The State of Bihar and Others vs Bachchi Devi and Others

This Letters Patent Appeal is preferred by the State against the judgment dated 14th September, 2009 Ed.-Reported in Mahesh Ram, Ganesh Ram and Chandradeo Ram Vs. State of Bihar and Others The date of the Order is 14.9.2007 passed in CWJC No. 1235 of 2003* by a learned Single Judge. The petitioners are shown as respondents. The parties are arrayed as shown in the writ petition. Bachchi Devi and Lakhan Ram are substituted in place of respondent no. 1 as he died during the pendency of the writ petition. The writ petition had been filed by the petitioners seeking appropriate writ by directing the respondents to adequately compensate the petitioners for their illegal confinement arising out of malicious prosecution as under trial prisoner in connection with Matihani P.S. Case No. 59 of 2000 for mental agony and financial crisis suffered by them. It is the case of the petitioners that Matihani P.S. Case No. 59 of 2000 was instituted on 9th October, 2000 under Sections 302, 201, 307 and 353/34 of the Indian Penal Code against unknown on the self-statement of one Pramod Kumar Jha, ASI, Officer Incharge of Matihani Police Station alleging the murder of unknown lady whose dead body was found in a ditch at Saidpur, Annexure-1 to the writ petition. The said dead body was identified by the parents of the deceased lady as that of belonging to their daughter "Ranju Devi". They further during the course of investigation on 11.10.2000 supported their statements u/s 161 of the Code of Criminal Procedure and also u/s 164 of the Code of Criminal Procedure recorded on 17.11.2000. It is also the case of the petitioners that respondent no. 5 arrested petitioners no. 1 and 2 on 11.10.2000 from their house and according to them they were subjected to third degree methods for recording of their statements, Annexure-3 to the writ petition, it is also their case that on the basis of confessional statement made by petitioner no. 1, the respondent no. 5 has also arrested one Chandradeo Ram, petitioner no. 3 on 27.11.2000. According to them even though they have informed the Police earlier that the wife of petitioner no. 1 was alive and was residing with another person at Asansol but the Police did not take note of the same and they have not made investigation in this direction. It is also their case that subsequently on 2.1.2001 petition has been filed on behalf of petitioner no. 1 in the Court of Chief Judicial Magistrate to the effect that Ranju Devi is alive and she is residing at Asansol. It is also their case that Investigating Officer has filed charge-sheet under Sections 302, 201, 353, 307/34 of the Indian Penal Code on 22.1.2001. The Chief Judicial Magistrate took cognizance and committed the matter to the Court of Sri R.D. Yadav, Judicial Magistrate by order dated 22.1.2001. On 20.2.2001 Ganesh Ram was released on bail by the High Court. It is also their case that on release on bail Ganesh Ram had proceeded to Asansol on the information that Ranju Devi married with one Rajesh and she has been residing at Flat No. 152, Pritampura Delhi with him and with the help of his villager Roopchand and Sitaram reached there on 14th March, 2002 where he could find Ranju Devi alongwith said Rajesh. It is also their case that the Delhi Police, on information by the said Roopchand, reached there and arrested Ranju Devi and Rajesh and the message of his arrest was sent to the Superintendent of Police, Begusarai on 16th March, 2001 by telegraphic message (Annexure-6 to the writ petition). Subsequently, a petition has been filed in the Committal Court on 20th March, 2001 by said Ganesh Rai, petitioner no. 2, that Ranju Devi was alive and she was residing at Delhi with Rajesh as wife and husband and she was arrested by Delhi Police and she is in Tihar Jail in connection with Section 107/151 of the Code of Criminal Procedure. According to them, no order was passed by the lower court. Then said Ranju Devi was produced before the Judicial Magistrate, 1st Class, Begusarai and her statement under 164 of the Code of Criminal Procedure was recorded (Annexure-7). It is also their case that the committing Magistrate has remanded the petitioners no.1 and 3 on prayer of the Investigating Officer on 30.3.2001, 12.4.2001, 26.4.2001, 9.5.2001 and 23.5.2001. A bail application was also moved on behalf of Mahesh Ram and Chandradeo Ram on 17.5.2001 which was rejected by the Committing Magistrate. Subsequently, a bail has been filed before Sessions Judge, Begusarai in B.A. No. .715 of 2001 on behalf of petitioners no.1 and 3. The bail has been granted on 1.6.2001, Annexure-8. It is the case of the petitioners that even the entire fact and record show that there is falsity of the case and false implication of the petitioners but the committing Magistrate committed the case to the Court of Session who transferred the case to the Court of learned Additional Sessions Judge-IV for trial and disposal where the case has been registered as S.C. No. 301 of 2001/49 of 2001. It is also stated in the petition by the petitioners that the Additional Sessions Judge-IV, after hearing them on the charge matter and considering the petition filed on behalf of the petitioners, discharged them by order dated 15.1.2002. It is also stated in the petition filed in support of the writ petition that due to defective investigation by respondents no. 2 to 5 and creation of confessional statement purported to be made by said Mahesh Ram, respondent no. 5, has chosen to arrest Mahesh Ram in spite of disclosing the fact that the said Ranju Devi is alive. Even though the said fact has been brought to the notice of the Court of Chief Judicial Magistrate, Begusarai, but they did not take any step for investigation of the case and the petitioners suffered incarceration as under trial prisoner for such a long period. It is also the case that the Superintendent of Police, Begusarai, in spite of the several representations, sat tight over the matter and has not taken steps for release of the petitioners from Jail. It is also their further case that respondents no. 2 to 5, representing the State, did not file any petition for release of the petitioners from custody. It is also one of the allegations made against one of the Investigating Officer that the Investigating Officer conspired with the respondent second party in launching malicious prosecution against the petitioners which is evident from the fact that Baleshwar Ram and Sabo Devi gave false information to the Investigating Officer, which he knew to be false to use his lawful power to cause injury to the petitioners, did not file any complaint u/s 195 of the Code of Criminal Procedure against Sabo Devi and Baleshwar Ram for commission of offence u/s 182 of the Indian Penal Code. Subsequent paragraph of the writ petition goes to show that, according to the petitioners, the petitioners no. J and 3 are farmers and petitioner no. 2 a lorry driver. It is further averment in the writ petition that petitioner no. 2 used to pay the owner of Car Rs. 10,000/- monthly and in this case of false implication he could not clear the amount and continuation of the petitioners in the aforesaid case on the ground of malicious prosecution caused damage of Rs. 1 lac as they have chosen to file present application.

