KACHRULAL THAVRJI Vs. RAMESHWARDAYAL DHOOLJI

JUDGEMENT

(1.) This is a second appeal by the plaintiff's whose suit for damages for malicious prosecution has been dismissed by both the lower Courts. There is no dispute on the allegations of facts, the questions being, whether in the circumstances of this case, the defendant can be deemed to have started the prosecution; whether the infor-mation given by him was false or one without sufficient cause; and whether in the present case the background of old feud was at all material.

(2.) The relevant facts are the following. The defendant is a doctor and a neighbour of the plaintiffs who are father and son, and who used to do business in the sale of different commodities including kerosene oil. Sometime in 1946, when the Defence of Gwalior Rules (which were a copy of the Defence of India Rules) were in force, and kerosene oil was a controlled commodity, the defendant informed the police that the appellants had stored 20 tins of kerosene oil. The actual wording of the information contained either in a letter by the defendant or in the station diary entries of the police, has not been produced, though in view of what happened subsequently, the plaintiff-appellants must have had copies of the information. Be that as it may, on getting this information, the police went to the residence of the plaintiff-appellant, made a house search in accordance with law and actually recovered 20 tins of kerosene oil. In other words, the information given by the defendant was correct on the facts. If, in addition, the defendant had reported that the plaintiffs were blackmarketeers or had otherwise broken the law, we do not have the report. But as a fact, the plaintiffs had at that time no valid licence for storing kerosene oil. They had been licensees in the previous year, and had applied for renewal of the licence. However, the plaintiffs were continuing to store kerosene oil, though the renewal had not come, on the assumption that the application for renewal justified it. Whether or not this was sufficient justification, the police started a case under the Defence of Gwalior Rules.

(3.) The plaintiffs aver, probably correctly, that the investigation by the police was carried out with a considerable amount of harassment and publicity, such as putting the two of them in fetters, marching them along the streets and detaining them in lock-up for some time. The prosecution itself was on the straightforward allegation that the police recovered from the plaintiffs 20 tins of kerosene oil and that they had no valid licence at that time. The defence was that they certainly had the quantity of kerosene oil, and as for the licence, they had applied for renewal which they expected would come and in anticipation of which they continued the business. Whether in these circumstances, the police should have started a case and whether, having started the case they should have put the plaintiffs, in fetters and humiliated them in the manner described, and whether bail should not be given earlier, are all matters with which the defendant was not, and could not be concerned. Ultimately, the Magistrate trying the case, found on these facts that no contravention had been made out and there was a reasonable, anticipation on the part of the plaintiffs that the licence would be renewed though the. renewal itself was delayed. Thus they were acquitted. After the acquittal, the plaintiffs noticed the defendant calling upon him to compensate them for the harassment caused by the malicious prosecution, The defendant replied that as far as ho was concerned, he gave a piece of information which was found correct by the police. The case itself was not on his information but on the recovery of the oil from the place of the plaintiff. This is substantially the content of the written statement but in addition, the defendant also states that "the plaintiffs were black-marketeers and they deserved what they suffered."