STATE OF ASSAM Vs. BASANTA BURMAN

JUDGEMENT

(1.) Register this application as a separate Misc. Case.

(2.) The State of Assam has filed this application under O.1, R.10 of the C.P.C. for treating pro forma respondents 4, 5 and 6 as co-appellants. The State has prayed that the aforesaid pro forma-respondents may be added as co-appellants instead of pro forma-respondents. Respondents 4, 5 and 6 are Inspector of Police; Superintendent of Police and Deputy Superintendent of Police, respectively. The suit was instituted against the State of Assam as well as the three police officers for malicious prosecution. Mr. P. Prasad, the learned Govt. Advocate, submits that the suit was instituted against the State as well as the public servants and the cases of these defendants were conducted by the Govt. Advocate at Tezpur. However, the learned Government Advocate, Tezpur could not file written statement as the prayer for adjournment was rejected. Mr. P. Prasad submits that the decree was rendered on the basis of pleadings and not a single witness was examined. It appears that the trial Court proceeded under O.8, R.10, C. P. C. While delivering the impugned judgment the learned Judge held : "This is a suit for compensation for malicious prosecution against the State of Assam represented by Defendants 2, 3 and 4 the police officer who was posted at Tezpur at the relevant time". The learned Assistant District Judge, it appears, held that on 14-8-1979 the defendant 5 lodged an ejahar, police registered a case under S.147/447, 506/323/427/379, I. P. C. arrested plaintiffs 2 and 3, seized some articles belonging to the plaintiffs. However, plaintiffs 2 and 3 being women they were granted bail by the criminal Court, while the plaintiff 1 obtained anticipatory bail. It appears that defendant No. 2 was authorised to investigate the case. It was averred by the plaintiff that Defendant 2 investigated the case notwithstanding his knowledge that the allegations in the ejahar were false and baseless. A charge-sheet was submitted and learned Magistrate held that the allegations against the accused were baseless and discharged them. It may be stated that defendant 2, Wajid Ali was the Inspector of Police serving as Officer-in-charge of Tezpur Police Station. As such, it appears that the learned Assistant District Judge found that Wajid Ali, O. C. of Tezpur Police Station, had investigated the case knowing it to be false and baseless. There is no findings regarding the complicity of defendants 3 and 4 and/or their liabilities. In all probability they were superior officers to defendant 2, Wajid Ali, at the relevant time. The Court below decreed the suit for Rs. 2,04,100-00 with proportionate costs. We extract below the relevant part of the decree :

(3.) In S.21 of the Limitation Act we find that where a new party is substituted or added, either as plaintiff or defendant, if the Court is satisfied that the omission to include the new plaintiff or defendant was due to mistake in good faith, the Court may direct that the suit as regards such plaintiff or defendant shall be deemed to have been instituted on any earlier date. However, it is not the case of adding new parties. It is seen that when a new party is added or substituted and the omission to add or substitute, if found to be a mistake done by the party, the Court has power to direct as regards the added plaintiff or defendants that the suit was instituted by or against them on any earlier date. As such, genuine omission or mistake in adding parties is not only excused but the Court may direct that they were parties to the proceedings from the date of the institution of the suit, provided the Court finds mistake done was in good faith. In the instant case counsel for the appellant owned the mistake in wrongly describing the Police Officers as Pro forma Respondents instead of co-appellant. Even accepting the spirit behind S.21 of the Limitation Act, 1963, there is no dispute that it was a bona fide mistake committed by learned Govt. Advocate. As such we can even add or substitute the Police Officers as co-appellants and direct that the appeal was filed by the substituted appellants from the date of filing of the appeal.