MAULVI NAZIR HASAN Vs. BAKHTAWAR

JUDGEMENT

(1.) THIS is an appeal by Maulvi Nazir Hasan against a decision of the Subordinate Judge of Saharanpur who dismissed his claim, he having sued one Bakhtawar for damages for malicious prosecution. Contrary to what we think is the general belief, these actions for malicious prosecution are extremely difficult to substantiate. The policy of the law is that a man shall be permitted to bring a criminal complaint against another man without incurring any serious risk if he acts in good faith and without malice or, to put it more accurately, if he acts with reasonable and probable cause and without malice. If every one who had been acquitted by a Magistrate was by the mere fact of that acquittal given a good cause of action against a complainant, complainants would be very shy of going into Court; and charges which ought properly to be preferred against people, would be abandoned for fear of the consequences. Now in this case Bakhtawar filed a complaint under sections 298 and 448 of the Indian Penal Code on the 12th of March 1915. Shortly, he alleged that Nazir Hasan had done acts offensive to his religious feelings in that he had caused bones to be thrown into his compound and had demolished a well Nazir Hasan was the Zamindar of the village. That village was not ancestral property but he appears to have bought it as the result of a successful practice in law and he appears to have dealt with the villagers in a harsh and overbearing manner. Consequently there was ill feeling on both sides, and when the case came before the Magistrate he found it extremely difficult to came to a conclusion as to whether the charges made by Bakhtawar were proved or not. In the result he acquitted Nazir Hasan. Thereupon Nazir Hasan became the plaintiff in the present suit, and it was incumbent upon him, as he was seeking damages for what he alleged was a malicious prosecution, to prove amongst other things the fact that he had been acquitted, which was of course formally to prove malice which in the circumstances was not difficult, to prove special damage and general damage and also to prove that there was an absence of reasonable and probable cause for his prosecution. Now in all these oases the difficulty that lies in the way of the complainant is to prove that negative. We have given the case very careful attention, and we have considered the evidence given by the plaintiff and his witnesses, and we have also read the decision of the Magistrate and the judgment in the Court below, and we are of opinion that the plaintiff has not been able to show that the defendant in commencing this prosecution and carrying it through was acting without reasonable and probable cause. There may have been exaggeration in Bakhtawar s case when before the Magistrate, bat we cannot say that ha did not honestly believe that substantially all that he and his witnesses said was the truth. The Magistrate who was making the enquiry could not even say that and he seams to have regarded the matter as one in which conviction or acquittal was on the border line. Now that is not at all the sort of case which the plaintiff should select who wishes to recover damages for malicious prosecution. Our attention has been called by Mr. Shiva Prasad to the case of Puttu Lal v. Ram Sarup 46 Ind. Cas. 190 : 16 A.L.J. 468. That case, in our opinion, very accurately sets out what is the state of the law which as regards these actions of malicious prosecution is as well settled as any thing can be. The reason why in that case the plaintiff was not burdened with the difficulty of proving the absence of reasonable and probable cause was that the lower Appellate Court came to the conclusion that the prosecution story in the criminal case was false to the knowledge of the man who was preferring it, and obviously if it was false to the knowledge of the man who was preferring it, he could not have bad any reasonable or probable cause for prosecution. Now that is the position. The result is that without expressing the least view as to the merits or demerits of either side in the original prosecution, we dismiss the appeal on the ground that the appellant (who was the plaintiff in the Court below) has been unable to show the necessary absence of reasonable and probable cause. The appeal, therefore, is dismissed with costs. There being no certificate, we make no order as to the scale of fees.