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2006 Supreme(Gau) 130
IN THE HIGH COURT OF GAUHATI (AIZAWL BENCH)
BIPLAB KUMAR SHARMA, J.
Capt L.Z. Sailo – Appellant
Vs.
State of Mizoram and Ors. – Respondent
RSA No. 8 of 2003
Decided On: 03.02.2006
Advocate Appeared
For Appellant/Petitioner/Plaintiff: George Raju, Adv.
For Respondents/Defendant: Dinari T. Azyu, Adv.
The burden of proof lies on the plaintiff to establish malicious prosecution without reasonable and probable cause and to prove damage suffered as a result of the prosecution.
Headnote:
Malicious Prosecution - Civil Suit - Rules for the Regulations of the Procedure of Officers Appointed to Administer Justice in the Lushai Hills, 1937 - Sections 124(A) and 153(A)/153(B) of the IPC - [Summary of the acts and sections referenced and discussed by the court]
Fact of the Case:
The appellant filed a civil suit claiming damages for malicious prosecution against the respondents. The trial court decreed the suit, awarding compensation, but the appellate court set aside the judgment and decree.
Finding of the Court:
The trial court found in favor of the appellant, holding that the prosecution was malicious, and awarded compensation. The appellate court, however, held that the suit was not malicious and set aside the judgment and decree.
Issues: The issues included whether there was malicious prosecution, if the suit was barred by estoppel, acquiescence, and limitation, and if the plaintiff suffered damage due to the prosecution.
Ratio Decidendi: The burden of proof lies on the plaintiff to establish malicious prosecution without reasonable and probable cause and to prove damage suffered as a result of the prosecution. The court considered the elements of malicious prosecution and the absence of malice in launching the criminal proceeding.
Final Decision: The appeal was dismissed, upholding the appellate court's decision to set aside the judgment and decree of the trial court.
B.K. Sharma, J.
1. Heard Mr. George Raju, learned Counsel for the appellant and also heard Miss Dinari T. Azyu along with Mrs. Helen Dawngliani led by Mr. N. Sailo, learned senior Government advocate appearing on behalf of the respondents.
2. This appeal is directed against the judgment and order dated 14.7.2003 passed by the Additional District Magistrate (J) Aizawl District in RFA No. 1/2001 setting aside and quashing the judgment and decree passed by the trial court in Civil Suit No. 2/1996 dated 13.12.2000.
3. The Civil Suit being Civil Suit No. 2/96 was instituted by the present appellant, claiming damages and compensation for purported for malicious prosecution against him by the defendants/respondents herein. The trial court by judgment and decree dated 13.12.2000 decreed the suit awarding an amount of rupees 1 lakh as compensation on account of malicious prosecution against the plaintiff/appellant. Being aggrieved, the respondents herein preferred an appeal being RFA No. 1/2001 before the Additional District Magistrate (J) Aizawl. The appeal having been allowed by the judgment and order dated 14.7.2003, the plaintiff has preferred this appeal invoking the provisions of Rule 18 of the Rules for the Regulations of the Procedure of Officers Appointed to Administer Justice in the Lushai Hills, 1937.
4. The learned Counsel for the parties have agreed that although, the instant appeal has been registered as Regular Second Appeal, in view of the provisions of the aforesaid rules, the appeal is required to be disposed of applying the same yardstick and parameter as in the case of the First Appeal.
5. The whole basis of the claim of the plaintiff towards institution of the suit was his arrest on 17.10.1982 in connection with a case being Aizawl Police Station Case No. 33(8)/80 dated 27.8.1980 registered against him which eventually culminated to G.R. Case No. 469/80 under Sections 124(A) and 153(A)/153(B) of the IPC. The case was registered on the plea that the plaintiff/appellant was responsible for writing a manuscript containing seditious materials. At that relevant point of time, Mizoram was considered to be a disturbed area due to the M.N.F. insurgency. Although the case was registered in 1980, the plaintiff could be arrested only on 17.10.1982 from Manipur in the District of Churachandpur. After such arrest of the plaintiff, he was brought to Mizoram and was detained in jail custody. However, he was released on bail vide order dated 2.11.1982, imposing the condition that he would not leave Mizoram. Subsequently, by order dated 19.1.1983, the plaintiff was allowed to leave Mizoram and he was finally discharged from the case and the charge vide order dated 10.7.1984. It is on record that the plaintiff has to be discharged from the charge as the prosecution sanction was not accorded.
6. After 12 years of discharge of the plaintiff from the aforesaid proceeding, the plaintiff/appellant instituted the aforesaid suit claiming damages for malicious prosecution. The respondents filed their written statement denying the contention of any malicious prosecution. It was their stand that having regard to the situation involved throughout Mizoram at that point of time for which, it had to be declared as a disturbed area, the conduct of the plaintiff was viewed seriously and on the basis of the complaint received the criminal case was registered against him. They contended that since the plaintiff was not available in Mizoram and he had settled in Manipur, his arrest was delayed and eventually could be arrested on 17.10.1982. As against the plea of the plaintiff that the aforesaid criminal proceeding was by way of malicious prosecution, the defendants/respondents contended that the entire action against the plaintiff/appellant was a bona fide exercise of power which was also the requirement and demand of the situation at that relevant point of time.
7. The trial court on the basis of the respective pleadings framed the following issues
