1. This is an appeal by the unsuccessful plaintiffs against the decree, dated 30-6-1967, passed by the Third Addl. District Judge, Jabalpur, in Civil Suit No. 11-B of 1966, dismissing the appellants' claim for damages for wrongful arrest and for false and malicious prosecution in a criminal case.
2. In the year 1962 there was a confluence of eight planets, described as 'Ashtagrahi', which was said to be an evil omen for the entire world and according to the belief of some persons, the world was to come to an end. Various people performed Pujas and Yagnas for avoiding the evil consequences. In connection with that, Baba Thanthanpal was touring some areas. People in many villages had requested him to visit their village. The villagers of Katangi village had arranged a function in that behalf and a pamphlet (Ex. P/6) had been issued by the first respondent, who was the Station House Officer at the relevant time as also by other prominent villagers. From Katangi Baba Thanthanpal was expected to proceed to other areas and the unfortunate incident took place near the Rest House of village Hiran, which is located on the road towards Jabalpur side. The procession of Baba Thanthanpal when it reached the Rest House of village Hiran was stopped for having Darshan of the Baba. It appears that there might have been a scuffle between the appellants and the first respondent and his constable Phulsingh. In that incident the appellants received injuries, as deposed to by Dr. P.N. Sinhal (P.W. 10). According to the said doctor, the first appellant Jhamsingh had the following injuries:--
1--Contusion, 14' x 1', on the outer side of the left eyebrow;
2--Ecchymosis, 1 1/2' x 1/2', on the outer side and upper part of left arm:
3--Ecchymosis. 2 1/2' x 1/2', on the upper part of the left back:
4--Ecchymosis. 2' x 1/2', on the left back, over the lower and inner part of the shoulder blade:
5--Ecchymosis, 24' x 4', on the upper and outer part of right back;
6--Ecchymosis, 24' x 1/2', on the upper and outer part of right back below injury No. 5;
7--Diffused contusion, 3' x 3', on the outer side and upper part of the right arm;
8--Curved semi-circular abrasion, 24' x i' on the back of left wrist;
9--Abrasion 3/4' x 1/2', on the left cheek outside the angle of the mouth;
3. The first respondent also had received injuries as per the injury report. Ex. D/3, made by Dr. S.D. Uplapwar (D.W. 3). It is to be noted that one of the injuries was an incised one and was on the forehead.
4. Similarly, as per the injury report, Ex. P/4, made by Dr. S. D. Uplapwar (D.W. 3), the constable Phulsingh had the following injuries:--
1--Incised wound 2' x i', x bone deep on the head in front.
2--Contusion, 3' x 4', on the back, right side.
3--Contusion, 34' x 4', on the right shoulder-joint in front.
4--Contusion, 2' x 4', between the right side of the neck and right shoulder-joint;
It is to be noted that one of the injuries was as incised wound and was on the head in the front.
5. On account of that incident, the appellants and four others were prosecuted for the alleged offences of an attempt to commit murder under Section 307 read with Section 149, IPC and causing grievous hurt to a public servant in the discharge of his duties under Section 333 read with Section 149 I.P.C. in Sessions Trial No. 67 of 1962 & by judgment, dated 12-12-1962 (Ex. P/7), they were acquitted by the trial Judge. The State filed an appeal against their acquittal, which was registered as Criminal Appeal No. 144 of 1963. A Division Bench of this Court, by order dated 9-4-1963 (Ex. P/8), dismissed the appeal summarily without notice to the other side. Thus, the appellants and others were acquitted in the criminal trial. Thereafter the appellants filed the pre-cent suit claiming damages to the extentof Rs. 15,000/- for the wrongful arrest and for false and malicious prosecution initiated at the instance of the first respondent. According to the appellants the first respondent was not functioning in his official capacity as a police officer, but was merely accompanying the procession of Baba Thanthanpal in his capacity as a private citizen. They alleged that they had been wrongfully arrested by the first respondent and were prosecuted in the said criminal case and that ultimately it resulted in their acquittal. Hence they claimed damages for the wrongful arrest and for the false and malicious prosecution.
6. The respondents, on the other hand, contended that the first respondent was acting in his official capacity as a police officer for maintaining law and order in the procession of Baba Thanthanpal. They alleged that there was a reasonable and probable cause for launching the prosecution, which could not be said to be utterly baseless. According to them, the prosecution may have resulted in acquittal, but all the same, the incident was real. They also pleaded the bar of Section 42 of the Police Act and also contended that Article 300 of the Constitution would not make the State liable for the acts of the first respondent.
7. The learned Judge of the trial Court found it as a fact that the prosecution had been initiated on the report of the first respondent, dated 6-2-1962. In that view, the first respondent was held to be the prosecutor. It was also found that although the appellants may have been acquitted, yet the prosecution was neither false nor malicious, and there was reasonable or probable cause for launching the prosecution. It was further found that the first respondent was acting in his capacity as a public servant and that the State was not vicariously liable for the acts of its employee. It was held that Section 42 of the Police Act was not applicable and the suit could not be said to be barred by time. It was, however, held that the damages, if at all, would be Rs. 560/- and nothing more. But in view of the fact that the prosecution was held to be for a reasonable and probable cause, the suit was dismissed in its entirety holding that the defendants were not at all liable for any damages, whatsoever.
8. In the present appeal it was not disputed by the learned Government Advocate that the first respondent had lodged a report, dated 6-2-1962, on the basis of which further action was taken by the Station House Officer, who was another person incharge of the police station. As such, it was urged on behalf of the respondents that although the first respondent may have been the prosecutor,the alleged wrongful arrest, if any, could not be said to have been made by the first respondent. But the appellants were arrested by the Station House Officer of the police station where the first respondent had lodged a report for taking action. It was also contended that there was reasonable or probable cause for launching the prosecution, which could not be said to be utterly baseless. Emphasis was laid by the learned Government Advocate on this aspect of the case.
9. The appellants had filed the present suit by serving the notices, Exs. P/9 and P/10, dated 1-7-1963, as required by Section 80, C. P. C. It is the appellants' case that they were wrongfully arrested by the first respondent. Damages have been claimed for the wrongful arrest as also for false and malicious prosecution. We propose to deal with the case relating to damages for false and malicious prosecution. But there can be no doubt that the first respondent could not be said to be responsible for any arrest said to be wrongful. The first respondent had merely lodged the report dated 6-2-1962 at the police station. It is true that he had taken the appellants in his jeep car to the police station. But any further action about arrest of the appellants cannot be attributable to the first respondent. The utmost that might be said against the first respondent would be that he was responsible for launching the prosecution and his liability for damages will be there if it is found that the prosecution was false and malicious. This would dispose of the appellants' claim for damages for wrongful arrest. We may further observe that the first respondent, although he took the appellants in his jeep car to the police station, had not arrested the appellants as such. We shall refer to the evidence in that behalf later.
10. Further, there can be no doubt that the incident that took place near the Rest House of Hiran village, not only the first appellant, but also the first respondent and constable Phulsingh received injuries. The injuries to the first appellant were all contusions or abrasions; while two injuries to the respondent No. 1 and the constable Phulsingh were incised injuries, necessarily caused by a sharp-edged weapon. In view of this established fact we have to proceed to see if the prosecution of the appellants in a Sessions trial was without a reasonable or probable cause.
11. We may in short refer to the evidence on record, which would only establish certain facts. Jhamsingh (PW 1) stated about the Incident in general. But, in our opinion, it is necessary to examine his version with reference tothe actual incident which took place, which alone, in our opinion, will decide the question of there being a reasonable or probable cause or otherwise. According to this witness, the respondent got down from the truck in which Baba Thanthanpal was travelling and near the Rest House at village Hiran, he asked the Chowkidar Bhagelu as to why he had collected a crowd. The witness stated that the respondent struck a cane blow on the Chowkidar Bhagelu. The witness asked the respondent as to why he was beating the Chowkidar and told him (sic) that all had collected for the Darshan of Baba Thanthanpal. Thereupon the respondent beat the witness with his cane. He dealt about 15 or 20 cane blows. The witness protested that he was being beaten without any reason and that he will report the matter to the higher authorities. Thereupon the respondent ordered his subordinates to take the witness to the police station. The witness was forcibly taken into the jeep-car and from there to the Katangi police station and was locked up there. We may observe that this is clearly a one-sided version given by the witness. He has clearly suppressed the fact as to in what manner the injuries were caused to the respondent and the constable Phulsingh. This witness undoubtedly had received some injuries. Even if his version were to be accepted that the respondent gave him cane blows, the appellants could, at the most, hold the respondent liable for damages for wrongful assault. But that is not the appellant's claim in the present suit. His claim is for damages for false and malicious prosecution.
