Jagdeo Sahu vs Dwarka Prasad

Meredith, J.—This appeal under the Letters Patent from the decision of Shearer J. arises out of a suit for damages for malicious prosecution. The suit was brought by the local agent of the Burma Shell Co. at Dehri-on-Sone, against three defendants, of whom the first was the Chairman of Local Union Committee

On 1-3-1910, he forwarded to the Sub-divisional Magistrate Sasaram a petition which he had received from certain rate payers including defendants 2 and 3. In the petition it was stated that at the station Jagdeo Sahu, Babulal Kali Charan Sahu (Plaintiff''s firm) had had got oil godowns at two places, and contiguous thereto were situated many houses of the public with tile and straw thatches and. there was also a liquor shop by the side of the oil godowns These were highly dangerous, and they requested that the oil godowns might be removed to a secluded place Defendant 1 sent on the petition with the following endorsement:

Forwarded to the S.D.O. Sasaram, for favourable orders. I myself had been to the spot, and found that the keeping of kerosene godown on the place alleged is highly objectionable and dangerous for the public. It must be removed.

On receipt of this, the Sub-divisional Magistrate made a conditional order u/s 133, Criminal P.C., requiring the plaintiff to show cause, or to remove the kerosene oil godown. The plaintiff in answer to the notice appeared, and satisfied the Magistrate that, there was little or no danger of fire and that the al. legations against him were unjustified. The proceedings were then dropped. Thereupon the present suit was instituted. At the trial evidence Was adduced to show that the plaintiff was one of those who had made complaints against the manner in which defendant 1 had been discharging his duties as Chairman of the Union Committee The Courts of fact came to the conclusion that defendant 1 in making the endorsement he did and forwarding it was actuated by malice, with improper motive, and not by any desire for the general welfare or the public good. They also found want of reasonable and probable cause for the institution of the proceedings, and held that the Chairman was responsible for their institution. In this view the plaintiff was given a decree against all three defendants, but only for a sum of Rs. 21-13-3 the expenses actually incurred by the plaintiff in showing cause against the notice Only defendant 1 appealed, and his appeal was dismissed-by the Subordinate Judge who heard it. Defendant 1 then came before Shearer J. in second appeal and that learned Judge has dismissed the suit with costs throughout as against defendant 1. Hence this Letters Patent appeal by the plaintiff.

Shearer J. observed that in order to entitle the plaintiff to a decree it was incumbent on him to show that it was this defendant who had caused the proceedings against him to be instituted. The Courts below, he said, had not directed their minds to the question, and had assumed that as the learned Sub-divisional Magistrate would never have instituted the proceeding if the defendant had not sent in the petition or made the endorsement, the defendant must be deemed in law to have instituted the proceeding. This he considered was not correct, and the proper course for him in second appeal was to determine the question for himself. He held that it was not open to the Sub-divisional Magistrate to make an order of the kind which he did. The order he should have made was merely one requiring the plaintiff to show cause why the licence which he held under the Petroleum Act should not be cancelled. Prom what was contained in the petition it could not reasonably be said that the defendants intended the Magistrate to institute the proceeding which he did, and did not intend merely that he should take steps to cancel the plaintiff''s licence. Therefore, it should be held that the proceeding was not in fact instituted by the defendant, but by the Sub-divisional Magistrate himself.

It was in this view he allowed the appeal. He mentioned another question of some difficulty which arose, namely, whether a person against whom a proceeding u/s 133 has been instituted maliciously and without reasonable cause is entitled to recover damages by a suit in the civil Court; but he thought it unnecessary to decide this question.

I find myself unable to agree with Shearer J. that the proceeding was not instituted by defendant 1. The fact that the respondent did not himself originate the petition is immaterial. He completely associated himself with it, and by his endorsement thereon made it his petition. The Courts have not taken a narrow view in this regard: Taharat Karim and Another Vs. Malik Abdul Khaliq and Others, and Gaya Prasad v. Bhagat Singh (08) 30 All. 525.

