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Sowrendra Mohan Sinha Vs. Soshi Bhusan Koer and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in49Ind.Cas.232
AppellantSowrendra Mohan Sinha
RespondentSoshi Bhusan Koer and ors.
Cases ReferredSee Shama Bibee v. Chairman of Baranagore Muncipality
Excerpt:
malicious prosecution - reasonable and probable cause. - 1. this appeal arises out of a suit for damages for malicious prosecution.2. the plaintiff belongs to the zemindar family of debipur in the district of burdwan. he is the darpatnidar (to the extent of 12 annas share) of mouzah beeruha, which is two miles distant from debipur. the defendants are residents of mouza baeruha ; the defendant no. 1, soshi bhusan koer, practises as a pleader at purnea, the defendant no, 2, bama charan koer, is his brother and the defendant no. 3, bhola nath mandal, is the brother-in-law of bama charan.3. a 12-annas share of the patni interest of mouza beeruha belonged to the mulliks of chonpura and the remaining 4 annas to bhola nath, the defendant no. 3. the plaintiff is the dar patnidar of the 12 annas share under the mulliks from the time of his ancestors......
Judgment:

1. This appeal arises out of a suit for damages for malicious prosecution.

2. The plaintiff belongs to the Zemindar family of Debipur in the District of Burdwan. He is the Darpatnidar (to the extent of 12 annas share) of Mouzah Beeruha, which is two miles distant from Debipur. The defendants are residents of Mouza Baeruha ; the defendant No. 1, Soshi Bhusan Koer, practises as a Pleader at Purnea, the defendant No, 2, Bama Charan Koer, is his brother and the defendant No. 3, Bhola Nath Mandal, is the brother-in-law of Bama Charan.

3. A 12-annas share of the Patni interest of Mouza Beeruha belonged to the Mulliks of Chonpura and the remaining 4 annas to Bhola Nath, the defendant No. 3. The plaintiff is the Dar patnidar of the 12 annas share under the Mulliks from the time of his ancestors. The 4-annas share of the Patni of the defendant No. 3 was held by him in khas. In August 1909 the Mulliks sold their 12 annas Patni interest to the defendant No. 1, Soshi Bhusan.

4. The plaintiff's case is, that the defendant No. 1, after purchasing the 12 annas of the Patni interest in the Mouza, was desirous of acquiring the Dar-patni interest of the plaintiff and made proposals accordingly, but on plaintiff's refusal to sell it, took, steps to prevent the tenants from paying rents to the plaintiff and started proceedings to bind down the plaintiff, his Gomastha Charu, and his servant Avatar Muchi, under Section 107, of the Criminal Procedure Code, but the proceedings terminated in their favour. The plaintiff alleges that the proceedings were instituted and conducted by all the defendants, who conspired against the plaintiff' with a view to compel him to part with his Dar-patni interest in a 12 annas share of the Mouza in favour of the defendant No. 1, that these cases were false and malicious and instituted without reasonable and probable cause. The plaintiff accordingly claimed Rs. 5,859-14-0 as damages from the defendants, that being the sum actually spent by him in defending the cases.

5. The defence shortly stated is, that the plaintiff's claim in so far as the first Section 107 case is concerned is barred by limitation, that the defendants never asked the plaintiff to sell his Dar-patni interest, that on the contrary the plaintiff made several proposals to the defendants with a view to purchase the 12-annas Patni interest from Soshi Bhusan, that on his refusal to sell it the plaintiff harassed, oppressed and threatened the defendants and the villagers who sided with them, that the proceedings were not false and malicious, and that the defendants had reasonable and probable cause for instituting and conducting the proceedings and are, therefore, not liable for damages.

6. The Court below found in favour of the defendants and accordingly dismissed the suit. The plaintiff has appealed to this Court.

