J.M. Sheth, J.
1. This appeal is directed against the judgment and decree Passed by the learned Civil Judge. Senior Division. Junagadh, in Special Civil Suit No. 58 of 1971. filed by the plaintiff-respondent against the appellants-defendants for recovery of Rs. 10,500/- by way of damages for malicious Prosecution.
2. Appellant No. 1 B. L. Shukla was at the material time a police officer attached to Chorwad Police Station. Appellant No. 2 Kanaialal K. Vora was at the material time Deputy Superintendent of Police, Verav Sub-Division. These two Police officers were concerned with the investigation of the case registered at C. R. No. 101 of 1970 of Chorwad Police Station. In the course of an inquiry under Section 174 of the Criminal Procedure Code on the information lodged by one Bharatdas Shamdas, it transpired that Prabhudas Shamdas was murdered. His death took Place on the night between 26-101970 and 27-10-1970 between 11.00 p. m. and 2.00 a.m. On 29-10-1970 at 19-15 hours information was lodged regarding this offence of murder. Appellant No. 1. Police Sub-Inspector Shukla, was a formal complainant. The facts disclosed were that one Bai Divali Sidi had administered Poison to deceased Prabhudas Shyamdas who was residing with her and with whom she was in illicit connection. She was residing at village Gaud where she was running a lodge. Dead body of deceased Prabudas was initially found behind that lodge run by Bai Divali.
3. First Information Report, according to the appellants was lodged for the offences Punishable under Sections 302 and 328 of the Indian Penal Code against Bai Divali only. At a later Point of time on arresting Bai Divali and on interrogating her it was found that present respondent Bai Fatma Ismail had come in the afternoon on 26-10-1970 to village Gaud and met Bai Divali. Bai Divali made a grievance before her that deceased Prabhudas was harassing her and consequent she was thinking of ending her own life. Respondent Fatmabai thereupon advised her not to take such a step but to administer poison to Prabhudas. Respondent supplied a packet containing poison to Bai Divali and obtained Rs. 3/- for it. It is significant to note that Bai Fatma,. according to the appellants was working towards Bantwa side as a nurse.
4. In the course of the investigation, statements of several persons were recorded. Bai Divali's statement was recorded and it was found that respondent Fatmabai had abetted the act of poisoning Prabhudas which resulted into the death of Prabhudas. On 30-11-1970. respondent Bai Fatma was arrested. Her bail application was rejected by the Court. Report was made to add certain sections of the Indian Penal Code and to add the name of present respondent as accused present appellant No. 1. After the necessary investigation. Bai Divali as well as respondent Bai Patma were charge-sheeted to the Court of the Judicial Magistrate First Class. After a preliminary inquiry, both of them were committed to the Court of Session to stand their trial. At the Sessions trial, both the accused including respondent Bai Fatma were acquitted. According to the appellants they were acquitted giving them benefit of doubt.
5. Respondent gave intimation to the appellants by telegrams Exs. 24 and 22 respectively, dated 7-7-1971 regarding taking of action for malicious prosecution and claiming damages to the extent of Rs, 11,000/- They were practically in identical language. Respondent Bai Fatma filed present Civil Suit No. 58 of 1971 on 17-8-1971, claiming damages to the tune of Rs. 10,500/- for malicious Prosecution.
6. At the trial, respondent's case was that appellant No. 1 had demanded Rs. 500/- from her by calling her at the police station. On her having not acceded to that demand, she was threatened to be involved in this case, and it was for that reason that she was subsequenty involved in the said case.
7. Several contentions were raised before the trial Court on behalf of the appellants denying the allegations made by the respondent against them. Written Statement of appellant No. 2 (original defendant No. 2) was filed at Ex. 12 Appellant No. 1 (original defendant No. 1) filed his written statement at Ex. 52.
8. The learned trial Judge after framing the issues and recording evidence, found that (1) Plaintiff proved that she was maliciously prosecuted for offences under Sections 302/34 of the Indian Penal Code in Sessions Case No. 18 of 1971 by the defendants; (2) she proved damages to her reputation and mental torture: (3) she is entitled to Rs. 5,500/- by way of damages: (4) she is entitled to Rs 2,000/- as damages towards the costs of her defence: (5) Defendants failed to prove that action was taken in their official capacity and so they were not liable: (6) notice under Section 80 of the Civil Procedure Code, according to the learned trial Judge, is not necessary as the suit has not been filed against the Government, but the plaintiff had sued, the defendants in their personal capacity of Police Sub-Inspector and Deputy Superintendent of Police: (7) suit is not barred under the provisions of Bombay Police Act. 1951. In view of these findings, of his the learned trial Judge has decreed the suit against both the defendants (present appellants) to the extent of Rs. 7,500/and awarded Proportionate costs of the suit. Defendants were directed to bear the costs of the suit.
