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HIGH COURT OF ORISSA
Narasimham And P. V. B. Rao, JJ.
NITYA NANDA MANDHATA PATNAIK - Appellant
Versus
BINAYAK SAHU - Respondent
First Appeal 530f Of 1949
Decided On : NOVEMBER 03, 1954
MALICIOUS PROSECUTION - PROSECUTOR - WHO IS - REPORT TO POLICE BASED ON PERSONAL KNOWLEDGE - ABSENCE OF PLAINTIFFS FROM VILLAGE ON DAY OF OCCURRENCE - BURDEN OF PROOF - REASONABLE AND PROBABLE CAUSE - MALICE.
Fact of the Case:
The defendant, a pleader, reported to the police that his paddy was looted by the plaintiffs and others. The police investigated and filed a charge sheet against the plaintiffs. The plaintiffs were acquitted in the criminal case. They then filed a suit for damages for malicious prosecution.
Finding of the Court:
The court held that the defendant was the prosecutor, that there were circumstances to show that he might have been actuated by malice in launching this prosecution, and though the plaintiffs have proved that they were absent at puri and Chatrapur on the day of occurrence, the court held that there is reasonable and probable cause for the defendant to launch the prosecution.
Issues: 1. Whether the defendant was the prosecutor? 2. Whether the prosecution was malicious? 3. Whether the plaintiffs were absent from the village on the day of occurrence? 4. Whether the defendant had reasonable and probable cause to launch the prosecution?
Ratio Decidendi: 1. The court held that the defendant was the prosecutor as he made the report to the police which led to the prosecution of the plaintiffs. 2. The court held that there were circumstances to show that the defendant might have been actuated by malice in launching this prosecution, such as the fact that the plaintiffs were acquitted in the criminal case and that the defendant had a history of disputes with his tenants. 3. The court held that the plaintiffs had proved that they were absent from the village on the day of occurrence. 4. The court held that the defendant had reasonable and probable cause to launch the prosecution as he had received information from the village that the plaintiffs were involved in the looting of his paddy.
Final Decision: The court allowed the appeal and dismissed the plaintiffs' suit.
P. V. B. RAO, J.
( 1 ) THE defendant in n suit for damages for malicious prosecution is the appellant.
( 2 ) THE defendant is a pleader of the Ganjam Bar and has a standing of over 30 years. He is the owner of a village named Sargunapally within Purusottampur police Station, and about 15 miles from Berhampur. The plaintiffs are P. W. D. contractors owning some lands and other petty business and are residents of bhabando, a few miles away from Sargunapally. On 14-6-43 at about midnight, it is alleged by the defendants some persons from Sargunapally came and informed him that his paddy at Sargunapally was looted away by the plaintiffs and about 40 others that night. On hearing the same, the defendant approached one Mr. B. R. Das, the Circle Inspector of Berhampur and reported to him about the occurrence and requested him to go and recover paddy. As Mr. B. R. Das had no jurisdiction over the place of occurrence, he declined to interfere without any permission from the Superintendent of Police. The defendant, accordingly, it is alleged, sent a telegram to the Superintendent of police at Chatrapur at about 3 a. m. This telegram is not put in evidence. At about 5 a. m. he also sent a report to the Circle Inspector of Aska, under whose jurisdiction the Pursottampur Police Station is, alleging that his grain pit containing a little over than five cart-loads of paddy and pudugos containing 10 cart-loads of paddy had been looted away from Sargunapally village on the 14th night by the plaintiffs and others and it" the police would take action promptly, the paddy could be seized with the help of reserve police. This report is marked Ex. 2 (a) and it may be noted that this report Ex. 2 (a)purports to be a report based upon the personal knowledge of the facts contained therein of the defendant. It docs not state that, that report was lodged on the information given to him by the persons coining from Sargunapally. Failing to obtain any reply from the Superintendent of Police, the defendant proceeded to chatraoyr at 10 a. m. and moved the Superintendent of Police to investigate into the matter personally. But the Superintendent of Police declined and sent a police constable along with the defendant with instructions to Mr. B. R. Das. It is not known whether Mr. B. R. Das had any written authority by the Superintendent of Police to enquire into the case. But there is evidence that immediately afterwards Mr. B. R. Das and the defendant hurried to the spot through Bhabando, the village of the plaintiffs and reached Sargunapally at about 5 p. m. The Police party went in a police bus with armed constables. On arrival at Sargunapally Mr. B. R. Das began investigation and alter inspection of the spot it is alleged, threatened the people of the locality with house search and recovered some paddy from some persons of the locality and prepared a search list Ex. A (4 ). The investigation in vallage Sargunapally continued till about 9 p. m. Exhibit 2 (a) which was sent to the Circle Inspector, Aska, was received by the sub-Inspector of Purusottampur Police Station who treated the same as F. I. R. and hurried to the Police Station, drew up a formal F. I. R. and immediately proceeded to the spot. He reached Bhabando at about 6 p. m. but did not go into the village and reached Safgunapally at about 7 p. m. It is alleged by the plaintiffs that when mr. B. R. Das came with the police party along with the defendant, the second plaintiff was pointed out by the defendant to the Circle Inspector near the school at Bhabando and was taken into custody. The second plaintiff was then going to the Sub-Inspector of Purusottampur to pay him the batta due to him for attending Court at Chatrapur as his witness the previous clay. This fact is corroborated and admitted by the evidence of the Sub-Inspector as also a receipt granted by him for the amount which is Ex. 4 in the case. After finishing investigation at Sargunapally Mr. B. R. Das and D. W. 2 and the police party
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