MATURU SUBBA RAO Vs. HRUDANANDA SAHU

JUDGEMENT

(1.) THIS is a Plaintiff's second appeal against the confirming judgment of the lower appellate Court arising out of a suit for damages for malicious prosecution, I may shortly narrate the facts which have been found by the lower appellate Court as admitted by both parties. The Plaintiff, Mr. Subba Rao, an old and Senior Advocate of this Court, obtained a decree against the Defendant in the year 1935. The execution case under that decree was pending in the Court of the Additional Munsif at Cuttack. In that case a warrant of arrest was issued against the present Defendant, as judgment -debtor, for the realisation of the balance decretal dues and it was entrusted for execution to the Process Server Brundaban Mohanty. On previous occasions the Plaintiff -decree -holder had experienced considerable difficulty in executing the warrant of arrest against the Defendant -judgment debtor and the Plaintiff kept a careful watch on the movements of the Defendant. On 15th April 1950 the Defendant had been summoned as an accused to the Court of Sri B. Pal, Magistrate, Cuttack. The Plaintiff knowing this made arrangements for the arrest of the Defendant in execution of the Civil Court warrant. The Defendant, an accused ill the criminal case before Sri B. Pal, was ordered to be released on bail in the morning hours, and noticing that arrangements were being made for his arrest under the Civil Court warrant issued in the execution case, he (the Defendant) filed an application before Sri S.S. Roy, Magistrate, who was on that date in charge of the current duties of the Sub -Divisional Magistrate, for an order restraining the Civil Court Process Server from arresting him and claiming immunity from arrest under the provisions of Section 135 of the Code of Civil Procedure. The Magistrate passed an order under Section 144, Code of Criminal Procedure on that day, that is, 15th April 1950, restraining the Civil Court Process Server from arresting the Defendant till the latter reached home and further directed that notice of the order under Section 144, Code of Criminal Procedure should be served upon the Process Server. Thereafter the Defendant, an inhabitant of a village, got into a car which proceeded towards Kathjuri embankment road. But his car was stopped near the eastern gate of the Collectorate compound away from the Collectorate buildings as two persons, Bhikari Ram and Hemchandra Jee, had placed their cycles crosswise at the gate. It is to be noted, these two persons had been deputed by the present Plaintiff to help the Process Server in effecting arrest of the Defendant. The Plaintiff also had arranged a car in which the Process Server went behind the car of the Defendant judgment -debtor. As the judgment -debtor's car was stopped at the gateway, the process server immediately reached the place and showed the warrant of arrest to the Defendant -judgment -debtor and demanded payment of the balance decretal amount, or else he was liable to arrest. In the meantime the Sub -Inspector of Police in charge of the Lalbag Police Station came to the spot, dispersed the crowd and apprised the Process Server of the promulgation of the order under Section 144 passed by Sri S.S. Ray, Magistrate. The Process Server on seeing the order obeyed it and did not execute the warrant of arrest and the Defendant proceeded with the car.

(2.) THEREAFTER the Defendant filed a criminal case against the present Plaintiff Mr. Subba Rao and his two men Hemchandra Jee and Bhikari Ram who had been deputed by the Plaintiff to render assistance to the Process Server in executing the order of the Civil Court, that is, arrest the Defendant. Hemchandra Jee and Bhikari Ram were proceeded against under Section 341, Indian Penal Code and Mr Subba Rao was proceeded against in the criminal case for having abated the offence of wrongful restraint, that is, under Section 341 read with Section 109 of the Indian Penal Code. Mr. Subba Rao and Bhikari Ram were acquitted by the trial Court. The other man Hemehanda Jee who was convicted under Section 341 and sentenced to pay a fine of Rs. 20/ - was ultimately acquitted by the judgment of Panigrahi, J. dated 14th February 1952, in Criminal Revision No. 340 of 1951. So this present suit for malicious prosecution wherein Mr. Subba Rao claims damages to the extent of Rs. 1000/ -.

(3.) IT is to be noted, the defence version that the plaintive waved his hand as a result of which his men committed the offence of wrongful restrain has been negatived by the lower appellate Court. The Courts below have gone wrong in not attaching importance to the feature that as soon as the order under Section 144 Code of Criminal Procedure passed by Sri S.S. Roy, Magistrate, was shown to the Process Server, the Process Server desisted from acting bodily arrest. The fact remains, the decree under which the execution case started was passed in the year 1935 and by the time when the execution case was pending and the order of warrant of arrest was passed by the executing Court, the decree was nearly 15 years old and if the execution case failed, the decree -holder would be hit by the 12 years period of limitation, and the dues outstanding on the date, that is, on 15th April 1950, was a substantial one; there were considerable difficulties experienced in realising the total dues of the decree -holder within the long period of 15 years. So the present Plaintiff -decree -holder was perfectly justified in making all arrangements for effecting the arrest of the Defendant in accordance with law and as such, the Plaintiff -decree -holder was within his rights to depute the two persons Bhikari Ram and Hemchandra Jee to assist the Process Server, and was perfectly justified in arranging a car for the Process Server. The Defendant, judgment -debtor, knew all the entire positions that the Plaintiff's legal dues were outstanding, that the Plaintiff -decree -holder was a very old senior Advocate of the Cuttack Bar and very widely known in the State. To put him (the Plaintiff) in the role of an accused in a criminal case in the above set of circumstances, the Defendant -judgment -debtor must and should have been more careful in launching the criminal proceedings on the basis of a reasonable and probable cause that the Plaintiff had abated the offence of wrongful restraint. Indeed the Defendant had obtained the order of the Magistrate claiming immunity under Section 135, Code of Civil Procedure but that order was found by the High Court and also by their Lordships of the Supreme Court as being completely ultra vires S.S. Roy v. State of Orissa : A.I.R. 1960 S.C. 190. That order could be ignored by the Plaintiff, but nevertheless that apart the Process Server obeyed the order and the Defendant -judgment -debtor was not bodily arrested. What is more important is how and on what materials can it be suggested for a moment that the Plaintiff had abated the offence of wrongful restraint as the Plaintiff on the aforesaid admitted facts, was perfectly within his rights in law. Furthermore the Defendant's car was stopped for a reasonably short time when the Process Server was anxious to discharge his duties imposed upon him by the order of the Court; but as soon as the Sub -Inspector of Police showed the order of the Magistrate, the car was let off. In my view, the Defendant in launching the criminal prosecution acted not only maliciously but without reasonable cause. Much reliance has been placed on the order passed under the provisions of Section 135 Code of Civil Procedure by the learned Counsel, appearing on behalf of the Respondent -Defendant. In my view, apart from the position that the order passed by the Magistrate was without jurisdiction, Section 135, : A.I.R. 1960 S.C. 190 will not help the Defendant in the present case as the Defendant was never arrested on 15 -4 -1950 I should make it clear, the exemption can be claimed only to a reasonable extent. It does not affect a reasonable approach on the part of the Process Server in effecting an arrest which ultimately was not successful as the Process Server respected even the order of the Court inspite of its being without jurisdiction. The quantum of damages has been rightly found by the trial court as a reasonable one.