UCHO SINGH Vs. NAGESHWAR PRASAD SINGH

JUDGEMENT

(1.) These appeals are brought under the Letters Patent against the decision of Choudhary, J., dated the 24th, January, 1956, affirming the decision of the District Judge of Monghyr, dated the 20th, September, 1959, in Second Appeals Nos. 30 and 31 of 1950.

(2.) In the suit out of which these appeals arise the plaintiffs claimed damages for malicious prosecution from the defendants. The case of the plaintiffs was that in the early morning of the 22nd June, 1946 a man called Prithvi Singh was found murdered near the Kiul river. The plaintiffs alleged that Ucho Singh, the appellant, informed Chaukidar Bandhu Dusadh about the murder, and the appellant had also told the chaukidar that he had seen plaintiff Nageshwar Singh deal a bhala blow to Prithvi Singh, who died then and there as a result of the bhala blow. The Chaukidar accordingly lodged a first information report at the police-station and stated therein all that he had learnt from the appellant. As a result of the information the plaintiff Nageshwar Singh along with the other persons were arrested and put on trial. Ultimately the plaintiffs were acquitted in the Sessions Court on the 28th May, 1947, and the finding of the Sessions Court was that the prosecution case was false. The plaintiffs thereafter instituted the present suit for recovery of damages for malicious prosecution. The suit was contested by the defendants on the ground that Prithvi Singh was actually murdered by the plaintiffs on the 22nd June, 1946, and the case was true. The trial court found upon an examination of the evidence that the murder case was instituted without any reasonable or probable cause and the prosecution launched by the defendants was maliciously false. The trial court gave a decree to the plaintiffs for damages against defendant No. 1 and dismissed the suit against other defendants. Both the plain-tiffs and defendant No. 1 appealed to the lower appellate court which affirmed the finding of the trial court that the prosecution was without any reasonable and probable cause and was actuated by malice. The lower appellate court dismissed the appeal preferred by defendant No. 1 and partly allowed the appeal preferred by the plaintiffs and granted a decree to the plaintiffs to the extent of Rs. 2286.00 as damages. The defendant took the matter to the High Court in Second appeals which have been dismissed by Mr. Justice R.K. Choudhary, a learned Judge of the High Court.

(3.) In support of these appeals the Advocate General put forward the argument that in considering the question of onus of proof the learned Single Judge has committed an error of law. It was submitted that the learned Judge was not right in holding that where the accusation against the plaintiff was in respect of an offence, which the defendant claimed to have seen him commit, and the trial ends in an acquittal on the merits, the presumption is not only that the plaintiff was innocent but also that there was no reasonable or probable cause for the accusation. In our opinion the argument of the learned Advocate-General is well founded and must prevail. In regard to the principle of law with regard to onus of proof Mr. Justice Choudhary has followed the decision of a Division Bench of this High Court in Taharat Karim v. Malik Abdul Khaliq, AIR 1938 Pat 529; The legal position is stated by Dhavle, J. at p. 529 of the report as follows: