1. This is an appeal by the defendants in a suit for malicious prosecution.
2. The plaintiff Umashankar Pathak is an Advocate practising at Panna and a Jansangh leader. Towards the end of December, 1964, the Jansangh had started a sort of agitation on the question of food scarcity in Panna District and in that connection a Jansangh worker Badriprasad(P. W. 9) was on hunger strike in front of the Collectorate, Panna. The building of theCollectorate also accommodates the Court of the Civil Judge. The defendant Girja Prasad is a Sub-Inspector and he was on duty in the Collectorate on January 2, 1965, to control the crowd which had gathered there in support of the agitation. At about. 4-30 p.m. on that date there was an incident in which some revolver shots were fired or accidentally got fired from the revolver of Girja Prasad and one Sunder Singh (P. W. 7) was injured as a result of it. On that very date a first information report (Ex. P-37) Was lodged by Girja Prasad in which it was said that he was assaulted by some persons from the crowd and his watch was santched. It was also said that while he was grappling with the person assaulting him his revolver got fired. It was further stated in the report that the plaintiff Umashankar Pathak was present and was instigating the crowd to beat him. This report was lodged with Jangbali Singh, defendant No. 2, who was the Station House Officer of Kotwali Panna. A case under Sections 147, 114, 332, 286, 307 and 395 of the Indian Penal Code was registered by the police which was investigated by Chandrika Prasad, Circle Inspector Police, defendant No. 4. The plaintiff was arrested on this report on January 5, 1965 and was released on bail on January 8, 1965. A charge-sheet was put up against the plaintiff and other persons under Sections 395, 307, 332, 146, 186 and 114 of the Indian Penal Code on September 7, 1965. The plaintiff was discharged by the Additional District Magistrate (Judicial), Panna, on June 30, 1966.
3. After the order of discharge, the plaintiff commenced the suit giving rise to this appeal for recovery of damages for malicious prosecution against Girja Prasad, Jangbali Singh, Chandrika Prasad and one Shambhoo Prasad Sinha, who was D. P. P. in the Court of Additional District Magistrate (J), Panna. The plaintiff alleged that all the four defendants had a grudge against him who was an important Jansangh leader and had made complaints from time to time against the police officers and had also appeared in many cases against them. It was also alleged that on January 2, 1965, the plaintiff was all along busy in the Court of the Civil Judge, Panna, in Civil Suit No. 36-A of 1963, in which on that date evidence was recorded and at the time when the incident took place he was actually cross-examining witnesses in that suit. It was further stated that at about 4-30 p. m. Sunder Singh, who was injured by revolver shots, and one woman entered the Court room and complained to the Civil Judge on which he adjourned the proceedings and came out and pacified the crowd. The plaintiff pleaded that all the defendants conspired together to falsely implicate him and without any basis whatsoever it was falsely alleged against him in the first information report that he instigated the crowd to beat the police. It wasalso pleaded that the criminal case was instituted against him with malice and without any reasonable and probable cause and the defendants were liable to pay damages for malicious prosecution. The plaintiff claimed a sum of Rs. 9,000/- as general damages and Rs. 1,600/- as special damages.
4. The defendants denied conspiracy, malice and want of reasonable and probable cause. Girja Prasad pleaded that his report was true. Jangbali Singh pleaded that he was merely the Station House Officer to whom the report was made and later the investigation was taken over by the Circle Inspector, defendant Chandrika Prasad. Chandrika Prasad pleaded that there was evidence against the plaintiff and, therefore, as a result of investigation challan was filed against him.
5. The trial Court exonerated Shambhoo Prasad Sinha, D. P. P. and the suit against him was dismissed. The plaintff's case was, however, substantially accepted against the defendants Girja Prasad, Jangbali Singh and Chandrika Prasad, and as a result the suit was decreed against them to the extent of Rs. 3,500/- out of which Rs. 3,000/-are for general damages and Rs. 500/- for special damages. It is against this decree that the defendants have come up in appeal to this Court.
6. It will be convenient to examine first the case against the defendant Girja Prasad. The question that arises in this connection is whether the report made by him implicating the plaintiff was false to his knowledge. The plaintiff examined himself and according to his statement he was throughout busy in the afternoon in the Court of the Civil Judge Shri Verma in Civil Suit No, 36-A of 1963, and he did not instigate the crowd in any manner to beat Girja Prasad or any one. The statement of the plaintiff is trustworthy and is supported by other reliable evidence. Shri R. D. Mishra, who is also a leading Advocate of Panna, Was appearing for the other party in that Civil suit. He was examined as P. W. 2 and he fully supported the plaintiff that the plaintiff was busy in the Court of Shri Verma in that case. The plaintiff's version is also supported by the statement of Shri Verma who was examined on commission. Shri Verma's statement is clear on the point that at about 4-30 p. m. the plaintiff was cross-examining the witnesses and it was at that time that some people entered his Court room complaining that the police had fired and injured them. Finding a commotion, he went outside and the plaintiff accompanied him. Thereafter he tried to pacify the crowd. This evidence is further supported by the evidence of the Court Reader Prabhudayal (P. W. 4). There are other witnesses examined on this point, such as Sunder Singh (P. W. 7), who was one of the persons injured, and Badri Prasad (P. W. 9), who was on hunger strike. They also supported the plaintiff's case, but it is not necessary to men-tion their evidence in detail, for the evidence of the plaintiff supported by the evidence of R. D. Mishra and K. K. Verma fully establishes that the plaintiff at the time when the incident happened and when some persons came to complain that they were injured in police firing was cross-examining the witnesses and was busy in Court. We have no hesitation in accepting the evidence of the plaintiff on this point and in disbelieving Girja Prasad who has examined himself as D. W. 2.
7. The defendants examined certain Witnesses to prove that the plaintiff was pregent at the time when the incident took place and had uttered the words 'Maro Maro'. Rameshwar Prasad (D. W. 5) is one of the witnesses to prove this fact. It is, however, noteworthy that he did not mention this fact in his statement recorded under Section 164, Criminal Procedure Code. He also did not mention it in his deposition taken in the criminal case. Another witness is Jeet Singh (D. W. 6) who also did not mention the fact that the plaintiff was instigating the crowd by saying 'Maro Maro', in his police diary statement; he did not even mention this fact in his statement under Section 164, Criminal Procedure Code or in his deposition recorded in the criminal case. The statements of Rameshwar Prasad (D. W. 5) and Jeet Singh (D. W. 6) as given in the suit that they saw and heard the plaintiff instigating the crowd are entirely false. Two other witnesses, namely, Noorullah (D. W. 7) and Bhola Prasad (D. W. 8), were also examined on this point. Bhola Prasad is a clerk in police office. His statement in examination-in-chief is that the plaintiff said 'go ahead'. He was then declared hostile and Was cross-examined with reference to his statement made in the criminal case where he had stated that the plaintiff said 'Maro Maro'. On the whole, the statement of Bhola Prasad (D. W. 8) is not reliable. Moreover, being employed in police office he is liable to come under the influence of the police officers and to support them. Noorullah (D. W. 7) also appears to be a false witness and his statement does not inspire any confidence. It is remarkable that the other defendant, namely Jangbali Singh, who Was also present in the Collectorate at that time, has not deposed that the plaintiff instigated tbe crowd. Further, two police constables, namely, Ralli and Rabinath, who were deputed to control the crowd, were not examined to prove that the plaintiff instigated the crowd. Indeed, it has come in the evidence of Chandrika Prasad (D. W. 4) that these two constables had not stated to him during investigation that the plaintiff hud instigated the crowd.
8. From the evidence produced it is clear that the allegations against the plaintiff made in tbe report Ex. P-37 lodged by the defendant Girja Prasad were entirely false. Since these allegations were made by Girja Prasad from his personal knowledge, theywere false to his knowledge. Girja Prasad supported this version during investigation and he also said the same thing during the trial of the criminal case.