7. The questions for consideration are whether the defendants acted maliciously and without reasonable and probable cause. In order to show that the defendants acted maliciously the plaintiff adduced evidence to show that the defendants proposed to the plaintiff that he should sell his 12-annas share in the Dar-patni to the defendant No. 1 and that on his refusal to do so, the defendants entered into combination with the villagers and stopped the payment of rents by the tenants to the plaintiff and did not allow any man of the plaintiff to realise rent from the tenants. The evidence on the point has been discussed by the learned Subordinate Judge who has come to the conclusion that the evidence is not worthy of belief, and as we agree in that conclusion it is unnecessary to refer to the evidence. The defendants emphatically denied that there was any proposal on their part to purchase the Dar patni right of the plaintiff and it seems to us highly improbable that they made such a proposal. The plaintiff is a big Zemindar of the locality and the Dar-patni is held by him from the time of his ancestors. The defendant No. 1 had no Zamindari or other landed property, except a few jamas in the Motua which he held as tenant. The defendants Nos. 2 and 3 are men of no position. We do not think that they would venture to make a proposal to the plaintiff that he should sell the Dar-patni which would be highly insulting to the plaintiff, and it is still more improbable and in fact almost incredible that such people would imagine that they could compel and would attempt to compel the Zemindar to yield to such a proposal against his will. On the other hand the defendants' case was that the plaintiff through his men proposed to the defendant No. 1 that he should sell the 12-annas Patni which had been purchased by him,

8. It appears from the evidence of Sripada Choudhury, who acted as the agent of his father-in-law and his co-sharers in the matter of the sale of the 12-annas share of the Patni, that he tried his best to sell the Patni right to the plaintiff, but the latter did not ' take heed to take the property on fair and equitable price. ' The defendant No. 3 deposited some money with Sripada for purchasing the Patni on behalf of the defendant No. 1 and then the plaintiff sent his Amla to Sripada Babu requesting him to have the sale effected with him, but he told the man that as he had already settled to sell the Patni to another he could not recede at that stage. Bhola Nath says that Charu asked him why he made the Bainama when his master (the plaintiff) would purchase. Sripada wrote to Soshi Bhusan on the 20th July 1909 that all the co-sharers...(in the 12 annas Patni) had required him to complete the transaction without delay, that Babu Sourindra Mohan Singh the Dar-patnidar has been very anxious, to secure the property and has written me a very pathetic letter on the subject but as I have given my honest word to Bhola Nath, I should not like to resile from it unless yon make unnecessary delay and thus oblige me to do so. '

9. It appears, therefore, that the plaintiff was trying to purchase the Patni interest when Sripada had taken some money from Bhola Nath on behalf of Soshi Bhusan. The Patni interest, however, was conveyed to Soshi Bhusan by two Kobalas, dated the 16th. and 17th August 1909. Plaintiff was then a minor (about 20 years of age) and Sosbi Bhusan on the 28th February 1910 wrote to his maternal grandfather (who looked after his estate) giving him information about his purchase and demanding rent of the Dar-patni. Reminders were sent by two letters. The letter dated the 16th April reached Debipur on the 18th April 1910,, but was refused and returned. On the next day (19th April 1910) the, plaintiff wrote a letter to Bama Charan to see him at once at the Debipur Katohery. Bama Charan saw the plaintiff on the next day (20th April) and the plaintiff asked him to request Soshi to sell the Patni to the plaintiff and to see that this -was done. He replied that 'no one purchases properties for selling them' and then wrote to Soshi at Purnea informing him of the conversation. Soshi Bhusan had to sue the plaintiff for rent of the Dar patni and he obtained a decree on the 12th September 1910. The plaintiff was at that time a minor, but his Karkun Asutosh Roy says that at that time he used to come to the Katchery and look after his business. He attained majority on the--(sic).

10. The plaintiff had no Katohery at Beeruha, and his Gomastha used to collect rents at the house of the Hazras in the village. After the purchase of the Patni interest by Soshi Bhusan, the plaintiff laid the foundation of a Katchery house at Beeruha, to which Bhola Nath (the defendant No. 3) who was the owner of the 4-annas Patni objected. He was told by the plaintiff's peon to sea the plaintiff and he accordingly wrote to the plaintiff asking for an interview. On receipt of the reply he went to Debipur and saw the plaintiff in April 1910 and asked him why he was making a Katchery on Ijmali land. He was told that rent would be paid for the land to him. Bhola Nath says that at that time the plaintiff told him to ask 'Soshi Bhusan to sell his Patni interest as he was a Pleader and knows his business and does not know Zemindari business. He also said that he could teach lessons to Sadgopes (the defendants are Sadgopes) as he did the Debipur Roys, and in that case Soshi Bhusan would have no alternative to parting with his Patni. He also asked him to sell his 4 annas Patni to him or to give him Dar-patni of that share but he did not agree to this,'

