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Civil Revision No. 760 of 1959, decided on 29th August 1962.

Second appeal‑Evidence‑Correctness of inference drawn by lower Court from evidence on record‑High Court has power to look into "Existence of reasonable and probable cause"‑Question for Judge and not for jury to determine‑Inference deducible from proved facts‑Can be examined in second appeal.

Nagendra Nath Ray v. Basanta Das Bairagya A I R 1930 Cal. 392 rel.

"Malicious prosecution" and "Trespass to person"‑Distinction‑Person doing nothing beyond lodging informa tion before police believing same to be correct‑Cannot be made responsible in damages if police without further interference from such person prosecutes another and prosecution ultimately fails.

F. Karim for Petitioner. A. F. M. Mesbahuddin for the Opposite‑Party.

This application under section 115 of the Code of Civil Procedure is by the defendants.

2. Plaintiff filed the suit for compensation and assessed the damages at Rs. 600 on a charge of trespass to person. The learned Munsif decreed the suit and the learned Sub ordinate Judge affirmed the said decree. The defendants therefore, have filed the present application.

3. Facts necessary for disposal of this application are as follows: The two petitioners Muhammad Mohsin and Muhammad Mahmood are brothers. One of them is the Super intendent of Radhanagar High Madrassa and the other a teacher of that Madrassa. They lodged two separate written ejahars in the Badarganj P. S. on 21‑9‑1955 at 3 p.m. on the allegations that burglaries were committed in their huts and some clothes, cash etc., were taken away from their respective dwelling huts. In both the ejahars it was alleged that Dr. Fayezuddin father of the plaintiff Mozammel Hoque might have conspired with others to have the offence committed and Muzammel Huq and his associates Bishu Pramanik and Nasiruddin may have committed it. Two cases were recorded in the Thana that very day and the Sub‑Inspector of Police searched the house of the plaintiff but found nothing suspicious. The Sub‑Inspector of Police arrested the plaintiff and detained him in custody for three days until he was bailed out on 24‑9‑1955 for Rs. 500 with two sureties of the like amount in both the cases. Thereafter on several occasions the plaintiff had to attend Court. The police ultimately submitted final report in both the cases and the plaintiff was discharged on 13‑12‑1955. Order sheet of the Magistrate showed that the case was true under section 380 of the Pakistan Penal Code but the suspicion was not reasonable.

4. Plaintiff thereafter on 10‑4‑1956 filed the present suit against both the petitioners, for recovery of Rs. 600 as com pensation for false imprisonment alleging that the petitioners maliciously got the opposite‑party arrested as there was enmity between the parties. According to the plaintiff, his father Dr. Fayezuddin canvassed against Muhammad Mohsin, the father of the defendants‑petitioners, who sought election to the Provincial Assembly in 1954 and further the said Dr. Fayezuddin had taken settlement of a beel in front of the petitioners' house to the disappointment of the petitioners and there were other cases of enmity between the parties which prompted the petitioners to file a false complaint against the opposite‑party to lower him in the eye of his fellow men and to put him into personal jeopardy. The opposite‑party alleged to have suffered in reputation and bodily pain which he valued at Rs. 1,000 and the cost that he actually incurred in defending himself during the police case.

5. The petitioners contested the suit alleging, inter alia, that upon the following facts they had reasonable and probable cause for suspecting the plaintiff for the two thefts committed in the two huts of the petitioners and that the petitioners were not liable for the imprisonment of the opposite‑party. Facts asserted by the petitioners during trial of the suit were that Dr. Fayezuddin, father of the opposite‑party was some years back convicted under section 7 of Act XXIV of 1946 for having black marketed kerosin oil ; that some time before the thefts were committed gun licence of the opposite‑party was seized by the police in connection with a theft committed in respect of certain properties of Radhanagar High Madrassa of which the petitioners are Superintendent and teacher respectively ; that in the afternoon previous to the night of occurrence D. W. 7 found the opposite‑party and several other talking in a low voice in Laldighir hat near the shop of one Abdul Hamid to the effect that the work should be finished in that night and that D. W. 5. along with D. W. 6 saw the plaintiff in the midnight of the night of occurrence loitering near the houses of the petitioners while coming from the hat. Two independent persons namely Naziruddin, the president, Union Board and Nazamuddin, the Ansar Commander deposed on the side of the petitioners and corroborated the statements of Moniruzzaman and Islamuddin, two other witnesses made in the morning following the night of occurrence in the presence of persons assembled in the house of petitioners as to what they had heard and seen in the Laldighir hat in the previous afternoon and at midnight near the house of the petitioners.

6. The two Courts below accepted the facts of cancellation of the gun licence of the opposite‑party, the story of theft in the Madrassa and the story of theft in the houses of the petitioners and also that there was a conviction of Dr. Fayezuddin, the father of the opposite‑party under section 7 of Act XXIV of 1946 and that there was enmity between the parties with regard to the taking of settlement of the beel by Dr. Fayezuddin to the disappointment of Muhammad Mohsin, the father of the petitioners, who is a retired lecturer in Arabic of the Rangpur College. But the Courts below did not accept the evidence given by the petitioners with regard to the opposite‑party and his associates being seen in the night of occurrence loitering near the houses of the petitioners and also to have seen him talking in low voice with some other people in the Laldighir Hat in the previous afternoon. Both the Courts came to the finding that there was no reasonable cause for the petitioners to have suspected the opposite‑party with regard to the thefts committed in their huts fn the previous night. They have more or less accepted the position that the petitioners maliciously complained against the opposite‑party arid falsely implicated him in the theft case on account of the grudge they bore against the opposite‑party and his father.

7. Mr. F. Karim, the learned Advocate for the petitioners before me has raised two points for my consideration which are (a) that the Courts below erred in law in drawing an inference from implicating the plaintiff‑opposite‑party in the F. I. R. and this being a second appeal, he further contended that even in a second appeal the High Court should look into the evidence to find out as to whether the inference drawn by the Court of appeal below is correct : (b) mere lodging of First Information Report is not sufficient for saddling the petitioners with the liability of damages on charge of false imprisonment.

8. The decision in the present case in my opinion depends not on the principles of malicious prosecution but on the principles of trespass to person on the basis of an offence com mitted in respect of the property or person of the defendant for which he bona fide believes that the offence was committed either by or at‑ the instigation of the plaintiff. A distinction must have to be made between two types of cases. In a case where the defendant lodges an information with the police with regard to the offence committed and upon the basis of that information if the police takes certain steps as a result of which the plaintiff is taken into custody by the police without any further interference by the defendant, position will be one. But in a case where the defendant lodges a complaint in a Court and actively prosecutes the plaintiff and/or after having lodged an information with the police gives further active support to the police to apprehend the suspected person, the position, in my opinion will be different. In the first case where upon his information the police without any further interference or aid from the defendant takes steps in terms of law in apprehending the plaintiff but ultimately could not prosecute him for want of evidence, then the damages if sought for, would be based on the principles of trespass to person and not on the principle of malicious prosecution as will be the position in the latter case.

9. If the present case is judged in the light of the above observations, I am of the opinion, that it is a case not of malicious prosecution but of trespass to a person.

10. In dealing with the first point raised by Mr. Karim I would like to say that I entirely agree with the second part of Mr. Karim's contention raised in this point with regard to the power of the High Court to look into the evidence even in a second appeal for finding out as to whether the inference drawn by the Court of appeal below from the evidence on record is correct or not.

11. Mr. Karim in support of second part of his first conten tion has relied on the case of Nagendra Nath Ray v. Basanta Das Bairagya (A I R 1930 Cal. 392). The learned Judge who delivered the judgment in the case dealt with the law on the point elaborately and referred to a number of Indian and English decisions, I am in agreement with the views expressed by the learned Judge in that case. The passage in the aforesaid judgment which specifically refers to the second part of Mr. Karim's first point is in the following terms:

12. "The existence of reasonable and probable cause is a question for the Judge and not for the jury ; Panton v. Williams ; Lister v. Parryman and Hailes v. Marks which was a case of false imprisonment." The cases bear out what Salmond says in his Law of Torts, 7th Edn. pp. 620, 621

"This rule, however, is subject to the qualification that preliminary questions of fact on which this ultimate issue depends are for the jury. That is to say, the jury must find what the facts of the case were, as known to or believed by the defendant, and then the Judge decides whether these facts constituted reasonable and probable cause, viz., whether the defendant showed reasonable care and judgment in believing and acting as he did."

13. In India also, the balance of authorities is in favour of the view that the question is a mixed one of law and fact and the inference deducible from proved facts may be examined by this Court on second appeal. Bishun Singh v. Wyatt ; Shama Bibee v. Chairman of Baranagore Municipality and Harish Chander Neogy v. Nishi Kanta Banerjee.

14. We cannot, therefore, content ourselves with accepting as final the conclusion of the Subordinate Judge on this question; but must examine whether it is correct as a matter of inference.

15. Now, the findings of the Court of Appeal below may be summarised thus that the gun licence of the opposite‑party was cancelled in connection with a theft committed in the Madrassa of which the petitioners 1 and 2 are Superintendent and teacher respectively that the father of the opposite‑party Dr. Fayezuddin was convicted under section 7 of Act XXIV of 1946 that there was enmity between the parties regarding the settlement of the been lying in front of the house of the petitioners ; that there were theft committed in the houses of the petitioners as alleged in the First Information Report. But the Courts below did not accept the evidence with regard to the opposite‑patty and his associates having been seen in the previous afternoon in the hat and they having been seen in the late hours of the night loitering suspiciously near about the houses of the petitioners.