Counter affidavit has been filed by the said Investigating Officer. The learned Single Judge, heard the matter in extenso and has gone into the merits of the case, has held that there is false case lodged against the petitioners, awarded a com- pensation of Rs. 1 lac to each of the petitioners to be paid by the State within one month from the date of order and also following the principle laid down by the Supreme Court in the case of Smt. Nilabati Behera alieas Lalita Behera Vs. State of Orissa and others, with liberty to the State to realise the amount from the erring officer. The learned Judge also directed the Chief Secretary, the Home Secretary, the Secretary Personnel, and D.G.P., Govt, of Bihar to look into the matter and take appropriate action according to law against the Officers concerned.

The Learned Counsel appearing on behalf of the State has contended before us that the case has been registered against unknown person when a dead body of a lady was found in a gunny bag. The body was sent to Hospital morgue that is on 11.10.2000. The parents of the deceased have identified the body as that of their daughter Ranju Devi and immediately they made statement that their son-in-law had come three days earlier and informed that a few days back their daughter was found missing since three days. They suspected that their son-in-law might have killed their daughter. Accordingly, the petitioners No. 1 and 2 were arrested and lodged in jail at Begusarai. It is also contended that petitioner no. 1, Mahesh Ram, who filed the bail application, never disclosed the fact that his wife, Ranju Devi, was very much alive and had married with one Rajesh. It has been contended by the learned Additional Advocate General that fourteen times he appeared before the trial court and none of the time he stated before the Chief Judicial Magistrate that his wife was alive and investigation was made in that context. It is also contended that even admitting the fact that the Police is ignorant of the statement of Petitioner no. 1 nothing prevented him from stating the said fact through an application immediately by an Advocate who was to defend him before appropriate Court but no such action has been coming from the petitioner no. 1. When the brother of petitioner no. 1 was released by orders of this Court on 26.2.2001 he immediately proceeded to Delhi to locate the said Ranju Devi, who is supposed to have married with one Rajesh, and could found the girl Ranju Devi, informed the Delhi Police that persons are being tried in Begusarai for having killed a girl who is living with another man at Delhi. The Delhi Police plunged into action, arrested Ranju Devi and her so-called husband Rajesh and remanded them to Tihar Jail. It is further contended that till 2nd January, 2001 no attempt was made to bring to the notice to the Police that said Ranju Devi is alive nor there is evidence available that petitioners no. 1 and 2 had made any attempt to bring the notice of the court or Police that Ranju Devi is alive. In absence of any contention raised on behalf of the petitioners that they are illegally arrested or illegally confined, it cannot be said that the case falls under the malicious prosecution and the findings of the learned Judge that the State is bound to pay an amount of Rs. 1 lac or with the direction to the Chief Secretary to take action against the erring officers cannot be sustained. It is also further contended that the petition filed for discharge and the application has been allowed by the lower court and he has been discharged of the charges. It is also further contended that the parents of the said Ranju Devi has been subjected to criminal case u/s 420 of the *Code of Criminal Procedure and investigation is completed and a charge-sheet has been lodged. It is also their case that if Ranju Devi is alive she should be also arrested. But even though notice was served none appeared either before the learned Single Judge or before this Court.

The Learned Counsel appearing for the respondents has contended before us that the fact that unidentified dead body was found in the ditch and on the basis of the information received the Officer Incharge, Matihani Police Station, has registered Matihani P.S. Case No. 59 of 2000 under Sections 302, 201, 307, 353/34 of the Indian Penal Code against unknown. It is also contended that the dead body was alleged to be of a lady of 35 years old and only on the statement of the parents of Ranju Devi u/s 161 of the Code of Criminal Procedure, the petitioners no. 1 and 2 have been falsely arrested without further investigation. It is also contended that the Police did not chose to identify the dead body in the manner they should have been under the procedure and no photograph has been taken of the dead body properly. It is also contended the petitioners have tried their level best to inform the Police or to the Court or to the Superintendent of Police that Ranju Devi was alive and hence they were illegally confined in the Jail of Begusarai till Ganesh Ram obtained bail from High Court. The arrest of the petitioners on the false statement of the father-in-law, that is father of said Ranju Devi, and their stay in jail at Begusarai only is illegal and without any basis and they are subjected to mental agony. It is argued that learned Judge is perfectly right in coming to the conclusion that an amount of Rs. 1 lac be paid to the petitioners for their wrongful confinement in jail and the judgment cannot be interfered with.

We also had the occasion to go through the entire record of the lower court which are before this Court. The point for consideration in the present Letters Patent Appeal is that whether the petitioners could prove before this Court that they were illegally confined by the Police and they have been maliciously prosecuted. It is also the next point whether the petitioners are able to prove that they have been maliciously prosecuted the Police to keep them in illegal confinement.

For a person who alleged for an action under malicious prosecution, it is for the person to prove the following points; (a) that the person was prosecuted by the defendants or by the other party, (b) that the prosecution ended in petitioners favour, the opposite party acted and the case the opposite party was actuated by malicious prosecution. Under those circumstances, it is for the opposite party to make out a defence recognized by law. It has to be further observed that the burden to prove malice rests upon the party who alleges. In this case it has to be seen whether the ingredients under malicious prosecution has been proved. It is the case of the petitioners that they have been prosecuted and were charge-sheeted only on the confessional statement made by the father of Ranju Devi and it is on his instance that the said Ranju Devi could be traced at Asansol which came to light after two-three months of his detention then only he could get himself discharged from the lower court. The record show that he appeared fourteen times before the lower court and as it has been contended by the State there is no material produced by the petitioners that they tried their level best to put forth their case that Ranju Devi was alive at Asansol at the time of their arrest. It is also to observe that perusal of the record goes to show that Matihani P.S. Case No. 59 of 2000 dated 10.10.2000 was instituted against ''unknown'' on the self-made statement of its Officer-in-charge, Pramod Kumar Jha, recorded on 9.10.2000 on recovery of dead body of a unknown female whose post mortem examination was conducted at Begusarai Hospital on 10.10.2000 at 1.00 P.M.

