P L D 1964 Dacca 618 (PLP)

4. The learned Munsif on a consideration of the evidence held that the arrest and prosecution of the plaintiff were malicious, and that defendant No. 1 was liable for damage. Accordingly he passed a decree for Rs. 150 against defendant No.

1. The suit was dismissed against defendants 2‑14.

5. Against that decision, defendant No. 1 preferred an appeal. The learned Subordinate Judge held that as the suit was dismissed against defendants Nos. 2‑14, the question of malicious prosecution in pursuance of a conspiracy among the defendants could not arise, and that consequently defendant No. 1 could not be held liable for damages. It was also held by the learned Sub ordinate Judge that defendant had no enmity or grudge with the plaintiff over arrest of Kailash, that the arrest and prosecution were not malicious and that plaintiff was not prosecuted by defendant No.

1. The appeal was accordingly allowed and the decision of the learned Munsif was set aside. Hence the Second Appeal at the instance of the plaintiff.

6. Mr. Ahamadur Rahinan Khan, the learned Advocate for the appellant, has contended that the judgment passed by the lower Appellate Court, without consideration of the material facts on which the trial Court based its decision, is not a proper judgment of reversal. In this connection, he has referred to the finding of the learned Munsif that defendant No. 1, arrested plaintiff in spite of the order of the Superintendent of Police, Sylhet, not to arrest him. Mr. Khan has contended that as the evidence on this point was not at all considered by the learned Subordinate Judge, the appeal should be sent back on remand. As consideration of this evidence would not be of much im portance, the appeal need not be sent back on remand on this ground.

7. It is admitted that on the 5th of August 1954, 27 persons filed a petition before the Sub‑Divisional Officer, Maulvibazar, making several allegations against the plaintiff. On the following day, the Sub‑Divisional Officer passed an order forwarding the petition to the Superintendent of Police, Sylhet, with the remark that it was surprising why such a desperate and dangerous man was not proceeded against under section 110 of the Code of Criminal Procedure. On 17‑8‑1954, the Superintendent of Police sent the petition to defendant No. 1, the then Officer‑in‑charge, Moulvibazar Police Station for action under section 110 of the Code of Criminal Procedure and for enquiry under section 117 of the same Code, against the plaintiff. On 2nd September 1954, defendant No. 1 got the plaintiff arrested under section 55 of the Code of Criminal Procedure. The plaintiff was produced before the Sub‑Divisional Officer on 3‑9‑1954 and the Sub- Divisional Officer passed order to keep him in hajat for 14 days. There is the admission of defendant No. 1 that before he took any step on the basis of the order of the Superintendent of Police for action under section 110 of the Code of Criminal procedure against the plaintiff, he received another order to stay the matter till personal enquiry by the Sub‑Divisional Police Officer. Mr. Khan has contended that in the circumstances, the arrest as malicious, because defendant No. 1 got plaintiff arrested in spite of the order of the Superintendent of the Police not to proceed further in the matter.

8. Section 55 of the Code of Criminal Procedure is independent of Chapter VIII of the Code, although proceedings under that Chapter may follow an arrest under section 55 as a natural sequence. A Police Officer, can, therefore, arrest or cause to be arrested without a warrant or an order of a Magistrate under Chapter VIII, any person who comes under this section although proceeding under section 110 of the Code of Criminal Procedure are contem plated against him. (See Emperor v. Nepal and others (I L R 35 All. 407). Therefore, for the fact that the Superintendent of Police passed an order to stay the further proceedings under section 110 of the Code of Criminal Procedure, the arrest of the plaintiff under section 55 of the Code at the instance of defendant No. 1 would not be illegal or malicious. For the reason that the name of the place wherefrom the plaintiff was to be arrested, or where he was to be brought after arrest, was not mentioned in the M. C. C. the arrest would not be illegal or malicious. The fact that the M. C. C. for arrest of the plaintiff was issued at night also would not make it illegal.

9. Malicious arrest is wilfully putting the law in motion to effect arrest of person without reasonable cause. (See Law of Torts by Ratanlal, 14th Edition, page 192).

10. In the case of Nagendra Nath Roy v. Basanta Das Bairagya (I L R 57 Cal. 25), the following observation was made as to what would constitute malicious arrest:‑

" . . . . the foundation of an action for malicious arrest is that the party has obtained an order or authority from a Judge to make an arrest, by knowingly imposing some false statement upon the Judge or by stating certain facts as being true within his knowledge when he knew nothing about them, or as being true to his belief when he had no reasonable or probable cause for his belief . . . . ."

11. In this case before us, it cannot be held that the arrest was without reasonable and probable cause, because there was the application of the 27 villagers containing the allegations of theft and dacoity with others against the plaintiff. There was also the remark of the Sub‑Divisional Officer in that application that plaintiff was a desperate and dangerous man. Defendant did not procure any order from any Magistrate for the arrest of the plaintiff.

12. Mr. Sen, the learned Advocate on behalf of the respon dent, has contended in reply that the question of damages for malicious arrest would not arise, as no such case was made in the plaint. The plaint shows that the suit was only for malicious prosecution, although Mr. Khan has contended that the suit was both for malicious arrest and malicious prosecution. But it is nowhere stated in the plaint that the arrest was malicious. For all these reasons, plaintiff is not entitled to any damage on the ground for malicious arrest.

13. We shall now deal with the question of malicious prosecution. Malicious criminal prosecution is malicious institution against another of an unsuccessful criminal case without reasonable or probable cause. In a suit for malicious criminal prosecution, the plaintiff must prove the following points: (1) That the plaintiff was prosecuted by the defendant. (2) That the prosecution terminated in favour of the plaintiff. (3) That the prosecution was instituted against the plaintiff without reasonable and probable cause. (4) That the prosecution was instituted with a malicious intention, that is, not with the intention of carrying the law into effect but with an intention which was wrongful in point of fact.

