RAMA JENA Vs. GADADHAR SENAPATI

JUDGEMENT

(1.) What amounts to prosecution for purposes of malicious prosecution?-- is the only question involved in the defendant's second appeal from a reversing decision of the learned Additional Subordinate Judge, Puri whereby ho set aside the judgment and decree of the learned Munsif and decreed the plaintiff's suit for malicious prosecution.

(2.) The facts are few and simple : On June 13, 1953, the defendant complainant (appellant herein) lodged a First Information Report at Puri, Sadar Police Station to the effect that the plaintiffs (respondents herein) formed an unlawful assembly, assaulted him, his wife and son in his betel garden, set fire to his betel garden and thereby caused damage to the extent of Rs. 2000/-. The Police investigated into the case and on completion of investigation submitted final report to the Sub-divisional Magistrate, Puri, to drop the criminal proceeding on the ground thatit was false and he further submitted a complain1 against the complainant for prosecution under Section 211 Indian Penal Code for making a fab9 charge of offence. The defendant complainant is alleged to have lodged protest before the Sub-divisional Magistrate, who forwarded it to a Deputy Magistrate for enquiry of the complaint under Section 202 Criminal Procedure Code, The enquiring Magistrate recorded evidence of both parties, visited the spot and submitted his report with the finding that the case was false. The Sub-divisional Magistrate, Puri perused the enquiring Magistrate's report and other records and dismissed the complaint under Section 203 Criminal Procedure Code on November 17. 1953. Thereafter, the defendant complainant filed a criminal revision petition in the court of tho Sessions Judge which was also dismissed on April 6, 1954. The plaintiffs (who were complained against) attended the investigation, the preliminary enquiry before the Deputy Magistrate, engaged lawyers and produced their evidence before him in support of the defence and also appeared before the Sessions Judge through their lawyer and defended the case. The plaintiffs surrendered before the Sub-divisional Magistrate on account of their apprehension of arrest by the Police and procured bail. It is on these facts that the plaintiffs brought the suit for malicious prosecution, on the ground that their prosecution was malicious, without any reasonable or probable cause; and that they had suffered damage for mental and bodily pain and loss of reputation, besides incurring expenses in defending themselves in the criminal case and accordingly claimed Rs. 981/3/- as damages. The defence, taken by the defendant complainant was that on account of previous enmity the plaintiffs formed an unlawful assembly, assaulted the defendant complainant, his son and wife in his betel garden and set fire to his garden; that his accusation against the plaintiffs was based On information, which was true to his knowledge; and that it was neither actuated by malice nor was there any absence of reasonable or probable cause to start the prosecution.

(3.) On these facts the trial Court found that there was no reasonable or probable cause for making the complaint; but as there was no prosecution, in the case, in that the learned Magistrate only enquired into the complaint which, ultimately, was dismissed and accordingly tho defendant complainant was found not liable tor malicious prosecution, and hence dismissed the suit. In appeal, the learned lower appellate Court, while agreeing with the trial Court's findings that there was no reasonable or probable cause, however, took the view that the Magistrate's enquiry, which the plaintiffs had attended -- amounted to prosecution; and accordingly decreed the suit in favour of the plaintiff and granted damages for Rs. 631/3/-. Hence this Second Appeal by the accused plaintiffs.