1999 Supreme(SC) 1016

1999(8) Supreme 62
SUPREME Court of India
(From Gauhati High Court)
M. Jagannadha Rao & M. Srinivasan, JJ.
Shri Ravinder Kumar Sharma -Appellant
versus
The State of Assam & Ors. -Respondents
Civil Appeal No. 6036 of 1990
Decided on 14-9-1999
Counsel for the Parties :
For the Appellant : N.R. Choudhary, Advocate.
For the Respondent No. 1 : Vijay Hansaria, Sunil K. Jain, S. Bortha­kur, Advocates for M/s. Jain Hansaria & Co.
For the Respondent No. 2 : S.R. Hegde, Advocate (NP).

Important Points
1. Filing of cross-objection under Order 41, Rule 22(1) is purely option­al and not mandatory; a respondent-defen­dant in an appeal can, without filing cross-objections attack an adverse finding upon which a decree in part has been passed against the respondent.
2. The presumption of genuineness attached u/s 81 of the Evidence Act to news paper reports cannot be treated as proof of the facts stated therein.
3. The remedy of suit for damages for false imprisonment is part of the law of torts in our country; to succeed in such a suit 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.

Headnote:(i) Code of Civil Procedure, 1908 - Order 41, Rule 22(1)-Respondent’s right to attack adverse finding - Filing of cross-objection is purely optional and not mandatory-Adverse finding can be attacked by re­spondent defendant without filing cross-objection.

       Held : A respondent-defendant in an appeal can, without filing cross-objections attack an adverse finding upon which a decree in part has been passed against the respondent, for the purpose of sustaining the decree to the extent the lower court had dismissed the suit against the defendants-respondents. The filing of cross-objection, after the 1976 Amendment is purely optional and not mandatory. In other words, the law as stated in Venkata Rao’s case, AIR 1943 Madras 698 by the Madras Full Bench and Chandre Prabhuji’s case, AIR 1973 SC 2565 by this Court is merely clarified by the 1976 Amendment and there is no change in the law after the Amendment. (Para 21)

       (ii) Torts-Damage for malicious prosecution-Allegation of unautho­rised search and seizure and wrongful confinement by police-Search and seizure under Assam Food Grains (Licensing and Control) Order 1961-Central Government allegedly rescinded Assam order w.e.f. 1.10.1977-Alleged unauthorised act committed on 1.10.1977-Pecuniary and non-pecuni­ary damages sought for-High Court granting pecuniary damage but rejecting claim of non-pecuniary damage-Police acted honestly-No proof for malicious prosecution - Judgment against pecuni­ary damage not contested and became final-Plaintiff appellant not entitled to non-pecuniary damage.

       Held : The remedy of suit for damages for false imprisonment is part of the law of torts in our country. 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 Winfield 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 superior officers is one of the relevant facts unless it is proved that the particular police officer did not himself honestly believe that the plaintiff was guilty of an offence. (Paras 24 & 25)

       In the instant case the question here is whether there is proof of malice and proof of absence of reasonable and probable cause for the search, seizure and arrest of the appellant and for his prosecution. We have been taken through the oral and documentary evidence adduced in the case by both sides. The notification of the Central Government dated 30.9.77 (N.S.O. 696 (E)), Ministry of Agriculture & Irrigation (Gazette Part II-Sec. 3(II)) dated 30.9.77 (at pp. 2639-40) no doubt states that “in exercise of power conferred by Section 3 of the Essential Commodities Act, 1955 (Act 10/55), the Central Government hereby rescinded the Assam Food Grains (Licensing and Control) Order, 1961 w.e.f. 1.10.77”. It was on 1.10.77 that the respondents 2 and 3 conducted the search, seizure and arrest operations. But, as noticed by the trial Court, the Assam Government had issued a wireless message 363773 dated 30.9.77 to all Dy. Commissioners and SDOs that the Government of India’s procure­ment policy dated 29.9.77 did not state that the existing restriction on movement of paddy/rice was withdrawn w.e.f. 1-10-1977 as reported in the Press. More­over, Assam Food Grains (Licensing & Control Order, 1961) had not been repealed and the new procurement policy would commence from 1.11.77. The message stated :

       “....please, therefore, ensure that the provisions of the aforesaid Assam Food Grains (Licensing and Control) Order, 1961, are enforced even after 1st October, 1977, pending further instructions from the Government.”

       The record also shows that this was communicated to officers lower down on 3.10.77. This aspect was not given due importance by the High Court. (Para 22)

       Now if the defendants 2 and 3 as police officers of the Assam Government acted upon the instructions of the Assam Government and proceeded to apply Control Order even on 1.10.77, they cannot, in our opinion, be said to be acting without reasonable or probable cause. The High Court was wrong in concluding that there was absence of reasonable and probable cause because the action, in view of the notification of the Central Government, was unautho­rised or illegal. Illegality does not by itself lead to such a conclusion. The finding of the High Court regarding malice or the absence of reasonable and probable cause cannot be accepted, notwithstanding the fact that such a finding was the basis for granting pecuniary damages in B & C sched­ules which decree has become final. If that be so, the respondents can sustain the dismissal of the suit in regard to the non-pecuniary damages in A schedule. (Paras 24, 26 & 28)

       (iii) Indian Evidence Act, 1872-Section 81-Presumption as to news paper reports-Presumption cannot be treated as proof of facts stated in reports.

       Held: The presumption of genuineness at­tached under Section 81 to newspaper reports cannot be treated as proof of the facts stated therein. The statements of fact in news­papers are merely hearsay. (Para 23A)