RAM KISHAN AND ORS. Vs. HEM RAJ

JUDGEMENT

(1.) A suit for damages for malicious prosecution was founded on a plea that the defendant had given a complaint to the police out of malice that they had stolen a barbed wire from the defendant's premises. The complaint was said to have been inquired into and did not escalate into prosecution but dropped as mistake of fact. The plaintiffs brought evidence through a witness that when he came to know about the police complaint, that brought down his own esteem in the plaintiffs.

(2.) The cause of action for the suit itself did not exist. A malicious case for prosecution requires three ingredients: (i) a complaint brought through malice; (ii) a prosecution of the criminal case before a court of competent jurisdiction and (iii) a judgment of acquittal. A mere complaint to the police that led to an investigation finding that the plaintiffs had no role to play cannot constitute a prosecution of a criminal case. A complaint to police is a manner of setting the law in motion and even a written complaint or false complaint, at its worst, cannot provide any relief. Indeed, it will be against the public policy to enact a rule that even a complaint to the police could give rise to action for damages, if there was no proof for such a complaint, for, it will create a serious impediment to even disclosing suspicious names for the sake of investigation. A trigger for a prosecution is a complaint that is registered as a First Information Report (FIR) and at that stage nobody could vouch for its correctness. In some cases there could be allegation and material for proof but in some cases it would be merely suspicion. That is the very reason why there is a need for an investigation and the statements to be recorded by the police under Section 161 of the Code of Criminal Procedure.

(3.) The law protects the persons from giving statements and even make unnecessary any such statement to be given in writing only in order that there is no apprehension by any members by the public giving statement. The correctness of the statements would always require to be tested at the criminal trial and a statement unsigned by a party and recorded as such by the investigating officer and sent to a criminal court as a part of criminal record cannot constitute even substantive evidence. Only at the stage when a witness gives evidence in court, it becomes evidence proprio vigore that court takes a decision upon. A criminal case has to go its full gamut before a judgment is given and it is that judgment which secures an acquittal that could provide necessary cause of action for the plaintiff. The mere complaint to the police of an evidence of any member of the public that he felt the plaintiffs' honour having been lowered by such a complaint could afford no ground for action.