9. Mr. G. M. Vidyarthi, learned Assistant Government Pleader, appearing for the appellants has made the following, submissions:
(1) Suit is not maintainable for want of statutory notice under Section 80 of the Civil Procedure Code.
(2) Suit is barred under Section 159 of the Bombay Police Act, 1951.
(3) Suit is also barred for want of notice under Section 161 of the Bombay Police Act. 1951.
(4) There is no evidence to establish that the prosecution was launched by the appellants against the respondent maliciously and there was want of reasonable and probable cause for launching such a prosecution.
Mr. Vidyarthi has contended that at the relevant time appellant No. 1 Mr. Shukla was working as a Police Sub-Inspector attached to Police Station. Chorwad. Appellant No. 2 Kantilal Vera was at the material time working as Deputy Superintendent of Police, Veraval Sub-Division. The area of the Police Station in question was within his jurisdiction. These are undisputed facts. Both these officers were investigation the offence in question. Police Sub-Inspector was investigating the offence and on coming to know about the offence he had lodged, a formal complaint on behalf of the State. During the investigation of that case, it transpired that respondent had also hand in the said, murder of Prabhudas. It was in the course of discharge of his duty that he had arrested the respondent, Deputy Superintendent of Police had verified the statements made by the Police Sub-Inspector and had, approved of, the report to be made by the investigating officer to the Court under Section 173 of the Criminal Procedure Code. Both the officers were therefore. acting in discharge of their official duty. It cannot be gainsaid, submitted Mr. Vidyarthi that at any rate they were purporting to act in discharge of their duty in their official capacity.
That being the position such a suit for recovery of damages for malicious Prosecution is not maintainable without giving a statutory notice as required under Section 80 of the Civil Procedure Code. Admittedly such a statutory notice under Section 80 of the Civil Procedure Code has not been given by the respondent to the appellants prior to the filing of the Present suit. The suit should therefore fail on that ground.
10. Relevant part of Section 80 of the Civil Procedure Code, material for our purposes reads:
'No suit shall be instituted..................... against a public officer in respect of any act Purporting to be done by such public officer in his official capacity, until the expiration of two months next after notice in writing has been delivered to, or left at the office of ... ... ... ... and in the case of a public officer delivered to him or left at his office, stating the cause of action, the name, description and place of residence of the plaintiff and the relief which he claims:, and the Plaint shall contain a statement that such notice has been so delivered or left.'
It is an admitted position before us that no such notice under Section 80 of the civil Procedure Code has been given.
11. Telegraphic intimation given to appellant No 1 by Ex. 24 and to appellant No. 2 by Ex 22 was in the following terms.
'You are hereby informed that prosecuted and ordered to prosecute my client Fatmabai Ismail malicious1y without any reasonable cause and without due care and caution for murder charge. Stop She has been acquitted by the Hon'ble Sessions Judge Hence my client will take criminal and civil action for damages of Rs. 11,000/- against you and Sub-Inspector Police Veraval.'
Mr. Vidyarthi has contended, that in the circumstances of the case there is no escape from the conclusion that the act complained of was the act done by these appellants in discharge of their duty in their official capacity and, at any rate, it was an act purporting to be done by them in their official capacity in discharge of their duty. Question whether they acted mala fide or maliciously meaning thereby that there was want of good faith on their part was irrelevant so far as the determination of the question regarding the necessity of giving statutory notice under Section 80 of the Civil Procedure Code was concerned. In support of his submission, he has invited our attention to several decisions.
12. We first propose to refer to the Full Bench decision of the Madras High Court in Samanthala Koti Reddi v. Pothuri Subbiah AIR 1918 Mad 62 (FB). wallis. C. J., has observed at P. 69:
'According to the Concise Oxford Dictionary recently Published at the Clarendon Press to 'Purport' in this context means to 'be intended to seem.' There can be no doubt that the act of the Village Munsif in handing over the surplus Proceeds of the revenue sale to the defaulting owner was an act 'Intended to seem', to be done by him in his official capacity so as to render notice of suit necessary, if effect is to be given to the Language of the section according to the natural meaning of the words used. The legislature may well have considered, it desirable to require notice of suit to be given in all such cases, and I see no reason for putting a restrictive construction upon the section. It is significant that the words 'Purported to be done' are wider than 'done or intended to be done under the provisions of this Act' In Section 264 of the Public Health Act. which appear to be the most comprehensive words used in any of the corresponding statutory provisions in England seeing that they also include 'acts intended to seem to be done in his official capacity:' and it is quite probable that they were chosen on that very ground and for the Purpose of making the english decision inapplicable.'