On 11.10.2000, arriving at the hospital, around 11.00 A.M., Respondent No. 6 (Sabo Devi) claimed to identify the body to be of her daughter Ranju Devi, wife of Petitioner No. 1, asserting that she might have been killed by her husband, his brother and other associates. Consequent upon such discloser, Petitioner Nos. 1 and 2 being full brother were arrested from their house. Extra-judicial confessional statement of Petitioner No. 1 was also recorded. and on 27.11.2000, Petitioner No. 3 after apprehension was produced by the police and taken into custody.

On 22.12.2000, one petition on behalf of Respondent No. 5 (Baleshwar Ram) alongwith affidavits sworn by himself and his wife Sabo Devi Respondent No. 6 was filed, engaging Sri Manzur Alam, Advocate, stating therein for the first time that some sort of pressure was put on them to identify the dead body and claimed the same as of their daughter, but this application could not be placed before the Court of Chief Judicial Magistrate, Begusarai. However, also relying upon the contents therein Petitioner No. 2 was granted bail by a Bench of this Court vide order dated 20.2.2001 passed in Cr. Misc. No. 4578 of 2001. Consequently, Petitioner No. 2 was released on furnishing bail bond on 26.2.2001.

On 2.1.2001, Petitioner No. 1, submitted an application before the Chief Judicial Magistrate, for the first time stating therein that his wife Ranju Devi is alive and resides with her father (Respondent No. 5) at Asansol where he has his business. The record, further, indicates that petitioner nos. 1 and 2 both engaged same counsel, namely, Mr. Manzur Alam for themselves. On the above petition the Chief Judicial Magistrate immediately ordered its transmission to the Superintendent of Police, Begusarai for information and needful.

But before anything is done, Charge-sheet No. 80 of 2000 dated 31.12.2000, under Sections 302, 201, 307 and 353/34 of the Indian Penal Code and Section 27 of the Arms Act was submitted against the three petitioners consequent upon vide order dated 22.1.2001 cognizance was taken and the case was transferred to the Court of Judicial Magistrate for commitment.

On 20.3.2001, on behalf of Petitioner No. 2 (on bail), one petition was filed intimating that Ranju Devi said wife of petitioner no. 1, for whose alleged murder the petitioners are/were in custody, is alive and apprehended by the Delhi Police, in a case bearing No. 29 of 2001 dated 14/15.3.2001 instituted there at his instance, but the Court failed to take any action, in view of cognizance already taken and matter being pending for commitment after serving police papers upon the accused persons right from receipt of record to the said Court, but the police papers on one or the other grounds could not be received including non-physical appearance of petitioner no. 2 (on bait) on the respective dates fixed, however, it could be done only on 4.8.2001 when all the three petitioners could be physically present, and received the police papers. Simultaneously, the case was committed to the Court of Sessions, where record was received on 21.8.2001.

Meanwhile, on 17.5.2001 before the committing Court a petition was filed on behalf of Petitioner Nos. 1 and 3, seeking privilege of bail on the grounds of recovery of Ranju Devi (said to have been deceased of the case) and recording of her statement u/s 164 of Code of Criminal Procedure besides her paramour Rajnish Ram (both were brought from Delhi), but the learned Magistrate refused to grant them the privilege prayed. However, they could be ordered to be released on bail on 1.6.2001 by the learned Sessions Judge in Bail Application No. 715 of 2001. Consequent upon on the next very date i.e. 2.6.2001, Petitioner No. 1 on furnishing bail bond was released from custody, but since Petitioner No. 3 was in custody in connection with Sessions Trial No. 97 of 2001. Initially, he failed to furnish the bail bond till 26.6.2001, but for him on the date fixed i.e. 3.7.2001 a petition u/s 317 of the Code of Criminal Procedure was filed and on the next date fixed i.e. 13.7.2001 at his request production warrant was issued, consequently on the date of commitment of the case i.e. 4.1.2001 he was physically present on production.

After submission of the first charge-sheet and after recording of the statement u/s 164 of the Code of Criminal Procedure of the said Ranju Devi besides statement of other concerned, the police prayed the Court for cancellation of earlier charge-sheet by filing Charge-Sheet No. 22 of 2001 dated 12.4.2001 and further, intimated that investigation as regard to recovery of unidentified dead body is reiterated and simultaneously, case bearing Matihani P.S. Case No. 19 of 2001 has been instituted against said Ranju Devi and her parents i.e. Respondent Nos. 4, 5 and 6 respectively u/s 420 of the Indian Penal Code.

