1 IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RFA No. 64 of 2005 Reserved on : 4.11.2009 Date of Decision: 3.12.2009 Hari Ram Appellant Versus Smt. Shakuntla Devi and others Respondents Coram The Hon’ble Mr. Justice Sanjay Karol,J. Whether approved for reporting1? Yes. For the appellant: Mr.Y.P.S.Dhaulta, Advocate. For the respondents: Mr.T.S.Chauhan, Advocate. Sanjay Karol, J. Plaintiff has assailed the judgment and decree dated 10.1.2005, passed by the District Judge, Bilaspur, H.P., in Civil Suit No. 6 of 2002, titled as Hari Ram vs. Smt. Shakuntla Devi and others, whereby his suit for damages for malicious prosecution stands dismissed. The appellant is referred to as the plaintiff and the respondents are referred to as the defendants. The case as set up by the plaintiff is that he and the defendants are belonging to the same caste i.e. Brahmin and the plaintiff is doing the work of “Pandtai” (priest) and enjoys high Whether the reporters of Local Papers are allowed to see the Judgment? 2 status and respectable position amongst his followers. In the month of November, 1996, Shri Raj Kumar defendant No.5 had assaulted the plaintiff against whom a case was registered at Police Station Barmana, as such, the defendants were waiting for a chance to take revenge and falsely implicate him. On 10.7.1999, the defendants lodged a false complaint against the plaintiff at Police Station Barmana, on the basis of which FIR was registered and he had to seek anticipatory bail. The challan was presented for trial and in terms of judgment dated 4.4.2002 he was acquitted by the Court of JMIC, Bilaspur, H.P. In the course of investigation of the complaint the defendants had intentionally made false statements with malice. Their actions have seriously affected the plaintiff’s reputation and work and as such, he is entitled for damages amounting to Rs. 3 lacs. The suit was resisted by the defendants, inter alia, on the ground that in fact a genuine complaint had been lodged by defendant No.1 against the plaintiff, which itself is evident from the judgment of the Court. The averments of plaintiff’s reputation and high status in the Society or any loss having been caused to him due to filing of the said complaint were emphatically denied. Based on the pleadings of the parties, the trial Court framed the following issues:- 1. Whether the defendant No.1 had maliciously prosecuted the plaintiff, as alleged? OPP. 3 2. If issue No.1 is proved to what amount of damages is the plaintiff entitled to and from whom? OPP. 3. Whether the suit is not maintainable? OPD. 4. Whether the suit is bad for non-joinder? OPD. Opportunity to lead evidence was afforded to the parties and based on the material on record, the trial Court came to the conclusion that the plaintiff had not been able to prove that the complaint had been lodged with malice or that any loss had been caused to his reputation. Also that defendants No.2 to 5 have been arrayed as parties without any cause of action. Mr.Dhaulta, learned counsel for the plaintiff has emphatically argued that the findings of the Court below are based on wrong appreciation of facts and are thus erroneous. The animosity between the parties stood proved on record. The complaint lodged by the defendants was out of malice and without any probable or justifiable cause which fact stood substantiated with the plaintiff’s acquittal in the criminal case. Per contra, Shri T.S.Chauhan, has supported the judgment for the reasons set out therein. The plaintiff’s claim for damages essentially rests on the ground of malicious prosecution. In order to succeed in an action for damages for malicious prosecution, plaintiff must prove: 4 (i) the prosecution by the defendant of a criminal charge against the plaintiff before a tribunal into whose proceedings the courts are competent to enquire, and, (ii) that the proceedings complained of terminated in his favour, if from their nature they were capable of so terminating; and (iii) that the defendant instituted or carried on such proceedings maliciously; and (iv) that the there was an absence of reasonable and probable cause for such proceedings and (v) that the plaintiff has suffered damage. The onus of proving the above conditions as regards determination of liability is on the plaintiff. In a suit for malicious prosecution, the burden of proving that the proceedings were initiated without any reasonable and probable cause lies on the plaintiff who seeks damages. In considering the presence or absence of reasonable and probable cause court has to consider the totality of the circumstances. The existence of reasonable and probable cause has to be judged in relation to the state of mind at the time when the plaintiff initiates the proceedings. In Ravinder Kumar Sharma, Vs. State of Assam and others, AIR 1999 S.C. 3571, the apex court observed that:- “The remedy in a suit for damages for false imprisonment is part of the law of torts in our country (A.D.M. Jabalpur V. Shivakant Shukla (1976) 2 SCC 521 (at 579): AIR 1976 SC 1207 at pp. 1229-30, Lord Devlin stated: 5 “The defendant can claim to be judge not of the real facts but of those which he honestly, and however erroneously, believes, if the acts honestly upon fiction, he can claim to be judged on that” “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.” In