Thus, if the incident actually took place in which not only this witness, but the respondent No. 1 and the constable Phulsingh received injuries, the prosecution of the appellants in a Sessions trial cannot be said to be without a reasonable or probable cause. This is the utmost that the appellants have proved in their evidence. In cross-examination the witness had to admit that the respondent and constable Phulsingh had received some injuries in the incident. But he asserted that he had not beaten the respondent or the constable. Similar is the version of Gavaprasad (PW. 5), Dalsingh (P. W. 11) and Hemchand contractor (P.W. 12). This Dalsingh is appellant No. 2 in the present appeal. Thus, even If the testimony of the said witnesses be believed, the utmost that might be said in favour of the appellants would be that the respondent and his constable caused injuries to the first appellant and nothing more. But the appellants not having claimed any damages for any wrongful assualt that claim of theirs cannot evidently be considered in the present appeal. But even from the testimony of the saidwitnesses it is clear that not only the first appellant, but also the first respondent and constable Phulsingh received injuries in that incident.
Thus, the respondents had a justifiable cause for prosecuting the appellants in a criminal trial and the prosecution cannot be said to have been launched without a reasonable or probable cause. We may further note that the judgment of this Court, Ex. P/8, discloses that the prosecution witnesses were disbelieved mainly on the ground that they failed to explain the injuries on the first appellant, Jhamsingh and that was the reason why the appellants were acquitted in the Sessions trial. But even that judgment will not imply that the prosecution was without a reasonable or probable cause.
12. Further, we may observe that the respondents have fully established the fact that injuries were caused to the first respondent and to constable Phulsingh in the incident that took place near the Hiran Rest House. As such the first respondent had a justifiable grievance in prosecuting the present appellants. It may be that the appellants may have been acquitted, but the acquittal itself will not imply the absence of a reasonable or probable cause.
13. In Sitaram v. Dudharam, AIR 1952 Nag 310 a Single Bench of this Court had taken the view that in some types of cases the production by the plaintiff of a judgment of a criminal Court discharging or acquitting the accused would dispense with the necessity of proving the want of a reasonable or probable cause for the prosecution. The point was referred to a Division Bench in Mohanlal v. Lachman Singh, 1960 Jab LJ 509 = (AIR 1960 Madh Pra 397) wherein A.H. Khan, J. answered the reference in the negative and held that that would not dispense with the necessity of the prosecution proving the absence of a reasonable or probable cause. Shiv Dayal, J. agreed with the view of A. H. Khan, J. Thus, the statement of law made by the learned Single Judge in AIR 1952 Nag 310 (supra) would stand overruled by the pronouncement of a Division Bench of this Court and it will be for the prosecution to prove in every case the absence of a reasonable or probable cause.
14. In this connection we might advert to the pronouncement of Division Bench of this Court in Rishabhkumar Seth v. K.C. Sharma, 1961 MPLJ 436 = (AIR 1961 Madh Pra 329) wherein the learned Judges made the following observation:--
'Now the question of reasonable and probable cause depends on the facts as known to the defendant who initiated the prosecution and when the facts upon which the prosecutor acted have beenascertained and when the facts operating on the prosecutor's mind at the time of the prosecution are known, then Court has to determine whether those facts afforded reasonable and probable cause for prosecuting the accused. If these facts did afford reasonable and probable cause, then the prosecution would be justified and it would not as a rule be necessary for an inquiry to be made into the prosecutor's belief. The state of belief of the prosecutor goes to malice, but not as a rule to reasonable and probable cause. This view is supported by the observations of Lord Goddard, C.J. in Tims v. John Lewis and Co. Ltd., 1951-1 All ER 814 and Denning L. J. in Tempest v. Snowden, (1952) 1 All ER 1. In the first case Lord Goddard, C.J. pointed out that the question whether there was reasonable or probable cause is not to be determined subjectively, but that is a question which objectively the Court has to decide on the evidence before it. In the other case Denning, L.J. said that the question of reasonable and probable cause had to be determined on the facts as known to the prosecutor and that the prosecution that to have a reasonable and probable cause there must be an honest belief of the guilt of the accused, cannot be regarded as a universal proposition applicable to all cases. The question, therefore, whether on certain facts found the inference about the want of reasonable and probable cause can be drawn is, according to the principles summarised in Sree Meenakshi Mills Ltd. v. Commr. of Income-tax, AIR 1957 SC 49 a mixed question of law and fact. It is on these principles that the question where the prosecution launched by the respondents was without reasonable and probable cause has to be determined.'
