BHASKAR NARHAR DESHMUKH Vs. KISANLAL SADASUKHDAS

JUDGEMENT

(1.) THIS appeal from order arises under the following circumstances: The plaintiffs-respondents and the defendant-appellant are cultivators. An incident occurred between them on June 2, 1958. The appellant filed a complaint against the respondents under sections 147, 323 and 451 of the Indian Penal Code. The plaintiffs were acquitted by the trial Court on May 18, 1959. The Defendant applied for leave to appeal to the High Court and the appeal was admitted, and after hearing the parties, the appeal was dismissed on February 3, 1960. The plaintiffs field the suit for damages for malicious prosecution on February 3, 1961 before the expiry of the year from dismissal of the appeal, but much beyond one year from the date of acquittal. Relying on a decision of this Court in Purshottam Vithaldas v. Rajiv Hari, ILR 47 Bom 28 = (AIR 1922 Bom 209), the trial Court dismissed the suit. The appellate Court curiously enough by passing this decision and following the decision in Madan Mohan Singh v. Ram Sunder Singh, ILR 52 All 553 = (Air 1930 All 326) and Sk. Mehtab v. Balaji Krishnarao, AIR 1946 Nag 46, allowed the appeal holding that the suit was not barred by limitation, and remitted it to the trial Court for disposal in accordance with law. Against this decision, this second appeal is field. It came for hearing before our brother Paranjpe, J. , who directed it to be placed before a Division Bench as it involved a question of some importance.

(2.) ORIGINALLY a second appeal was filed. Inasmuch as the trial Court had dismissed the suit on a preliminary point of limitation only, this was brought to the notice of Mr. Udyoji who applied that the appeal should be concerted into one against an order which has been allowed to be done. Article 23 of the Limitation Act, Schedule I, prescribes one year's period of limitation for compensation for a malicious prosecution and the time begins to run "when the plaintiff is acquitted, or the prosecution is otherwise terminated". A[art from authority, the language of this provision would seem to be plain. In the case of an acquittal, it provides a terminal point from which the time begins to run, the terminal point being the acquittal. Now, an acquittal is an acquittal, whether or not the complainant files a revision application against the order of acquittal or an appeal or the State files an appeal. The position is not altered by the addition of section 417 (3) in the Code of Criminal Procedure which permits the complainant, in the case of a private complaint, to file an appeal to the High Court against an order of acquittal with its permission of leave. The original acquittal is still operative, and on the language of the provision, it is the date of acquittal from which time begins to run. The other alternative is that "the prosecution is otherwise terminated". Now, whenever a prosecution is otherwise terminated". Now, whenever a prosecution is started, it may not necessarily end in an acquittal. A prosecution may end, either in acquittal or conviction. If it is the first, then it is governed by the first part of this provision, and if it is the second, there can be no case for a suit. It may also result in an order of discharge, or in a dismissal of the complaint if the complainant is absent on the date fixed for the hearing of the complaint. The latter part of the provision "the prosecution is otherwise terminated" is intended to meet such cases, and here again, it is the end of that proceeding which is operative for all intents and purposes and governs the point of time when the period begins to run. In our view the first part of this provision is indicative of the meaning to be attached the letter part, and it could only mean the first terminal point when the prosecution ends in the first Court, for the reason that the effect of such an ending is the same as in the case of an acquittal. This is the view expressed in ILR 47 Bom 28 = (AIR 1922 Bom 209 ). In this case, the plaintiff was discharged on November 28, 1918. The defendant made an application in revision against the order of discharge but the application was rejected in March 1919. The plaintiff raised the suit on March 10, 1920 to recover damages from the defendant for malicious prosecution. The Court held that the cause of action arose on the order of discharge being passed in plaintiff's favour and once the period began to run, it would not be suspended because further proceedings might be taken either by Government or by the complainant in order to get the order of discharge set aside. This Court followed the decision in Venu v. Coorya Narayan, (1881) ILR 6 Bom 376, where similarly the Court held that the prosecution terminated on the order of discharge being made in favour of an accused person. Similar view was taken in Narayya v. Seshayya, (1900) ILR 23 Mad 24. The decision in (1900) ILR 23 Mad 24 was overruled by a Full Bench in Kulasekara Chetty v. Tholasingam Chetty, AIR 1938 Mad 349. In that case, the respondent had prosecuted the two appellants for assault, insult and criminal intimidation. The charges against criminal intimidation. The Charges against appellant No. 2 were dismissed on September 23, 1930 and he was discharged. Appellant No. 2 were dismissed September 23, 1930 and he was discharged. Appellant No. 1 was acquitted on May 25, 1931. The respondent made two applications in revision, one against the order of acquittal of the first appellant. The District Magistrate before whom these applications were filed, dismissed them on July 13, 1931. On July 12 1932, the appellants filed a suit in the District Court for damages for the decision of the Privy Council in Balbhaddar Singh v. Budri Sah, AIR 1926 PC 46, where it was held that in suit for malicious prosecution the plaintiff had not to prove that he was innocent of the charge upon which he was tried, nut it was necessary to prove that he was acquitted and that it was launched maliciously. On the basis of this decision, it was observed that unless a person is in a position to allege that the prosecution resulted in fore, if an appeal is field against the acquittal or revision application is filed against the acquittal or discharge, he would not be able to file a suit damages for malicious prosecution. The Court also relied upon the observations of Williams, Byles and keating, JJ. in Gilding v. Eyre, (1861) 10 CB (NS) 592 at p. 604: