ZARGHAM ABBAS Vs. HARI CHAND

JUDGEMENT

(1.) Each one of the six respondents in the six appeals filed a suit each against the defendant-appellants for damages for malicious prosecution. All the six suits were consolidated by the trial court and decreed by a common judgment. Hari Chand's suit, being Suit No. 149 of 1969 of the court of IV Additional Munsif, Meerut, was treated to be the leading case. As against the sum of Rs. 1,500 claimed by Hari Chand as damages the amount awarded to him by the trial court's decree was Rs. 675. Satya Prakash was awarded Rs. 600 as against the claim of Rs. 1,000 in his Suit No. 139 of 1960. Chuttan Lal, Sunder Lal and Ghasi Ram, plaintiffs in Suit Nos. 138 of 1969, 140 of 1969 and 141 of 1969, were each awarded Rs. 340 as against the claim of Rs. 600 in their respective suits. Raja Ram, plaintiff in Suit No. 142 of 1969, was awarded Rs. 250 as against the claim of Rs. 700 made by him. The lower appellate court confirmed the decrees in all the six suits. Hence the six second appeals in this Court.

(2.) It appears that there had been litigation between Hari Chand and his sons and grand-sons on the one hand and Zargham Abbas and his sons on the other. The dispute between them related to dolbandi of the boundaries of their lands. Zargham Abbas, the first appellant in this Court, since deceased and now represented by his legal representatives, lodged a first information report at the police station Jani with the allegations that on 17th May, 1967 while his son Ali Abbas was tending the garden at about 7 in the morning, Hari Chand and his son Satya Prakash went there and beat Ali Abbas with a khurpa; that on the raising of alarm by Ali Abbas, some people arrived who rescued him; that Ali Abbas then went to the house of Shaukat Husain; that when news reached Zargham Abbas, he went there with his sons and was taking Ali Abbas to the police station on a bus; that while he was on his way to the police station Hari Chand with his three sons Satya Prakash, Chuttan Lal and Sunder Lal, and grand-sons Ghasi Ram and Raja Rani, came armed with lathis and entered the house of Zargham Abbas where his daughters were living, and tried to force their entry into the house but the daughters bolted the door from inside and the said persons could not harm them because of the arrival of the witnesses. Hari Chand, his sons and grand-sons, were thereupon prosecuted for offences under Sections 147 and 452 of the Indian Penal Code. There was a compromise between the parties but the offence under Section 452 of the Indian Penal Code could not be compounded and the learned Magistrate proceeded with it. The prosecution resulted in the acquittal of Hari Chand and his sons and grand-sons. The only point considered by the lower appellate court in this case was whether the prosecution of the defendant-respondents was malicious, false and without reasonable and probable cause.

(3.) Mr. R. H. Zaidi, learned counsel for the appellants, criticised the finding of the two courts below on this point and urged that it was vitiated in law. He relied on the decisions of this Court in Devi Atma Nand v. Shambhu Lal (1965 All LJ 317); Sumat Prasad v. Ram Sarup Sastry (AIR 1946 All 204); and of the Privy Council in Braja Sunder Deb v. Bamdeb Das (AIR 1944 PC 1). He also contended that the compromise in this case was filed even before the police had submitted a charge-sheet and under the circumstances although the offence under Section 452 of the Indian Penal Code was not compoundable, it could not be said that the defendants appellants were the initiators of a prosecution. It was the police and the court who in spite of the compromise which amounted to a withdrawal of the information lodged by the deceased first appellant before the police, continued with the prosecution and since he was summoned as a witness he had no option but to appear before the court and state the truth. The fact that he was not believed by the learned Magistrate or the fact that the learned Magistrate did not find his evidence sufficient for convicting the respondents of the offence for which they were being prosecuted does not mean that he was the initiator of a false prosecution.