11. It appears that Soshi Bhusan and Bama Charan had purchased a tank at Beeruha called the Jote tank together with some Bhit lands contiguous to it, on which there were some Babla trees, at a sale held in execution of a rent decree obtained against the former tenant by the plaintiff's father in 1889, i.e., about 24 years before the suit and they were in possession of it. After Soshi's purchase of the Patni, Charu Samanta on behalf of the plaintiff claimed the property as his Chakran. In Bysak 1317 Bama Charan out some Babla trees, and thereupon Bama Charan's son Sarat was called by Charu Samanta to the house of the Hazras at Beeruha where be used to hold his Katchery. Charu told him 'Sourendra Babu asked your father Bama Charan to write to Soshi Babu at Purnea intimating' to him that Sourendra Babu wanted to purchase his Patni. Did your father receive any reply to this I replied, no. On this Charu said, why did you out down Babla trees? I said, why do you ask this now after seeing our sale certificate? He said that he did not see. the deed carefully and wanted to see it again. I said I would be able to show this to him again if he would go to my house. On. this he said he was not a Gomasta of a petty Zemindar, he could make me sit there for ten hours.' Sarat informed his father of the above conversation and wrote to Soshi Bhusan at Purnea.

12. At about this time Bhola Nath brought a criminal case against Charu Samanta, Avatar Muchi and a Sikh Durwan, alleging that palm leaves and palm fruits were out from his garden under the orders of Charu Samanta. The case, however, was dismissed on the 11th July 1910 on the ground that the complainant's exclusive possession was not proved, the Court giving the beneet of the doubt to the accused Charu Samanta- who alone appears to have been summoned.

13. After the disposal of the above case Bhola Nath brought a suit against the plaintiff in connection with the building of the' Katchery house by the plaintiff. The suit was ultimately disposed of on appeal on the 28th February 1914, and the Court disallowed the prayer for joint possession and injunction but gave 1/4th share of the disputed land exclusively to Bhola Nath on the further side of the Katchery house.

14. After the institution of the palm leaf cutting case, Bhola Nath received a letter (Exhibit N) from the plaintiff on the 1st Jyst 1317 (15th May 1910) asking him to see him, the plaintiff, at the Debipur Kutchery as he thought 'a meeting with him was necessary,' This letter was brought to Bhola Nath by the peon Avatar Muchi, who told him that if he failed to see the plaintiff at Debipur he would be forcibly taken there and would have the same fate as Raman Koer (who, it appears, was murdered), and Bhola Nath says that out of fear he did not see the plaintiff.

15. A similar letter addressed to Bama Gharan was delivered to him by Avatar Muchi, who told him that if he did not go within two or three days he would be forcibly taken to Debipur Katchery, that he would have the same fate as Raman Koer and his son Sarat should purchase a kocha (mourning dress). Bama Charan says he communicated all this to Soshi Bhusan at Purnea by a letter.

16. In the middle of Jyst, Soshi Bhusan came to Beeruha from Purnea. He met a relative of the plaintiff at the Debipur station and learnt that it was not a fact that the plaintiff was collecting lathials for committing a breach of the peace at Beeruha. He also made enquiries at Beeruha from several persons as would appear from the evidence of the defendants Nos. 2 and 3 and Sarat, and concluded that the threats conveyed to his brother and Bhola Nath were empty threats. He, therefore, did not think it necessary to take any steps and was about to return to Purnea. On the 31st Jyst (31st May, 1910), however, he was informed by one Sital Koer that Charu Samanta had asked him to remain at home on the next day, as he would meet him on the banks of the tank, meaning thereby that he would commit a rioting if his attempt to take possession of the tank was interfered with. Soshi Bhusan says that he thought that this was not an empty threat and wrote out a petition to the Sub-Divisional Magistrate at Kalna in which he prayed that constables might be deputed at Beeruha to prevent a breach of the peace, and that proceedings might be taken to bind down the plaintiff and his men to keep the peace, and despatched it through his nephew Sarat at 2 p.m. on that day. Kalna is 16 miles from Beeruha and he apprehended that no steps could be taken in time by the Magistrate to prevent a breach of the peace. He accordingly sent a telegram to the Sub Divisional Magistrate, in which he intimated that a breach of the peace was imminent.