14. The facts of the present case do not, indicate that plaintiff was prosecuted by defendant No.

1. Plaintiff was produced before the Sub‑Divisional Officer, Moulvibazar on 3‑9‑1954. Names of the parties as given in the order sheet of the case dated 3‑9‑1954, (Exh. 9 (c) are "Pak State v. Montazuddin". Mr. Khan has contended that in judging who is the prosecutor, whole circumstances of the case are to be taken into consideration, and that for the reason that State has been named as the prosecutor or that prosecution was instituted and conducted by the Police, it would not follow that the State was the prosecutor, as theoretically all prosecutions are conducted in the name of the State. In support of this contention, reference has been made to the observations of their Lordships of the Privy Council in the case of Pandit Gaya Parshad Tewari v. Sardar Bhogar Singh and another (35 I A 189) made in connection with the case of Narasinga Row v. Muthaya Pillai (I L R 26 Mad. 362). Their Lordships made the following observations:‑

"The principle here laid down is sound enough if properly understood, and its application to the particular case was no doubt justified; but in the opinion of their Lordships, it is not of universal application. 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."

15. In support of his contention, Mr. Khan has referred to the petition Exh. 4 filed by defendant No. I opposing grant of bail to the plaintiff. In this petition, plaintiff was described as a Goonda, receiver of stolen properties and oppressor and mischief monger. Reference has also been made to the evidence of P. W. 2 that he saw defendant No. 1 forcing a person to make statements that plaintiff was connected with a dacoity. From the allegations in the petition. Exh. 4, against the plaintiff, it cannot be held that defendant was the prosecutor, because there was already a petition by several persons of the village making serious allegations against the plaintiff. There is also no evidence that the man, whom defendant No. 1 is alleged to have forced to state that plaintiff was connected with a dacoity, was examined as a witness in the proceedings under section 110 of the Code of Criminal Procedure. Defendant No. 1 did not himself depose in that case. He did not conduct that case. There is no evidence that he procured any of the witnesses who were examined on the side of the prosecution in the proceedings under section 110 of the Code of Criminal Procedure. It cannot be held that defendant No. 1 suborned witness to support the charge against the plaintiff and that the charge was false to his knowledge. In the circumstances, it cannot be held the prosecution was Instituted at the instance of defendant No. 1.

16. Mr. Khan has drawn attention to the evidence that there was a quarrel between plaintiff and defendant No. 1 over the arrest of one Kailash and that defendant No. 1 had to release Kailash because of the quarrel. It has been contended that this also would go to indicate that prosecution was malicious.

17. The learned Subordinate Judge discussed the evidence on the matter relating to the arrest of Kailash and disbelieved that there was a quarrel between the plaintiff and defendant No. 1 over that. This finding of fact based on evidence cannot be disturbed in Second Appeal.

18. However, wrong‑headed a prosecutor may be, if he honestly thinks that the accused has committed a criminal offence, he cannot be considered as the initiator of malicious prosecution For action for malicious prosecution, the prosecution must be initiated with malicious spirits, that is, from an indirect and s Improper motive and not in furtherance of justice. In initiating a prosecution, the intention must be to inure the party rather than vindicate the law. Malice has been described as any wrong or indirect motive. Even malice alone is not enough. Absence of reasonable and probable cause must be shown. In this connection, I may refer to the following observation of their Lordships of the Privy Council in the case of Raja Broja Sunder Deb and others v. Bamde6 Das alias Pattanaik and others (A I R 1944 P C 1):‑

"In order to succeed in an action for malicious prosecution the plaintiff must in the first instance prove two things : (i) that defendant was malicious and (ii) that he acted without reasonable and probable cause. Malice has been said to mean any wrong or indirect motive, but a prosecution is not malicious merely because it is inspired by anger. However wrongheaded a prosecutor may be, if he honestly thinks that the accused has been guilty of a criminal offence he cannot be the intiator of a malicious prosecution. But malice alone is not enough : there must also be shown to be absence of reasonable and probable cause . . . . . "

19. In the case of Naber Shaha v. Shamsuddin and others (P L D 1964 Dacca. 111), it has been held that bare malice is not enough in a suit for damages for malicious prosecution but there must be absence of reasonable and probable cause, and that if a person has got reasonable and probable cause the prosecution cannot be described as malicious simply because he has got enmity. In the present case even if it be held that defendant No. 1 is the initiator of the criminal proceedings against the plaintiff, plaintiff cannot succeed because the prosecution was not without reasonable or probable cause. In the circumstances, for the reason that the plaintiff was discharged in the criminal case under section 110 of the Code of Criminal Procedure, it cannot be held that the prosecution was malicious.

20. Mr. Sen has also contended in reply that as the case of malicious prosecution in pursuance of a conspiracy among the defendants has failed, the claim could not be allowed against one of the defendants. But the learned Advocate could not produce any authority before me in support of this contention. In my humble opinion, dismissal of a claim for damages in a suit for malicious prosecution against some of the defendants, cannot itself be the cause of dismissal of the claim against other defendants. Of course, each case is to be decided on its own merits. In the present case for the mere fact that the suit as dismissed against other defendants, it cannot held that It should have been dismissed against defendant No. 1 also.

21. The appeal is liable to be dismissed for the other reasons already stated by me. The appeal is dismissed with costs. The judgment and decree passed by the learned Subordinate Judge are affirmed. S. Q. Appeal dismissed.