GIRIJA PRASANNA DEB GUPTA Vs. NMKHAN

JUDGEMENT

(1.) This is an appeal against the judgment and the decree of the District Judge of Comilla, dated 23 January 1939 reversing the decision of the Subordinate Judge of Comilla, dated 23 June 1938. The suit out of which this appeal arises was instituted by the appellant against the respondents for recovery of Rs. 2100 as damages. The facts about which there is no dispute in this appeal, are these: (1) Defendant 2 was appointed Sub-Divisional Magistrate of Brahmanberia Sub- Division in the district of Tippera, in April 1934. At that time there was a fund known as Momin Fund which was being run by an unregistered society of which the successive Sub-Divisional Officers of Brahmanberia were Presidents. After defendant 2 came to Brahmanberia as Sub-Divisional Officer, this unregistered society was registered under the name and style of Co-operative Muslim Education Society Ltd., (hereinafter referred to as the Society). Defendant 2 was elected president of this Society. Defendant 3, a Deputy Magistrate, was the second officer of Brahmanberia at that time. He became a member of this Society. (2) There was a meeting of this society on 25 May 1936. Defendant 2 presided over this meeting. At this meeting, a resolution (Ex. P 1) was passed for approaching the Brahmanberia Municipality for a suitable site for the construction of a Muslim Hall. In this resolution, no mention was made about any particular site. A copy of this resolution was forwarded to the Chairman of the Municipality. On 30 May 1936, the Municipality passed a resolution (Ex. C) requesting the Secretary of the Society to supply necessary details as to specification etc., of the proposed building. On 2 June, 1936, the Secretary of the Society wrote a letter (Ex. I) to the Municipality. In this letter two alter-native sites (50 x 25 cubits of land on the western bank of the Cutchery tank and 100 x 50 cubits of land in the southern bank of the Lokenath tank known as Silver Jubilee Park) were suggested. On 4 June 1936, two petitions (Exs. 20 and 20A), signed by a large number of rate payers of the Municipality protesting against the free gift of the land on the southern bank of the Lokenath tank were filed in the municipal office. On the next day, the letter of the Secretary of the Society was considered by the Municipality at a special meeting. The Municipality refused the proposal for a free gift of any land to the Society on the ground that there was no provision in the Municipal Act for making a free gift. On the same date, six Commissioners sent a requisition (Ex. E) to the Chairman of the Municipality to convene a special meeting immediately for considering the desirability of granting a piece of land measuring 100 x 50 cubits on the western portion of the southern bank of the Lokenath tank under a mokarari permanent lease at a nominal rent and without any selami for the purpose of erecting a Muslim institute by the Society. On 2 11 June 1936, the Municipality by a resolution (Ex. 14A) agreed to grant a permanent mokarari lease to the Society at an annual rent of 4 annas without payment of any selami. (3) On the same day (11 June 1936) a suit was filed in the first Court of the Munsif at Brahmanberia, viz., Title Suit No. 153 of 1936 on behalf of the rate- payers of the Municipality against the Municipality and the Society for a declaration that the resolution granting lease to the Society was null and void and for an injunction restraining the Society from raising any permanent structure on the land. On the next day, the Munsif issued interim injunction. This injunction was served on the Secretary of the Society on the morning of 13 June. (4) On 17 June 1936, a criminal case was filed in the Court of the Sub-Divisional Magistrate of Brahmanberia by defendant 5 against the plaintiff and his younger brother on the allegation that defendant 5 paid Rs. 600 to the plaintiff on con- tract for sale of certain lands but the plaintiff and his brother denied receipt of the money and refused to execute the kobala. On that day defendant 2 being out on tour defendant 3 heard the petition of complaint and summoned the plaintiff under Section 406, Indian Penal Code, and fixed 24 June 1936 for appearance of the plaintiff in Court. On 21 June 1936 the plaintiff was served with summons. On 24 June 1936 plaintiff appeared before defendant 2. On that day defeadant 2 recorded the following order : "Accused appears. To furnish bail for Rs. 1000. In default to hajat till 9 July 1936. To 9 July 1936 for evidence." After the said order was passed, 26 pleaders of the Brahmanberia Bar filed a bail bond on behalf of the plaintiff. This bail bond was sent to defendant 4 (the Court Sub-Inspector of Police) for enquiry and report about the fitness of the sureties. Defendant 4 thereupon asked for time for enquiry. This prayer of defendant 4 was allowed by defendant 2. A pleader then moved defendant 2 for the release of the plaintiff on bail. Defendant 2 thereupon verbally ordered that he would releaser the plaintiff if the money be put in cash. Thereafter an application (Ex. 11) was filed before defendant 2 on behalf of the plaintiff for permission to deposit Rs. 1000 in cash. Defendant 2 thereupon passed the following order : "Let the money be deposited in the treasury during the usual hours of its transaction." The money however was not deposited in the treasury on that date. Plaintiff was then put under handcuff and was sent to the local sub-jail. On the next day i. e. 25 June 1936 two petitions were filed on behalf of the plaintiff (Exs. 12 and 13). There were two prayers in Ex. 12. The first prayer was for acceptance of the money in the treasury on that day and the second prayer was for permission to deposit the money in the nezarat and for acceptance of the same by the Nazir. No order was passed on the first prayer and the second prayer was refused. The prayer in Ex. 13 was for a direction on the Court Sub-Inspector for expediting the enquiry and-for early submission of report by him. The order passed by defendant 2 on that petition was "Court Sub-Inspector to report." On 26 June 1936 the money was deposited and the plaintiff was released. The Court Sub- Inspector defendant 4 also submitted his report (Ex. 32) on that date. (5) On 30 June 1936 the plaintiff filed an application (Ex. 22) before the District Magistrate of Tipperah for transfer of his case from the file of defendant 2. The District Magistrate thereupon called for a report from the trying Magistrate (defendant 3). Defendant 3 thereupon submitted his report (Ex. 23). The petition for transfer was heard on 14 July 1936. On 11 September 1936 the Public Prosecutor of Comilla filed an application (Ex. 24) for withdrawal of the criminal case. The plaintiff was thereupon discharged under Section 494, Criminal P.C. (6) The plaintiff thereafter served notices on defendants 1 to 4 under Section 80, Civil P.C., and filed the present suit on 25 November 1936.