In Sessions Trial No. 301 of 2001 arising out of Matihani P.S. Case No. 59 of 2000 which was transferred to the Court of Additional Sessions Judge-4th bearing Sessions Trial No. 301/2001/39/2001. On production of the original and the supplementary charge-sheets after hearing the parties vide order dated 15.1.2002, the accused persons i.e. the three petitioners stood discharged u/s 227 of the Code of Criminal Procedure, finding no material to proceed for trial against them and finding some discrepancy in the investigation. Copy of order was to be transmitted to the authorities for needful.

Ultimately, the police has finally submitted Charge-Sheet No. 16 of 2002 dated 31.3.2002 in Matihani P.S. Case No. 59 of 2000 and subsequently closing the case as of no clue indicating that the dead body recovered on 9.10.2000, could not be identified. Consequently, nothing as regard to the killing could be traced out.

In the writ petition, there is nothing mentioned as regard to detention of Petitioner No. 3 during relevant period in connection with any other case. However, during the course of argument, Learned Counsel representing the writ petitioners/ respondents fairly concedes that so far as detention of Petitioner No. 3 is concerned, it cannot be said unlawful.

The fact ramains that the petitioners were charge-sheeted u/s 302 and other Sections of the Indian Penal Code and sent to jail on,1.10.2000 and remained in jail till the date of release on bail and they did not file petition before the lower court to bring to the notice the said Ranju Devi was very much alive at Asansol. For the first time the petitioner no. 1 filed a petition before the lower court in the month of January, 2001 to put forth the notice of the lower court that the said Ranju Devi was alive and that fact has come to light only in discharge petition and he has been subsequently released on bail. There is no evidence available before this Court that the petitioners tried to bring to the notice of the court that the said Ranju Devi was alive. In absence of such evidence before the learned Single Judge or before this Court that to the effect that they tried to bring to the notice of the Court below that the said Ranju Devi was very much alive, this Court is of the opinion that in absence of any of the factum being proved it cannot be said that they were falsely prosecuted by the respondents nor the respondents had acted malicious. In absence of such pleadings in the writ petition, we have to observe that the contention of the Learned Counsel for the respondents that they have been maliciously prosecuted cannot be agreed upon for the reasons that none of the ingredients of malicious prosecution as said (supra) has been pleaded in pleadings.

The case of AIR 1944 1 (Privy Council) supports our view. The Privy Coucil has observed that "in order to succeed in action for malicious prosecution the plaintiff must in the first instance prove two things:- (1) that defendant was malicious, and (2) that he acted without reasonable and probable cause. Malice has been said to mean any wrong or indirect motive, but a prosecution is not malicious merely because it is inspire by anger. However wrongheaded a prosecutor may be, if he honestly thinks that the accused has been guilty of a criminal offence he cannot be initiator of a malicious prosecution. But malicious alone is not enough; there must also be shown to be absence of reasonable and probable cause".

Our view was supported under the following cases. In AIR 1944 1 (Privy Council) the case which arose from Patna where it has been held that (which was noted at placitum 3fg) a person who was named in the charge-sheet in a criminal prosecution as an accused person not sent up for trial and was in fact never so sent up cannot be said to have been prosecuted and therefore has no cause of action to maintain an action for damages for malicious prosecution. Then in the case of Kommalapati Venkatadri Vs. Pinninti Chandrayya, following AIR 1944 1 (Privy Council) held that the issue as to reasonable and probable cause is one of fact in the ordinary sense that it is a conclusion to be drawn from the facts and circumstances of the case. The question is not one of mixed law and fact.

In 1930 All 525 PC 5 it was held that if in his first information to the police or complaint to a Magistrate a person positively asserts that another person has committed the offence and the latter is arrested and on inquiry by the Magistrate is discharged, the person lodging the information or making the complaint must be held to have started the prosecution. If all that is furnished in a first information report or a complaint is that, on the facts and circumstances truly stated therein, there is an honest suspicion against a person, it cannot be said that the person lodging the first information or making the complaint initiated the prosecution, for, all that he had done is to give a mere narration of facts and circumstances from which the police or Magistrate may or may not infer that the person suspected has committed a crime.

In case of Yerram Seshi Reddi and Another Vs. Badduri Chandra Ucddi and Another it is held as such:-

In an action for malicious prosecution the plaintiff must show first that he was prosecuted by the defendant, that is to say, the law was set in motion against him on a criminal charge; secondly, that the prosecution was determined in his favor; thirdly, that it was without reasonable and probable cause; fourthly, that it was malicious. The onus of proving every one of these is on the plaintiff. (Para 5)

The proper and correct test is to find out whether the defendant was the real prosecutor. A person may in fact be responsible for the prosecution without himself lodging the complaint. He may have given information to the complainant which is false to his knowledge as part of a design to prosecute an innocent person with a view to satisfy his private spite. Therefore, the question in all cases must be who was the prosecutor and the answer must depend upon the whole circumstances of the case. (Para 11)

Where the plaintiffs case was that defendants 2 and 3 conspired with the 1st defendant and launched the prosecution and it was found that there was previous enmity between defendants 2 and 3 and the plaintiffs, that they had given information to the complainant and that they also gave evidence before the police and before the criminal courts.

Held, that these facts by themselves were not sufficient to establish the liability of defendants 2 and 3. There must also be proof that they did all this as part of a design to implicate the plaintiffs on a false criminal charge. (Para 12)

The High Court of Madras had an occasion to distinguish between malicious prosecution and unlawful confinement. At the outset we make it clear that it is not the case of the petitioners/respondents that they have been arrested. They are subjected to malicious arrest. In a case of Chinnamuthu Ambalam Vs. S. Jagannatha Chariar, it has been held in Paragraph Nos. 18 and 21 as such:-

Regarding the connotation of the term "malice" in connection with suits for malicious prosecution, the law is the same in India, England and America. In India the term "malice" has been construed as meaning as improper or indirect motive, that is to say, some motive other than a desire to vindicate public justice or a private right. It need not necessarily be a feeling of enmity, spite or ill-will. {Para 18)

Malice has a wider meaning that spite, ill-will or a spirit of vengeance, and includes any other improper purpose motivating the prosecutor, such as to gain a private collateral advantage. The fact that his conduct was prompted by indignation or anger, does not negative the existence of a proper purpose, because so far from this being a wrong or indirect motive, it is one on which the law relies to secure the prosecution of offenders. (Para 21)

It is also further held in Paragraph Nos. 28 and 29 which reads as such:-

In fact if the plaintiff felt aggrieved that he had been unlawfully arrested by the Sub-Inspector by reason of the requirements of S. 188 I.P.C not having been made out in his case the remedy open to him against the Sub-Inspector was to file a suit for false imprisonment and if he wanted to rope in the informer also, a suit for conspiracy. Both false imprisonment and conspiracy are torts giving rise to damages. (Para 28)

False imprisonment is the invasion of the interest in freedom from unlawful confinement while a malicious prosecution is the unlawful use of legal procedure to bring about a legal confinement. If the imprisonment is under legal process but the action has been carried on maliciously and without probable cause it is malicious prosecution. If it has been extra-judicial without legal process it is false imprisonment. It will differ on the facts of each case whether the arrest by a Police Officer was caused in a ministerial capacity and in compliance with the complainant''s request or in the exercise of his own power. If the former is the case the remedy is malicious prosecution, if the latter is the case the remedy is for false imprisonment. (Para 29)

Two or more persons who cause damage to another by a conspiracy among them will become liable to him (a) where their conduct amounts criminal conspiracy, and (b) where the conspiracy is malicious i.e., as a motive or object of causing such damage. The first ground of liability is an application of the general principle that the commission of a crime e.g., wrongful confinement resulting in damage gives rise to a civil action. The second ground of liability would arise in cases where a conspiracy does not amount to a crime. (Para-31)

The above case law has been decided by following AIR 1944 1 (Privy Council) which we have already referred.

Yerram Seshi Reddi and Another Vs. Badduri Chandra Ucddi and Another has also been rendered following AIR 1944 1 (Privy Council) At this stage, we have to opine that the petitioners failed to prove to show that how they have been maliciously arrested or they have been subjected to unlawful confinement without any legal process or without a probable cause.