9. On the finding that the allegations made by Girja Prasad were false to his knowledge, want of reasonable and probable cause is clearly established. It has also to be inferred that the allegations were made with a view to use the machinery of law for an improper purpose which means presence of malice, for malice in law means an intent to use the legal process for a purpose other than its legitimate purpose; See Salmond on the Law of Torts, Fifteenth Edition page 557 and Laxmichand v. Dominion of India, AIR 1955 Nag 265 at p. 267. Further, the part played by Girja Prasad clearly makes him a prosecutor. He not only made the report which was to his knowledge false but gave false evidence during investigation as also during the trial. Although the prosecution was launched by the State and the charge-sheet was filed by Chandrika Prasad, the Circle Inspector, Girja Prasad was actively instrumental in setting the criminal law in motion and is liable for malicious prosecution; See Gaya Prasad v. Bhagat Singh, (1908) ILR 30 All 525 (PC) and Balbhaddar v. Badri Sah, AIR 1926 PC 46.
10. As regards defendants Jangbali Singh and Chandrika Prasad, the plaintiff's case was that they conspired with the defendant Girja Prasad to make a false report and to prosecute the plaintiff. If such a conspiracy is established, all persons joining it will be liable for malicious prosecution; (See Md. Sharif v. Nasir Ali, AIR 1930 All 742). But the evidence produced by the plaintiff falls short of establishing any such conspiracy.
11. So far as direct evidence of conspiracy is concerned, there is solitary evidence of the plaintiff that soon after the incident on January 2, 1965, he beard all the defendants talking in D. P. P's. room that the plaintiff's name should be mentioned in the first information report and that he should be prosecuted. Learned Additional District Judge was not prepared to accept this part of the statement of the plaintiff and we are not inclined to take a different view. At that time a number of police officers find constables were present and it seems rather improbable that the plaintiff heard them planning to fabricate the case against him. It is quite possible that the plaintiff may have received wrong impression from some talk that he heard. In any case, there being no other evidence to support the plaintiff on that point, it will be risky to hold the defendants liable on the ground that all of them conspired to maliciously prosecute the plaintiff. It may also be pointed out that the defendant Chandrika Prasad's presence at that time is open to doubt. In his statement Chandrika Prasad explained that he was not in Panna on January 2, 1965, and had goneon tour in connection with some Gram Panchayat affair with the Sub-Divisional Magistrate and that he returned only in the night. This part of the evidence of Chandrika Pra-sad has been accepted by the learned Additional District Judge. In our opinion, there is no reason to disbelieve Chandrika Prasad on this point.
12. The plaintiff's case that the defendants on January 2, 1965, conspired to institute a false case against him cannot, therefore, be taken to be established.
13. Next it has to be seen whether apart from any conspiracy defendants Jangbali Singh and Chandrika Prasad can be made liable for malicious prosecution.
14. Jangbali Singh was the Station House Officer of Kotwali Panna. The investigation of the case was entrusted to Chandrika Prasad on the orders of the Deputy Inspector General of Police, but Jangbali Singh continued to assist Chandrika Prasad during investigation. According to his evidence he was not present at the time of the incident in the Collectorate but came to that place soon after the incident and a written first information report was handed over to him by Girja Prasad. The plaintiff's allegation was that the first information report was actually drafted in consultation with Jangbali Singh, There is, however, no evidence to support this allegation. Jangbali Singh in the course of investigation, as stated by Chandrika Prasad, suggested the names of the prosecution witnesses that were examined. However, from this alone it cannot be held that Jangbali Singh tutored the prosecution witnesses or that he influenced Chandrika Prasad in instituting the case against the plaintiff. It is true that witnesses who stated during investigation or in the Court that the plaintiff instigated the crowd to beat the police gave false evidence. But it is quite likely that these witnesses may have been influenced by defendant Girja Prasad and not by the other defendants. In our opinion, the plaintiff was neither directly nor indirectly prosecuted by Jangbali Singh. In his evidence Jangbali Singh did not implicate the plaintiff. Having regard to all these considerations, in our opinion, the plaintiff has failed to make out any case against Jangbali Singh.