15. Thus, the test is to ascertain whether the defendant had in fact or could have a reasonable or probable cause for launching the prosecution. Applying these tests, there can be no doubt that the first respondent had a reasonable and probable cause for launching report against the appellants for the offences alleged in the Sessions trial and the prosecution cannot be said to have been so baseless as to make the first respondent or the State liable for damages.
16. We may observe that the bar of Section 42 of the Police Act pleaded by the respondents would not be available to the first respondent, as was rightly held by the learned trial Judge. It is to be remembered that although the first respondent may have been in uniform and he might have been on duty, vet it would be none of the business of the first respondent to exceed his powers as a police officer and anything done in excess ofsuch powers would not be protected by the provisions of the Police Act, as laid down by their Lordships of the Supreme Court in The State of Andhra Pradesh v. N. Venugopal, AIR 1964 SC 33.
17. In view of this finding recorded by us, it is not necessary to consider the other question whether the State could be vicariously liable for the action of the first respondent. In State of Rajasthan v. Mst. Vidhyawati, AIR 1962 SC 933 their Lordships laid down that an act done by the Government servant in the course of employment, but not in connection with the sovereign powers of a State if wrongful, will make the State liable for damages. In that case a driver of a jeep, owned and maintained by the State of Rajasthan for the official use of the Collector of a district, drove it rashly and negligently while bringing it back from the workshop after repairs. On the way he knocked down a pedestrian and fatally injured him. The driver was held liable for damages and the State also was held liable vicariously for the action of its employee. However, that principle will not be attracted in the instant case, as we have already found that the prosecution initiated by the first respondent could not be said to be without a reasonable or probable cause.
18. The case of Kasturi Lal v. State of U.P., AIR 1965 SC 1039 was a case where their Lordships of the Supreme Court laid down that there would be a material distinction between acts committed by the servants employed by the State where such acts are referable to the exercise of sovereign powers delegated to public servants, and acts committed by public servants which are not referable to the delegation of any sovereign powers. If a tortuous act is committed by a public servant and it gives rise to a claim for damages, the question to ask is: was the tortuous act committed by the public servant in discharge of statutory functions which are referable to, and ultimately based on the delegation of the sovereign powers of the State to such public servant? If the answer is in the affirmative, the action for damages for loss caused by such tortuous act will not lie. On the other hand, if the tortuous act has been committed by a public servant in discharge of duties assigned to him not by virtue of the delegation of any sovereign power an action for damages would lie and not only he but the State also will be liable for damages in its capacity as an employer. Therefore, the test would always be to ascertain as to in what capacity the public servant has acted and what is the nature of the duty to be performed by him and whether the action falls within the duty in exercise of sovereign powers delegated to him by the State In that event only, the State can avoid any vicarious liability for the tort committed by its servant, otherwise the State will be liable for the acts of its employees, which amount to a tort and which are not in the exercise of sovereign powers and which are in excess of the powers conferred on such public servant.
19. In this connection we may further advert to the pronouncement of their Lordships of the Supreme Court in Anowar Hussain v. Ajoy Kumar Mukherjee, AIR 1965 SC 1651 wherein their Lordships made the following observations with reference to Section 1 of the Judicial Officers' Protection Act, 1850:--
'The statute, it must be noticed, protects a Judicial Officer only when he is acting in his Judicial capacity and not in any other capacity. But within the limits of its operation it grants large protection to Judges and Magistrates acting in the discharge of their judicial duties. If the act done or ordered to be done in the discharge of judicial duties is within his jurisdiction, the protection, is absolute and no enquiry will be entertained whether the act done or ordered was erroneously, irregularly or even illegally, or was done or ordered without believing in good faith, that he had jurisdiction to do or order the act complained of. If the act done or ordered is not within the limits of his jurisdiction, the Judicial Officer acting in the discharge of his judicial duties is still protected, if at the time of doing or ordering the act complained of he in good faith believed himself to have jurisdiction to do or order the act. The expression 'jurisdiction' does not mean the power to do or order the act impugned, but generally the authority of the judicial officer to act in the matter. Teyen v. Ramlal, (1890) ILR 12 All 115.'
In that particular case it was found that the appellant held two capacities, one judicial and the other executive. He was not only a Magistrate, but also a Sub-Divisional Officer. His defence was that he had acted according to the order of his superior officer, namely, the Deputy Commissioner in the matter of arresting the respondents. Therefore, he claimed the protection. Their Lordships, however, found that his action was in an executive capacity and, therefore, he could not seek protection of the Judicial Officers' Protection Act, 1850.
