NOOR MOHAMMAD Vs. ABDUL FATEH

JUDGEMENT

(1.) This appeal by defendant 1 of the original suit arises out of a suit for damages for false and malicious prosecution. The plaintiff has been given by the concurrent decision of both Courts a decree for Rs. 124-11-0 damages and his costs.

(2.) The suit was brought against five defendants of whom the fourth and fifth were police officers. Defendant 4 raised the plea inter alia that the institution of the suit was barred by the provisions of Section 80, Civil P.C., because no notice under that section had been served on himself or defendant 5 though the acts on which the plaintiff rested his cause of action against them were acts done in their official capacity as police officers. The main point of law in this case is whether in the face of Section 80, Civil P.C., the suit could proceed. I may here state briefly the facts on which the plaintiff relied.

(3.) On 19 January 1937 Noor Mohammad defendant 1 procured the arrest of the plaintiff Khub Lal Muchi in the house of Amir Buksh an uncle of Noor Mohammad. The plaintiff was taken to the police station by defendant 4 Ram Chander Singh Haveldar and defendant 5 Bishundeo Sukul constable, defendant 1 Noor Mohammad going with them and at the police station Noor Mohammad laid a first information report of theft against the plaintiff Khub Lal. The Sub-Inspector investigated the case and sent up charge-sheet. The plaintiff was put on his trial and was acquitted. All the defendants figured as witnesses for the prosecution. After his acquittal the plaintiff moved the trying Magistrate to order the prosecution of the informant under Section 211, I.P.C., for having wilfully brought a false case against him. The Magistrate refused to order such a prosecution and the plaintiff then went to the civil Court and brought this suit. The Courts below have not been very clear as to what exactly were the admitted facts and what were the facts in issue which the plaintiff had to prove. It was common ground that the plaintiff was arrested at Amir Buksh's house: the fact in issue was whether he had gone there for theft or under circumstances suggesting a criminal intent, or had gone there on an invitation from defendant 1. Neither Court has stated what is the evidence for and against the plaintiff's version or has noticed that the plaintiff himself is the only witness to support it. The judgments are not altogether satisfactory for neither Court seems to have observed that there is no direct evidence of conspiracy and they have recorded a finding of conspiracy without apparently realizing that they were doing so on conjecture. The conjecture is based on the fact that antecedent events had happened which might be supposed to constitute a motive for such a conspiracy, but a criminal conspiracy of this kind ought to be proved and not presumed.