P L D 1969 Dacca 985 (PLP)

(2) Was there any reasonable and probable cause for prosecution ; (3) Has the defendant committed any libel and slander by his action as alleged in the plaint ; (4) Is the plaintiff entitled to get a decree for damage, if so, to what extent ; and (5) What relief, if any is the plaintiff entitled to ? On the question of slander appearing in issue No. 3 the trial Court held that the plaintiff had failed to adduce any evidence that the defendant had orally defamed the plaintiff before any person. So far as the libel is concerned the trial Court considered that the statement in the ejahar although not absolutely privileged, some immunity attached to the statement and the defendant was entitled to a qualified privilege and he held that there was an occasion for making the statement ; the statement was not unqualified but had reference to the occasion and finally he held that the statement was not made out of malice but was based on what the defendant believed to be probable and reasonable. Therefore, he came to the conclusion that the defendant did not commit any slander or libel against the plaintiff: Taking up the consideration of the question of malice the learned Munsif held that the plaintiff had failed to prove against the defendant any other act in the matter of his prosecution except lodging the ejahar hence he found that the plaintiff was not prosecuted by the defendant. He further found that the plaintiff could not give any satisfactory denial that the plaintiffs reputation of criminal character was unfounded or baseless. He also found that there was truth in the allegation of the defendant about association of the plaintiff with criminals. Coming to this finding he dismissed the suit. The learned appellate Court merely considered the question of libel. At page 21 of the paper‑book he states : "The only issue before me is whether the defendant committed any libel as alleged by the plaintiff". The whole case of the plaintiff was based on malicious prosecution. The learned appellate Court has brushed aside the entire case of the plaintiff on a consideration which should not have waived with him which at best might be termed to be the secondary case of the plaintiff. On a reading of the evidence he came to the conclusion that "So there is vitally no reliable evidence to hold that the plaintiff is a man of reputation rather admittedly there was a general complaint about his character." Then he went on to find that the case of the plaintiff had not been proved and he dismissed the appeal. In my opinion both the Courts below have failed to take into consideration the vital factors appearing from the records. The essential factor on which the plaintiff bases his case is that the plaintiff and defendant belonged, to two sects there has been enmity between them from along time. In fact, it is an admitted fact that as far back as 1952 the defendant was signatory to the petition opposing the appointment of the plaintiff as Dafadar. The plaintiff has filed a series of orders from the criminal Court namely Exhs. 6, 6 (a), 6 (b) and 7 (b) to show that one Sundar Ali has been filing cases against the plaintiff and his relations as far back as in 1949. The Exh. 6 relates to the order‑sheet of a case under section 323, P. P. Code, Exh. 6(b) relates to a case under section 188, P. P. C. Exh. 6(c) is the complaint under section 188, Exh. 7(b) is a case under section 144, Cr. P. C. brought by Sundar Ali. The clear evidence of the plaintiff is to this effect. "Sunday Ali belongs to the same sect and group of the defendant. Sundar Ali‑is on very good term with the defendant. The defendant and his party men are jealous of us because of our affluence. We have 4 racing cattle. The defendant got three cases filed against us in the criminal Court by Sundar Ali. We have filed the papers. All the cases were dismissed. In cross examination the defendants succeed in bringing out more detail of the grudge between the two sects. From the evidence it appears that the plaintiff was undoubtedly a man of substance belonging to and connected with the musician families belonging to the Muslim sect of Comilla. The evidence also shows that the plaintiff and the defendant at one time about 10/12 years ago were neighbours and the plaintiff had shifted their homestead to a new site. The case has not been looked at in the proper perspective by the Courts below and they have misled themselves in connecting the claim with questions which are not material. Paragraph 10 of the plaint gives the entire case of the plaintiff, and a translation thereof reads as follows: ‑ "According to the aforesaid description the defendant on 4‑3‑60 lodged a false ejahar, alleging many false allegations against the plaintiff due to which the plaintiff was arrested and involved in a criminal case and had undergone hajat imprisonment and has suffered physical and mental sufferings and also has suffered monetary loss and the respect and reputation of the plaintiff has been decreased very much and he has been lowered in the esteem of the public and has put black spot on the service of the defendant as Dafadar which have caused, much injury to plaintiff under the above facts and circumstances the plaintiff is entitled to get huge compensation from the defendant and he is liable for damages both legally and morally ; though the plaintiff is entitled to several thousands of rupees from the defendant as compensa tion but he has claimed only Rs. 1,500 because the defendant has not got much landed property. The defendant is legally and morally bound to pay the said sum for the plaintiff and the plaintiff is legally and morally entitled to get the money from the defendant." Reading of this paragraph clearly shows that the case which the plaintiff had instituted was a case of malicious prosecution. In paragraph 9, it is true, the plaintiff has asserted that the defendant had made verbally similar allegations. But the full crux of the case of the plaintiff was based on malicious prosecution alone. The appellate Court has simply stated that only the case of libel is pressed before me and has not at all considered the case of malicious prosecution. Trial Court has misapplied the law applicable to a suit for malicious prosecu tion. This has been settled by Privy Council in the case of Pandit Gaya Parshad Tewari v. Sardar Bhagatsingh and .another (35 I A 189). In that case the preliminary point was whether the witnesses who had not actually lodged the complaint were liable to be prosecuted for malicious prosecution. The trial