S.K. Ray, J.
1. Plaintiff in a suit for malicious prosecution is the appellant. The sole defendant in the suit is his father.
2. Plaintiff claimed damages pf Rs. 10,000/- for 'much mental agony and pain due to false accusation by the defendant resulting in loss of education of the plaintiff who was then reading at Cut-tack', and a sum of Rs. 250/- towards special damages as described in Sch. A that is to say Rs. 150/- the sum paid to the lawyer in defending himself in the alleged false prosecution. Rs. 50/- towards miscellaneous expenses and another sum of Rs. 50/- towards expenses in attending Court. His averments in the plaint leading to his aforesaid claim may be stated briefly-
The defendant made false allegations before the police, Mahulpali Police Station in the month of April and June, 1962 that the plaintiff and his elder brother were creating disturbance by quarrelling with him threatening him to take possession of his properties by driving him out from the house, and further threatening him to take away his life', pursuant to these false allegations the officer-in-charge of Mahulpali police station sent a report to the S. D. O. whereupon a proceeding under Section 107, Criminal P C. was initiated against him, which was registered as Misc. Case No. 42 of 1962. The defendant took active Dart in this proceeding in prosecuting the plaintiff by engaging a lawyer and tendering perjured evidence and played the role of the real prosecutor. The plaintiff however was ultimately discharged, but prior to its initiation the relationship between the plaintiff and the defendant had been embittered due to the former squandering away the joint family Properties and making a demand for partition of the same. The plaintiff further avers that the defendant's accusation against him was without reasonable and probable cause and was actuated by malice.
3. The defence was that since 1960 the two sons of the defendant were constantly demanding money from him and as he failed to comply with the said demand a strained feeling developed between him and his sons. At times he was forced to alienate-some of the joint family properties to meet the educational expenses of the plaintiff, and even then his sons were objecting to such transfers. The plaintiffs' feeling towards the defendant was so much embittered that he had no compunction in Dublicly declaring the defendant to be insane and sticking public notices to that effect in the village and also publishing that fact in Ganatantra daily newspaper. The plaintiff indulged in various acts of goondaism in the house of which mention has been made of an act of breaking open the lock of the house in the absence of the defendant on 13-6-1962 and 16-6-1962. The defendant who was 62 years of age at the time was so harassed that the villagers took notice of it and reported to the police regarding thedefendants' piteous condition. In the circumstances, even though the defendant lodged information of these high handed actions of the plaintiff to the police, he could not be held to be a prosecutor. He therefore, prayed for dismissal of the suit.
4. The trial Court held that the defendant was the real prosecutor in the 107 proceeding in which the plaintiff was ultimately discharged, and that the defendant had reasonable and probable cause in prosecuting the plaintiff in the 107 proceeding, but he cannot be held to be so doing with a malicious intent. On these findings he dismissed the suit.
5. Mr. Sinha the learned counsel for the appellant contends with reference to the evidence on record that the defendant was the real prosecutor and that he prosecuted the plaintiff without reasonable and probable cause and out of malice, and that the prosecution terminated in favour of the plaintiff.
The law is well settled that in an action for malicious prosecution the plaintiff is to prove (a) that he was prosecuted by the defendant of a criminal charge: (b) that the proceeding complained of terminated in his favour; (c) that the defendant instituted or carried on such prosecution maliciously, or in other words the prosecution was instituted and carried on with a malicious intention; (d) that there was absence of reasonable and probable cause for such proceeding and (e) that the plaintiff has suffered damage. All these aforesaid allegations must co-exist before a defendant can be held to be liable for malicious prosecution. This means, in other words, that absence of reasonable and probable cause allows every person to employ its process for the purpose of asserting his right without subjecting him to any liability other than the liability to pay costs of the proceeding, if unsuccessful.
It therefore, fallows that merely setting the law in motion by making an appeal to some person clothed with judicial authority in regard to any matter, or mere giving information to the police which induces the latter to launch an investigation, would not constitute prosecution. Instigating a prosecution by the police or taking further active part in the plaintiff's prosecution after laying the information before the police would amount to prosecution. (vide the case of Radhu Naik v. Dhadi Sahu. AIR 1953 Ori 56, and the case of Dhaniishaw Rattanji Karani v. Bombay Municipality, AIR 1945 Bom 320).
Another principle which is well established is that though the proof of absence of reasonable and probable cause is a proof of a negative fact, nevertheless the initial onus is on the plaintiff to establish the same. It however would need only a slight evidence to discharge this onus. The mere innocence of the plaintiff is also not prima facie proof of absence of reasonable and probable cause. Absence of reasonable and probable cause cannot be inferred from the most express malice, because if there are reasonable grounds for the proceedings no impropriety of motive on the part of the person instituting those proceedings can itself be a ground of liability. Malice or malicious intention refers to the state of mind of the defendant at the time of initiation of the criminal proceeding. The plaintiff has to prove the existence of proof of factum of want of reasonable and probable cause, though in the circumstances of a particular case, which is of rare occurrence, one may be inferred from the other. Malice is not merely the doing of a wrongful act intentionally, but it must be established that the defendant was actuated by malice and animus that is to say by spite or ill will or by any indirect or improper motive.