15. Coming to the case of Chandrika Prasad, it has to be noticed that he was the Investigating Officer and it was he who filed the charge-sheet against the plaintiff. The copy of the charge-sheet is Ex. P-38. Chandrika Prasad was, therefore, clearly a prosecutor. But the question that arises in his case is whether he filed the charge-sheet against the plaintiff with malice and without any reasonable and probable cause.
16. On the question of malice the plaintiff has led evidence that the police officers of Panna were generally annoyed with him because he often criticised them in his speeches and had appeared as Advocate insome cases against them. But there is no definite evidence that the plaintiff had criticised Chandrika Prasad in any of his speeches or that he had in any other manner made a complaint against Chandrika Prasad. It is true that he had appeared in some cases against the police officers and had also generally criticised the police of the District. But from this alone it cannot be inferred that Chandrika Prasad who was then a Circle Inspector and to whom the investigation was especially entrusted on orders of the Deputy Inspector General of Police, would maliciously prosecute the plaintiff. On the evidence produced, we are not prepared to hold that the plaintiff has been able to establish malice against the appellant Chandrika Prasad.
17. The plaintiff has also failed to establish that there was absence of reasonable and probable cause for Chandrika Prasad to prosecute him.
18. Reasonable and probable cause with reference to the duty of an Investigating Officer who files a charge-sheet for prosecution of a person as a result of his investigation means whether the investigation showed existence of facts from which it could be said that there was a case proper to be laid before the Court. It is true that he has a certain measure of discretion and can reject palpably false evidence, but when the evidence of commission of offence is from apparently credible source, it is not his duty to scrutinize the same like a Court to find whether the accused is really guilty. His only duty is to find out honestly whether there is reasonable and probable cause to bring the accused to a fair trial. Reference in this connection may be made to Glinski V. Mclver, 1962-1 All ER 696 at p. 710 where Lord Denning observed as follows:--
'In truth he (a man who brings a prosecution) be he a police officer or a private individual has only to be satisfied that there is a proper case to lay before the Court, or in the words of Lord Mansfield, that there is a probable cause 'to bring the accused to a fair and impartial trial' see Johnstone v. Sutton, (1786) 1 Term Rep 510 at p. 547. After all, he cannot judge whether the witnesses are telling the truth. He cannot know what defences the accused may set up. Guilt or innocence is for the tribunal and not for him. Test it this way: Suppose he seeks legal advice before laying the charge. His counsel can only advise him whether the evidence is sufficient to justify a prosecution. He cannot pronounce on guilt or innocence. Nevertheless the advice of counsel, if honestly sought and honestly acted on, affords a good protection: see Ravenga v. Mackintosh, (1824) 2 B & C 693 at p. 697 by Bayley, J. So also with a police officer. He is concerned to bring to trial every man who should be put on trial, but he is not concerned to convict him. He is no more concerned to convict a man than is counsel for the prosecution. He can leave that to the jury. It is for them to believe in his guilt, not for thepolice officer. Were it otherwise, it would mean that every acquittal would be a rebuff to the police officer. It would be a black mark against him, and a hindrance to promotion. So much so that he might be tempted to 'improve' the evidence so as to secure a conviction. No, the truth is that a police officer is only concerned to see that there is a case proper to be laid before the Court.'
19. Even if evidence favourable to the accused from apparently credible source comes to the knowledge of the Investigating Officer, he may yet decide to prosecute if information from other apparently credible source points to the guilt of the accused. His duty is not to resolve a conflict of evidence gathered from different sources which are all prima facie reliable and this duty is laid on the Court. In fairness the Investigating Officer should inform the accused of any evidence favourable to him so as to enable him if he so chooses to use it in his defence. But the fact that the investigating Officer had in his possession conflicting evidence as to the guilt of the accused cannot lead to the inference that there was absence of reasonable and probable cause for the prosecution or that he did not honestly believe that the case was fit to be laid before the Court. On this aspect Diplock, L. J., in Dallison v. Caffery, (1965) 1 QB 348 at pp. 375, 376 said:
'His (a prosecutor's) duty is to prosecute, not to defend. It he happens to have information from a credible witness which is inconsistent with the guilt of the accused, or, although not inconsistent with his guilt, is helpful to the accused, the prosecutor should make such witness available to the defence. See Rex v. Bryant and Dixon, (1946) 31 Cr App. R. 146. But it is not the prosecutor's duty to resolve a conflict of evidence from apparently credible sources that is the function of the jury at the trial. The prosecutor's knowledge that there is such a conflict does not of itself constitute lack of reasonable and probable cause for the prosecution, nor is it inconsistent with the prosecutor's honest belief that there is a case against the accused fit to go to a jury.'
