A.K. Shrivastava, J.
1. This second appeal has been preferred by the defendant against the judgment of reversal passed by First Appellate Court in Civil Appeal No. 3-B/2004 dated 31.3.2005 whereby the judgment and decree dismissing the suit of plaintiff/respondent passed by the trial court has been reversed and set aside and the suit of plaintiff/respondent has been decreed for Rs. 35,000/- with 6% per annum interest from 10.1.2000.
2. A suit for damages on the basis of malicious prosecution was filed by plaintiff/respondent. According to the plaint averments plaintiff is a Government servant and is serving on the post of teacher in primary school. From 1967 he is serving in different schools and there was no complaint against him. His service career remained unblemished. The parents and the students pay high respect to him. In the year 1996 he was transferred from Primary School, Sindoor Khana to village Jeen. On 8.3.1997 he came to know that some report has been lodged against him in police station Chincholi and the police is searching him. On coming to know this fact he was surprised and did not believe the said information to be correct. It was beyond the expectation of the plaintiff that anybody would lodge any report against him since he has not done any criminal act.
3. On 9.3.1997 the plaintiff was arrested by the police of police station, Chincholi and on being enquired by him, he was informed that defendant Jagdish Prasad submitted a written report dated 2.3.1997 on the basis of which a case has been registered against the plaintiff. In the written report it has been mentioned by Jagdish Prasad that on 3.8.1996, plaintiff for no cause, slapped his daughter, namely, Priyanka and her colleague and further it has been mentioned that he inserted his hand in the panty of these two girls. A case under Section 354 and 506 IPC was registered against the plaintiff in which he was arrested on 9.3.1997 and thereafter he was bailed out from the Court.
4. The plaintiff was prosecuted for the aforesaid offences, and ultimately he was acquitted by judgment dated 28.2.1998. The evidence of defendant was not found reliable by the learned Magistrate and the entire case was found to be doubtful. On account of his prosecution, the plaintiff faced anguish and unnecessarily he was harassed. During the trial he was standing in the dock as an accused and was required to attend each and every date.
5. According to the plaint averments the written report submitted in the police station Chincholi by defendant is concocted and was lodged because plaintiff in the school punished the daughter of defendant who was quarrelling in the class room in derogation to the discipline with other girls as a result of which defendant along with his friends, Prahlad and Chokhelal, firstly assaulted plaintiff on 3.8.1996 as a result of which plaintiff sustained injuries and when he reported the matter to the police, the defendant being influential person, police did not take any action. The defendant maliciously after 7 months lodged the written report.
6. The plaintiff also faced the agony of his department as he was suspended and he was under suspension when the suit was filed. On account of malicious prosecution by the defendant, the plaintiff was harassed mentally and his reputation was ruined as a result of which he has claimed Rs. 45000/- towards damages by filing the suit after his acquittal on 28.2.1998 in Case No. 68/97 of J.M.F.C. Betul.
7. The defendant refuted the averments made in the plaint and pleaded that a correct written report was submitted by him mentioning in it that his daughter Ku. Priyanka who at the relevant point of time was studying in class III and the daughter of Prahlad Rathore namely Ku. Roshani was also studying in the same class and the plaintiff was a teacher of that class. On 3.8.1996 these two girls came to the house in weeping condition and narrated to the defendant that plaintiff without any cause gave slaps to them and snatched the frock as a result of which it was torn. Thereafter he inserted his hand inside their panty as a result of which they have come back to the house. The defendant thereafter went to the school and confronted these facts to the plaintiff as a result of which he became annoyed and stated that he will kill the girls.
8. It has also been pleaded in the written statement that on the written report submitted by defendant, the police prima facie found that plaintiff has committed the offence, eventually, registered a case under Section 354 and 506 IPC. The challan was rightly submitted in the competent court. It has been denied that on 3.8.1996 defendant along with Prahlad and Chokhelal assaulted plaintiff nor he sustained any injury. The plaintiff did not go to police station for lodging any report. It has also been denied that the defendant being an influential person, police did not do anything on the report of plaintiff. It has also been pleaded by defendant that because plaintiff being teacher in the school and was teaching his daughter, he was under fear that he may harm his daughter as a result of which when defendant was transferred, he reported the matter to the police by submitting the written report.
9. It has been denied by the defendant that the plaintiff was maliciously prosecuted and he is entitled for any damages. It has been prayed that the suit be dismissed.
10. The trial court after framing necessary issues dismissed the suit of plaintiff as a result of which an appeal was preferred by the plaintiff before First Appellate Court which has been allowed by the impugned judgment and decree and the suit of plaintiff has been decreed for Rs. 35,000/- with interest @ 6% per annum with effect from 10.1.2000. Hence this second appeal has been filed by the defendant.
11. This Court on 22.8.2005 admitted the appeal on following substantial questions of law:
1. Whether the lower appellate court was justified to hold that the appellant had no reasonable and probable cause to initiate prosecution against the respondent?
