UCHO SINGH Vs. NAGESHWAR PRASAD SINGH

JUDGEMENT

(1.) THESE two second appeals are by defendant 1 arise out of a suit instituted by the plaintiffs-respondents for damages for malicious prosecution: The facts leading to the institution of the above suit, stated shortly, are these: There was one Pri-thvi Singh resident of village Sonepey in Jamui sub-division. In the early morning of 22-6-1946, he was found murdered near the Kiul river nearly half way between Jamui and Sonepey. The appellant told the chaukidar Bandhu Du-sadh, who was made defendant 5 in the suit, that he had accompanied Prithvi Singh who was going to Jamui and while they reached the place where the dead body of Prithvi Singh was found, the three plaintiffs along with other persons came there and attacked him, and Nageshar, plaintiff 1, gave him a bhala blow as a result of which he died then and there. He clearly stated to the chaukidar that all these things happened in his presence. The chaukidar, accordingly, lodged an information at the police station and stated all that he had heard from the appellant. As a result of this information, the plaintiffs along with other persons were arrested. As there was a direct allegation against the plaintiff Nageshar regarding the murder of Prithvi Singh, he could not be released on bail. The other accused persons were, however, released on bail after two months of their arrest. Ultimately, the plaintiffs along with other persons were put on trial before the Sessions Judge of Monghyr who acquitted them on 28-5-1947. The plaintiffs thereafter instituted the present suit lor recovery of H.s. 4S99/15/6 besides interest pendentc lite as damages for malicious prosecution. The suit was brought against the appellant and four other persons who were defendants 2 to 5. The defence taken by the defendants in the suit was that Prithvi Singh was actually murdered by the plaintiff on 22-G-1943, and the case was true. It was also contended that the institution of the prosecution was not malicious or without reasonable and probable cause. Their further contention was that, at any rate, the claim for damages was extremely exaggerated.

(2.) THE trial Court accepted the case of the plaintiffs and held that the murder case instituted against them and the other accused persons was maliciously false and without any reasonable and probable cause. It, however, held that defendants 2 to 5 were not found to be liable for any such damages and the appellant alone was liable for the same. It, therefore, held that the plaintiffs were en titled to recover damages from the appellant. On the question of the amount of damages, it held that the plaintiffs were entitled to recover Rs. 300 from him by way of compensation for their mental and physical loss besides half of the costs which were found to have been incurred by them in defend ing themselves in that criminal case. As a result of these findings the suit of the plaintiffs was de creed in part against the appellant, who preferred an appeal in the lower appellate Court which was numbered as Money Appeal No. 1 of 1949. THE plaintiffs also preferred another appeal in that Court against the decree of the trial Court reducing the amount of damages and this appeal was numbered as Money Appeal No. 2 of 1949. Both the appeals were heard together and disposed of by one judgment by the learned District Judge of Monghyr. He agreed with the trial Court with regard to the prosecution being malicious and without any reasonable and probable cause and dismissed the appeal filed by the appellant. So far as the appeal of the plaintiffs was concerned, he increased the amount of damages by Rs. 200 and thus allowed their appeal in part. Defendant 1 has, therefore, preferred these two second appeals in this Court. Second Appeal No. 30 of 1950 arises out of Money Appeal No. 2 of 1949 and Second Appeal No. 31 of 1950 arises out of Money Appeal No. 1 of 1949. Both these appeals have been heard together and are being disposed of by one judgment.

(3.) WITH regard to the findings of the Courts below on the last two ingredients, namely, the institution of the criminal proceeding being without any reasonable and probable cause and the. prosecution being malicious, Mr. Mahabir Prasad has contended that they are vitiated by reason of the fact that the Courts below have wrongly thrown the onus on the appellant to establish that them was justification for him for initiating the criminal proceeding and that there was no malice. The argument put forward is that as in a suit for damages for malicious prosecution the onus to establish these two ingredients is on the plaintiffs, the Courts below were wrong in law in decreeing the suit because of the failure of the appellant to establish that the prosecution was justified and bona fide. The argument as a pure proposition of law, is no doubt valid but, in my opinion, it has no application to the facts of the present case. The question of onus was raised before the earn-ed District Judge and from his judgment it clearly appears that he accepted the contention of the appellant that the burden of proof for establishing the absence of reasonable and probable cause for the bringing of the case lay on the plaintiffs. The learned District Judge, however, made a distinction between a case where, as in the present case, the prosecution was started by the defendant on his personal knowledge and as being an eye-witness to the occurrence and a case where the defendant initiates the proceeding on information or on inference from certain circumstances, and he held that in the latter class of cases the person Who starts the proceeding may have honestly started it and may have reasonable and probable cause to do so even though the accusation might have been found to be false. But where the defendant initiates the proceeding alleging that he has seen the occurrence with his own eyes and then the accusation is found to be false, it cannot be argued that he had reasonable and probable cause to initiate the proceeding. Thereafter he applieji the principles so enunciated by him to the facts of the case and held that the onus that lay on the plaintiffs was considerably discharged by the termination of the criminal proceeding in their favour in spite of the appellant's allegation that he saw the plaintiffs committing-murder with his own eyes. The learned District Judge, however, did not decide the case on the failure of a party to discharge the onus and came to his findings on the questions at issue on consideration of the evidence adduced by the parties and the circumstances of the case as will appear from the following passage in his judgment :