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GAUHATI HIGH COURT
S.N. Phukan. J.
Md. Syed Alauddin Mia -Appellant
versus
Shri Sarungbam Ibobi Singh -Respondent
First Appeal No. 3 (A) of 1974
Decided on 23-5-1989
Counsel for the parties:
Mr. M. Charugopal Singh, Adv. – For the Appel1ant
Mr. N. Pramod Chandra Singh, Govt. Adv. -For the Respondent
IMPORTANT POINT
Gist of malacious prosecution is that the plaintiff has been improperly made the subject of legal process resulting damage to him.
Headnote:(i) Suit for Malacious Prosecution Basis - Ingredients and Law regarding.
Held: The bed rock for an action for damages for malicious prosecution is a part of common law of England, and in India the law on the subject is exactly the same as the law in England. The foundation of the action for damages for malicious prosecution lies in abuse' of the process of the Court by wrongfully setting the law in motion, to prevent use of judicial machinery for an improper use. In other words, the gist of malicious prosecution is that the plaintiff has been improperly made the subject of legal process resulting damages to him. In a suit for malicious prosecution, the following ingredient must be proved by the plaintiff. They are (1) prosecution by the defendant of a criminal charge against the plaintiff before the Courts competent to enquire; and (2) the proceeding complained of terminated in favor of the plaintiff; and (3) there was an absence of reasonable and probable cause for such proceeding; (4) the defendant instituted or carried on such proceedings maliciously; and (5) the plaintiff has suffered damages. The onus of proving every one of the above conditions is one the plaintiff. The plaintiff has to give some evidence which will prima facie suggest absence of reasonable and probable cause; and if it does, the onus may than be shifted to the defendant to rebut it. Of course the plaintiff in proving the absence of reasonable and probable cause has to prove a negative and in general need only give slight evidence of such absence. It may be worthwhile to mention that the defendant is not bound before instituting proceedings to see that he has such evidence as well be legally sufficient to secure a conviction and it is sufficient if the proceeds on such information as a prudent and cautious man may reasonably accept in the ordinary affairs of life and it is for the plaintiff to satisfy that there was a went of proper care in testing that information. The suit for malicious prosecution being a separate suit as stated above, it is for the plaintiff to prove his case and the judgment of the criminal Court can be used only for the purpose of proving that the prosecution had terminated in favor of the plaintiff. The findings of the Criminal Court or the reasoning thereof on which the judgment is based is no evidence at all in the civil suit for malicious prosecution. The plaintiff has also to prove that the defendant was actuated by malice in prosecuting the case and malice means the presence of some improper and wrongful motive that is to sayan intent to use the legal process in question for some other than its legally appointed and appropriate purpose. In other words malice means an improper or indirect motive other than a desire to vindicate public justice or a private right and it need not necessarily be a feeling of enmity, spite or ill will; it may be due to a desire to obtain a collateral advantage. A prosecution may not be malicious merely because it is inspired by anger. However wrong-headed a prosecutor may be, if he honestly thinks that accused has been guilty of a criminal offence is not liable for malicious prosecution. (See S.T. Sahib v. N. Hassan Ghani Sahib and Nagendra Kumar v. Etwari Sahu and others. (para 5)
(ii) Suit for Malacious Prosecution against S.H.O. of a Police Station - Allegation of himself filing the F.I.R., investigating the case and submitting the charge sheet - whether sufficient to show that he acted with malice? (No)
(Para 6)
(iii) Suit for Malacious Prosecution Criminal Prosecution earlier successful in courts below but ultimately resulting, in acquittal in court of Judicial Commissioner - Whether it proves absence of reasonable and probable cause? (No) (Para 8) - Result - Suit was rightly dismissed by Trial Court.
(Para 9)
JUDGMENT AND ORDER
S.N. Phukan, J. - This appeal arises out of a suit for malicious prosecution, which was dismissed by the learned Trial Court. The appellant herein as plaintiff was a lessee of a lime stone quarry called Kangkhanyanbi under the Forest Department of the Government for a period of two years commencing from 1-8-1958. There is an other lime stone quarry known as Soubam under the Forest Department which was also leased out for two years from 1-8-1958 to one Khomdram Ibomcha Singh. Plaintiff constructed his kiln at a place near "Ngakra Lok Stream" which was situated at a distance of about 3/4th mile from his time stone quarry and also extracted lime stone from his quarry and burnt at the said kiln by engaging laborers. The lime powder was carried and stocked at a godown at Imphal for sale. The brother of Khomdram Ibocha Singh was also a lessee in respect of another lime stone quarry called Toupokpi and both the brothers had been competition in the market with the plaintiff. A criminal proceeding under Section 144 Cr. P.C. was started in the Court of Additional District Magistrate, Manipur and in the said preceding the plaintiff and his labourers were restrained from disturbing the possession of Khomdram Ibomcha Singh in respect of his Soubom quarry. The plaintiff transported about 70 maunds of slacked lime powder to his Imphal godown. It is alleged that the defendant No. 1 who at the relevant tile was House Station Master of Mayang Imphal Police Station supported the attempt of Khomdtam Ibomcha Singh in preventing production of lime powder and sale thereof by the plaintiff and accordingly it is alleged that the defendant No. 1 himself lodged a false First Information Report against the plaintiff and one Rahimuddin Mia, a Dafadar of the plaintiff. The F.I.R. has been quoted in paragraph 7 of the plaint wherein it was alleged that the defendant No.1 while investigating another case under the supervisions of Circle Inspector found several lime stone pieces extracted and removed away by said Rahimuddin with his labourers from the area prohibited by the Court under Section 144 Cr. P.C. of Soubom quarry. The defendant No. 1 investigating the case himself and submitted the charge sheet against the plaintiff and said Rahimuddin Mia under Section 379 I.P.C. Both the learned Trial Court and lower Appellate Court found the plaintiff and Rahimud din guilty under the said Section and convicted them accordingly. However, the Hon'ble judicial Commissioner exercising his revisional power acquitted both the accused persons. Hence, the present suit for malicious prosecution claiming compensation of Rs. 9,000/- as damages against the defendant No. 1. The Union Territory of Manipur and the Union of India have been impleaded as defendants Nos. 2 and 3.
2. Defendant No.1 has filed a written statement wherein he has denied all the allegations and has pleaded that inspite of the orders promulgated under Section 144 Cr. P.C. the plaintiff extracted and removed time stone from the disputed area. He has further pleaded that in good faith and in discharge of his official duties as Officer-in-Charge of the Police Station he filed the F.I.R., investigated the case and as found as case has submitted the charge sheet. He has pleaded absence of malice and has stated that he had reasonable ground for believing that the accused Persons committed the office of theft. Defendant Nos. 2 and 3 have supported the case of the defendant No.1.
3. The learned Trial Court framed the following 12 issues:
1. Whether the plaintiff constructed 'KILN' where the lime stones were burnt near "Ngakralok" stream about 3/4th of a mile away from "Kangkhanyanbi" lime-stone quarry?
2. Whether the plaintiff burnt at the Kiln the lime stone extracted from "Kangkhanyanbi" lime stone quarry?
3. Whether the disputed land in criminal case No. 39 of 1958 under Section 144 Cr. P.C. before A.D.M. was within the "Soubom" quarry of Kangkhanyanbi quarry?
4. Whether the lime s