20. Tested on these principles, it is difficult to hold that there was no reasonable and probable cause for Chandrika Prasad to file the charge-sheet against the plaintiff. The report against the plaintiff was made by a Sub-Inspector of Police who is not expected to make a false report and this source of information was apparently credible. Chandrika Prasad in his evidence stated that the allegations made by Girja Prasad were supported by Rameshwar Prasad (D. W. 5); Jeet Singh (D.W. 6), Noorullah (D. W. 7), Bhola Prasad (D. W. 8), Jeewanlal and Balkrishna. He made this statement after referring to the case diary. The copies of the statements of these witnesses recorded by him during investigation must have been supplied to the plaintiff during the trial of the criminal case, but those statements havenot been filed in the suit. It must be, therefore, inferred that the statement of Chandrika Prasad that in addition to Girja Prasad the aforesaid persons supported the story that the plaintiff instigated the crowd is correct. It is true that the statements of Girja Prasad and other witnesses to that effect were false, but having regard to the duty of an Investigating Officer, these statements constituted reasonable and probable cause for filing the charge-sheet against the plaintiff.
21. It was contended that Chandrika Prasad acted recklessly and did not make a complete inquiry. It was also contended that Chandrika Prasad was informed by the plaintiff after his arrest that he was innocent and that at the relevant time he was present in the Court of Shri Verma, therefore, Chandrika Prasad should have examined Shri Verma in the course of his investigation and should not have decided to prosecute the plaintiff. The information supplied by the plaintiff and that which would have been supplied by Shri Verma was no doubt in conflict with the evidence of Girja Prasad and other witnesses. But as already stated the duty of a police officer investigating an offence is not to resolve a conflict of evidence which is gathered from prima facie reliable sources. We have also said that the information about the commission of the offence by the plaintiff was from apparently credible source, for Girja Prasad, a Sub-Inspector of Police, was not expected to give false information. Moreover, his information was supported by the evidence of other eye witnesses. In the circumstances, Chandrika Prasad's decision to prosecute the plaintiff cannot be held to suffer from want of reasonable and probable cause even if it is held that he was in possession of information showing that the plaintiff was not guilty. Omission to examine shri Verma during investigation may well have been from the normal hitch which a police officer has in approaching a judicial officer outside his Court. Shri Verma was not only a Civil Judge but also Additional District Magistrate (Judicial). The intention of Chandrika Prasad was not to keep back the case from Shri Verma as is clear from the fact that the plaintiff and other accused after arrest were produced before him for remand. In our opinion, it is not possible to infer bad faith or absence of reasonable and probable cause from the omission to examine Shri Verma during investigation.
22. As regards the quantum of damages, there is no ground whatsoever for interference. The plaintiff apart from being an important Jansangh leader of his district is also a leading Advocate in the district. He was arrested on January 5, 1965 and was released on January 8, 1965. There were many hearings in the criminal case. Having regard to all these factors, the award of Rs. 3,000/- as general damages and Rupees 500/- as special damages can in no sense be said to be excessive.
23. In the result, the appeal, in so far as the appellants Jangbali Singh and Chandrika Prasad are concerned, is allowed and the decree of the trial Court is set aside and the suit is dismissed against them. These appellants shall bear their own costs throughout. Girja Prasad's appeal is dismissed with costs and the decree passed against him is confirmed.