Harihar Singh vs Dasrath Ahir and Others

Ross, J.—This is an appeal by defendant No. 2 against a decree of the Subordinate Judge of Saran in a suit for damages for malicious prosecution. The plaintiffs'' case was that the defendant No. 1 who was the peshkar of the Deputy Commissioner of Darjeeling had made an application to the Magistrate of Saran on the 3rd December 1918, which resulted in proceedings being taken against the plaintiffs u/s 107, Cr. P.C., which ended in their favour. Defendant No. 2 is the son of defendant No. 1. The principal allegations in the application to the Magistrate were that the defendant No. 1 had been assaulted by the plaintiffs on his way home from Ekma Railway Station, and further that they had carried away the crops of his paddy field of 1� bighas. This second allegation was based on a telegram sent by defendant No. 2 to defendant No. 1.

The finding of the learned Munsif was that the criminal case u/s 107 of the Cr. P.C. was wholly a concocted story and without any reasonable or probable cause," and he dismissed the suit. The finding of the learned Subordinate Judge was that he was not prepared to believe that the assault was a total myth, and that he had no doubt that defendant No. 1 believed the assault to have been committed at the instance of the plaintiffs. With regard to the telegram about the cutting of the paddy of 1� bighas sent by defendant No. 2 to defendant No. 1 he held that there was no justification for defendant No. 2 sending the telegram, and that the case was started without reasonable and probable cause by defendant No. 2, but the application by defendant No. If so far as ha was concerned was not without reasonable and probable cause and was started as an ordinary prudent man would have done under the circumstances. While dismissing the appeal so far as defendant No. 1 was concerned the learned Subordinate Judge gave the plaintiffs a decree for Rs. 147-8 0 against the defendant No. 2. It was held in Sheik Muchi Osta v. Horsmul Marwari 17 C.W.N. 434 that the first thing that the plaintiff in a suit for damages for malicious prosecution has to prove is his innocence. Now on the findings of neither Court below can it be said that the plaintiffs have proved their innocence. In the opinion of both Courts there was reasonable and probable cause for the information to the Magistrate which led to the proceedings u/s 107, Cr. P.C. That information included more than one specific accusation and the fact that one of these accusations has not been supported by evidence is in my opinion no ground for giving the plaintiffs a decree for damages for malicious prosecution, when the case as a whole has not been found to have been laid without reasonable and probable cause. No authority was cited to support such a contention and in view of the findings as to the nature of the proceedings u/s 107, Cr. P.C., as a whole, it seems to me impossible to give the plaintiffs a decree for damages.

I, therefore, allow this appeal with costs, set aside the decree of the learned Subordinate Judge and restore the decree of the Munsif and dismiss the suit with costs throughout.