NITYA NANDA MANDHATA PATNAIK Vs. BINAYAK SAHU

JUDGEMENT

(1.) The defendant in n suit for damages for malicious prosecution is the appellant.

(2.) The defendant is a pleader of the Ganjam Bar and has a standing of over 30 years. He is the owner of a village named Sargunapally within Purusottampur Police Station, and about 15 miles from Berhampur. The plaintiffs are P. W. D. contractors owning some lands and other petty business and are residents of Bhabando, a few miles away from Sargunapally. On 14-6-43 at about midnight, it is alleged by the defendants some persons from Sargunapally came and informed him that his paddy at Sargunapally was looted away by the plaintiffs and about 40 others that night. On hearing the same, the defendant approached one Mr. B.R. Das, the Circle Inspector of Berhampur and reported to him about the occurrence and requested him to go and recover paddy. As Mr. B.R. Das had no jurisdiction over the place of occurrence, he declined to interfere without any permission from the Superintendent of Police. The defendant, accordingly, it is alleged, sent a telegram to the Superintendent of Police at Chatrapur at about 3 a.m. This telegram is not put in evidence. At about 5 a.m. he also sent a report to the Circle Inspector of Aska, under whose jurisdiction the Pursottampur Police Station is, alleging that his grain pit containing a little over than five cart-loads of paddy and pudugos containing 10 cart-loads of paddy had been looted away from Sargunapally village on the 14th night by the plaintiffs and others and it" the police would take action promptly, the paddy could be seized with the help of reserve police. This report is marked Ex. 2(a) and it may be noted that this report Ex. 2(a) purports to be a report based upon the personal knowledge of the facts contained therein of the defendant. It docs not state that, that report was lodged on the information given to him by the persons coining from Sargunapally. Failing to obtain any reply from the Superintendent of Police, the defendant proceeded to Chatraoyr at 10 a.m. and moved the Superintendent of Police to investigate into the matter personally. But the Superintendent of Police declined and sent a police constable along with the defendant with instructions to Mr. B.R. Das. It is not known whether Mr. B.R. Das had any written authority by the Superintendent of Police to enquire into the case. But there is evidence that immediately afterwards Mr. B.R. Das and the defendant hurried to the spot through Bhabando, the village of the plaintiffs and reached Sargunapally at about 5 p.m. The Police party went in a police bus with armed constables. On arrival at Sargunapally Mr. B.R. Das began investigation and alter inspection of the spot it is alleged, threatened the people of the locality with house search and recovered some paddy from some persons of the locality and prepared a search list Ex. A(4). The investigation in vallage Sargunapally continued till about 9 p.m. Exhibit 2(a) which was sent to the Circle Inspector, Aska, was received by the Sub-Inspector of Purusottampur Police Station who treated the same as F.I.R. and hurried to the Police Station, drew up a formal F.I.R. and immediately proceeded to the spot. He reached Bhabando at about 6 p.m. but did not go into the village and reached Safgunapally at about 7 p.m. It is alleged by the plaintiffs that when Mr. B.R. Das came with the police party along with the defendant, the second plaintiff was pointed out by the defendant to the Circle Inspector near the school at Bhabando and was taken into custody. The second plaintiff was then going to the Sub-Inspector of Purusottampur to pay him the batta due to him for attending Court at Chatrapur as his witness the previous clay. This fact is corroborated and admitted by the evidence of the Sub- Inspector as also a receipt granted by him for the amount which is Ex. 4 in the case. After finishing investigation at Sargunapally Mr. B.R. Das and D. W. 2 and the police party proceeded to Bhabando where they seized some paddy produced by two other persons and prepared the search list Ex. A(3). The defendant says that he was present till then but returned that night to Berhampur due to some urgent business and came there again the next morning. On the next morning, that is, 16-6-43 they went to a rented house of the plaintiffs at about midday and wanted to search the house. Plaintiff 2 objected and the house was not searched on that day. The Circle Inspector of Aska came on .17-6-43 and after consultation with D. W. 2 seized the Dholi and the paddy and prepared the search list Ex. A(5). But according to the evidence of plaintiff 2 he was not present when paddy in the rented house was seized; that he was arrested on 16-5-43 when he was going to Purusottampur Police Station to pay the batta money to D. W. 2 and that he was taken into custody and kept in school for the whole day. Plaintiff 2 says that, that night he was kept in the school and on the following day he was formally arrested and taken to the Purusottampur Police Station where he was kept in police lock-up for about 2 days and that therefore he was put in jail hazat for about a week and on 26-6-43 was released on bail. It is admitted that plaintiff 1 was not found by the Police partv in the village on 15-0-43. He surrendered before the S. D. M., Chatrapur on 17-7-43 alter which he was remanded to custody for about 3 days and was released on bail on 20-7-43. It is the case of plaintiff 1 that his son-in-law having been dead he wanted to get his daughter who is a girl of about 12 years, remarried and for that purpose wanted to get her wear glass bangles again. With that object in view he went along with his daughter and parents to Puri about 3 to 4 days prior to the alleged occurrence and remained there for about a mouth and after coming from Puri surrendered before the S. D. M. From Puri he wrote two postcards one to plaintiff 2 and one to another man --oh 14th and 15th respectively which are marked in evidence "as Exs. 3(b) and 3(c). After the completion of the investigation, the police submitted charge-sheet against about 20 persons including both the plaintilfs. The plaintiffs along with other accused persons were tried for the offence of dacoity and the case prolonged for about 2 years and the plaintiffs as also all the other accused persons were acquitted by the judgment dated 13-6-45 (Ex. 1).

(3.) The plaintiffs instituted the suit for damages for malicious prosecution on 18-546. They alleged that they were respectable persons owning properties and doing business; that the defendant was not pulling on well with his tenants and had several litigations with them; that he had no paddy at Sargunapally in the year 1942; that the defendant prosecuted them and personally helped the police during the investigation and trial and procured witnesses for the purpose; that the prosecution was malicious and without reasonable and probable cause; that plaintiff 1 was absent at Puri and plaintiff 2 at Chatrapur on the day of occurrence; and that the entire prosecution case was false and claimed damages of Rs. 5001/-.