P L D 1964 Dacca 111 (PLP)

Then the trial Court fell back on the long‑standing enmity between the parties to find that the information was malicious, and observed at page 14 of the paper‑book "It is clear and evident that there is long‑standing enmity among the parties to the suit. It is that the defendants bona fide believed that the plaintiff had connection with the theft because of the enmity ? It is a mental state which can only be gathered from outward expressions and conduct. What are the outward expressions and conduct of the defendants towards the plaintiff." Forgetting that the enmity pleaded by the plaintiff cuts both ways and that an existence of enmity by itself does not decide that the prosecution is malicious and without reasonable and probable cause nor can it be a basis for reasonable and probable cause. It is true, bona fide belief is a mental state but it is not correct to say that it is to be gathered from subsequent expres sions and conduct. It is the mental state prior to or at the time when the prosecution was started.

7. Then the trial Court refers to the allegations made in the written statement : "In the W. S. plaintiff has been described in the most humiliating manner and highly defamatory statements have been made therein against the plaintiff." From what has been stated above it is clear that not only the trial Court illegally threw the burden on the defendants in the suit to prove existence of reasonable and probable cause for making allegation in the First Information Report but also took into its consideration what they have stated in the written statement in their self‑defence in the suit for damages far malicious prosecution which they are privileged to do so and the long‑standing enmity between the parties was taken to be the reason for holding that the prosecution is malicious "The long‑standing enmity along with all the above facts and circumstances clearly show that the defendants lodged the information, in the police station against the plaintiff out of malice and without any probable and reasonable cause." Coming to the assessment of damages, the trial Court again put the assessment of damages, the trial Court again put the defen dants to prove the truth of tl;eir allegation that the plaintiffs had no prestige and as such did nor suffer any loss due to the information given to the police instead of asking the plaintiffs to prove the extent of damage suffered by the plaintiff. It is a fact that the plaintiff could not produce a single witness from his own village as to his respectability and reputation and to this the pointed attention of the trial Court was drawn "It is said that none of the villagers has come to say that the plaintiff is a respectable person and so it is argued that the plaintiff has no respect." But the trial Court relied on the statement of P. Ws., namely, P. Ws. 2, 4, 6 and described them as "disinterested persons of different villages" who say that plaintiff is a respectable person. it is apparent that except P.W. 7, rest of the plaintiff's witnesses are men of different villages and they are closely related. P. W. 7 is a convict and was fined in a criminal case. It is also apparent from the record that the plaintiff was arrested in a case under section 110, Cr. P. C. and he was found assisting one Patiram, an accused in section 110, Cr. P. C. case. P. W. 4 is also an accused in an abduction case. P. Ws. 4 and 5 are closely related to the plaintiff. P. W. 2 is a person who went to attach the properties of the defendants in execution of the decree where the plaintiff accompanied him. P.W. 6 is a friend of the cousin of the plaintiff. Be that as it may, the trial Court has not determined the extent of his prestige and the extent of damages of that prestige. The trial Court took Rs. 2,000 claimed by the plaintiff as damages on account of the loss of reputation and mental agony, as fair and proper holding that the plaintiff is a respectable man and also Rs. 100 as the costs incurred by him in taking bail after surrendering before the Magistrate, on the meagre evidence we have already mentioned above. Plaintiff's respectability and prestige may be the basis for determining the amount of compensa tion to be awarded to the plaintiff in a suit for malicious prosecution, but that prestige and respect are not very much material for the purpose of finding that the prosecution was malicious and without reasonable and probable cause. Bare malice also is not enough to pass a decree in a suit for damages A for malicious prosecution, but there must be absence of reason able and probable cause. If a person has got reasonable and probable cause, the prosecution cannot be described as malicious simply because he has got enmity. The trial Court, it seems to us, did not understand the full scope of enquiry in the suit and of the burden of proof. In a suit for malicious prosecution it is incumbent on the plaintiff to prove not only the prosecution but also that the prosecution was out of malice and without reason able and probable cause.

8. In appeal before the learned Subordinate Judge, it appears, the plaintiff has given up the case of malicious prosecution, because it was conceded, may be wrongly, that the information to police and investigation and house search on the basis of such information is no prosecution unless, the matter goes up to the Court. Therefore, the plaintiff's pleader relied upon the house search and defamation, as grounds for damages.

