RSA No. 798 of 2011 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. RSA No. 798 of 2011 (O&M) Date of Decision: 16.03.2011. Tirath Singh .......Appellant Vs. Bakhtawar Singh ......Respondent CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr. M.S.Lobana, Advocate for the appellant. ..... SABINA, J. Plaintiff had filed a suit for recovery claiming damages on account of his malicious prosecution. The case of the plaintiff in brief was that he was working as Assistant Sub Inspector with Delhi Police since 31.5.1968. A complaint was filed by the defendant on 27.5.1997 under Sections 302,307,436,453,459,460,148,149 of the Indian Penal Code. Non-bailable warrants were issued against the plaintiff. Plaintiff approached this court seeking quashing of the proceedings but the petition was dismissed. Thereafter, plaintiff was granted anticipatory bail by this court vide order dated 22.3.1996. Vide judgment dated 11.1.2000, plaintiff was acquitted by the Sessions Judge, Gurdaspur. Pertaining to the same occurrence, FIR No. 35/92 under RSA No. 798 of 2011 (O&M) -2- Sections 302/307/148/149/427/120-B of the Indian Penal Code, under Section 25 of the Arms Act 1959, under Section 3/4 Terrorist and Disruptive Activities (Prevention) Act 1987 and under Section 4/5 of the Explosives Act 1884 were registered at police station Kahnuwan, on the statement of the defendant. However, in the said FIR, plaintiff was not named as an accused. In the year 1992, the defendant and his mother claimed pension and compensation on account of death of Shingara Singh. In the said application, plaintiff was not named as a culprit by the defendant or his mother. Father of the defendant had been shot dead by the extremists and in this regard, mother of the defendant received a sum of ` 1,00,000/- from the State. Despite knowing the said facts, plaintiff was falsely involved by the defendant in the criminal complaint, filed by him. On the date of occurrence i.e. 8.5.1992, plaintiff was on duty with the Delhi police and was busy with investigation in FIR No. 123/92 under Sections 397/34 of the Indian Penal Code. Hence, the suit for recovery of ` 3,50,000/- was filed by the plaintiff. Defendant, in his written statement, denied the contentions in the plaint. It was averred that an appeal against the acquittal of the plaintiff was still pending before this court. The complaint filed by the defendant against the plaintiff was not false or malicious. From the place of occurrence, Investigating Agency had recovered a number of empty cartridges of A.K.47 and .303 and the persons, involved in the occurrence, were hard core terrorists. The sanctioning of pension to the mother of the defendant was admitted. It was further averred that plaintiff was running a rice sheller in the name of M/s Sarwan Rice Mills RSA No. 798 of 2011 (O&M) -3- Ladhopur. On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether plaintiff is entitled to recover a sum of Rs. 3,50,000/- as damages? OPP 2. Whether plaintiff is entitled to the rate of interest 18% per annum if issue No.1 is proved? OPP 3. Whether the suit is not maintainable? OPD 4. Relief.” Vide judgment and decree dated 21.1.2005, Additional Civil Judge (Senior Division) partly decreed the suit of the plaintiff for recovery of ` 1,75,000/- on account of damages for malicious prosecution with future interest @ 6% per annum. Aggrieved by the said judgment and decree, defendant preferred an appeal and the same was dismissed by Additional District Judge, (Adhoc) Fast Track Court vide judgment and decree dated 19.11.2010. Hence, the present appeal by the defendant. Learned counsel for the appellant has submitted that the courts below had erred in decreeing the suit of the plaintiff basing reliance on the judgment passed in the criminal proceedings. The findings recorded in criminal proceedings were not binding on the civil court. In support of his arguments, learned counsel for the appellant has placed reliance on Major Gian Singh versus S.P. Batra, AIR 1973 Punjab and Haryana 400 (V 60 C 114) wherein it was held that findings recorded in criminal proceedings are not binding on civil court. Learned counsel for the appellant has also placed RSA No. 798 of 2011 (O&M) -4- reliance on Sukhwinder Singh versus Ravinder Singh, 2003 (3) Civil Court Cases 0204, wherein it was held that mere presentation of a false complaint does not furnish a cause of action. In an action for malicious prosecution plaintiff has to prove that the proceedings were initiated without any reasonable and probable cause and burden of proof lies on the plaintiff. Findings recorded in criminal proceedings are not binding on civil court. After hearing the learned counsel for the appellant, I am of the opinion that the instant appeal deserves dismissal. A criminal complaint was filed by the defendant against the plaintiff and others under Sections 302/307/436/453/459/460/148/149 of the Indian Penal Code. Vide judgment dated 11.1.2000, all the accused were acquitted of the charges framed against them under Sections 302/307/460/436/34 of the Indian Penal Code. During the course of arguments, it has been transpired that the said decision has been upheld by this court, in an appeal. The learned Sessions Judge, while acquitting the accused, had held as under:- “So far as the identity of the accused persons is