T.A.No.212 of 2012 -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH T.A.No.212 of 2012 Date of Decision.20.12.2012 Chander Kanta Mangotra wife of Sh.
Janak Raj and others .....Appellants Versus Janak Raj son of Sh.
Gian Chand and another .......Respondents Present: Mr.Kamal Dhiman, Advocate for the appellants.
Mr.R.K.Arya, Advocate for the respondents.
CORAM:HON'BLE Mr.JUSTICE K.
KANNAN 1
Whether Reporters of local papers may be allowed to see the judgment ?.
Yes 2.
To be referred to the Reporters or No.?.
Yes 3.
Whether the judgment should be reported in the Digest?.
Yes -.- K.
KANNAN J.(ORAL) 1.
The application is for transfer of a suit, which is pending in the Court at Gurdaspur instituted by the husband and mother-in-law against the wife and other relatives.
The suit is for damages for giving false complaint to the police.
Before considering the request for transfer, I had requested the counsel on 14.12.2012 to advance argument on how a claim for damages could be maintained for alleged false complaint and whether it constituted a lawful cause of action for damages.
The case was adjourned for today i.e.20.12.2012 for addressing arguments on maintainability of such suit.
Learned counsel for the petitioners says that the petitioners have indulged in several false complaints one after another, which caused him mental anguish.
I am afraid, I cannot take an emotional argument that a person suffering T.A.No.212 of 2012 -2- anguish due to complaint as constituting a cause of action.
As regards registration of a complaint or making a statement to a police of incident, which according to a complainant is a criminal act, the rules of Criminal Procedure Code provide for a particular mechanism for investigation before a case is registered and summons are brought to Court for issuing.
Even on a private complaint filed before a Magistrate, a summoning order is not a sine qua non.
The Court will examine witnesses and if it only satisfied that the case is prima facie made out, there is scope for issuance of summon on a complaint.
A procedure for investigation on a complaint is the natural check to prevent all types of frivolous cases to be unnecessarily lodged in Courts and parties harassed.
An apprehension or statement that a particular person has committed a criminal offence and a complainant seeking for investigation into the complaint do not by themselves can give rise to an action for damages.
The law of malicious prosecution is too well established to be understood as giving rise to cause of action only to such of those cases where a case on registration goes through a form of trial that results in an acquittal and when the registration of a complaint initially is actuated by malice.
Even here, the mere fact of an acquittal in Criminal Court cannot give rise to an action for damages.
It has to be established in every case where a person seeks for damages also establishes that such a complaint was guided by malice.
A malicious complaint again, on a stand alone basis, gives no cause of action for damages.
A malicious complaint that gets registered as a case and goes through a trial, which results in an acquittal alone give rise to an action for damages.
T.A.No.212 of 2012 -3- 2.
In India, the law of tort is not codified, except in certain legislations providing for damages that recognize the tort law principle of breach of duty and damages resulting thereby to a plaintiff as actionable in Courts.
An outstanding example could be a situation of an accident victim in motor accident under the Motor Vehicles Act, which statutorily recognizes the principle of tort, while it also makes some exceptions in so far it provides for strict liability under Section 163-A and no fault liability under Section 140 of the Motor Vehicles Act.
Protection of Women from Domestic Violence Act, 2005 provides for certain remedies against harassment for a woman in a matrimonial relationship but even that Act could be set in motion only by a woman and not a male.
If there is no statutory approbation to a claim for damages, we will have to only look for the common law principles that provide for damages for tortious action.
There is no law either in English Courts or in our Courts where a complaint given to police, which does not go to the next stage of a criminal trial, could be taken as giving rise to action for damages.
Some earlier rulings of other High Courts have brought out this issue.
The Calcutta High Court held in Nagendra Nath Khem versus Basanta Das (1929) ILR 5.Cal 25 that a complaint to a police resulting in police investigation without a proceeding in court does not amount to 'prosecution'.
The Madras High Court held a similar view in Vattappa Kone v.
Muthukaruppan Servai AIR 194.Mad 538 when it examined the nature of complaint to a village Magistrate as not giving rise to a cause of action for damages.
The Privy Council held in Braje Sunder versus Bamdev Das AIR 194.PC 1 that a person noted in chargesheet but not set up for trial, no prosecution could be said to be T.A.No.212 of 2012 -4- launched.
A similar view was taken by the Mysore High Court in Bolandanda Pemmayya And Anr.
vs Ayaradara Kushalappa AIR 196.Mys 13.
The suit instituted by the respondents before the Civil Judge (Senior Division).Gurdaspur titled “Janak Raj and another versus Chander Kanta and others”.
is quashed as disclosing no cause of action.”
3. I have quashed the plaint in exercise of the supervisory jurisdiction of the High Court under Section 227 of the Constitution of India so that a suit that is not maintainable is not unnecessarily retained amongst the Court files and jettisoned even without pushing the case through a process of trial.
The non-maintainability of such type of actions is also to be routed out on a principle of public policy.
A prospect of action for damages on police returning the complaint as not making out an offence could obstruct access to justice by the person being apprehensive of even making complaints for an off chance of the complaint being not registered and when the police does not escalate a complaint to a further stage of registration of case before a Criminal Court and for prosecution in accordance with law but the complainant being proceeded against for damages.
It will be dangerous to allow for such a prospect.”
4. In view of the quashing of the plaint as not maintainable, the application for transfer becomes unnecessary and it is disposed of as such.
(K.
KANNAN) JUDGE December 20, 2012 Pankaj*