17. Two constables were accordingly sent to Beeruha the next day who were posted there for about a month, and the Sub-Divisional Magistrate ordered a Police enquiry. On receipt of the Police report he started proceedings under Section 107 against the plaintiff, his Gomasta Charu Samanta, his peon Avatar Muchi, and two other persons and bound down the plaintiff, Charu and Avatar to keep the peace on the 9th September 1910. The District Magistrate was moved, and he held by his order, dated the 8th November 1910, that the Sub-Divisional Officer had no jurisdiction, as the plaintiff and Charu Samanta were residents of Debipur which was outside the jurisdiction of the Sub-Divisional Magistrate of Kalna. Avatar Muchi was also acquitted on the ground that there was no evidence to justify binding him down. This was the first case.

18. There mere some other petitions for taking proceedings under Section 107, but no proceedings were taken. The last application was made on the 18th April 1911 by Bama Charan, Bhola Nath and 9 other residents of Beeruha to the Sub-Divisional Magistrate of Kalna, in which they set out various acts of oppression committed by the plaintiff, the repeated threats', of violence and the employment of a number of Punjabi Pathans with a view to cool down' the villagers of Beeruha, stated that the plaintiff and others were likely to commit a serious breach of the peace, and prayed that the Sub-Divisional Magistrate be pleased to recommend to the District Magistrate that a proceeding might be drawn up against the plaintiff, Avatar Munchi and certain, other persons mentioned in the application. On the 6th May 1911 the Sub-Divisional Magistrate recommended that proceedings should be taken. The District Magistrate (Mr. Scroope) thereupon directed a Police enquiry, and on the 8th June 1911 proceedings were drawn up under Section 107 and the case was made over to the Sub-Divisional Magistrate for disposal. The plaintiff thereupon moved this Court for transfer of the case and on the 19th December 1911 the case was transferred to the District Magistrate of Bardwan.

19. The District Magistrate Mr. Moberly, by his order dated the 17th January 1912, directed an enquiry by the District Superintendent of Police whether there was then any apprehension of a breach of the peace such as would necessitate proceedings under Section 107. On the 23rd January 1912, Bama Charan submitted a petition to the District Magistrate objecting to Police enquiry at that stage, and mentioned some acts committed by the plaintiff during the pendency of the case, and on the 3rd April 1912 submitted a list of specific instances of wrongful acts committed by the plaintiff and his men before and after the proceedings.

20. The case was heard by Mr. Mobarly the District Magistrate, who in a lengthy judgment, dated the 31st May 1912, came to the conclusion that the 2nd party could not be bound down in those proceedings, as the 1st party had 'failed to show that the tension of feeling and the acts of oppression alleged were due to a determination to have the Patni right of Mouza Beeruha by force from the 2nd party,' and accordingly discharged the accused. The learned Magistrate decided the case upon the evidence of the 1st party alone and did not hear the evidence of the 2nd party. This is referred to as the second Section 107 case.

21. The plaintiff thus was acquitted in both the oases, and the question is, whether the plaintiff has succeeded is establishing that the defendants had instituted and conducted the proceedings maliciously and without reasonable and probable cause.