In other words, the plaintiff has to prove that the defendant had not acted in good faith. These principles appear to flow from decided cases relating to malicious prosecution cited at the bar by the learned counsel for both sides. The evidence is now to be analysed to see if the plaintiff has been successful to discharge the onus which lies heavily on him according to the aforesaid principles.
6. The defendant was an old man of 62 years when his family troubles started between him and his two sons, the plaintiff and his brother, and also between his two sons inter se making the domestic atmosphere surcharged with tension. The alleged malicious prosecution is said to have been initiated by lodging of a station diary entry by the defendant on 26-6-1962 (Exhibit IV Long prior to that on 23-5-1962 the plaintiff lodged information against his brother Basudev. This letter of the plaintiff discloses that his relationship with his brother was very bitter and there was every likelihood of blood shed. The plaintiff requested the officer-in-charge of Mahulpali Police Station to take appropriate steps for safeguarding his life and property.
This document further refers to an earlier station diary entry dated 14-3-1962. On 25-5-1962 the plaintiff sent a report to the police making some complaint against the manner of proclamation in the mutation case instituted by his father, the defendant. This shows that there was a mutation proceeding in which the plaintiff and the defendant were fighting each other, though the maincomplaint of the plaintiff was against the manner of proclamation in the mutation case. On 19-6-1962 the second son of defendant, Basudev, lodged an information at Mahulpali Police Station making various allegations against the plaintiff regarding breaking of the house, damage to the cowshed, removing articles during his absence, assaulting cows and children and similar other allegations.
In the aforesaid background the defendant lodged a station diary entry on 26-6-1962 (Exhibit 1) in which the following allegations were made. Four months previously when he sold some of his lands to raise money for his domestic purpose, the plaintiff objected and abstructed the vendees to cultivate the lands, and his sons forcibly occupied all his movable and immovable properties. He further alleged that they were also trying to evict him from his house though his wife was seriously ill and was on her death-bed. Twenty five days before lodging of this station diary entry, both his sons threatened to kill him and chased him to assault him with stick but he ran away and was saved by intervention of some villagers. His son Basudev Mohapatra on one occasion locked him out of his house thereby forcing him to remain outside for about a week.
About two months back the plaintiff broke open the lock of his house and removed some articles by force and when the defendant intervened he was threatened to be beaten. The defendant further complained that both his sons were confiscating his agricultural implements and were dissuading his servants from serving him, in the consequence whereof, the lands were lying fallow. He also reported that his sons were also quarrelling amongst themselves regarding possession of the house and on one occasion removed the articles which he had procured for the treatment of his wife who was sick and bed-ridden.
He also stated that some time before the lodging of his station diary, the S. D. O. Kuchinda came to the village and attempted an amicable settlement on 21-6-1962 but nothing came out of it. On the very day, i.e. 26-6-1962 when the defendant made his station diary entry, the plaintiff also lodged an information with the police against his brother Basudev and the latters' wife regarding breaking of the lock. Ultimately, the police submitted a report to the S. D. p. for initiating a proceeding under Section 107. Criminal Procedure Code on 27-6-1962, apprehending serious breach of peace, against the sons of the defendant who were named as members of second party therein.
It appears from an endorsement made at the foot of Ext. C dated 23-5-1962 that the said document had been made an annexure to the police report, Ext. 14. Similarly it also appears from an endorsement in Ex. B, plaintiff's report to the police that the said document was also attached to the prosecution report (Exhibit 14). That apart, it is also disclosed from the station (sic) made some independent enquiry and found that on 2-6-1962 the defendant called a panchayat to settle UP matters but his sons drove the panches out and again, on 11-4-1962 the plaintiff and his brother out a lock on the dwelling house thereby evicting the defendant and his sickly wife therefrom. He also found on independent enquiry that on 21-6-1962 Panchayat Samiti Chairman attempted a settlement but failed and that the defendant's sons were adamant in their intransigent attitude towards their father.
