s information and belief most of the said stolen properties are kept concealed in their residential houses at village Jaintpur, P.S. Paroo, and also in their lodgings in this town and can be easily recovered on search made by the authorities without further delay if arranged at one and the same time and not one after another, otherwise there are reasonable apprehensions of their immediate destruction and removal for concealment to other places which will cause a serious loss of the pro-parties worth Rs. 55,000 or more and the most important and valuable Hundi Book containing the account of many thousands cash the properties of the minors, the approximate list of which are herewith annexed." The prayer made in the petition is in these words "That as there is no chance of the recovery or production of the said properties and the account-book by any other process, your honour will be graciously pleased, under the provisions of Section 98, Criminal Procedure Code, to issue search warrants for their immediate recovery by a competent officer and to direct the Police to investigate the case and be punish the above named three offenders according to law.

It will be noticed that, throughout the petition there is no mention whatever of the plaintiff''s name. It is not suggested anywhere in the petition that the plaintiff had anything whatever to do with the removal or the concealment of the Government currency notes and the other properties referred to in the petition of the 6th of August, 1917. Nor is there any suggestion that Baijnath Prasad and Jadunath Prasad or either of them or their mother Sham Peary Kuer were actually residing or putting up in the house of the plaintiff.

On the same data the District Magistrate of Muzaffarpur issued a search warrant which is in these terms:

Whereas information has been laid before me and on due enquiry thereupon had, I have been led to believe that the house occupied by Baijnath Prasad, and belonging to B. Ramjiwan Lal, Mukhtear in Muzaffarpur town, is used as a place for the deposit of stolen property, this is to authorise and require you to enter the said house to day with such assistance as shall be required, and to use if necessary reasonable force for that purpose to search every part of the said house occupied by him, and to seize and to take possession of any property or documents, and forthwith to bring before this Court such of the said things as may be taken possession of returning the warrant with an endorsement certifying What you, have done under it immediately upon its execution given under my hand and the seal of the Court, this day the 6th of August, 1917.

The house of the plaintiff was accordingly searched and the plaintiff complains that by reason of the search he has suffered damages which he estimates at Rs. 5,200. On the 5th August, 1918, he instituted the suit out of which this appeal arises for the recovery of the said sum of Rs. 5,200 as against Mr. Blake and the minor proprietors of the Baghi Estate and also as against the certificated guardian of the minor proprietors and some servants of the minor proprietors.

The learned Subordinate Judge has come to the conclusion that the search was made at the instance of the defendants and being of opinion that it was malicious he has given the plaintiffs a decree for Rs. 1,000 as against the defendants.

I am unable to agree with the decision of the learned Subordinate Judge. I have set out the critical portions of the petition of Mr. Blake on which the search was made, and it is not disputed that, so far as that petition is concerned, there is not the slightest suggestion that the plaintiff was In any way concerned with the offences with which Musammat Sham Peary Kuer, Baijnath Prasad and Jadunath Prasad were charged. Nor was it suggested in that petition that the house of the plaintiff was used as a place for the deposit of the properties mentioned in the petition. In my opinion before the plaintiff succeeds, he will have to establish to the satisfaction of the Court that the defendants or some of them were responsible for the search which was held in his house. It is conceded by the learned Vakil who has appeared on behalf of the respondents that there is not the slightest evidence in the record which directly connects the defendants or any of them with what took place on the 6th August, 1917. But it is urged that the circumstantial evidence is sufficient to establish the case so far as the defendants are concerned. In order to succeed the plaintiff must establish if he relies on circumstantial evidence, that that evidence is not only consistent with the guilt of the defendants but incapable of explanation on any other hypothesis.

