ABDUL MAJID Vs. HARBANSH CHAUBE

JUDGEMENT

(1.) THIS is an appeal by the defendant. It arises in the following cir cumstances.

(2.) A dacoity took place at the house of Ali Raza in village Bankata, P. S. Rauna-par in the night of July 21/22, 1949. The plaintiff was prosecuted in that case under Section 412, Indian Penal Code for being found in possession of a 'hansuli' alleged to be belonging to Ali Raza on the charge-sheet submitted by the defendant No. 1 against him. The defendant No. 1 submitted a search memo in the capacity of Station Officer, P. S. Raunapar. The defendants Nos. 2 and 3 were search witnesses. The plaintiff was ultimately acquitted by the Court of Session on 9th October, 1950. Thereafter the plaintiff gave a notice to the defendant No. 1 under Section 80 Civil Procedure Code, which was, however, re turned refused by the defendant No. 1. The plaintiff thereupon filed a suit for damages on the ground of malicious prosecution claiming a sum of Rs. 1000.00 from the de fendants Nos. 1, 2 and 3. It was alleged by the plaintiff that one Amir Singh and the defendants Nos. 2 and 3 were his enemies and were plotting and conspiring to cause harm to him by various ways. With that end in view and taking unlawful advantage of the dacoity which took place at the house of Ali Raza, the defendants 'Nos. 2 and 3 conspired together to falsely implicate him as an accused under Section 412, Indian Penal Code in the said dacoity case. The defen dant No. 1 also joined hands with the defen dants Nos. 2 and 3 to secure that object The plaintiff alleged that he neither partici pated in the said dacoity nor received any stolen property but he was maliciously and without any reasonable and probable cause, prosecuted by the defendants. He alleged that the defendant No. 1 who was then the Station Officer P. S. Raunapar, kept him illegally detained in lock up for a day and then challaned him as an accused in the aforesaid dacoity case. As none could iden tify the plaintiff in the identification parade, the defendants and Amir Singh cooked up another case to keep the plaintiff entangled in the dacoity case by falsely implicating him in the case under Section 412, Indian Penal Code. The plaintiff further alleged that the defendant No. 1 prepared a false and totally wrong sketch map of the plaintiff's house. He never made any search of the house of the plaintiff and the alleged "hansuli' was not recovered from his house. The suit was contested by the defendants. The defendant No. 1 contended that he started a case under Section 412, Indian Penal Code against the plaintiff in a bona fide manner and pleaded that the plaintiff was prosecuted on the strength of the inves tigation made by him. He further alleged that he had made a search of the house of the plaintiff in connection with the dacoity which had taken place at the house of Ali Raza and had recovered a 'hansuli'. The al legations of the plaintiff to the contrary were denied by him. The defendant No. 1 denied the receipt of the notice under Sec tion 80, Civil Procedure Code and pleaded bar of section 42 of Police Act and Limita tion Act. The defendants Nos. 2 and 3 sup ported the case of the defendant No. 1 and alleged that a search of the plaintiff's house did take place in their presence and they were not liable for any damages. The trial Court repelled all the contentions raised by tile defendants and held that the plaintiff was maliciously prosecuted by the defendants without any reasonable and probable cause. It accordingly decreed the suit for damages to the tune of Rs. 1, 000.00. The defendants preferred an appeal from the said decree. The Appellate Court below on a considera tion of the evidence on the record and sur rounding circumstances affirmed the findings recorded by the trial Court and dismissed the appeal. Aggrieved, the defendant No. 1 preferred the second appeal No. 293 of 1965 whereas the defendants Nos. 2 and 3 filed a Second Appeal No. 3633 of 1964. Both the appeals were ordered to be connected and to be heard together.

(3.) THE learned counsel for the ap pellant, however, urged that the appellate court below arrived at those findings by considering some evidence which was in admissible and therefore the whole find ing is vitiated. In this connection he referr ed to that portion of the judgment of the appellate court below where reliance was placed on the statement of Mst. Kabutari. It appears that she was produced as a wit ness for the prosecution before the Sessions Judge to prove that hansuli said to have been recovered from the house of the plaintiff belonged to Ali Raza. She had ad mitted in the court of sessions that she was not in a position to tell whether Hansuli, Ex. 2 was the same which her husband had sold to Ali Raza. A certified copy of her statement made before the Sessions Judge was filed in the suit which has given rise to the present appeal and the appellate court below referred to that statement of Mst. Kabutari and observed that even from her statement, it was clear that the plaintiff's house was not searched by the defendant No. 1 at the time and date alleged and the alleged hansuli was not recovered, from the plaintiff's house. It is true that the certified copy of the statement of Mst. Kabutari has not established that she was dead or could not be found or her presence could not be obtained without an amount of delay or ex penses which under the circumstances of the case the court considered unreasonable. It may, however, be noticed that the statement of Kabutari was not the only evidence on which the appellate court below relied to come to the conclusion that no search of the house of the plaintiff was ever made by the defendant No. 1 and that the hansuli was not recovered from the plaintiff's house. On the other hand, the appellate court below made a careful scrutiny of the entire evidence both oral and documentary to come to that con clusion. In view of the clear findings on fact recorded by the courts below that that no search of the house of the plaintiff was ever made and everything against him was concocted in conspiracy with the defendants Nos. 2 and 3 and Amir Singh and that the defendant No. 1 took active part in the pro secution of the plaintiff clearly made out that the defendant No. 1 was actuated by wrong or indirect motive to prosecute the plaintiff.