The FIR lodged in good faith protects the informant under the POCSO Act; acquittal does not prove malicious prosecution.

JUDGMENT (ORAL)

( 18.08.2021 )

Bhaskar Raj Pradhan, J.

1. A revision petition under Section 115 read with Section 151 of the Code of Civil Procedure, 1908 (CPC) has been filed by the petitioner/defendant no.1 (the petitioner). It is against the impugned order dated 18.12.2019 passed by the learned District Judge, South Sikkim at Namchi (the learned District Judge). The impugned order rejected the application under Order VII Rule 11 of the CPC filed by the petitioner. The petitioner had sought for rejection of the suit filed by the respondent no.1/plaintiff for failure to disclose a cause of action and for being barred by law.

2. The suit was filed by the respondent no.1 against the petitioner for recovery of money for malicious prosecution and other reliefs. In the plaint it was averred that the petitioner was a teacher by profession and the defendant no.2 (the respondent no.2 herein) was the State of Sikkim who had prosecuted the respondent based on false First Information Report (FIR) lodged by the petitioner. The plaint categorically states that the respondent no.1 is not seeking any reliefs against the respondent no.2.

3. As per the narration in the plaint an FIR was lodged on 14.07.2016 by the petitioner before the Temi police station alleging that the respondent no.1 had committed sexual assault on the victim who was residing with the petitioner and his wife. Consequently, a warrant was issued for the arrest of the respondent no.1, and he was arrested and kept in the lockup from 14.07.2016 to 15.05.2017 for almost 10 months. It is alleged that based on the false FIR, Temi police station Case No.17/2016 dated 14.07.2016 under Section 376 of the Indian Penal Code (IPC) read with Section 4 and 8 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) was registered against the respondent no.1. On completion of investigation charge sheet was submitted under Section 376(1)/341 IPC read with Section 4 and 8 of the POCSO Act and cognizance taken by the learned Trial Court. The plaint further narrates that the learned Trial Court heard the parties and charges were framed against respondent no.1 under Section 5(j)(ii), 5(l) of the POCSO Act and under Section 376 (2) (i), (n) and 354-B IPC.

4. It is stated in the plaint that the prosecution examined 12 witnesses and after a protracted trial the respondent no.1 was acquitted on 21.03.2018. It is averred that the petitioner had lodged the false FIR against the respondent no.1 without a reasonable or probable cause which is evident from the evidence recorded during the trial. Various portions of the evidence in the criminal trial have been highlighted in paragraph 11 of the plaint. It is stated that the respondent no.1 and his family members had suffered physical and mental pain; and they have been lowered in the estimation of their friends, relatives, and society.

5. In paragraph 14 of the plaint, it is stated that to prove malicious prosecution the respondent no.1 was required to prove the following ingredients:

“a. That the plaintiff was prosecuted on the complaint lodged by the defendant.

b. The proceeding complained was terminated in favour of the present plaintiff.

c. That the prosecution was instituted against the plaintiff without any just or reasonable cause.

d. That the prosecution was instituted with a malicious intention, that is not with the mere intention of getting the law into effect, but with an intention which was wrongful in fact.

e. That the plaintiff suffered damage to his reputation.”

6. It is averred that the cause of action first arose on 21.03.2018 from the date of the judgmen