2. Whether under the given circumstances of the case the lower appellate court was justified to hold that the appellant had no reasonable and probable cause of prosecuting the respondent?
3. Whether the suit of the respondent/plaintiff is liable to be dismissed due to non-joinder of State of M.P. and also the victim Ku. Priyanka and Ku. Roshni as necessary parties
12. I have heard Shri Mukhtar Ahmad, learned Counsel for appellant and Shri Avinash Patel, learned Counsel for respondent and perused the record.
13. After having heard learned Counsel for the parties, I am of the view that this appeal deserves to be dismissed.
Regarding substantial questions of law No. 1 and 2:
14. Admittedly the plaintiff has been acquitted by Judicial Magistrate First Class, Betul in Criminal case No. 68/97 on 28.2.1998. Admittedly the alleged incident is stated in the written report is of dated 3.8.1996. Admittedly the written report was lodged by defendant on 2.3.1997 against plaintiff upon which he was arrested for the offence punishable under Section 354 and 506 IPC.
15. After the acquittal, the plaintiff filed suit for malicious prosecution on the ground that he was mentally and physically harassed and he suffered mental torture. His reputation was ruined and though he was innocent, he was facing a criminal prosecution and was attending every date before learned Magistrate and was standing in the dock as an accused. He being a respectable teacher as he was maliciously prosecuted, his reputation has been shadowed on account of the vile act of defendant as he lodged written report after 7 months of so called incident.
16. Shri Mukhtar Ahmad learned Counsel for appellant by placing reliance on the decision of Privy Council Balbhaddar Singh and Anr. v. Badri Sah and Anr. AIR 1926 P.C. 46 has submitted that in order to get a decree in a suit of malicious prosecution it is the bounded duty of plaintiff to prove that the defendant invented the story and instigated proceedings. According to learned Counsel, since this is totally lacking in the instant case, therefore, the learned First Appellate Court erred in substantial error of law in decreeing the suit of plaintiff. By placing reliance on the division bench decision of Kerala High Court Govind J. Khona v. K. Damodaran and Ors. : AIR1970Ker229 , it has been argued that unless and until it is proved that defendant acted without reasonable and probable cause a suit based on malicious prosecution cannot be decreed.
17. In order to appreciate and to answer the above said substantial questions of law No. 1 and 2, it would be appropriate to discuss that in a suit of malicious prosecution what the plaintiff is required to prove. In an action for malicious prosecution, plaintiff must prove:
(i) that he was prosecuted by the defendant;
(ii) that the proceedings complained of terminated in favour of plaintiff if from their nature they were kept of so terminating;
(iii) that the prosecution was instituted against him without any reasonable or probable cause;
(iv) that the prosecution was instituted with a malice intention, i.e., not that mere intention of carrying the law into effect, but that an intention which was wrongful in point of fact;
(v) that he has suffered damage to his reputation or to the safety of person or to the security of his property.
On the basis of above said elucidated principles of law in regard to malicious prosecution, the present case is to be tested on the anvil and touchstone of the facts and circumstances.
18. Certain admitted facts have already been mentioned by me in paragraph No. 14. The plaintiff was prosecuted on the basis of written report submitted by the defendant in the police station; the proceedings complained of were terminated in favour of plaintiff as he was acquitted. Another important ingredient in order to obtain the decree in a suit of malicious prosecution is that there was no reasonable and probable cause to prosecute the plaintiff. Indeed, reasonable and probable cause is the most essential feature and I may say it is the back bone in a suit of malicious prosecution. Reasonable and probable cause is an honest belief in the guilt of the accused based on a full conviction, founded upon reasonable grounds, of the existence of a state of circumstance, which assuming them to be true, would reasonably lead in ordinary prudent and cautious man, placed in the position of the accuser to the conclusion that the person charged was probably guilty of crime imputed. However, in the present case it is seen that the defendant has initiated prosecution without himself holding an honest belief in the truth of the charge. Thus, it cannot be said that he had acted upon reasonable and probable cause.
19. In order to ascertain whether there was a reasonable and probable cause favouring defendant to prosecute the plaintiff it would be appropriate to see the conduct of the defendant. I have already discussed hereinabove, and these are the admitted facts that the written report was submitted by defendant on 2.3.1997 mentioning the date of alleged incident to be 3.8.1996 in the police station, accusing the plaintiff under Section 354 and 506 IPC. For no rhyme and reason the alleged incident was not reported soon after the alleged incident of 3.8.1996, but, the written report was submitted after 7 months. The learned First Appellate Court after appreciating and marshalling the evidence rightly came to the conclusion and arrived at a pure finding of fact that the story as putforth by defendant that after the transfer of the plaintiff, because the defendant was in fear and under impression that he (plaintiff) would take revenge against his daughter by detaining her in the same class, is not found to be proved and is not having any truth. The findings so arrived at by the First Appellate Court are pure finding of facts and are not liable to be disturbed as they are based on appreciation of evidence. It has come in the evidence of plaintiff in para 5 of his cross -examination that he was suspended on account of the alleged incident of 3.8.1996 and when he was acquitted by the Magistrate thereafter his suspension order was revoked. Hence, there is no truth in the story putforth by the defendant that because the plaintiff was serving in the school and till he was transferred, he did not lodge the report because he was under apprehension that plaintiff may cause harm to his daughter by detaining her in the class. Thus, it cannot be said that the defendant was having any reasonable and probable cause to prosecute the plaintiff. The evidence in rebuttal by defendant adduced was not found to be truthful by the First Appellate Court. Therefore, when there is positive evidence of the plaintiff and which has been placed reliance by First Appellate Court and the evidence adduced by the defendant was not found to be truthful and as these findings are pure finding of facts, therefore, it is held that there was no reasonable and probable cause to prosecute the plaintiff by lodging such an abnormally delayed (7 months delay) written report. The suggestion put to the plaintiff in his cross examination that on the basis of the narration of the facts by the girls, the defendant lodged written report has been specifically denied by the plaintiff.
20. The First Appellate Court in para 21 of its judgment has held that there was some altercation between the plaintiff and the defendant and therefore a false written report was lodged by defendant after 7 months of the alleged incident and hence the prosecution was instituted with a malicious intention by the defendant with an intention which was wrongful in point of fact. Definitely, the plaintiff was harassed on account of his malicious prosecution, he was required to attend each and every date in the Court as an accused. During the trial, he was standing in the dock as an accused and he was also suspended, therefore he has suffered damage to his reputation.
21. The decision of Balbhaddar Singh (supra) is not applicable in the present case because in that case it was not proved that defendant invented and instigated the whole proceedings of the prosecution. However, in the present case, as held hereinabove, that the story was planted by the defendant by lodging a false written report after 7 months of the alleged incident and therefore it can safely be said that the defendant invented and instigated the whole proceeding of the prosecution. Similarly the decision of Govind J. Khona (supra) is also not applicable because in the present case it is already held that there was no reasonable and probable cause to prosecute the plaintiff. For the reasons stated hereinabove, the substantial question of law No. 1 and 2 are answered in affirmative and it is held that the First Appellate Court was justified to hold that the appellant had no reasonable and probable cause to initiate prosecution against respondent and under the given circumstances of the case the First Appellate Court is justified in holding that the appellant had no reasonable and probable cause for prosecuting the respondent.
Regarding substantial question of law No. 3.
22. While answering the substantial question of law No. 1 and 2 it has been held by me that the entire story was planted by the defendant in order to prosecute the plaintiff maliciously and was invented by the defendant and he instigated the whole proceedings for prosecution. Therefore, the alleged victims Ku. Priyanka and Ku. Roshni cannot be said to be a necessary party to the suit. If the prosecution is launched on the information supplied by and the active participation of the defendant, the defendant will be liable even though he may not have himself figured as the complainant in the criminal court. Since on the written report lodged by the defendant that too after 7 months of the alleged incident, he is held to be liable as a prosecutor on whose instigation the proceedings were commenced. I have already held hereinabove that it was defendant on whose complaint cognizance was taken against the plaintiff and therefore I am of the view that defendant was the prosecutor. I have asked a question to me that who is the prosecutor? On the basis of the reasons assigned hereinabove the answer would be that it is only the defendant who can be said to be a prosecutor. It would not be enough to say that because the prosecution was launched by the police the prosecutor is the State or the police. Indeed the prosecutor is only the defendant because generally all prosecutions are conducted in the name and on behalf of the State which is launched by the police. It has already been held hereinabove that the written report of defendant accusing the plaintiff was a document knowing fully that whatever the information and the incident has been mentioned in it is false and the defendant in support of his false report adduced his false evidence before the police and also before the Court and therefore he is held to be a prosecutor in a suit for malicious prosecution. Learned Counsel for appellant has placed reliance on the Full Bench decision of Rajasthan High Court Hardeva v. Ismail and Ors. in which it has been held that in order to ascertain whether an effective decree could be passed in absence of a party. The facts of the said case are altogether different and that suit was not for malicious prosecution. In that case there was a sale of an immovable property and possession was delivered to vendee. The suit by third person claiming the property to be of his own and in that case it was held that the vendor may be a proper party but he is not a necessary party inasmuch as an effective decree can be passed in favour of third person against the vendee. In the present case also an effective decree can be and is passed against the defendant. In the facts and circumstances, the decision of Hardeva (supra) is not helpful to the appellant.
23. Thus, I am of the view that the suit instituted by the plaintiff/respondent is not liable to be dismissed on account of non-joinder of State of Madhya Pradesh and also the alleged victim Ku. Priyanka and Ku. Roshni. The substantial question of law No. 3 is answered in negative.
24. Ab judicatio this appeal is found to be bereft of any substance and the same is dismissed with cost. Counsel fee Rs. 1000/- if pre-certified.