West Bengal State Electricity Board vs. Dilip Kumar Ray, (2007) 14 SCC 568, an attempt has been made by the Apex Court to consider the definition of malicious prosecution as under:- “Malicious Prosecution -- Malice. Malice means an improper or indirect motive other than a desire to vindicate public justice or a private right. The principles to be borne in mind in the case of actions for malicious prosecutions are these: --Malice is not merely the doing a wrongful act intentionally but it must be established that the defendant was actuated by mains animus, that is to say, by spite of ill-will or any indirect or improper motive. But if the defendant had reasonable or probable cause of launching the criminal prosecution no amount of malice will make him liable for damages. Reasonable and probable cause must be such as would operate on the mind of a discreet and 6 reasonable man; 'malice' and 'want of reasonable and probable cause.' have reference to the state of the defendant's mind at the date of the initiation of criminal proceedings and the onus rests on the plaintiff to prove them. ‘A prosecution instituted wilfully and purposely, to gain some advantage to the prosecutor or thorough mere wantonness or carelessness, if it be at the same time wrong and unlawful within the knowledge of the actor, and without probable cause.’ ‘A prosecution on some charge of crime which is wilful, wanton, or reckless, or against the prosecutor's sense of duty and right, or for ends he knows or is bound to know are wrong and against the dictates of public policy.’” Their Lordships reiterated the view that malice in the legal sense imports (1) the absence of all elements of justification, excuse or recognized mitigation, and (2) the presence of either (a) an actual intent to cause the particular harm which is produced or harm of the same general nature, or (b) the wanton and willful doing with an act with awareness of a plain and strong likelihood that such harm may result. "MALICIOUS PROSECUTION" means that the proceedings which are complained of were initiated from a malicious spirit, i.e, from an indirect and improper motive, and not in furtherance of justice. [Sri Nath Shaha v. L.E.Ralli (1905-06)10 CWN 253 (FB)]. Malice or mala fides can only be appreciated from the records of the case in the facts of each case. There cannot possibly 7 be any set guidelines in regard to the proof of mala fides. Mala fides, where it is alleged, depends upon its own facts and circumstances. [Prabodh Sagar v. Punjab State Electricity Board and others. (2000) 5 SCC 630) also Mohamed Amin v. Jogendra Kumar Bannerjee and others, AIR 1947 P.C. 108, Sri Ram and others vs. Chandeshwar Prasad Narayan Singh, AIR 1952 Patna 438 and Nagendra Kumar vs. Etwari Sahu and others, AIR 1958 Patna 329]. The co-existence of malice and want of probable cause is an essential pre-requisite to the success of an action for malicious prosecution. Malice alone, however, great, is insufficient. Want of probable and reasonable cause cannot be inferred from malice, however, great such malice may be, but malice may be implied or inferred as a fact from want of probable cause. The question, therefore, is not what the actual facts were but what the defendant had reason to believe they were. In Balbhaddar Singh vs. Badri Shah, AIR 1926 PC 46, the Privy Council observed:- “The question is not, ‘did the plaintiff commit the offence’ or did defendant invent the offence against plaintiff, the two queries exhausting the possibilities of the situation. The question is: Has plaintiff proved that defendant invented and instigated the whole proceedings for prosecution.” 8 The mere fact that processes of motion set in criminal Court may be void on some ground or the other would not disentitle the plaintiff from claiming damages for malicious prosecution. The question where in a particular case here has been a prosecution or not depends on the facts of that particular case. The test is not whether the criminal proceedings have reached a stage at which they may be certainly described as a prosecution but the test is whether the criminal proceedings have reached a stage at which damages to the plaintiff may result. [Ramesh Chandra Basu Majumdar vs. Brojendra Nath Paul, AIR 1950 Cal. 259, Nagendra Kumar (supra), Amar Singh and others vs. Tara Dutt, 1997(2) S.L. 1146, Darshan Singh vs. State of H.P. and others, Latest HLJ 2006 (HP) 157 and Hem Ram vs. Madan Gopal @ Madan Lal, 2006(2) Shim.L.C. 354. The case of the plaintiff has to be tested on the principles as noticed hereinabove. It stands proved on record that in terms of judgment dated 4.4.2002 (Ext.PW-1/A), passed by the Judicial Magistrate Ist Cass, Bilaspur the plaintiff stands acquitted in case No.113/2 of 2001/99, for offences under Sections 354 and 324, IPC. However, the acquittal is by giving benefit of doubt to him. Shri Paras Ram (DW-1) and Smt. Kalawati (DW-2), defendants stepped into the witness box and have denied the plaintiff’s case. The plaintiff has examined himself as PW-1 and two other witnesses, namely, Shri Jagat Pal (PW-2) and Narpat Ram 9 (PW-3). Importantly in his deposition, plaintiff has only stated that the defendants had filed a false complaint against him. How and in what manner the complaint was filed without probable or justifiable