22. Now the first case was instituted upon the petition submitted by Soshi Bhusan to the Sub Divisional Magistrate of Kalna on the 31st May 1910. He was informed of the threats held out by letters written to him by Bama Charan at Purneah, an also by Bama-Charan and Bhola Nath and other villagers' when he came to Beeruha but he did not take any action as he thought that the threats were empty threats. The immediate cause which led him to submit the petition to the Magistrate was the information conveyed to him by Sital Koer at midday on the 3lst May 1910. Sital told him (as already stated) that Charu Samanta had asked him to tell him (Soshi Bhusan) to stay at Beeruha till the next day, when he (Charu) would meet him at the Jote tank, which meant that there would be a rioting if Soshi Bhusan and his brother would oppose the cutting of Babla trees. Soshi Bhusan says that he fully believed that a breach of the peace was imminent, and within an hour of getting the information he sent the application to the Sub-Divisional Officer of Kalna, and shortly after sent a telegram. It is contend-ed on behalf of the appellant that he ought to have made enquiries as to the truth of the information conveyed to him by Sital Koer before taking any steps in the matter. But the question is, not whether the defendant might have obtained more satisfactory and surer grounds of belief by making further enquiries, but whether the facts brought to his knowledge furnished reasonable and probable cause for his believing that the plaintiff's men would come to Beeruha to commit a breach of the peace. If he acted upon the information of a trustworthy informant, he cannot be said to have proceeded without reasonable and probable cause because he had not made enquiry of some one else who could have repeated and con-firmed what was told him see Lister v. Perryman (1870) 4 H.L. 521 at. pp. 536, 537 : 39 L.J. Ex. 177 : 23 L.T. 269 : 19 W.R. 9. Soshi Bhusan had on coming to the village made enquiries of various persons and was satisfied and believed that threats had actually been held out and certain acts of oppression had been committed by the plaintiff and his men. Sital Koer was a resident of the village. Soshi Bhusan says that when he got the information, ha fully believed that a breach of the peace was imminent and nothing ha been suggested as to why he should have disbelieved Sital Koer. The information conveyed by Sital was not hearsay, he was asked by Charu to tell Soshi Bhusan to meet him at the tank, and having regard to what Soshi Bhusan had learnt on enquiry from the villagers about the previous threats and acts he was justified in believing what Sital told him. In this connection we may refer to the observations made by Lord Atkinson in delivering the judgment of the Judicial Committee in the case of Corea v. Peiris (1909) A.C. 549 at. p. 555 : 79 L.J.P.C. 25 : 100 L.T. 790 : 25 T.L.R. 631: 'The pivot upon which almost all such actions turn is the state of mind of the prosecutor at the time he institutes or authorises the prosecution. If he receives information from others and acts upon it by making a criminal charge against any person, the motives of the informants, or the truth in fact of the story they tell, are to a great extent beside the point. The crucial questions for consideration are: Did the prosecutor believe the story upon which he acted? Was his conduct in believing it, and acting on it, that of a reasonable man of ordinary prudence? Had he any indirect motive in making the charge?' It is true that on the day on which Charu Samanta's threat was conveyed to Soshi Bhusan the plaintiff was not at Debipur. But Soshi Bhusan did not suppress that fact, on the contrary he took care to state in the petition: 'I understand that Babu Sourendra Mohan Singh left home day before yesterday.' That indicates that he did not act maliciously and his object was to seek protection.

23. Sital Koer has not been examined in this case. He was, however, examined in the first Section 107 case. Soshi Bhusan days that he did not cite Sital Kuar as a witness in this case, as he was won over by the plaintiff and had been actually cited as a witness by the latter, and Bama Charan says that as Sital Koer was superintending the plaintiff's building of his Katchery house and had given evidence as a witness in a criminal case against him (in which he was acquitted) and as he was cited by the plaintiff as a witness in this case, he thought that he, Sital Koer, was siding with the plaintiff.

24. It is to be observed that in the first Section 107 case, the Court of first instance, the Sub-Divisional Magistrate, bound down the plaintiff and his men under Section 107. The fact that the plaintiff has been convicted by a competent Court though he may subsequently have been acquitted on appeal is evidence of the strongest possible character, if unrebutted, against the plea of want of reasonable and probable cause See Shama Bibee v. Chairman of Baranagore Muncipality 6 Ind. Cas. 675 : 12 C.L.J. 410. In the present case the Court of the Sub-Divisional Magistrate had no jurisdiction to try the case, but the fact that the Sub Divisional Magistrate bound down the plaintiff shows that in the opinion of an impartial man trained in weighing evidence the defendants had reasonable and probable cause.

25. The second Section 107 case as stated above was started upon an application made by Bama Charan, Bhola Nath and nine others on the 18th April 1911. Soshi Bhusan was not originally a party to the application, he having been then at Purnea. But he was subsequently made a party and it is admitted that he took an active part in the prosecution of the case. The plaintiff and his men were charged with various acts of oppression and intimidation in the application. It is contended on behalf of the appellant that the acts alleged in the petition upon which the second case was started were contained in the petition upon which the first case was started and that, therefore, they could not be made the basis of fresh proceedings. But in the first place some of the acts relied upon were alleged to have taken place after the termination of the first proceedings. For instance, the patrolling of Punjabi Durwans in the village accompanied by plaintiff's Gomastas and the threatening of the villagers by them, the attempted assault on Bama Charan Kuer and the assault on Arjun Dubay, the invasion of Shamauddin's house, forcible cutting of trees from Bhola Nath's land after withdrawal of the Police constables, all these were alleged to have taken place after the termination of the first proceedings and before the application in the second case was made. Certain other acts were alleged to have taken place after the institution of the second proceedings. Then again the acts of oppression and intimidation of the first case cannot be excluded from consideration, because they go to show the strained feelings between the parties and the manner in which the plaintiff and his men were acting against the villagers and connect them with the acts alleged to have been committed after the termination of the first case, which cannot be taken as isolated and unconnected with what had happened before. If, therefore, the acts of oppression alleged to have taken place after the termination of the first case are proved to be true, the fact that in the applications the acts prior to the first case were also relied upon would not affect the matter.