(2.) Plaintiff's case briefly stated is as follows : Defendant 2 as President of Muslim Co- operative Education Society and defendant 3 as a member thereof were anxious to utilise a portion of the Silver Jubilee Park for the purpose of constructing a Muslim Institute Hall. In pursuance of this desire, they caused the Society to move the Municipality to make a free gift of a portion of this Park for the purpose of constructing the Muslim Institute Hall. After the Municipality refused the request of the Society, defendants 2 and 3 threatened, coerced and brought undue pressure upon certain Hindu Commissioners of the Municipality who signed the requisition (Ex. E) with the result that the Municipality passed a resolution on 11 June 1936 granting a permanent mokarari lease of a site situated on the park. The plaintiff took a leading part both in respect of the petitions of protest and in the institution of Title Suit No. 153 of 1936 in the first Court of the Munsif at Brahmanberia. Defendants 2 and 3 suspected that the plaintiff was responsible for the institution of the suit and were greatly displeased with the plaintiff. They therefore determined to harass the plaintiff and put him into trouble. In pursuance of this determination, they caused defendant 2 to file a false criminal case against the plaintiff on 17 June 1936. Defendant 3 without due consideration of the allegations made in the petition of complaint summoned the plaintiff under Section 406, Indian Penal Code. The allegations in the petition of complaint were entirely false and baseless. Defendant 3 issued the process in consultation with and at the instance of defendant 2. It was not a bona fide order made in the exercise of defendant 3's powers as a Magistrate and in exercise of his jurisdiction as such. The criminal proceedings against the plaintiff were conducted in camera and the plaintiff had no notice of them until 21 June when he was served with summons. Plaintiff appeared in Court of defendant 2 at 11 A. M. on 24 June 1936 with cash money ready. But his case was not called till 12 A.M. on that date. The amount of bail demanded from the plaintiff was in excess of the amount which was the subject-matter of the criminal charge. The position of the plaintiff in life was well-known to defendant 2 and in spite of that he passed the order that in default of bail the plaintiff would remain in Hazat till 9 July 1936. The pleaders who executed the bail bond are all respectable and leading members of the Brahmanberia Bar. Their position in life and solvency were known to defendant 2. In spite of that, defendant 2 directed the Court Sub-Inspector (defendant 4) to report as to the fitness of the sureties. Defendant 4 wanted time to hold local enquiries as to the fitness of the sureties, in consequence of a previous arrangement with defendant 2. As soon as defendant 2 passed a verbal order that if the money be put in cash plaintiff would be released immediately the cash money was tendered. This tender was made half an hour before 3 P. M. that is within the hours of transaction at the treasury. Defendant 2 deliberately deferred passing orders regarding the acceptance of the money tendered. He passed orders for deposit of the money in the treasury after 3 P. M. which was too late for deposit of money in the treasury. As a result of this delay in passing the order the money could not be deposited in the treasury on 24 June. According to a pre-arranged plan plaintiff was handcuffed and made to walk to the local sub-jail through crowded streets. He was confined in the sub-jail that night.

(3.) An attempt was made on 24 June by a pleader on behalf of the plaintiff to obtain the signature of the plaintiff on a properly stamped vakalatnama. But this was not permitted by defendant 4. Another attempt was made at the sub-jail but this was also not successful. On 25 June plaintiff's prayer for depositing the money with the Nazir of the Court or for accepting the bail bond filed on 24 June was refused without any reason. Defendants 2, 3 and 4 caused illegal, wrongful and malicious detention of the plaintiff from 24 June 1936 to 26 June 1936. This detention was responsible for immense mental sufferings, agony, bodily pain, humiliation before the public, irreparable loss and injury to the good name and reputation of the plaintiff who is a pleader of 12 years standing practising at Brahmanberia, a landlord and is connected with several public institutions. After the plaintiff was discharged under Section 494, Criminal P.C., in spite of an order for refund of the cash deposit of Rs. 1000 made by the Additional Magistrate on 11 September 1936, the money was not refunded until 21 September 1936. The acts and orders of defendants 2, 3 and 4 in setting up defendant 5 to file a false petition of complaint were illegal and mala fide and were done with the sole object of unnecessarily and unjustly harassing the plaintiff and lowering him in the eyes of the public. Defendants 2 and 3 acted beyond their judicial powers and in excess of their jurisdiction. Their acts were a trespass upon the person and property of the plaintiff. Plaintiff was accordingly entitled to get Rs. 2100 as damages from the defendants. (Rs. 500 as compensation for wilful, wrongful and malicious prosecution, etc., and detention, Rs. 300 as compensation for physical injury due to illegal handcuffing, Rs. 500 as compensation for loss of good name and reputation, Rs. 600 as compensation for mental agony, Rs. 200 as costs incurred by the plaintiff in defending the criminal case instituted against the plaintiff.) Written statements were filed by all the defendants.