MOHAMED SHARIF Vs. NASIR ALI

JUDGEMENT

(1.) These two appeals arise out of a suit brought by the plaintiff-respondent Syed Nasir Ali for recovery of Rs. 1,000 as damages for malicious prosecution. Defendant 1, Sharif, was a Police Inspector stationed at Khurja at the time when the offences for which the plaintiff-respondent was prosecuted were alleged to have been committed. Syed Zafar Ali and Aftab Husain, defendants 2 and 3, who are brothers, are related to the plaintiff. On 11 January 1924 defendant 2 made a report at the Khurja Police Station that his house, which is contiguous to that of the plaintiff, had been raided by the plaintiff and his associates and that he (defendant 2) closed his doors to prevent the raiders getting into his house and made good his escape by jumping down the roof of his house. As the officer-in- charge of the police station was indisposed, the head muharrir forwarded the report to the Circle Inspector, defendant 1, who, accompanied by a few constables, proceeded to the scene of occurrence. Subsequently at about 12 p.m. the Circle Inspector made a report at the thana that, while he and the constables were proceeding to the scene of occurrence, the party were waylaid by the plaintiff and a few others and beaten. This was said to have occurred between 6 and 7 p.m. Defendant 1 was under orders of transfer to Saharanpur and left Khurja next day. The offences with which the plaintiff and his party were charged by defendant 1 in the report already mentioned were those under Secs.332 and 147, I.P.C., i.e., voluntarily causing hurt to deter public servant from his duty and rioting. The officer-in-charge of the police station made an investigation which resulted in the plaintiff's prosecution for those offences before the Joint Magistrate, who acquitted the plaintiff and his co-accused on 27 March 1924. The suit which has given rise to these appeals was instituted on 27 May 1925 on the allegation that defendant 1 and Syed Zafar Ali, defendant 2, who is an Honorary Magistrate, and defendant 3 conspired to bring a groundless charge against the plaintiff without reasonable and probable cause and maliciously. The Munsif, in whose Court the suit was brought, dismissed it on 22 March, 1926. On appeal the learned District Judge of Bulandshahr sent back the case to the Munsif on the ground that the latter had improperly refused to examine certain witnesses whom the plaintiff desired to produce and directed him to submit fresh findings after recording the evidence of such witnesses.

(2.) In the meantime the Munsif, who had dismissed the suit, was transferred and was succeeded by another officer, who recorded the evidence which the appellate Court had directed to be taken and found in favour of the plaintiff on all the material questions arising in the case. On receipt of the findings the learned District Judge decreed the plaintiff's claim to the extent of Rs. 700 against all the defendants. Second Appeal No. 1958 of 1927 has been preferred by defendant 1 and Second Appeal No. 2260 of 1927 has been preferred by defendants 2 and 3. To clear the ground for a consideration of the questions of law which have been argued before us we should state the findings of fact arrived at by the lower appellate Court which must be accepted as conclusive on second appeal. It has been found by the learned District Judge concurrently with the finding of the Court of first instance after remand that defendant 1 and defendant 2 were on friendly terms; that there was ill-feeling between the plaintiff and defendants 2 and 3 in consequence of disputes about a certain zamindari; that in June 1923 proceedings under Section 145, Criminal P.C., were taken by the Sub-Divisional Officer, Khurja, against the plaintiff and defendants 2 and 3; that a report of defendant 1 then made was unduly favourable to defendants 2 and 3 and that the evidence otherwise proved that defendant 1 had identified himself with defendants 2 and 3. It has also been found that the criminal case against the plaintiff and his party was absolutely false and that the plaintiff, who was a schoolmaster, was busy with the printing of examination papers in the school building at the time when the offences were said to have been committed. The lower appellate Court has gone so far as to hold that the report of defendant 2 made at the thana on 11 January 1924, which was forwarded to defendant 1, was without foundation and that the subsequent report of defendant 1, charging the plaintiff and his party with offences under Secs.332 and 147 was equally without foundation. The learned District Judge has expressed himself thus: The plaintiff has thus proved that he could not be at the alleged row nor could he be at the tiraha to fight with the defendants. As the plaintiff was innocent and the whole story of the defendants from end to end was false, so not a single person of mohalla of defendants 2 and 3 nor any one of the tiraha appeared as a witness for them. I agree with Mr. Ratan Lal that the reports of defendants 2 and 3 to the police that there was a danger of breach of peace, as also the report of defendant 1 that the plaintiff beat him was all false so far as the plaintiff was concerned. As everything was false and imaginary it is fair to assume that the defendants were actuated by malice in so doing... It seems that all the three defendants acted in a sort of conspiracy to ruin the plaintiff. Defendant 1 was going, he was to hand over charge the next day and so it needed all efforts to concoct a case against the plaintiff and men of his party as early as possible. For want of better grounds the prosecution was launched on a flimsy story not supported by reliable evidence even.

(3.) It may be that this picture is somewhat overdrawn, but sitting in second appeal we are bound by the findings of fact supported as they are by evidence which we are precluded from examining ourselves. We must therefore hold that the plaintiff-respondent was prosecuted maliciously without reasonable and probable cause.