Madras HC | Who is liable in suit for malicious prosecution; what is duty of civil court; where lies onus of proof? HC answers all,  says no ‘second agnipariksha’ for plaintiff

Madras High Court: G.R. Swaminathan, J., held that to succeed in a suit for malicious prosecution, the acquittal of the plaintiff alone is not sufficient. Rather, the plaintiff is obliged to prove (i) that the prosecution was without any reasonable and probable cause, and (ii) that it was instituted with a malicious intention, and  (iii) that he suffered damage.

The instant second appeal was filed by the defendants in the suit filed by the plaintiff for malicious prosecution. The plaintiff had questioned the manner in which the local mosque of his area was being administered. The President of the Jamath which managed the mosque was the brother-in-law of Defendant 1, who implicated the plaintiff and his son in a criminal case under Sections 452 and 506(2) IPC. The plaintiff was arrested and detained in custody for more than 24 hours. He was also suspended from service. Subsequently, he was acquitted by the Judicial Magistrate. Following his acquittal, the plaintiff filed the instant suit.

The plaintiff claimed damages of Rs 1.5 lakhs from the defendants. The trial court had dismissed the suit of the plaintiff, but he succeeded before the first Appellate Court which awarded him damages amounting to Rs 1 lakh. Defendants 1 to 6 (all appellants in the instant appeal) were found liable by the first Appellate Court.

While giving relief to Defendants 2 to 6, and dismissing the appeal qua Defendant 1, but at the same time modifying the amount of damages awarded to the plaintiff, the High Court discussed and decided the following points:

1. Suit for malicious prosecution lies against whom?

A suit for malicious prosecution will lie only against that person at whose instigation the proceedings commenced.

The High Court said that the question is who was the prosecutor. In the instant case, it was only Defendant 1 who gave the complaint against the plaintiff and his son. The other defendants no doubt supported the prosecution but they merely figured as witnesses. Defendants 2 to 6 could not be said to have prosecuted the plaintiff. If according to the plaintiff, they had committed perjury, the course of action to be taken against them will have to be different.

The Court held that the plaintiff did not have any cause of action against Defendants 2 to 6. The appeal qua them was allowed.

However, according to the Court, Defendant 1 could not take the same plea. Even though criminal case was based on police report, it was anchored on the complaint given by Defendant 1. Having been the de facto complainant and having played a prominent part in the prosecution, Defendant 1 could not be heard to contend that the suit is not maintainable against him. The Court placed reliance on the Privy Council decision in Balbhaddar Singh v. Badri Sah, 1926 SCC OnLine PC 14.

2. Duty of Civil Court in a suit for malicious prosecution

The case of the prosecution against the plaintiff in the criminal case under Sections 452 and 506(2) IPC ended in acquittal. But, according to the High Court, the Civil Court must undertake an independent enquiry in such cases. It cannot merely borrow the grounds of the acquittal and grant decree in favour of the plaintiff. The burden of proof lies on the plaintiff to show that he was maliciously prosecuted.

3. Shifting of burden of proof

To discharge the burden cast on him, the plaintiff examined himself to depose that the complaint against him was false. According to him, the first defendant was nurturing animosity against the plaintiff for more than one reason.

The High Court said that there is no doubt that the burden of proof lay only on the plaintiff. This burden can never shift. However, the plaintiff cannot be called upon to prove the negative. As regards the non-existence of reasonable and probable cause, the onus will shift to the defendant after the plaintiff asserts in the witness box that the complaint against him was false and after he adduces evidence demonstrating the existence of malice on the part of the defendant.

While on this point, the High Court summarised the principles laid down in Bharat Commerce & Industries Ltd. v. Surendra Nath Shukla, 1965 SCC OnLine Cal 79; and Satdeo Prasad v. Ram Narayan, 1968 SCC OnLine Pat 26.

4. Nature of proof

The High Court observed that a plaintiff in a suit for malicious prosecution need not demonstrate that he was innocent of the charge upon which he was tried. The Privy Council in Balbhaddar Singh v. Badri Sah, 1926 SCC OnLine PC 14 has categorically held so. The plaintiff need not undergo a second agnipariksha. On the other hand, it is the defendant who must discharge the onus once it is shifted to him.

5. Merits of the case

The High Court held that in the instant case, Defendant 1 had miserably failed to discharge the onus cast on him and the plaintiff had proved all the ingredients of malicious prosecution.

The allegation of Defendant 1 was that he had given an earlier complaint against the plaintiff and to force him to withdraw the same, the plaintiff and his son entered his shop on 1-12-2000 at 9 pm. But the earlier complaint was not marked. Since the occurrence spot is a shop, it would have definitely attracted notice and a complaint would have been lodged before the local police immediately thereafter. But, Defendant 1 approached the District Superintendent of Police only on the next day and the written complaint given by Defendant 1 was sent through post to the Police Station concerned and the FIR itself was registered only on 6-12-2000. Also, in support of the criminal charge, except the testimony of Defendant 1 himself, there was no corroboration forthcoming.

In Court’s opinion, the existence of malice was amply established by the plaintiff. On 2-11-2000 the plaintiff has sent a notice to the President of the mosque, who was none other than the brother-in-law of Defendant 1. It was also admitted that the plaintiff asked for accounts and the relationship between the mosque management and the plaintiff was under strain. In this background, the criminal case was registered and the plaintiff was arrested.

A reading of the evidence adduced on either side showed that there were two issues, one concerning the mosque administration and the other concerning the matrimonial dispute of the plaintiff’s son. It was obvious that the mosque management wanted to teach the plaintiff a hard lesson. There was no cause at all for giving the complaint, let alone reasonable and probable cause. The twin reasons mentioned above culminated into a false complaint.

6. Damages

The plaintiff was arrested and was in detention for more than twenty-four hours. He had to seek bail and furnish sureties. He had to undergo the agony of trial. He was suspended from service. The plaintiff obviously incurred expenditure for engaging counsel and attending the court hearings. As a result of the case, his family was also excommunicated. Thus, the plaintiff established that he suffered damage and injury. His reputation was tarnished and he also suffered loss of liberty. He had clearly made out a case for award of damages.

Considering the facts and circumstances, the High Court quantified the compensation payable to the plaintiff at Rs 50,000. Defendant 1 was directed to pay damages as compensation to the plaintiff with interest at the rate of 6% per annum from the date of plaint till the date of payment. [M. Abubaker v. Abdul Kareem, 2021 SCC OnLine Mad 1934, decided on 21-4-2021 ]

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