Even after the submission of the police report, the plaintiff lodged two complaints with the officer-in-charge of Mahulpali Police Station, one on 7-7-1962 (Ex. E) and another on 11-7-1962 (Ex. G) against his father imputing various hostile activities to the latter. Ex. D particularly corroborates the longstanding tension and animosity of the sons against their father, the defendant. Thereafter, the officer-in-charge of the police station again submitted a report to the S. D. O. after getting Exhibits E and G from the plaintiff repeating his apprehension of likelihood of breach of peace and recommending prohibitive measures to be adopted. It is only thereafter that the S. D. O. took cognizance under Section 107. Criminal P. C. on 21-7-1962 (Exhibit A). Notice under Section 114. Criminal P. C. was issued to the plaintiff on 23-7-1962 and he was ultimately discharged on 31-12-1963.
It will be seen from the aforesaid narration of facts that apart from the solitary act of the defendant in lodging a station diary entry on 26-6-1962 whereby he brought some information to the notice of the S. I. of police expecting the latter to take such protective action as he thought fit, there was no other overt act done by him till the 107 proceeding was initiated by the S. D. O. It will be further seen that it is only on the second report of the police (Ex. F) that the S. D. O. agreed to initiate proceeding. The first report of the police (Exhibit 14), even if it be deemed to have been induced at the instigation of the defendant, absolutely bore no fruit as no prosecution was launched on the basis thereof
It appears that the defendant is admittedly the karta of the family, that the plaintiff and his brother Basudev werelodging informations with the police against each other and that the plaintiff also was lodging information against his father who was a very old man at the time, aged 62 years, burdened with sick wife and instead of being assisted by his sons in the treatment of his wife, was troubled by them. It also appears from the evidence that disinterested villagers reported to the police about the tension in the family of the defendant. One of the reports lodged by the plaintiff against his brother, already referred to indicates that there was likelihood of bloodshed if the police did not take timely action. In fact plaintiff has admitted that he was residing in the family dwelling house with his father, brother and mother after 1961 till July, 1962 and that there was hot exchange of words between him and his father in the months of March to June. 1962.
He has further admitted that he described his father to be insane and gave wide publicity to it in the month of December. 1961. This was the attitude and behavior of the plaintiff towards his father, even though the latter was sending him money for his studies UP to B. A. degree. This state of affairs is amply supported by D.W.1, the Ex-choukidar. The frequent quarrel between the brothers and amongst the father and his sons regarding money and property and breaking open of the doors and locks and doing all other high-handed actions have been proved by D. W. 2.
7. In this state of evidence it is impossible to hold that lodging of the station diary entry by the defendant on 26-6-1962 (Ex. 1) was in bad faith or with any malicious intent. All that the defendant did in making the station diary entry (Ex. 1) was merely to provide information to the police for the purpose of taking such action as it thought fit. In the context of evidence on record the averments of the defendant in that station diary entry appear to have been honestly believed by him. Further, the initiation of 107 proceeding was not the immediate consequence of the station diary entry (Ex. 1). There is scarcely any credible evidence that the defendant took any active part against the plaintiff's prosecution after lodging of that station diary entry till the proceeding under Section 107, Criminal P. C. was actually initiated by the S. D. O., much later or even during that proceeding till its termination. In the circumstances the plaintiff has failed, to prove that the defendant prosecuted him.
8. As already indicated above, various informations were submitted to the police by the brothers against each other and by the plaintiff against defendant. In one of the reports the plaintiff had stated that there was apprehension of boodshed. The defendant was a very old man of 62 years having a sickly wife on his hand. The plaintiff had tried to declare his father insane, which was obviously with the object of grabbing the entire property, despite the fact that his father was meeting his educational expenses upto B. A. degree. Apart from the station diary entries made by the father and his sons, independent villagers also made reports to the police regarding the tense situation in the family of the defendant.
Even though the magistrate refused to take action on his first report (Ex. 11), the police repeated their request for taking necessary preventive action being very much apprehensive of breach of peace. It is on the latter report that the magistrate took action and that it will appear from Ex. 7, order in Criminal Misc. Case No. 42 of 1962, that the proceeding sought to be initiated on the basis of the station diary entry of defendant had been dropped. That indicates that no prosecution was launched on the basis of the defendant's station diary entry (Ex, 1). Whatever that may be these facts tend to establish that there was reasonable and probable cause for the defendant to lodge the station diary entry (Exhibit 1), even if the ultimate 107 proceeding be held to be the direct outcome of the station diary entry (Ex. 1). The plaintiff must, therefore, be held to have failed to discharge his onus on this point also.
9. On a perusal of the entire evidence on record, both oral and documentary, I am also not satisfied that the plaintiff has been able to establish any malicious intention on the Part of the defendant in lodging the station diary entry (Ext. 1).
10. In view of my aforesaid conclusions, even though there was a prosecution in which the plaintiff was ultimately discharged, the other ingredients indicated above to successfully establish a case of malicious prosecution have not been proved. In my opinion, the suit is entitled to be dismissed.
11. In the result, this appeal fails and is dismissed with costs.
Appeal dismissed with costs.