16. These two facts of the opposite‑party and his associates having been seen on the two occasions as stated above were not incorporated in the First Information Reports by the petitioners based on their own knowledge. Those were incorporated by them having been told by the different witnesses some of them were quite respectable who came to the house of the petitioners in the morning following the night of occurrence. The point for determination of the Court of Appeal below was not, as to whether, the witnesses who related these two facts to the petitioners, had actually seen the opposite‑party and his asso ciates on the two occasions at two different places. The point for determination was as to whether the petitioners had reasonable cause to believe the statements made by those witnesses to them in their house following the occurrence. The case before the Courts below was not for a determination of the facts of theft as true or false but the case was for determination as to whether the petitioners from these facts and circumstances and the information given to them could have reasonable grounds to suspect the complicity of the opposite‑party in the thefts committed in their houses. The fact of enmity between the parties based on various Incidents was no doubt proved and accepted by the Court of Appeal below. Existence of enmity between the parties may cut both ways but in the present case, in my opinion, the fact of the cancellation of the gun licences of the opposite‑party in con nection with the theft committed in the Madrassa of which the petitioners, as I have already stated, are Superintendent and teacher, would certainly create a feeling of grudge in the mind of the opposite‑party and not in the minds of the petitioners. This fact and the fact of the conviction of the father of the opposite‑party and the information given to the petitioners about the suspicious movement of the opposite‑party along with others by independent and respectable witnesses would, in my opinion, naturally create a bona fide suspicion in the minds of the petitioners to think that the opposite‑party might, in all probability, to harass the petitioners who no doubt are respectable persons, by causing at least monetary loss to them, by the commission of an offence of the nature of theft.

17. Upon a consideration of the entire facts and circum stances prevailing in the case, I am inclined to hold that the learned Court of Appeal below drew a wrong inference from the facts proved that, there was no reasonable and probable cause for the petitioners naming the opposite‑party in the First Information Report as one who in association with his accomplices might in all probability have committed the offence.

18. In support of his second contention Mr. Karim relied on the following cases namely: Nagendra Nath Ray v. Basanta Das Balragva ; Pandit Gaya Parshad Tewdri v. Sardar Bhagat Singh and another (35 I A 189) ; Graham v. Henry Gidney (A I R 1933 Cal. 708) and Swell v. The Telephone Company Ltd. ((1907) 1 K B 557).

19. The case reported in 35 I A 189 is a case of malicious prosecution. In that case their Lordships of the Judicial Com mittee made a distinction between an active prosecution by the defendant of the plaintiff by doing something more than merely lodging an First Information Report with the police. Their Lordships having taken notice of the following observations of the Madras High Court as is found at p. 192 of the report:

"The only person who can be sued in action for malicious prosecution is the person who prosecutes. In this case, though the first defendant may have instituted criminal proceedings before the police, he certainly did not prosecute the plaintiff. He merely gave information to the police, and the police, after investigation, appear to have thought fit to prosecute the plaintiff. The defendant is not responsible for their act, and no action lies against him for malicious prosecution."

observed as follows :‑----

"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 complaint 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 prosecution And the answer must depend upon the whole circumstances of the case."

In the case reported in A I R 1933 Cal. 708 Ameer Ali, J. after discussing the law on the point very elaborately, held:

"A private individual should not be held responsible for the supervening arrest, on the ground that arrest was likely to follow from information given by him unless, although he has not expressly directed the arrest, he has in fact made it impossible for the constable to act otherwise."

In the case reported in (1907) 1 K B 557 it was held that "the signing of a charge‑sheet, standing alone, is not evidence of anything directly causing the imprisonment of the person charged, and will not support an action for false imprisonment against the person who signs".

20. In the present case the petitioner except for lodging a First Information Report did not do anything further for the arrest and imprisonment of the opposite‑party. There is no evidence on record to show that the petitioners after lodging the Firs Information Report, in which, upon a bona fide belief and rea sonable and probable ground suspected the opposite‑party for the thefts, did anything further to aid the police in either searching the house of the opposite‑party or having him taken into custody. On the contrary, there is evidence on record to show that there was some trouble existing between the opposite‑party and the local police over the cancellation of his gun licence earlier. To the facts of the present case I think the principle laid down in the cases referred to above is aptly appli cable. I myself, am of the view that in the facts and circumstances of the present case no cause of action arises for the opposite‑party to claim damages against the petitioners for trespass to person and/or for false imprisonment.

21. Mr. Mesbahuddin, the learned Advocate for the opposite‑party has not been able to controvert the law adum brated in the cases referred to above nor he has been able to make out a case in support of the judgments of the Courts below.

In the result, therefore, this application is allowed and the judgments and decrees passed by the learned Courts of appeal below are set aside and the plaintiffs suit is dismissed. The parties are to bear their own costs throughout.

S. Q./K. B. A. Application allowed.

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