Moreover, I am unable to agree that what the Chairman contemplated was proceedings for cancellation of the licence There was no request or suggestion that the licence should be cancelled, nor can it be said, in my view, that the petitioners even contemplated cancellation of the licence altogether. What was asked for was removal of the godown to a secluded place, and that is not cancellation of the licence The complaint made seems to me clearly a complaint of public nuisance, and that is so more particularly of the Chairman''s endorsement. The allegation is that the keeping of the kerosene oil godown on the place alleged was highly objectionable and dangerous to the public, If that is not a complaint of public nuisance, I do not know" what it is, and I think the proceedings u/s 133, far from being without jurisdiction, were the natural consequence of the complaint made.

The proceedings, therefore, must be held to have been instituted by the respondent. It has been urged before us that the respondent acted not in his personal capacity but as Chairman, and if any one could be made liable it should be the Union Committee But obviously it is a case of the Chairman making improper personal use of his official position. The finding that he acted to satisfy his private grudge is inconsistent with any view that he acted officially as Chairman.

There remains the question whether a suit for malicious prosecution would lie upon a malicious complaint of public nuisance The answer, I think, must be in the affirmative Too much stress must not be laid on the word "prosecution." The real question is whether what was done amounted to an actionable wrong. In Crowdy v. O''Reilly 17 C.W.N. 554 Sir Ashutosh Mookhorjee in a carefully reasoned judgment held that the word "prosecution" in respect of such a suit is not used in the limited sense in which the term is used in the Code Of Criminal Procedure, and the action will lie in regard to proceedings u/s 145, Criminal C, The same view was taken in Bishun Pergash Narain Singh v. Phulan Singh AIR 1915 Cal. 79. Such proceedings are not purely civil. They may perhaps be called quasi-criminal and the view of the law is that action lies in the case of such proceedings if malicious and without reasonable and probable cause. The principle is clear which lies behind the decisions. True it is not a actionable wrong to institute civil proceeding without reasonable and probable cause even if malice be proved, for in the contemplation of law defendant who is unreason-ably sued is sufficiently indemnified by a judgment in is favour, which gives him his costs against the plaintiff. But there are proceedings which though civil are not ordinary actions, and fall within the reason of the law which allows an action to lie for malicious prosecution. Such proceedings, for example, are proceedings in bankruptcy against a trader. Such a proceeding, if instituted without reasonable and probable cause and with malice, is an actionable wrong: Quartz Hill Gold Mining Co. v. Eyre (1883) 11 Q.B.D. 674.

In my judgment, proceeding of a quasi-criminal type fall within this class, because they are proceedings under the Criminal Procedure Code in the Criminal Courts and there is no question of the person proceeded against being indemnified in costs. He must seek his remedy elsewhere The plaintiff as a result of the malicious proceeding instituted suffered harassment and loss. He had to appear before the Magistrate and engage counsel, and might also well suffer scandal to reputation. Is he to have no remedy? I think that is not the law. On this point see Pollock on Torts, Edn. 14, at pp. 250 and 251. In the present case, in my judgment, all the necessary findings exist. The institution by the respondent is clear, and malice and want of reasonable and probable cause has been found. I think the suit was rightly decreed. I would, therefore, allow this appeal with costs, throughout, set aside the decision of Shearer J. and restore the decision of the learned Munsif.

Manohar Lall J.

I agree With respect, I would follow the closely reasoned judgment of Sir Ashutosh Mukherji in Crowdy v. O''Reilly 17 C.W.N. 554 and would hold that the proceedings started by defendant 1 must be considered to be "prosecution" in the general sense of the term, otherwise, the person proceeded against would have no remedy against the prosecutor or the person who started those proceedings. The proceedings were undoubtedly initiated by defendant 1, and I cannot conceive of a clearer case of his association with the proceedings before they reached the Sub-divisional Officer, though in the name of defendants 2 and 8, than by what he did in making the strong re-marks when forwarding it to the Sub-divisional Officer of Sasaram. He writes there that he himself had been to the spot and found the keeping of the kerosene godown highly objectionable and dangerous for the public and that it must be removed. It must be remembered that the remarks by defendant 1 must have made a great impression on the Sub-divisional Officer as it came from a person who was in the position of a Chairman of the Union Board.