In a case of Ucho Singh Vs. Nageshwar Prasad Singh and Others, it has been held in paragraph-7 which reads as such:-

(c) Tort-Malicious prosecution- Absence of reasonable and probable cause and existence of malice-Initial burden-shifting of onus-Accusation false to the knowledge of defendant-Presumption-(Evidence Act 1872, Ss. 101 to 103).

In an action for malicious prosecution the initial burden of proving absence of reasonable and probable cause and existence of malice on the part of defendant in launching the prosecution against the plaintiff rests on the plaintiff, but that burden may shift during the trial. The amount and nature of evidence required to discharge the initial burden depends upon the facts and circumstances of each case. If a man acts on his own knowledge, then the fact that the complaint was a false one will raise a presumption that there was an absence of reasonable and probable cause and on that malice existed unless it is shown that his memory was defective or that there was some valid ground for this apprehension. Nitya Nanda Mandhata Patnaik Vs. Binayak Sahu and Another, Foll. (Para-7)

On the perusal of the writ petition it goes to show that it has been held that the petitioners were arrested because of conspiracy between the parents of the deceased lady and the police. Taking note of the law laid down by the different courts as stated, supra, we are of the opinion that the burden lies on the petitioners to establish that they have been arrested in the absence of reasonable and probable cause in launching the prosecution against them. In the absence of such pleadings and in the absence of also further pleadings that there is malicious intention in arresting them we are of the opinion that their pleadings'' with regard to conspiracy has to be established before the appropriate forum and it has also further been observed that the petitioners have never prosecuted by the respondents and the proceedings complained never terminated in their favour nor it was not their case that the prosecution was instituted against them without any reasonable and probable cause nor it was due to malicious intention of the respondents. In the absence, we are of the opinion that the observation of the learned Single Judge that the State is liable to pay of the damages as compensation on the ground that they have been wrongfully confined cannot be sustained. In a case of Vijai Nath Vs. Damodar Das Chela Shiv Mangal Das and Others, it has been observed that-

(C) Torts-Malicious prosecution- Burden of proof-Discharge and shifting of-Negative evidence by denying on oath the incident, not sufficient to shift burden of defendant.

In a suit for malicious prosecution, even though absence of reasonable and probable cause is a negative assertion, still the burden of proving it lies on plaintiff. He can prove it by showing that the alleged incident did not take place. But then the burden is on him to establish it and merely because it happens to be a negative fact, the burden does not shift to the defendant to show that the incident did take place. Plaintiff can prove his case by examining himself on oath and by producing other corroborative evidence. If on scrutiny it is found reliable he will succeed in showing that incident did not take place. Mere denial on his part will not be enough to shift the burden on the defendant. In such cases there will be evidence on behalf of both parties and the question on whom burden of proof lies would become irrelevant. Court will have to weigh the evidence and find which of two versions is acceptable. (Para 29)

It is also in the mere circumstance of the fact that the said Ranju Devi was supposed to have been found with one Rajesh at Flat No. 105, Pitampura, Delhi. We are of the opinion that she has also been lodged at Tihar Jail in a case instituted against them for contacting second marriage. We are of the opinion that the contention of Learned Counsel for the petitioners/respondents that she should be believed to be a daughter of the parents i.e. Baleshwar Ram and Sabo Devi has to be accepted cannot be sustained for the reasons that a competent Court has to declare with reference to the relationship that she is Ranju Devi daughter of Baleshwar Ram and Sabo Devi, in accordance with law by that Court. We hold that we are not the authorities to declare the said Ranju Devi as the daughter of Baleshwar Ram and Sabo Devi. Under the above circumstance it has to be admitted fairly that there is a lacuna in the investigation process by the concerned Investigating Officer, but still it cannot be taken advantage by the petitioners/respondents to claim the damages against the said process. It may be a ground that they appeared before the court for defence, if the trial would have come up. But, in the absence of such action, we are not in agreement with the observation of learned Single Judge that it is a case of the faulty action and the findings of the learned Single Judge that because of the lacuna in investigation, State is bound to compensate the damages of one lac to the petitioners/respondents cannot be sustained. But, however, we are in agreement with the observation of learned Single Judge that if there is any lacuna in investigation that should be thoroughly enquired by the appropriate authority and such officers must not be left unpunished in accordance with law. With the above observations, this Letters Patent Appeal stands allowed and the order of the learned Single Judge is set aside to the extent as observed above.