Court had found that these witnesses had in fact concocted the 'case and made the police to prosecute under section 147 against the plaintiff of that case. The Court of the Judicial Commissioner reversed the decree. On appeal the Privy Council held : "I the opinion of their Lordships it would be a scandal if the remedy provided by this form of action were not available to innocent person aggrieved by such unfounded charges, and they will humbly advise His Majesty that the appeal ought to be allowed and the decree of the Judicial Commissioner set aside, with costs, and that of the Subordinate Judge confirmed. In discussing the main points involved their Lordships approved the Madras view that if a person merely gives an opinion and, the police take up the case it could not be said that he was responsible for the prosecution but in the opinion of their Lordships it was not of universal application. Their Lordships held that: ‑ "In India the police have special powers in regard to the investigation of criminal charges, and it depends very much on the result of their investigation whether or not further proceedings, are taken against the person accused. If, therefore, a complainant does not go beyond giving what he believes to be correct information to the police, and the police, without further interference on his part (except giving such honest assistance as they may require), think fit to prosecute, it would be improper to make him responsible in damages for the failure of the prosecution. But if the charge is false to the knowledge of the complainant, if he misleads the police by bringing suborned witnesses to support it, if he influences the police to assist him in sending an innocent man for trial before the Magistrate, it would be equally improper ‑to allow him to escape liability because the prosecution has not, technically, been conducted by him. The question in all cases of this kind must be who was the prosecutor and the answer must depend upon the whole circumstances of the case. The mere setting of the law in motion is not the criterion." The two guiding principles involved in the above statement are that the persons making the complaint does not go beyond what he believes to be correct opinion and gives honest assistance. Now in this case of all the people who are inhabitants of the locality why the defendant named the plaintiff and his brothers, it is an admitted fact that the plaintiff and his brothers are now living quite a distance from the house of the defendant. The case of grudge existing between the defendant and his party men and the plaintiff and his party men have been overwhelmingly, proved. The grudge is there at least from 1952 wherein the defendant himself admitted that he was a signatory to the petition opposing the plaintiff appointment, as a Dafadar. The status of the plaintiff as a Dafadar and as a member of an affluent family has been conclusively proved by the evidence recorded by the trial Court. The evidence with regard to the status is proved by P. W. 1 is corroborated by P. W. 2 who is a L. M. F. Doctor practising in Nabi Nagar, the locality where the plaintiff resides. He is also corroborated by P. W. 3 who is a member of the local union council, P. W. 4 a nephew of the famous musician, Alauddin, and whose son has married the plaintiff's brother's daughter by P. W. 5 who is the relation of the plaintiff by P. W. 6 who is a teacher of the local primary school and by P. W. 7 who is the father‑in‑law of the plaintiff and is also a Dafadar under the union council ; by P. W. 8 who is a cousin of the plaintiff by P. W. 9 who is another member of the union council, by P. W. 10 who is another member of union council by P. W. 11 who is a copyist in the Sub‑Registrar's office by P. W. 12 who is a member of the minority community and lastly by P. W. 13 who is also a member of the Union Council, Nabinagar. All these witnesses formed a section of society to which plaintiff belonged and have given evidence regarding him. I cannot understand how their evidence can be brushed aside and for what reason they would have to come to swear falsely in Court. The admitted fact that the plaintiff is continuing as Dajadar for about 16 years is itself a testimony to indicate. Considering all these together one cannot but hold that there was no reasonable or probable case for naming the plaintiff as a thief and for characterising him as a man of criminal nature. Their Lordships of the Privy Council have held that mere setting the law in motion is not the criterion, the foundation of the action is malice and malice may be shown at any time in the course of the inquiry. The way that the case was started by the defendant clearly shows that the defendant has taken the opportunity of theft in his house to harm the plaintiff. The theft occurred on 4th of March 1960 the ejahar was lodged on the same day and the Officer‑in‑Charge sent for the plaintiff and arrested him at the thana and kept him in the hajat over night before sending him to the Court where he was bailed out. As early as 17th of March 1960 the Officer‑in‑Charge submitted a final report stating that suspicion may be true and praying that the accused be discharged. It seems that the police had completed the investigation with unusual haste which leads to a conclusion that the arrest of the plaintiff was only to cause some approbation upon him. After he was released and discharged the plaintiff, filed an application making complaint to the learned Sub‑Divisional Officer that he was arrested falsely at the instance of the defendant and he prayed for enquiry before the Sub‑Divisional Officer (Exh. 4). Strangely enough the learned Sub‑Divisional Officer sent it to the very Officer‑in‑Charge against whom the application was made and the Officer‑in‑Charge said that amicable settlement was made and returned the report to the S. D. O. This shows that the plaintiff had really been humiliated and the purpose of arrest of the plaintiff was nothing but causing humili ation on him. The malice of the defendant is obvious and I am satisfied that the prosecution of the plaintiff flowed from the malice of the defendant. In these circumstances I allow the appeal and set aside the judgment and decree of the Courts below and decree the suit for the sum of Rs. 1,500 with costs and with interests since the date of the institution, of the suit. The leave prayed for under clause 15 of the letters patent by the learned Advocate for the respondent is refused as the points of law are already settled by the Privy Council. Appeal allowed.