cause and/or out of malice has not been stated by him. Further his pleaded case in the plaint is at variance with his oral deposition. Whereas in para 2 of the plaint, it is averred that defendant No.5 had given beatings to him in November, 1996 but in his statement he has deposed that “the defendants quarrelled with him in the year 1991-92”. What had transpired between the years 1991 and 1999 has not been explained by him. It is also not his case that there has been continuous hostility between the parties since that time. It is not the plaintiff’s case either that there is business rivalry or any dispute pertaining to property, business etc. Hence in the absence of any justifiable explanation it is difficult to presume that the defendants were harbouring animosity against the plaintiff over a continuous period of 8 to 9 years. That apart, as has been already observed above, the plaintiff has not been able to substantiate the essential ingredients required to be proved so as to make out a case for damages for malicious prosecution. That the out come of the criminal proceedings terminated in his favour completely and conclusively is not enough. It is incumbent upon the plaintiff to prove that the proceedings had been instituted maliciously without any reasonable or probable cause, which onus in the present case has not been discharged. In his support, he has examined Shri Jagat Pal (PW-2) whose testimony, in my considered view, does not advance the case of 10 the plaintiff. He has simply deposed that defendant No.2, defendant No.5 and defendant No.4 have falsely deposed in favour of defendant No.1. How and in what manner and in whose presence it was so done has not been explained by him. None has deposed against defendant No.3. The only other statement is that of Shri Narpat Ram (PW-3), according to whom, defendant No.1 Smt. Shakuntla had lodged a false complaint against the plaintiff. Importantly, in his cross-examination he has admitted that “I was present at the spot when the occurrence took place for which complaint was lodged by defendant No.1. However, I was not a witness in the case.” This only proves that some incident had actually taken place with respect to which the complaint had been lodged by defendant No.1 with the police. Importantly he does not explain how and in what manner the contents of the complaint were false. It is also not the plaintiff’s case that there were cross-complaints and that under pressure or with mala fide intentions the police had not registered his complaint and only registered the complaint of defendant No.1. Plaintiff’s case is not that he had fought with defendant No.1, who filed the complaint in question. If defendant No.5 had been beaten by the plaintiff why would defendant No.1 file a false complaint. This has not been explained. This being the only evidence led by the plaintiff, I am of the considered view that no case for award of damages is made out at all. 11 It has been contended by Mr. Dhaulta that since plaintiff stands acquitted, it is to be presumed that the prosecution initiated was malicious. I am afraid the contention needs to be rejected for the following view taken by this Court in Amar Singh (supra):- “It is well settled that in an action for damages on account of malicious prosecution, a judgment of the criminal court is not admissible in evidence except for the purpose of finding out whether or not the decision in the criminal case was in favour of the plaintiffs. In other words, it is not that the judgment of the criminal court has to be ignored altogether. It is not to be relied upon as a conclusion for deciding the civil suit for malicious prosecution. The civil court has to go into the matter on the basis of evidence adduced before it in the civil suit independently of the view expressed by the criminal court. The sense in which it is said that the criminal court judgment is not admissible in evidence is that apart from the fact of the result of the judgment of the criminal court, namely, termination in favour of the accused persons, the observations of the criminal court or the reasons on which the acquittal is based is not to be accepted as conclusive.” In the criminal prosecution there is no definite conclusion that the complaint lodged by defendant No.1 was palpably false to his knowledge. Further much emphasis has been laid by Mr. Dhaulta on a decision of this Court in Darshan Singh (supra). The decision 12 is clearly distinguishable inasmuch as the plaintiff therein had deposed that the complaint made against him had been filed with malice and the contesting defendant had not even cross-examined him. It was in these circumstances the Court held that the plaintiff had been maliciously prosecuted and action taken by the department (State of H.P.) being malicious, he was entitled to damages of Rs.5 lacs. The Court below has rightly come to the conclusion that defendants No.2 to 5 in fact were wrongly impleaded as defendants as the complaint had been filed by defendant No.1 only. In view of the aforesaid, there is no question of the plaintiff having suffered any loss or otherwise entitled to any damages. The impugned judgment and decree dated 10.1.2005 cannot be interfered with. For the foregoing reasons, the appeal is accordingly dismissed. 3rd December, 2009 (Sanjay Karol) (C) Judge.