9. Now the question is whether in a suit for damages for malicious prosecution, the alleged defamation and defama tory statements which, according to the plaintiff, lowered him down in the estimation of the public, can be the basis for damages for defamation independently of the malicious prosecu tion for the purpose of determining the amount of damages. The plaintiff has been described as: suit for damages for false criminal prosecution and defamation.) In the last paragraph of the plaint the plaintiff stated : which may be translated thus : "The plaintiff is a respectable man in the locality and he has got respect and reputation from the days of his ancestor. But defendants No. 1 and 2 impleaded the plaintiff in a false criminal case for theft out of enmity and thereby impaired and destroyed his reputation and respect. In the circumstances, in law and equity, the plaintiff is entitled to get damages from defendants 1 and

2. The defendants having implicated the plaintiff in a false criminal case, thereby affecting his self‑respect and causing sufficient mental pain, the plaintiff is entitled to get damages of Rs. 2,000 from them."

10. From the above quotation from the material portion of the plaint, it appears that there is no doubt that whatever damages the plaintiff claimed was on account of false prosecution which impaired his reputation by defaming him in the eyes of the public and there is no separate cause of defamation. If the plaintiff fails in establishing his case of malicious prosecution without reasonable and probable cause, we do not think that he can claim, in this suit, compensation for defamation apart from malicious prosecution which was stated as a cause for damages for malicious prosecution. Further the defamation alleged is on account of malicious prosecution. If the case of malicious prosecution fails, the cause of action for defamation goes at least in this suit, as one is mingled with the other inseparably.

11. Be that as it may, the lower appellate Court proceeded on the basis that if the suit for malicious prosecution, as the prosecution has not gone upto Court, is not maintainable, action for defamation lies and has come to the conclusion that because of the information given by the defendants, it is natural that the police would resort to the searching of the plaintiff in course of investigation and as such searching of the house in course of investigation by the police is a defamation. If the information given by the defendant is not malicious and not without reason able and probable cause, would the searching of the house of the plaintiff in course of investigation be a defamation? Would he be liable for damages for defamation ? If it is not, then how is it defamation if the action for malicious prosecution is not maintainable ? And then, like the trial Court, the learned Subordinate Judge also fell back on the previous enmity on account of the existence of civil and criminal litigations between the parties. Therefore, the learned Subordinate Judge held "It cannot be believed that a false ejahar will be lodged against a relative and co‑sharer without malice." For getting that ejahar may be proved to be false and even if there is enmity between the parties still a prosecution cannot be called malicious if there is reasonable cause. Then the learned Subordinate Judge disbelieving the witnesses of the defendants observed at page 30 of the paper‑book as follows "The plaintiff ‑respondent has examined himself (P. W. 1) and 8 witnesses. No doubt P.W. 5 Nasiruddin and P. W. 9 Kalu Mia are his close relatives but there is no reason to disbelieve the testimony of other P. Ws." We have already pointed out who are those P.Ws. and what are their antecedents and none of them comes from the village of the plaintiff where he resides. On this evidence the learned Subordinate Judge held "Evidence also satisfactorily proves that the plaintiff‑respon dent has been defamed. There is no doubt that the facts of the defendant‑appellant No. 2 cannot be said to be liable as he did not record the ejahar. He also made a statement to the police verbally. When the statements seriously impute criminal offence, wrong of slander is complete." It appears that the learned Subordinate Judge has mistakenly taken defendant‑appellant No. 2 to be the person who has not recorded the ejahar. It was defendant‑appellant No. 2 before him who recorded the ejahar. It must be a mistake for defendant appellant No.

1. When I asked the' learned Advocate for the appellant to point out any statement made to the police by defendant‑appellant No. 1 Shamsuddin, to which the learned Sub ordinate Judge referred saying that he has also made statement to the police verbally, nothing could be produced before us. Then the learned Subordinate Judge held " . . the person who sets the activities of the police in motion for the search is liable for the damages if the activities of such a person proceeded out of malice and without reason able and probable cause." And he found that the plaintiff‑respondent was entitled to recover damages from the defendant‑appellant, but he reduced the amount of damages from Rs. 2,100 to Rs. 500 only. That is also on lump sum basis and not ascertained on any basis.

12. Now coming to the judgment of the learned Single Judge of this Court in the second appeal, we think that the learned Single Judge was perfectly right m dismissing the suit for recovery of damages for malicious prosecution. The learned Single Judge has held that the information to the police leading to anterior proceedings, which do not, however, culminate in or reach the stage of prosecution cannot be called a prosecution for the purpose of an action for damages for malicious prosecution but that such action is maintainable on the basis of a proceeding akin to malicious prosecution and that what is important and should operate as the determining factor is not the title of the action but the substance of the allegations embodied in the plaintiff's pleading. There is no doubt about it and we entirely agree with the learned Single Judge that though the information to the police before it reached the stage of going before the Court cannot be technically called a prosecution within the meaning of the Code of Criminal Procedure, but for the purpose of malicious prosecution any proceeding akin to prosecution is enough. If it is proved that there is no reasonable and probable cause for such a proceeding against the plaintiff and if it is malicious, then certainly the person injured is entitled to compensation. This view can be supported by various authorities cited by the learned Single Judge in his judgment.