26. The evidence shows that after the plaintiff and his men were acquitted in the first case, the plaintiff's Durwan Avatar Muchi fired bombs on the bank of the Jote tank as a sign of jubilation and uttered threats to intimidate the villagers. Then there were two criminal cases brought by Avatar Muchi and Bhoota Muchi (a partisan of the plaintiff) respectively, and those cases were dismissed. In December 1910 and January 1911 several Pathan Durwans of the plaintiff patrolled the village with the plaintiff's Gomastas to intimidate the* people. Thereupon the defendants Nos, 2 and 3 and some other villagers applied to the Police and the Police Sub-Inspector after enquiry posted a constable in the village for a month. After the constable was withdrawn from the village, in Falgun 1317 one Akhoy Mitra, a Gomasta of the plaintiff, with Avatar Muchi and some Durwans went to the house of one Shamsuddin and threatened to seize him. On the 21st February 1911 the same Akhoy Mitra, Avatar Muchi and some other men of plaintiff came to the garden of the defendant No. 3, out down a Babla tree and attempted to remove the tree, but the latter with others having come there, the former went away leaving the cart with the trunk of the tree. There were two counter-criminal cases over this matter and both were dismissed.

27. It is said that in Poush 1317 one Asu Roy, a Gomasta of the plaintiff, with several Darwans went to assault the defendant No. 2 Bama Charan, who works as a Gomasta, in Palta, a village adjoining Beeruha; but they failed to do so. About 3 months afterwards, four Durwans were again sent to Palta for the purpose. Bama Charan was warned by his Nagdi Arjun Duby, and the Durwans, suspecting that Arjun Duby had warned Bama Charan, assaulted Arjun Duby. This assault upon Arjun Duby is not denied, but it is said that it was due to a private grudge and was committed under the orders of Asa Boy, and that the plaintiff or his men had nothing to do with it.

28. Certain other allegations were made in the second case, viz, that the plaintiff caused false suits to be brought against some of the villagers who were on the side of the defendants, but we need not refer to them as they do not form grounds for a proceeding under Section 107.

29. As already, stated the second case was tried by Mr. Moberly the District Magistrate, who held that the evidence on the record was not sufficient to bind down the plaintiff or his men, but he proceeded mainly upon the ground that it was not shown that the alleged acts of oppression had any connection with the motive alleged for the prosecution. The learned Magistrate observed in one portion of his judgment as follows: 'It has. been argued that it is not necessary to adhere strictly to the terms of the proceedings, viz., that the 2nd party (i.e., the plaintiff and his men) in trying to have the Patni right by force were committing various acts of oppression upon the first party (the defendants, etc.), that the Court should see to the acts and not the motive with which they were connected and that the second party should be bound down if it can be shown that they were doing any wrongful acts which disturb the public tranquillity. I don't think, however, that when the 2nd party had been called upon to show cause why they should not give security on the above-mentioned grounds, they can be bound down for oppressing the tenants of Beeruha, or that acts of oppression on the tenants of Beeruha, however wrongful they may be or however liable to disturb the public tranquillity, can be regarded as relevant to the present enquiry, except in so far as they can be shown to be connected with the object referred to in the proceeding. The object of the proceeding in a case of this kind appears to me to be to show the accused what charges they 'have to meet' and again, 'when the 1st party, have failed to show to my satisfaction that the tension of feeling and the acts of oppression alleged are due to a determination to have the Patni right of Mauza Beeruha by force from the second party, all the members of the 2nd party stand on the same footing and I need not deal separately with the case of each. I, therefore, discharge all the accused under Section 119, Criminal Procedure Code.'

30. The learned Magistrate did not find that the allegations were false. He only found that the facts proved did not make out a good case for conviction.

31. Evidence was adduced on behalf of the plaintiff that the acts alleged were not committed by his men. The learned Subordinate Judge disbelieved that evidence' and believed (generally) the evidence adduced on behalf of the defendant.

32. The evidence has been placed before us, and we do not see sufficient reasons for differing from the view taken by the learned Subordinate Judge upon the evidence.

