SEMAKI CHUTIANI Vs. HEMKANTA SARMA MAUZADAR

JUDGEMENT

(1.) This is an appeal from the judgment and decree of the learned Subordinate Judge of Nowgong in Assam upholding the judgment and decree of the learned Munsif in a case for malicious prosecution in which the plaintiff, mouzadar, school master, Ganghura and Mandol, was accused, on facts which are now practically admitted of kidnapping a child and breaking into a private dwelling house. The Court of a Magistrate in Assam found this mouzadar guilty upon both these charges. In appeal, the learned Sessions Judge characterized the Magistrate s judgment as one-sided and prejudiced and said that unnecessary heat had been displayed about a very simple family dispute. Now the facts being what they are, it appears to us impossible that any Court could have held that there was reasonable and probable cause for making these two grave charges against the mouzadar and that the Court was bound to hold on the admitted facts that there was malice at law.

(2.) It appears that the boy who was 9 years of age was living with his uncle when the 1st defendant, a female, on the allegation that the boy was her step son, claimed to be his guardian and for some time took no steps to recover him from the custody of his uncle. There was an arbitration called by the uncle who apparently wished to secure whatever property might be due to the bay. But the learned Judge found that he was acting in the true interest of the boy, inasmuch as the alleged step-mother was a young girl of 20 and in the hands of other people and in fact she had already dissipated her late husband s inheritance. Be this as it may, the assembly, it is found, broke up without coming to any decision, and that thereupon the woman caught the boy by the arm and carried him off weeping and protesting, the uncle following. This mouzadar, who is a man of authority in the village and who had every right to interfere in a matter of this kind, met these people upon the road. He inquired into the cause of the row and told the woman to make the boy over to his uncle. Here the story diverges. According to the defence, the woman obeyed the mouzadar, the uncle took the boy away to his house, but she was afterwards allowed to take the boy into her house and again after that the mouzadar broke into the house by force and brought out the boy and knocked the step- mother down.

(3.) Any more culpably malicious charge than this which has been found to be wholly without foundation cannot be imagined. The learned Judge with great constraint, has merely remarked that the story of the mouzadar is more probable than that of the woman. But it is clearly found on the facts that there was no foundation for this story of the woman. The mouzadar never did anything except tell the woman to give the child to his uncle, and thereupon the uncle took away the child. Upon this, the woman goes to the than a and it is distinctly found that the investigating head constable bore malice to the mouzadar and that whether Semaki Bewa, the woman, had originally made such a case as she sought to make in the Criminal Court or not, she was advised by the head constable, as the Munsif found, to get a petition written by a writer who was close by. Now this petition contains allegations which were held by the learned Judge in the Sessions Court to be inventions and that is sufficient, as the Munsif has held, to saddle the defendant, Semaki Bewa, with wrongfully and maliciously instituting criminal proceedings with the help of the head constable against the plaintiff which caused him injury in body, mind and reputation, he being a mouzadar respectably connected.