concerned, Tirath Singh PW-1 stated in examination- in-chief that the police has not recorded his statement properly and thus he filed this complaint wherein he has repeated his version as referred above. He has also stated in cross-examination that the State case was registered on his statement bearing case No. 134 of 24.8.93. His statement is Ex.DA in that case. RSA No. 798 of 2011 (O&M) -5- He stated that the said statement Ex.DA does not bear the names of Gurcharan Singh, Bakhtawar Singh, Narinder Singh and Malkiat Singh as assailants. The police has prepared the inquest report Ex.DB. In the said statement also, he has mentioned that the terrorists had fired upon their house and broke open the roof of the room and threw the bomb and also put the same on fire. However, he stated that the names of the accused persons now facing the trial are not mentioned. It is also admitted that it is correct that in the supplementary statement, copy of which is Ex.DC, no name of the accused Gurcharan Singh, Bakhtawar Singh, Malkiat Singh, Narinder Singh and Gurdip Singh were mentioned. He stated that it is correct that his mother got Rs. One lac for the killing of his father by extremists. He also stated that his mother got the family pension for killing his father by the extremists. He also stated that it is correct that the application for pension was moved by his mother that extremists have killed her husband. He stated that there was no need to mention the names of extremists. As such their names were not mentioned in the application. He also stated that so far as the question of light is concerned that is also not mentioned in the statement Ex.DA. Therefore, the names of all the accused persons do not appear in Ex.DA statement made by RSA No. 798 of 2011 (O&M) -6- Tirath Singh before the police nor the names of accused as assailants are mentioned in his statement recorded in the inquest proceedings, copy of which is Ex.DB nor in the supplementary statement Ex.DC but their names have been given now in this complaint which has been filed after the delay of 13 months as admitted by Tirath Singh PW-1 for which there is no explanation. It is also noteworthy that Tirath Singh has admitted while appearing as PW-1 that his mother has moved application for pension and also obtained Rs. One lac, wherein she has stated that extremists had killed Shangara Singh her husband and thus the name of accused persons is not mentioned even in that application nor the name of the accused persons are mentioned in the statement recorded by the police at the time of registration of the case, copy of which is Ex.DA or thereafter in Ex.DB inquest proceedings, and supplementary statement Ex.DC. The name of the accused persons had come in existence after 13 months in this complaint, which has been filed after 13 months of the occurrence for which there is no explanation. PW- 2 Randip Singh also admitted that he has appeared in the State case, copy of his statement Ex.DE and that there is no mention specifically the name of accused. However, word 'accused' is mentioned. The mentioning of name 'accused' does not mean that RSA No. 798 of 2011 (O&M) -7- the accused persons are accused. Therefore, the name of accused persons had come to the light of day when this complaint has been lodged after 13 months of the occurrence. Therefore, it is nothing but improvement made by the complainant in his earlier version. Therefore, the aforesaid evidence cannot be said to be sufficient to base the conviction.” In order to prove his case, plaintiff appeared in the witness box as PW-1. From the testimony of the plaintiff, which was duly corroborated by the judgment passed in the criminal proceedings, both the courts below rightly came to the conclusion that the prosecution, started by the defendant against the plaintiff, was malicious. It is not a case where the courts below have merely decreed the suit of the plaintiff on the basis of the judgment passed in the criminal proceedings. There is no dispute qua the legal proposition that findings of the criminal court are not binding on the civil court but they form a relevant piece of evidence. In the present case, initially the case setup by the defendant party, while initiating the criminal proceedings was that Shingara Singh had been killed by some terrorists. In this regard, mother of the defendant got `. 1,00,000/- from the State on account of murder of her husband by the extremists. Mother of the defendant has also been allowed family pension on account of killing of her husband by the extremists. When the mother of the defendant moved an application seeking pension, she had stated that her husband has been killed by the extremists. After about 13 months, the complaint in question was filed against the plaintiff and others. In the said case, RSA No. 798 of 2011 (O&M) -8- plaintiff was not named as an accused. From all this, it can be gathered that the defendant had indulged in malicious prosecution. The plaintiff, who was working with the police force, had been made to face the malicious criminal proceedings. In the facts and circumstances of the present case, the judgments relied upon by learned counsel for the appellant fail to advance the case of the appellant. No substantial question of law arises in this appeal. Dismissed. (SABINA) JUDGE March 16, 2011 Gurpreet