Sadasiva Aivar. J. in his judgment at page 71. has observed;
'In the Present case the appellant act in paying over the balance of the revenue sale Proceeds to the defaulter was an act falling within the ordinary duties of his office as Village Munsif and he clearly Profess to do it in execution of that duty and it would be quite reasonable on the part of an ordinary third Person who becomes aware of the Village Munsif's act in. So returning the balance to the defaulter to receive the impression that the act was done by the Village Munsif in his official capacity. I think the question of the good faith or the bad faith of the public officer, either as Regards his belief in the legality or propriety of his actor the limit of his powers or the existence of facts justifying the exercise of such Powers is irrelevant in the consideration of the question whether the officer is entitled to notice under Section 80. Civil Procedure Code.'
pencer. J. in his judgment, at page 71. observes:
' 'Purporting' literally means that in out and neither 'profess nor pretend' is an exact synonym for it 'profess' as its derivation suggests, generally implies an open declaration in word. 'Pretend' more often than not is used where that which is held out is not what it really think that it covers a profession, by acts or by words or by appearance of what, is true as, well as of what is not true.'
This decision fully supports the submission made by Mr. Vidyarthi in this behalf.
13, In Dakshina Ranjan Ghose v. Omar Chand Oswal. : AIR1924Cal145 . a Division. Bench of Calcutta High Court has also observed:
'In a suit for damages for wrongful arrest against a public officer, he is entitled to notice of suit under Section 80, even if in the discharge of his duty he has acted, mala fide.'
14. Similar view has been taken by a single Judge of Patna High Court in RamKishun Prasad v. Ram Narain Prasad AIR 1934 Pat 14. observing:
'A Public officer against whom a suit is filed, in respect of an act done by him in his official capacity is entitled to notice under Section - 80, even though he has acted mala fide.'
15. In Noor Mohammad v. Abdul Fateh AIR 1941 Pat 461, Rowland. J.. has observed :
'In considering the question of notice under Section 80 the Court has to see whether the public officer purported to act as such. The question of his good or bad faith is irrelevant. Where the police constables arrest a person and take him to the police station as a person accused of theft, their act purports to be an official act and hence notice under Section 80 is necessary.'
16. The Supreme Court, in Pukhrai v. State of Rajasthan : 1973CriLJ1795 , had an occasion to interpret similar expression used in Section 197 of the Criminal Procedure Code. At page 2592, the Supreme Court has observed:
'While the law is well settled the difficulty really arises in applying the law to the facts of any particular case. The intention behind the section is to prevent public servants from being unnecessarily harassed. The section is not restricted only to cases of anything purported to be done in good faith for a person who ostensible acts in execution of his duty still reports so to act, although he may have a dishonest intention. Nor is it confined to cases where the act, which constitutes the offence, is the official duty of the official concerned. Such an interpretation would involve a contradiction in terms because an offence can never be an official duty. The offence should have been committed when an act is done in the execution of duty or when an act to be done in the execution of the duty. The test appears to be not that the offence is capable of being committed only by a public servant in an act done or purporting to be done in the execution of his duty. The section cannot be confined to only such acts as are done by a Public servant directly in pursuance of his public office, though in excess of the duty or under a mistaken belief as to the existence of such duty. Nor need the act constituting the offence be so inseparable connected with the official duty as to form part and parcel of the same transaction. What is necessary is that the offence must be in respect of an act done or purported to be done in the discharge of an official duty. It does not acts done purely in a private capacity by a public servant. Expressions such as the 'capacitv in which the act is performed'. 'cloak of office' and 'professed exercise of office' may not always be appropriate to describe or delimit the scope of the section. An act merely because it was done negligently does not cease to be one done or purporting to be done in execution of a duty.'
In the instant case there is no escape from the conclusion that the act in question was done or was purported to be done in the discharge of official duty by the appellants in their official capacity. Question that the act was Purported to be done in the discharge of their duty was so done on account of malice is absolute irrelevant for deciding the question whether such a statutory notice is required to be given under Section 80 of the Civil Procedure Code. The learned trial Judge has committed in our opinion an error of law in reaching the conclusion that no such notice was necessary. We find that such a notice under Section 80 of the Civil Procedure Code is required to be given. It having been not given, the suit is not maintainable and the suit should fail on that around.
17. Mr. D. D. Vyas appearing for the respondent, has submitted that in case the Court reaches the conclusion that such a notice is necessary, it is not necessary for the Court decade other submissions made by Mr. Vidvarthi. In that view of the matter, we find that it is not necessary to consider other submissions made by Mr. Vidvarthi. The suit fails as notice is not given as required under Section 80 of the Civil Procedure Code.
18. Appeal is allowed, The judgment and decree passed by the trial Court are set aside and Special Civil Suit No. 58 of 1971 is dismissed on the ground that it is not maintainable for want of notice under Section 80 of the Civil Procedure Code. Taking into consideration the Peculiar circumstances of the case, parties are ordered to bear their own costs in the suit. Respondent is directed to pay the costs of the appellant in the appeal and bear her own.
19. In civil Application No. 1950 of 1974, rule is discharged with no order as to costs.
20. Appeal allowed and Rule discharged