33. It was strongly urged before us that even if Charu Samanta the Gomasta or Avatar Muchi the Durwan of the plaintiff were guilty of the acts alleged, the evidence was not sufficient to show that the plaintiff was guilty of any, that the plaintiff resided at Calcutta and none of the alleged acts, even if committed by his men, could be brought home to the plaintiff and that the defendants, therefore, had no reasonable or probable cause for proceeding against him.

34. The learned Subordinate Judge observes on the point as follows: 'I could not rely on the plaintiff's evidence, I could not believe that he never came to Debipur, and that his men never acted with the knowledge, consent or connivance of the plaintiff so that if the acts alleged were committed by his men, the defendants had reasonable and probable cause to connect him with these acts.' We have considered the evidence, and we are unable to hold that the defendants had no reasonable and probable cause for proceeding against the plaintiff. When Soshi Bhusan purchased the Patni it was the plaintiff, who sent for Bama Charan and told him to request Soshi to sell the Patni to him, and the refusal of the defendant led to some acts of oppression and threats by his Gomasta Charu Samanta. Then when the palm leaf cutting case was pending, the plaintiff wrote two letters to Bama Charan and Bhola Nath respectively on the 15th May 1910 that it 'was necessary -to have an interview with you on account of some mistake,' which was delivered by Avatar Muchi with the threats already stated. The plaintiff admits that he ordered Charu Samanta to send for Bama Charan and Bhola Nath for settling the palm leaf cutting case. The defendants' witness Ekkari deposes that the plaintiff ordered Avatar to convey the threats to Bama Charan and Bhola Nath. Bama Charan and Bhola Nath did not see the plaintiff, and this was followed by Charu Samanta's threatening Bama Charan's son and finally by sending words through Sital Koer to Soshi Bhusan challenging him to a fight on the bank ' of the tank. This Charu Samanta was his Gomasta from his minority until his (Charu's) death, which took place before this suit. It is contended that all this* took place before the first case. But the events which took place before the first case should also be taken into consideration in determining whether the defendants ' were justified in proceeding against the plaintiff. Then after the termination of the first case, Punjabi Pathan Durwans of the plaintiff patrolled the village with the plaintiff's Gomastas, and intimidated people. Attempts were made twice to waylay and assault Bama Charan and Arjun Duby was actually beaten for having warned Bama Charan. These facts and several others proved by the evidence and dealt with by the Court below, taken to. gether with what happened before the first case, would lead a reasonable man to connect them with the plaintiff. In the concluding portion of his judgment the learned Subordinate Judge observes as follows: 'I find as a fact that since the end of 1316 or the beginning of 1817 up to the time of the 2nd petition in the 2nd Section 107 case, various acts of oppression were committed by the plaintiff's men with the knowledge and connivance of the plaintiff to oppress and threaten the defendants and the tenants of Beeruha on their side. There were attempts to take possession of the orchard of Bhola 'Nath and a bank of the Jote tank in possession of the defendants Nos. 1 and 2 by force due to which there were several criminal cases, there were criminal oases brought against the defendants Nos. 2 and 3 on the charge of looting paddy, there were certain false civil suits against some tenants of the village, there was the attempt to beat Bama Charan the defendant No. 2,. there was the attempt to intimidate and oppress the tenants of Beeruha and the party of the defendants by massing Durwans and patrolling them in the village under the charge of the plaintiff's Gomasta and so forth. In con-saqnenoe the necessity of deputing constables in the village to keep the peace. To prevent these repeated attempts on the part of the plaintiff's men to commit breach of the peace or to disturb public tarn, quillity, the defendants Nos. 2 and 3 filed the petition- on which the 2nd Section 107 case was started and the defendant No. 1 helped them in prosecuting the case. It appears to me that any prudent, reasonable and discreet man had no other alternative than to inform the Magistrate within whose jurisdiction a breach of the peace and disturbance were likely to occur. The above facts, circumstances and probabilities of the case show that the prosecution under Section 107, Criminal Procedure Code, before the District Magistrate of Burdwan (the 2nd Section 107 case) was not without reasonable and probable cause. I have already found from the facts and circumstances of the case that the prosecution was started and conducted in good faith. I have also found that the prosecution was not false or malicious.'

35. We are unable to differ from the view taken by the learned Subordinate Judge and we are of opinion that the plaintiff has failed to show that the defendants acted with malice or had no reasonable and probable cause in instituting or conducting the proceedings.

36. The appeal is accordingly dismissed with costs.


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