CWP No.6378 of 1989(O&M) [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.6378 of 1989(O&M) Date of Decision: 14.09.2011 Mohinder Singh s/o Shri Sulakhan Singh, Sarpanch, Gram Panchayat Village and Post Office Jhurar Khera, Tehsil Abohar, District Ferozepur and another ... Petitioners Versus The State of Punjab through the Secretary to Government Punjab, Department of Home Affairs & Justice, Chandigarh and others ... Respondents CORAM: HON'BLE MR. JUSTICE K. KANNAN Present: Mr. Gur Rattan Pal Singh, Advocate for the petitioners. Mr. Navdeep Sukhna, DAG, Punjab. ***** 1. Whether reporters of local papers may be allowed to see the judgment? NO 2. To be referred to the reporters or not? YES 3. Whether the judgment should be reported in the digest? YES K. KANNAN, J. 1. The petitioners seek for compensation of ` 50,000/- as damages for launching a false, malacious and a mala fide case against the petitioners. The respondents are the Secretary to Government Home Affairs, the Deputy Superintendent of Police, the Sub-Inspector the then SHO of Khuyan Sarwar Police Station and a private individual, which was said to have given a complaint against the petitioners. The grievance is that on the basis of an alleged complaint by the fourth respondent, a case under Prevention of Corruption Act, 1988 had been lodged against the petitioners in two incidents occurring on the same day. According to the petitioners, the complaint was CWP No.6378 of 1989(O&M) [2] false and the petitioners were put to harassment of having to approach this Court for anticipatory bail. As it turned out, when the investigation was entrusted by Sh. Ajit Singh, Incharge Anti-Fraud Squad he recorded statements of some witnesses but he concluded that no case had been made against the petitioners. The Assistant District Attorney was of the same view and the District Attorney had given his opinion that the case could be sent for cancellation. A cancellation report was sent to the Ilqua Magistrate and on 03.01.1981, the Magistrate had also agreed as recommended. The case was closed. It is this investigation, which is said to have resulted in extreme hardship to the petitioner. 2. The petition contains a fundamental flaw in assuming that registering a complaint and investigating the same under the Criminal Procedure Code would constitute 'prosecution'. The law that provides for damages for malacious prosecution requires to establish that there is a prosecution of a criminal case, which is actuated by malice and the cause of action would be the acquittal in such criminal case. Four ingredients are invariably contemplated for malacious criminal prosecution as observed in Ramaswamy Iyer's “The Law of Torts” (Tenth Edition). It is stated as follows: “In an action for a malacious criminal prosecution, the plaintiff must prove the following points: (a) that the plaintiff was prosecuted by the defendant, (b) that the prosecution ended in the plaintiff's favour, (c) that the defendant acted without reasonable and probable cause, (d) that the defendant was acruated by malice. It is then for the defendant to make out a defence recognized by law.” CWP No.6378 of 1989(O&M) [3] 3. In order to understand whether a registering FIR would constitute a prosecution, it was held in a judgment in “Amar Singh v. Smt. Bhagwati, 2000 Rajasthan 14” that lodging of FIR will not amount to prosecution. There is a whole wealth of case law on this subject but I take it as a first principle of law that requires no further elucidation. This case has not proceeded beyond lodging of FIR and investigation has revealed that the case was not made out. There is no ground for sustaining the claim for damages. 4. Even otherwise, the remedy by means of writ petition claiming damages for malacious prosecution is untenable. The nature of proof of malice cannot be inferred by the only fact that the complaint had been registered. Appropriate oral evidence would be required to be given. Even the quantum of assessment of damages will have to be assessed on the basis of evidence. The petitioner has set out certain decisions in the writ petition, which are wholly irrelevant. Cases of illegal detention in custody or cases of damage for electrocution have no similar bearing to the points raised in the writ petition. There is no merit in the writ petition. The same deserves to be dismissed and accordingly, dismissed. SEPTEMBER 14, 2011 ( K. KANNAN ) Rajan JUDGE