- (1.) The petitioners seek for compensation of Rs.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 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 plaintiffs favour, (c) that the defendant acted without reasonable and probable cause, (d) that the defendant was actuated by malice. It is then for the defendant to make out a defence recognized by law.
(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, 2001 AIR(Raj) 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.;