13. But the learned Single Judge dismissed the suit holding that the plaintiff failed to prove absence of reasonable and pro bable cause and further observed "Moreover there is not even a shred of evidence to show that beyond making the allegation in the First Information Report, either the informant or the other appellant did anything at all either to see that the plaintiff was charge‑sheeted or to secure his arrest or to cause his house to be searched." The learned Single Judge also pointed out that "the investigating officer instead of acting forthwith upon the allegation in relation to the suspect, went ahead with his investigations independently, collected materials, as required, for the purpose of tracing the culprit or culprits and must have ultimately made the house search in question on his own only when he considered in the exercise of his discretion that the materials, so collected, dictated the propriety or necessity of such action. As has already been pointed out above, this action taken by the investigating officer was one that the defendant‑appellants did not in any way further or facilitate." Therefore, the learned Single Judge held that the defendants could not, therefore, be made answerable for some thing in which they were not shown to have had any hand and which presumably was also beyond their control.

14. Apart from what the learned Single Judge pointed out in course of dealing with the judgments of the Courts below, we have pointed out how the Court below dealt with the case and how they totally misconceived the scope of inquiry and how they illegally threw the burden on the defendants to prove the existence of reasonable and probable cause instead of asking the plaintiff to prove the absence of reasonable and probable cause. If there is reasonable and probable cause, lodging of the information by the defendants suspecting the plaintiff cannot be held to be malicious though enmity exists between the parties. Malice is not the criterion to determine whether the prosecution is malicious, but the presence or absence of reasonable and probable cause is the criterion for determination of that aspect. When the plaintiff has failed to prove the absence of reasonable and probable cause previous enmity will not help the plaintiff in obtaining a decree for damages for malicious prosecution. In a suit for damages for malicious prosecution, if the plaintiff in showing damages or measure of damages, alleges that he was defamed and belittled in estimation of the people, that cannot be the ground for obtaining a decree for damages for defamation if the plaintiff fails to prove absence of reasonable and probable cause and that the proceeding was initiated maliciously without any reasonable and probable cause.

15. We may further add here that defendant No. 1, in any view of the matter, cannot be liable for damages for malicious pro secution because it is defendant No. 2 who lodged the First Infor mation Report and what had been stated therein suspecting the plaintiff, was the statement of defendant No.

2. There is nothing on record to show that those statements were made at the instance of defendant No. 1 went to thana for lodging ejahar of admitted theft in the house of defendant No. 1 after consulting defendant No. 1, but what was that consultation no body knows nor it was brought out in cross‑examination to implicate defendant No. 1.

16. In the case of Balbhaddar Singh and another v. Badri Shah and another their Lordships of the Privy Council have laid down the following principle "In an action for malicious prosecution the plaintiff has to prove that he was prosecuted by the defendant, that the proceed ings complained of terminated in favour of the plaintiff if from their nature they were capable of so terminating, that the prosecution was instituted against him without any reasonable and probable cause and that it was due to a malicious intention of the defendant, and not with a mere intention of carrying the law into effect. The question is not : "Did the plaintiff commit the offence, or did defendant invent the offence against plaintiff ; the two queries exhausting the possibilities of the situation. The question is : Has plaintiff proved that defendant invented and instigated the whole proceedings for prosecution? In any country, where, as in India, prosecution is not private, an action for malicious prosecution in the most literal sense of the word could not be raised against any private individual. But giving information to the authorities which naturally leads to prosecution is just the same thing. And if that is done and trouble is caused an action will lie." Now coming to the question of respectability of the plaintiff, we must point out that he was once arrested in section 110 Cr. P. C. proceeding as he was found removing the witnesses against another accused Patiram in a case sander section 110 Cr. P. C., and the witnesses he has cited in the suit are all of different villages except P. W. 7 who is also a convict. P. W. 4 was an accused in an abduction case. P. Ws. 5 and 9 as pointed out by the learned Subordinate Judge, are closely related. The plaintiff could not procure a single witness from his own village to testify to his respectability. Further, there is no evidence that he is innocent of the charge levelled against him in the First Informa tion Report. The order‑sheet, we have already mentioned, shows that the suspicion was reasonable. In the circumstances, we think the learned Single Judge is perfectly right, though not absolutely for the reasons given by him but for other reasons too, in allowing the appeal and dismissing the suit for malicious prosecution. The result, therefore, is that we dismiss the appeal and the suit of the plaintiff with costs throughout. A. S. CHOWDHURY, J.‑I agree with my Lord the; Chief Justice. s. B./K. B. A. Appeal dismissed.