20. In Prabhakar v. Sinari, AIR 1969 SC 686 their Lordships had to consider whether Section 197, Cr. P. C. was attracted in respect of the action of a Deputy Superintendent of Police in a case where certain hawkers threatened encroachment of the complainant's land. The owner of the land had made a com-plaint to the police. The Deputy Superintendent of Police appeared there in civilian dress and threatened the complainant that he would arrest him if he interfered with the hawkers. He also asked the hawkers to enter upon the land. Thereupon the complainant protested but the Deputy Superintendent of Police warned him that he would be slapped. The complainant filed a complaint against the Deputy Superintendent of Police on various charges. Their Lordships laid down that the Deputy Superintendent of Police was not acting in his official capacity and as such, no sanction under Section 197, Cr.P.C. was necessary.
21. However, these two cases do not decide the question of vicarious liability of the State.
22. The instant question came up for consideration before a Full Bench of this Court in State of Madhya Pradesh v. Devilal. 1970 MPLJ 145 = (AIR 1970 Madh Pra 179) (FB) wherein discussing the case law on the point, the Full Bench laid down the following propositions:--
(1)--Where a tortuous act is committed by a public servant in discharge of his statutory functions, which are referable to, and ultimately based on the delegation of the sovereign powers of the State to such public servant, an action for damages for loss caused by such tortuous act will not lie.
(2)--If a tortuous act has been committed by a public servant in discharge of duties assigned to him, not by virtue of delegation of any sovereign power an action for damages will lie.
(3)--Where, due to negligent driving of a vehicle owned by the State, a claim for damages is made, the State is not immune because the use of the vehicle is not in exercise of any sovereign function.
(4)--Where the State has engaged itself in activities like industry, public transport or State trading and exercises powers as employers in public sector, the State is not immune from the consequences of tortuous acts of its employees committed in the course of their employment as such.
(5)--Where the relationship of bailor and bailee between the plaintiff and the State comes into being and the question of tortuous liability does not arise, the first two propositions will not apply and the State will be liable, if its liability under the ordinary law of bailment is made out.
(6)--The relationship of bailor and bailee may come into existence, even when there is no express contract between the plaintiff on the one hand and the State or its servant in the discharge of his official function, on the other. The Full Bench laid down that the order to seize the wood was passed by a revenue authority in exercise of his statutory powers and the seizure of the wood was by a competent authority in exercise of his statutory functions, and the seized wood was entrusted to the Supratdar, which also was an act done in exercise of statutory functions. In view of these facts, the Full Bench allowed the appeal and dismissed the suit of the respondents.
23. However, in the present case in view of the fact that we have found that the first respondent had a reasonable cause for launching the prosecution against the appellants, the question of vicarious liability of the second respondent, namely, the State, does not at all arise, as the first respondent himself is not liable for any tortuous act said to have been committed by him in the matter of prosecuting the appellants without a reasonable or probable cause. In this view of the matter the suit was rightly dismissed by the learned Judge of the trial Court.
24. As regards the other finding recorded by the trial Judge, we would agree with him that the first respondent was the prosecutor, as he had initiated the proceedings by lodging a report at the police station in respect of a cognizable offence. It is also true that the appellants were acquitted, but the prosecution cannot be said to be false, nor without a reasonable or probable cause. Further, we affirm the finding that the first respondent was acting in his capacity as a public servant despite the fact that he may have been one of the conveners of the procession. Indisputably, the procession was passing through the area within his jurisdiction and at the relevant time, the first respondent was not only in his uniform, but also incharge of maintaining the law and order in the procession. As such, the first respondent was acting within his powers as a police officer. However, that would not protect him if he exceeded those powers. As regards the damages, we may affirm the finding looking to the status of the appellants and the material on record, especially with reference to the agricultural property owned by them as per the Kistabandi Khatauni, Exs. P/1 to P/5, and looking to the nature of the injury said to have been suffered by the appellants, the quantum of damages would not exceed Rs. 560/-, as found by the trial Judge. But in the view that we have taken, the decree passed by the trial Judge is not liable to be interfered with. We may observe that the entire suit was misconceived by the appellants inasmuch as if they received a beating, they also might have given a beating to the first respondent and constable Phulsingh. At any rate, the prosecution cannot be said to be without a reasonable or a probable cause.
25. Consequently this appeal fails and is accordingly dismissed with costs. Counsel's fee in this Court shall be according to the schedule or certificate, whichever be less. The costs awarded to the respondents shall be divided half and half between the first respondent and the second respondent. The costs of the trial Court shall be borne as directed by that Court.