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Madho Pershad Vs. Munshi Ali HusaIn and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in9Ind.Cas.535
AppellantMadho Pershad
RespondentMunshi Ali HusaIn and ors.
Excerpt:
.....courts have failed to properly appreciate the evidence and apply the law to the facts proved and admitted because the appellant's case was against the officers of government who had the local government behind them, and both the lower courts were subject to the government'.this is nothing short of a charge against the learned judges in the courts below that, owing to the fact of their being officers of the government, they acted partially and not impartially between the parties and improperly applied the law to the facts proved. a ground of appeal such as this is nothing short of an abuse of the process of the court and cannot be too severely condemned......and he complied with the requirements of section 114 of: that code before he ordered a warrant of arrest to issue. it was within his competency to direct that bail should not be accepted if in his opinion sufficient reasons existed for withdrawing the direction for admission to bail. under section 497 he had the power to order a re-arrest even if the plaintiff had been released on bail. he, therefore, clearly acted in his judicial capacity as a magistrate throughout the proceedings, and is protected by the provisions of act xviii of 1850. the case against him has, therefore, been rightly dismissed.7. there remains the claim against the kotwal. as to him also the findings of the learned judge are conclusive. he holds that when the plaintiff was taken to the kotwali under arrest no bail.....
Judgment:

Banerji, J.

1. This appeal arises out of a suit brought by the plaintiff-appellant for compensation for wrongful confinement. It is alleged that the claim is also one for damages for malicious prosecution. The plaintiff is the Editor of a newspaper called the 'Khhichri Samachar' published at Mirzapur. The first defendant, Munshi Ali Husain, was the Deputy Magistrate of Mirzapur. The second defendant, Muhammad Mohsin, was the Kotwal or City Inspector. The third defendant was a Sub-Inspector stationed at Mirzapur. The fourth defendant was the officiating Superintendent of Police. The 5th defendant Jamna Das is a Jain resident of that town.

2. It appears that the Jains wanted to have a procession at Mirzapur and with that object applied to the District Magistrate for permission to carry the procession through the streets. Inquiries were made, with the result that the Magistrate permitted the procession to pass through the city under certain conditions. After this order was issued some of the Hindu residents of Mirzapur held a meeting and passed a resolution opposing the issue of the procession. On the 23rd of January 1907, the plaintiff, representing himself to be the spokesman of the Hindus, presented an application to the first defendant praying that the order permitting the issue of the procession should be withdrawn. On the same day the fifth defendant Jamna Das presented an application in which he stated that there was apprehension of a breach of the peace and he prayed that necessary steps should be taken to prevent a disturbance of the peace. The Deputy Magistrate who was then in charge of the City ordered a Police inquiry. The Kotwal submitted a report and after a consideration of that report the Magistrate recorded proceedings under Section 112 of the Code of Criminal Procedure, calling upon the plaintiff and other persons to show cause why they should not furnish security to keep the peace on the 26th and 27th of January 1907, the dates fixed for the issue of the procession. The same day and by the same order he, for reasons stated therein, directed a warrant to issue for the arrest of the plaintiff and the other persons. The warrant contained a direction for the release of the arrested persons on their furnishing sufficient security the amount and description of which was specified in the warrant. On the 25th of January 1907, the plaintiff was arrested by the third defendant but he was not released on bail. He was brought before the Magistrate on the 26th and on the 27th he was set at liberty. His allegation is that there was a conspiracy between the defendants wrongfully to arrest him and that in pursuance of this conspiracy he was falsely imprisoned; that the Kotwal in spite of the order for admitting him to bail deliberately refused to release Kiln,'-and that the Deputy Magistrate subsequently cancelled the order for bail in an illegal manner. For these acts he brought the present suit for compensation.

3. The Court of first instance dismissed the suit and the decree of that Court was affirmed by the lower Appellate Court.

4. The plaintiff comes here in second appeal. The learned Counsel who appears for him has not pressed the appeal as against the third and fourth defendants, namely, the Sub-Inspector and the officiating Superintendent of Police. His contention is that the plaintiff has established his case against the other defendants and that the Courts below were wrong in dismissing his claim.

5. As against the defendant Jamna Das, the only ground of complaint that has been put forward before us is, that he maliciously moved the Magistrate to take action under Section 107 of the Code of Criminal Procedure. The learned District Judge has found, and we see no reason to differ from his conclusion, that Jamna Das had reasonable and probable cause for making the application which he presented on the 23rd of January 1907. The Hindus had held a meeting the previous day which was attended by the plaintiff and others, and in that meeting they passed a resolution to the effect that the issue of a procession should be protested against and the authorities should be approached for the purpose of preventing the carrying out of the procession. He had reasonable grounds to believe that if the procession was taken out there might be a breach of the peace and, therefore, he was fully justified in presenting the application which he did on the 23rd of January 1907. There is, therefore, on the findings of the Court below no case against him. Upon these findings it is clear that there was no conspiracy between him and any other defendant for the purpose of injuring the plaintiff.

6. As regards the first defendant, namely, the: Deputy Magistrate, he took all the proceedings which the law permitted him to do. He recorded, as has been stated above, the proceedings required by Section 112 of the Code of Criminal Procedure and he complied with the requirements of Section 114 of: that Code before he ordered a warrant of arrest to issue. It was within his competency to direct that bail should not be accepted if in his opinion sufficient reasons existed for withdrawing the direction for admission to bail. Under Section 497 he had the power to order a re-arrest even if the plaintiff had been released on bail. He, therefore, clearly acted in his judicial capacity as a Magistrate throughout the proceedings, and is protected by the provisions of Act XVIII of 1850. The case against him has, therefore, been rightly dismissed.

7. There remains the claim against the Kotwal. As to him also the findings of the learned Judge are conclusive. He holds that when the plaintiff was taken to the Kotwali under arrest no bail such as was directed by the warrant of arrest, was tendered. This is a finding of fact which is supported by legal evidence and must be accepted in this appeal. The Kotwal apparently understood the subsequent order of the Magistrate as to receiving bail as authorising him to make further inquiries. The Court below finds that in so believing he acted in good faith. There is, therefore, nothing as against the Kotwal which, upon, the findings of the Court below, would justify the award of damages against him. I would, therefore, dismiss the appeal with costs.

Stanley, C.J.

8. I concur, but I desire to make an observation upon one of the grounds of appeal, namely, the first. That ground of appeal is that 'the lower Courts have failed to properly appreciate the evidence and apply the law to the facts proved and admitted because the appellant's case was against the Officers of Government who had the Local Government behind them, and both the lower Courts were subject to the Government'. This is nothing short of a charge against the learned Judges in the Courts below that, owing to the fact of their being Officers of the Government, they acted partially and not impartially between the parties and improperly applied the law to the facts proved. A ground of appeal such as this is nothing short of an abuse of the process of the Court and cannot be too severely condemned. An opportunity was offered to the learned Counsel for the appellant who was responsible for them, to withdraw them but he did not think fit to do so. It appears to me that an attack of this kind which is devoid of all foundation should not be allowed to pass without our expressing our condemnation of it.

Banerji, J.

9. I wish to add that I fully concur with the learned Chief Justice in considering that there was no justification for the insinuation contained in the first ground of appeal.

10. The order of the Court is that the appeal be dismissed with costs, to be paid to the first four defendants and also a separate set of costs to the fifth defendant. These costs will include fees on the higher scale.


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