Decided on July 03,1974

Chathara Nair Respondents


CHANDRASEKHARA MENON,J. - (1.) CERTAIN interesting questions of law are raised in this appeal by Sri A.P.Chandrasekharan,learned Counsel for the Appellant -Plaintiff.The appeal arises out of a suit for damages for malicious prosecution.
(2.) THE Defendant -Respondent filed a complaint before the police on 18th March 1964 stating that on the morning of that date at about 8 to 8.30 a.m.Plaintiff attempted to shoot and kill him.The police charged a case against the Plaintiff Under Section 307 I.P.C.and Section 27 of the Arms Act.The Magistrate who held the preliminary enquiry committed the case to the sessions.The Sessions Judge found the accused not guilty and acquitted him.Contending that the Defendant actuated by malice,had without reasonable and probable cause initiated the criminal proceedings against him and that he had given false evidence in the case which ultimately ended in the Plaintiff's acquittal,the present suit was instituted by the Plaintiff claiming damages of Rs.1,000.The trial court decreed the suit,but on appeal,the learned subordinate Judge reversed the judgment and decree of the trial court and dismissed the suit with costs.Therefore,the Plaintiff has come up in second appeal to this Court. Before I proceed to discuss the contentions raised by the parties,I might,in the first instance,point out that the oral evidence adduced in this case is that only of the Plaintiff and Defendant.The judgment of the sessions court in the criminal case is marked as Ext.A -1.Without examining the chemical examiner,his report in the criminal case is marked as Ext.A -2 and the whole of the deposition given by the Defendant earlier in the sessions court and in the committal proceedings before the Magistrate are marked as Exts.A -6 and A -5 respectively.I would also refer to the broad general principles regarding the factors to be proved and the Plaintiffs duty in an action for malicious prosecution.These are well settled and would in the present state of law give rise to little controversy.
(3.) ACTION on malicious prosecution had a rather gradual progress in English Law(Indian Law on the matter is purely based on the principles established in English Law ),for as stated by Winfield it had to make its way between two competing principles - the freedom of action that every man should have in bringing criminals to justice and the necessity for checking lying accusations of innocent people.There was for a long time an oscillation in the judicial mind between apprehension of scaring off a just accuser and fear of encouraging a false one.Winfield in his well -known work on Tort(7th Edition at page 704 ),says that action was put on firm basis in Savile v.Roberts(1698)1 Ld.Rayam 374 and "indeed it is so much hedged about with restrictions and the burden of proof upon the Plaintiff is so heavy that no honest prosecutor is ever likely to be deterred by it from doing his duty " ;.Winfield further observes:"It is notable how rarely an action is brought at all,much less a successful one for this tort.;

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