The learned Subordinate Judge thought that inasmuch as the defendants set the machinery of the Criminal Law in motion and set it without reasonable and probable cause, they were liable to pay damages to the plaintiff. It is sufficient to say in answer to the argument employed by the learned Subordinate Judge that the defendants did not set the machinery of the Criminal Law in motion as against the plaintiff. It is, therefore, necessary for the plaintiff to establish either by direct or by circumstantial evidence that the defendants or some of them were responsible for the search which was held in the house of the plaintiff. The learned Subordinate Judge says that "the evidence is clear that the Magistrate did not order the search of the plaintiff''s house of his own accord but on information supplied by plaintiff." With all respect I am unable to take this view of the evidence in the case. It is admitted by the learned Vakil appearing on behalf of the respondent that there is no direct evidence to connect the defendants or any of them with what took place in the house of the plaintiff on the 6th August, 1917. Mr. Blake has given his evidence in the case and he says positively that he did not ask the Magistrate to search the house of the plaintiff. His evidence is as follows:

I asked the Magistrate to have the search effected as quickly as possible. I have no personal knowledge as to how the Magistrate got the seal. Mr. Barnicott is not at Muzaffarpur now. Mr. Russell was the Police Superintendent, he is not here now. I did not tell Mr. Barnicott that I wanted the house of plaintiff being searched.

The Head Constable who assisted at the search tells the Court how Mr. Barnicott came to direct the search to be held in the house of the plaintiff. His evidence is as follows:

Mr. Barnicott, S.D.O., himself came to the thana to ask, before we went out for house search. Probably he had complaint petition in his band, he cams alone. Mr. Barnicott got the search warrant prepared at the thana and made it over to us. I was present when the search warrant was written. Mr. Barnicott asked the Police staff at the thana as to where Jaintpur Babus stayed in this town. Some of them said that they lived at Kalyani, some said that they also put up at Babu Ramjiwan''s lodgings. These thana people said that the name of Jaintpur Babus were Baijnath and Jadunatb. I knew them from before, We were also entrusted with warrant of arrest of Jadunath and Baijnath. Three sets of warrants were issued two for Muzaffarpur and one for Jaintpur. Sri Lal with whom I went, got the search warrant for search at the house belonging to the plaintiff. The search warrants were prepared from the instructions given by the Police staff at the thana.

The learned Subordinate Judge was of opinion that it was improbable that the Magistrate should himself go to the thana and act upon the information given to him by the Police Officers, and he considered that it was more probable that he got the information from Mr. Blake. This is, with all respect, a pure speculation. The evidence of Mr. Blake and the Head Constable is uncontradicted by any testimony on the part of the plaintiff, and there is no evidence at all which establishes that Mr. Blake gave Mr. Barnicott the name of the plaintiff and asked Mr. Barnicott to have the house of the plaintiff searched. In my opinion there is absolutely no direct evidence to connect the defendants or any of them with what happened in the house of the plaintiff on the 6th August, 1917.

The next question is, is there any circumstantial evidence to connect the defendants. As I have said before, the circumstantial evidence must be such as is not only consistent with the guilt of the defendants but incapable of explanation on any other hypothesis. Now, what is the circumstantial evidence in the case? The evidence in the record establishes nothing more than this that there was a bitter struggle going on between Musammat Sbatn Peary Kuer on she one hand and the minor proprietors supported by Musammat Atar Kuer on the other for the actual control of the Baghi Estate and that the plaintiff was actively assisting Musammat Sham Peary Kuer in her endeavour to take charge of the estate. The evidence also establishes that $here was a contest between the defendant No. 2 and the plaintiff on the question whether the Court of Wards should take over charge of the Baghi Estate. In my opinion it is not an in-resistible conclusion from these facts that the defendants or any of them must have given the name of the plaintiff to the Magistrate. All that the evidence establishes is this, that there was not good feeling between the defendants and the plaintiff, and if I were satisfied on the evidence that the defendants were responsible for the house search in the house of the plaintiff, I would have no hesitation in coming to conclusion that that house search was a malicious house search and without reasonable and probable cause. But there is no evidence whatever to connect the defendants or any of them with the house search which took place in the house of the plaintiff, and I am unable to hold that there is any circumstantial evidence worth the name which leads to the inference that the defendants were responsible for the house search. That being so, I must allow these appeals, set aside the judgment and decree passed by the Court below and dismiss the plaintiff''s suit. In my opinion there should be no order as to costs either in this Court or in the Court below.

Kulwant Sahay, J.

I agree.