SHEIKH MUFEZ Vs. MD JAKARIA

JUDGEMENT

(1.) This is an appeal by the Defendants against a: decree for damages for malicious prosecution.

(2.) The suit was instituted by the Plaintiff claiming damages amounting to Rs. 2,100 against 47 Defendants. Two of these Defendants compromised the case, with the Plaintiff in the trial court and the trial court decreed the suit for Rs. 180 only on compromise against the said Defendants and on contest against the appearing Defendants and ex-parte against the others Thirty-nine out of the 47 Defendants appealed against this decree and the Plaintiff also filed a cross-objection. The Appellant was allowed in part and the decree passed by the trial court was modified. The Plaintiff was awarded a decree for Rs. 30 only against the Appellants and the proforma Respondents Nos. 4 to 9 jointly. The cross-objection was dismissed. The liability of the two Defendants who had compromised the suit with the Plaintiff was not, however, affected by this decree and the Plaintiff was entitled to recover Rs. 100 from them under the terms of the said compromise embodied in the decree of the trial court. The same Defendants who had appealed in the first instance have preferred this second appeal against the aforesaid decision.

(3.) The only question which was argued in this appeal was whether there had been a criminal prosecution of the Plaintiff entitling him to claim damages for malicious prosecution. Both the courts below have concurrently found that there was a prosecution, that the prosecution was malicious and that there was no reasonable and probable cause for the same. The prosecution was not initiated by way of a petition of complaint alleging commission of any offence under the Indian Penal Code. The petition which the Defendants filed against the Plaintiff was for action against him under the chapter of the Code of Criminal Procedure relating to prevention of offences. Certain allegations were made in the petition with a prayer that proceedings might be instituted against the Plaintiff under Sections 107 and 110 of the Code of Criminal Procedure. After receipt of this petition, the Subdivisional Magistrate, Suri, issued notice upon the Plaintiff. The Plaintiff thereupon appeared and showed cause. Thereafter on November 19, 1948, the learned Magistrate passed the following order: