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TMI Blog2000 (5) TMI 1091X X X X Extracts X X X X X X X X Extracts X X X X ..... and the launching of such false prosecution by the defendant culminated into acquittal in his favour by Judgment dated 26-11-87 in Sessions Case No. 26/87. The plaintiff therefore pleaded that his acquittal is the outcome of malicious prosecution which was launched by the defendant in order to wreck vengeance which caused physical as well as mental agony for which he is entitled to damages for such malicious prosecution by way of a decree for ₹ 25,000/- against the defendant. 3. The defendant contested the suit by contending inter-alia that she lodged a true and correct FIR with no malice on her part because she along with other witnesses Jagannath and Parbhati etc. had seen the plaintiff running after setting her hut and sheds ablazed. She admitted to have lodged FIR resulting into investigation and production of challan at the instance of the police and then conducting of trial by the Criminal Court. She denied to have any knowledge as to grant of bail and acquittal of the plaintiff by the trial Court. 4. On the basis of pleadings as many as five issues were framed. Plaintiff examined himself as PW 1, and produced Chunnilal (PW 2) and Matthoram (PW 3). The defendant exam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entirety being not maintainable. 8. Shri Agarwal also urged that it is only as a result of his acquittal in criminal case for offence under Section 436, I. P. C. the plaintiff had instituted this suit claiming damages on the ground of alleged malicious prosecution. But according to Shri Agarwal mere filing of the suit is not sufficient since burden of proof was heavily on the plaintiff that the allegations made in FIR by the defendant as regards setting fire to her hutment on the basis of which he faced criminal trial for offence of Section 436, I. P. C., were falsely made without reasonable and probable cause. The plaintiff has failed to shift his onus and establish his burden of proof. 9. Shri Agarwal then contended that two witnesses named in the FIR could not have been produced by the prosecuting agency and merely because the prosecution had failed to examine these eye witnesses, would not, by itself be sufficient to disbelieve version of the complainant/informant of the report in criminal case who was examined and in her statement had specifically named the plaintiff as an accused. 10. I have heard the learned counsel for the parties and given my thoughtful consideration t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t an action shall lie for malicious prosecution or the other forms of abusive process the following conditions must be fulfilled :-- 1) The proceedings must have been instituted or continued by the defendant; 2) He must have acted without reasonable and probable cause; 3) He must have acted maliciously; 4) The proceedings must have been unsuccessful, that is to say, must have terminated in favour of the plaintiff now suing. 13. Laying an information before a Magistrate is sufficient to prove an action, no action lies for institution of legal proceedings. Howsoever malicious, unless instituted without reasonable and probable cause. Malice alone is not sufficient, because a person actuated by the plainest malice may nonetheless have a justifiable reason for prosecution. (See Williams v. Taylor (1829) 6 Bing 183, per Tindal, C. J.). 14. First of all, the burden of proving absence of reasonable and probable cause is on the plaintiff and thus it is the plaintiff who has to undertake task of proving a negative. Therefore, if the defendant denies it, it is neither the practice requiring him nor he is required, or obliged to give particulars of his denial. Secondly, the existence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e defendant is the person who furnished information to the police station Kotwali (Bharatpur) as the commission of a cognizable offence, whereupon the police conducted investigation and upon its investigation prima facie found the charge of Section 436, I.P.C. being made out against the accused (plaintiff herein), thereby the police set the machinery of law into motion by submitting a charge sheet against the accused. 19. It has nowhere been stated that the proceedings have ever been instituted or continued by the defendant. It has neither been proved that the defendant ever acted without reasonable and probable cause, nor it has been proved that he was actuated by malice in having filed the FIR resulting in launching of prosecution. 20. As regards "liability", the term "liability" has been defined in Chapter 17 of treatise "Salmond Jurisprudence" at page 396 as under :-- "Liability is in the first place either civil or criminal, and in the second place either remedial or penal. The nature of these distinctions has been already sufficiently considered in a previous chapter on the Administration of Justice (b). Here it need only be recalled tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of view that the evaluation of the evidence in a suit for malicious prosecution should be made. Held on facts and circumstances of the case that the defendant had reasonable and probable cause in commencing the criminal proceeding and that there was no malice in such prosecution." 26. In Ravindra Sharma v. State of Assam (AIR 1999 SC 3571) (supra) the Apex Court observed as follows (Para 26) :-- "The remedy in a suit for damages for false imprisonment is part of the law of torts in our country (A. D. M. Jabalpur v. Shivakant Shukla (1976) 2 SCC 521 (at 579): AIR 1976 SC 1207 at pp. 1229-30, Lord Devlin stated : "The defendant can claim to be judge not of the real facts but of those which he honestly, and however erroneously, believes; if the acts honestly upon fiction, he can claim to be judged on that." The question is not whether the plaintiff was ultimately found guilty but the question is whether the prosecutor acted honestly and believed that the plaintiff was guilty. As pointed out by Winfleld and Jolowicz on Tort (15th Ed., 1998, p. 685) in prosecutions initiated by police officers, the fact that they did so upon advice or instruction of superio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e knowledge of the person who files it in the police station, can never be said to be a wrong because whether it results in conviction or acquittal is absolutely immaterial to determine the question whether the doer of such an act can be said to be wrong doer and as such the bond of necessity between the wrong doer and the remedy of wrong does not exist in the present case. Further it cannot be said by any stretch of imagination that the defendant could have perceived results of the prosecution launched on his first information report, which resulted in initiation of trial. He could not have known in advance whether the prosecution launched on his information would result in conviction or acquittal of the accused (plaintiff). The learned trial Court has dealt with the case with a deep and minute consideration and all the relevant facts and circumstances of the case and there is absolutely no reason to interfere with the decision of the trial court. The findings arrived at by it in the impugned judgment deserve to be upheld.
29. As a result of the discussion made above, this first appeal being devoid of any merit is dismissed. No order as to costs. X X X X Extracts X X X X X X X X Extracts X X X X
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