BABULAL BHIKARILAL Vs. GHASIRAM

JUDGEMENT

(1.) THIS is a defendant's second appeal against whom a decree for a sum of Rs. 600 has been passed as damages for malicious prosecution of the plaintiffs (respondents).

(2.) THE defendant, Babulal, filed a criminal complaint (Ex. P. 1) against the plaintiffs in the Court of the Magistrate 1st Class, Hoshangabad. In that complaint it was alleged that the plaintiff No. 1, Ghasiram, threatened to assault the defendant with an axe, that he forcibly removed from the person of the defendant's daughter certain gold and silver ornaments and that the plaintiff No. 2, Smt. Bhageshwaribai, who is the wife of plantiif No. 1, assaulted the defendant with a Khanita (a small sharp edged agricultural implement), causing an injury on his lips. Some allegations were also made against one Chhotelal, who was discharged by the criminal Court, but as he has not figured as a party in the present litigation, they need not be mentioned. THE Magisthetrate 1st Class to whom the complaint was presented, took cognizance under section 190 of the Code of Criminal Procedure and directed police investigation under section 202 of the Code. After receipt of the police report, he noted in the order-sheet that a prima facie case under sections 323 and 324 of the Penal Code is made out and the case be disposed of by Shri S.K. Tripathi, Magistrate 2nd Class, according to law. Shri Tripathi, to whom the case was transferred, registered the same under sections 323 and 324 of the Penal Code and issued summons to the plaintiffs for appearance before him. A copy of the complaint was served on the plaintiffs as required by section 204 (1-B) of the Code and on their appearance, the case was tried as a warrant case. A charge under section 323 of the Penal Code was framed against the plaintiffs but they were ultimately acquitted by the order, Ex. P-5. THEse facts are no longer in dispute.

(3.) IN this second appeal, the learned counsel for the appellant, contends that on the facts of this case, the plaintiff No. 1 was not prosecuted on the charge of robbery. His argument is, that as the complaint, after the police report, was registered only under sections 323 and 324 of the Penal Code, the plaintiff No. 1 was not required to answer the charge of robbery viz. forcible removal of ornaments from the person of defendant's daugher, and though this charge was laid in the complaint, it cannot be said that the stage of prosecution in respect of this charge was ever reached. The second contention raised by the learned counsel is that as regards rest of the allegations contained in the complaint, there was reasonable and probable cause for making the complaint.