1. This appeal is directed against the judgment and decree dated 30-11-84 passed by Sri S. Seal, Additional District Judge, 1st Court, Hooghly in Money Appeal No. 10 of 1980 modifying the decree dated 16th September, 1980 passed by Sri B. N. Chandra, Subordinate Judge, 1st Court, Hooghly in Money Suit No. 8 of 1977.
2. Plaintiff Debabrata Dutta, filed Money Suit No. 8 of 1977 against the defendant Smt. Sovarani Dutta claiming damages for malicious prosecution valued at Rs. 104/-His case is that on 23-10-76, at 18.10 hours the defendant lodged a First Information Report in the District of Hooghly on an wilful false charge of theft of ear-ring from the person of the defendant against the plaintiff and hersister Smt. Biva Bati Dutta. The defendant knew the statements made in her First Information Report to be completely false and she maliciously made those statements before the police to implicate the plaintiff and her sister in a false criminal case and to defame and injure the plaintiff and to satisfy the defendant's grudge on the plaintiff. In pursuance of the said false information, the police arrested the plaintiff and his sister and detained them in hazat on 23-10-76. The plaintiff and his sister were taken to the thana and the people of the locality looked on them as object of ridicule. The plaintiff and his sister were detained in the police hazat from 11 p.m. (night) on 23-10-76 up to 11.30 a.m. on 24-10-76 the plaintiff was brought to the hazat of the Sub-Divisional Officer's Court building with hand-cuff and rope tied around his waist in broad day light through public road and again on the same day the plaintiff was brought from the S.D.O.'s Court building before the Sub-Divisional Judicial Magistrate, Chandernagore with hand-cuff and rope tied around his waist and the plaintiff and his sister were bailed on P. R. Bonds. On the basis of the said false First Information Report, a case was registered at the police station, P. S. Case being No. 17 dated 23-10-76 and the same was converted as G. R. Case No. 659 of 1976 in the Court of the Judicial Magistrate, First Class, Chandernagore (Sub-Divisional Judicial Magistrate, Chandernagore). The Sub-Divisional Judicial Magistrate ordered for filing investigation report on 10-1-77. However, police could complete the investigation before that date and on 21-12-76 submitted investigation report to the Sub-Divisional Judicial Magistrate, Chandernagore after investigating the charge of offence against the accused, that is, the plaintiff and his sister. While submitting the final report, the Investing Officer stated that the complaint by the defendant was false and so the Investigating Officer prayed in the final report for permission to prosecute the plaintiff/ defendant under Ss. 182/211, I.P.C. and also prayed for discharging the accused. The plaintiff was mishandled by the police and due to the said agony and sudden shock for the false arrest and indictment made bythe defendant, the plaintiff swooned in the premises of the thana hazat on 2340-76. On the basis of the final report submitted by the police, the Sub-Divisional Judicial Magistrate by his order dated 10-1-77, discharged the accused persons and ordered to prosecute the complainant (i.e., the defendant) under Ss. 182/211, I.P.C. The plaintiff further avers that he is a man of reputation and that his academic career is brilliant all through and at present he is a permanent teacher of Durga Chandra Rakshit Banga Vidyalaya, Chan-dernagore. The defendant acted maliciously and without any reasonable and probable cause and in consequence of the prosecution launched by the defendant, he had suffered pain in the body and mind and was prevented from transacting his business and was injured in his credit, The plaintiff was also defamed by the malicious act of the defendant. The plaintiff had to incur expenses of Rs. 104/-in obtaining his release from the hazat and defending himself in that prosecution and the plaintiff has been lowered in the estimation of people as a false colour is given to the plaintiff as a criminal. So the plaintiff has filed the suit claiming Rs. 10,000/- for damages for pain in body and mind and for loss of business and reputation and Rs. 104/- as damages for expenses incurred in the Criminal Court and prayed for decreeing the suit against the defendant.
3. Defendant resisted the claim of the plaintiff by filing a written statement in which she has denied all the allegations brought against her by the plaintiff. Her case is that she had not lodged any false information to the police. She did not make any statement before the police or in the F.I.R. in order to defame the plaintiff or to satisfy any alleged grudge on the plaintiff. She reported to the police the real incident and thereafter she had no hand in the matter. It was the police who took up and proceeded with the case. The plaintiff was taken to police station by the police as they found materials against the plaintiff to proceed with. She had no hand in the matter of taking of the plaintiff to the police station and it is denied that the people of the locality looked to the plaintiff as an object of ridicule or passed any disgracefulcomments. It is denied that the plaintiff suffered any anguish or shame due to the alleged comments of the people. It is not known to her if the plaintiff was detained in police hazat from 11 p.m. on 23-10-76 to 11.30 a.m. on 24-10-76. It is denied that any proceeding was initiated by her by lodging any malicious false F.I.R. This is the sum and substance of the defendant's case.
4. The learned Subordinate Judge, 1st Court, Hooghly who tried the suit held that the plaintiff had been able to prove his case of malicious prosecution and decreed the suit in part on contest with cost for the decretal amount for Rs. 179/- only.
5. Being aggrieved at and dissatisfied with the aforesaid judgment the defendant preferred Money Appeal No. 10 of 1980. The plaintiff also filed cross-objection against the decretal amount. The learned Additional District Judge, 1st Court, Hooghly dismissed the appeal on contest with cost for the decretal amount only. The impugned judgment and decree were confirmed. The learned Judge found some substance in the cross-objection filed by the respondent and so he passed a decree in favour of the plaintiff for Rs. 1,604/- only as the amount of damages.
6. Not being satisfied with the judgment and decree of the learned lower appellate Court, the defendant/appellant has come up before this Court in this second appeal.
7. Sri Banerjee, learned counsel for the appellant has urged the following points before me for consideration:- (1) Whether by filing the First Information Report the defendant had put the law into motion; (2) whether malice has been proved by the plaintiff; (3) whether it can be held that just because the criminal case filed, it is to be held that the defendant filed the First Information Report maliciously; (4) whether just because civil disputes are pending between the parties, it is sufficient to hold that the defendant filed the criminal case maliciously. But Sri Mukherjee, learned counsel for the respondent submitted that the plaintiff had been able to establish the fact that the defendant had put the law into motion by filing the FirstInformation maliciously acting upon which the police arrested the plaintiff and his sister, took them to the thana and next day police took them to the Court wherefrom the plaintiff and his sister secured their release on P. R. bond. The judicial process continued till the filing of the final report by the police whereupon the learned Court discharged the accused (plaintiff and his sister). According to Sri Mukherjee the defendant's very purpose was to prosecute the plaintiff maliciously without any just and reasonable cause. Learned Counsel of both sides have referred to many reported decisions, law dictionaries and treatises on the law of Tort. I shall refer to them at appropriate places in course of the judgment.
8. Stroud's Judicial Dictionary defines malice as wrongful act done intentionally without just cause or excuse and that malice differs from hatred. Osborn's Concise Law Dictionary defines malice as ill-will; personal spite. D. Basu in his Law of Tort (9th Edn. page 12) has quoted Bayley, J. who propounded the definition of malice in Bromage v. Prosser ((1825) 4 B & C 247) as, 'malice, in common expectation of the term means ill-will against a person, but in its legal sense it means a wrongful act done intentionally without just cause or excuse.' This definition of malice as given by Bayley, J. has also been quoted by Salmon in his Law of Torts (19th Edn. page 22), Winfield on Tort (12th Edn. page 559) has the following to say on the definition of malice. 'Judicial attempts to define malice have not been completely successful. 'Some other motive than a desire to bring to justice a person whom the accuser honestly believed to be guilty' seems to overlook the fact that motives are often mixed. Moreover, anger is not malice; indeed it is one of the motive on which the law relies in order to secure the prosecution of criminals, and yet anger is much more akin to revenge than to any desire to uphold the law. Perhaps we are nearer the mark if we suggest that malice exists unless the predominant wish of the accuser is to vindicate the law.' In : (1979)ILLJ25SC the Supreme Court defined malice in the following words:- 'Malice in its legal sense meansmalice such as may be assumed from the doing of wrongful act intentionally, but without just cause or excuse or for want of reasonable or probable cause.'
9. Mehrotra in his Law of Defamation and Malicious Prosecution (3rd Edn. page 325) has quoted from Black's Law Dictionary which states malicious prosecution 'A judicial proceeding instituted against a person out of the prosecutor's malice and ill-will, with the intention of injuring him, without probable cause to sustain it, the process and proceedings being regular and formal, but not justified by the facts. For this injury and action on the case lies, called action of malicious prosecution. 'In AIR 1972 Gau 119 (Sudhir Ch. Pal v. Rajeshwar Dutta) it was held that in an action for malicious prosecution the plaintiff in order to succeed must prove that (1) The proceedings were instituted or continued by the defendant (2) the proceedings terminated in plaintiffs favour (3) the defendant had acted without reasonable or probable cause and, (4) the defendant acted maliciously. It was further held that though the task of proving a negative is notoriously difficult, the burden to prove absence of reasonable and probable cause in an action for malicious prosecution is nevertheless on the plaintiff though the onus may at different stages of the proceeding shift from one party to the other. The observations made in : AIR1977Cal356 (C. M. Agarwala v. Halar Salt & Chemical Works) are almost similar. It has been observed in this case that the generally accepted essential elements in a cause of action for malicious prosecution in conformity with malicious decisions are:- (1) that the plaintiff was prosecuted by the defendant (2) that the prosecution terminated in his favour, if from their nature they were capable of such termination (3) that there was no reasonable and probable cause for launching such prosecution (4) that the prosecution was malicious, i.e., it was done with ulterior motive and not with the intent of carrying the law into effect. The decision in AIR 1952 Nag 310 (Sitaram v. Dudharam), : AIR1952Pat283 (Madan Mohan Singh v. Bhirgunath Singh) AIR 1966 Mys 13(Bholandanda Permmayya v. Jogendra Kr. Banerjee) and AIR 1949 Bom 100 (Dattatraya Pandurang Datar v. Hari Keshav Gokhale) are good precedents.
10. AIR 1952 Nag 310 (supra) is acase on malicious prosecution. In this case it has been observed that reasonable and probable cause may be defined as an honest belief in the guilt of the accused based upon a full conviction founded upon reasonable grounds, of the existence of a state of circumstances, which assuming them to be true, would reasonably lead any ordinary, prudent and cautious man, placed in the position of the accuser, to the conclusion that the person charged was probably guilty of the crime imputed. Innocence is proved by proving acquittal in criminal proceedings where the prosecutor must know whether his accusation against the accused is false or true. If the accused is innocent it follows that the prosecutor must be telling a falsehood and there must be a want of reasonable and probable cause. Thus, in this class of case proof of innocence of the accused by production of the judgment in the criminal case is sufficient for the plaintiff to discharge the burden of proving want of reasonable and probable cause in the prosecution. It has also been observed in this case that malice exists unless the predominant wish of the accuser is to vindicate the law. Where the defendant does not believe in the truth of the charge he makes against the plaintiff and there is a long standing feud between the parties, the defendant's predominant motive cannot be to vindicate the law but to humiliate and harass the plaintiff.
11. In 1952 Pat 283 (supra) the facts are as follows. The defendant had lodged information at the thana wherein he asserted that the identified all the plaintiffs as having taken part in the dacoity in his house. As a result of the information, the police searched the house of the plaintiffs and placed them under arrest. The plaintiffs were subsequently produced before the Magistrate and an order of remand was taken. In the result, the plaintiff suffered imprisonment for 39 days and their reputation was also damaged. The plaintiffs brought an action for malicious prosecution. It was held that the defendant must be taken to haveactively instigated the prosecution of the plaintiffs. It was immaterial that the defendant made no formal charge before the Magistrate or that the proceedings did not reach the stage at which the Magistrate could take formal cognizance. The defendant was therefore liable in damages. It was further held that as the plaintiffs suffered the imprisonment not on account of any ministerial act but a judicial act exercised by the Magistrate under S. 170 or 344 of the Code of Criminal Procedure (old), the action was maintainable. The distinction between a judicial act and a ministerial act is important. In the former, the party appeals to the discretion of a Judge or Magistrate, which is thus interposed and the steps taken result immediately from the exercise of that discretion and not from the act of the party. In case of the latter, the party employs the machinery of the law at his own risk and is directly responsible for the consequences. In this case the following principles were propounded. 'The foundation of the action for malicious prosecution lies in abuse of the process of the Court by wrongfully setting the law in motion and it is designed to discourage the perversion of the machinery of justice for an improper purpose. In order to succeed, the plaintiff must prove that the proceedings were malicious, without reasonable and probable cause that they terminated in his favour and that he had suffered damage. The word 'prosecution' in the title of the action is not used in the technical sense which it bears in criminal law. For, the action lies for, the malicious prosecution of certain classes of civil proceedings, for instance, falsely and maliciously presenting a petition in bankruptcy or a petition to wind up a company. To found an action for malicious prosecution the test is therefore not whether the criminal proceedings have reached a stage at which the Magistrate could take cognizance. The test is whether the defendant was actively instrumental in putting the criminal law into force, in other words, whether the defendant maliciously set the law in motion through a constituted authority without regard to the technical form in which the charge has been preferred.'
12. In the case reported in AIR 1966 Mys 13, the defendant filed a complaint of theft before the Sub-Inspector of Police alleging that the plaintiff had committed the theft of cardamom and fish traps on a particular day. The police after recording the statements of both of them, searched the house of the plaintiff and made a note on the complaint that it was false and filed it. The plaintiff then instituted a suit for damages for malicious prosecution. It was held that the mere filing of a complaint before the police, when such complaint was ordered to be filed in that office only and no judicial authority was set in motion as a consequence of such complaint did not amount to prosecution.
13. In 51 CWN 723 (PC) it was held thatto found an action for damages for malicious prosecution based upon criminal proceedings, the test is not whether the proceedings have reached a stage at which they may correctly be described as a prosecution. The test is whether such proceedings have reached a stage at which damage to the plaintiff results. The mere presentation of a false complaint will not per se found as action for damages for malicious proceedings. If the Magistrate dismisses the complaint as disclosing no offence, it may be that there has been nothing but an unsuccessful attempt to set the criminal law in motion, and no damage to the plaintiff results.
14. In the case reported in AIR 1949 Bom 100 (supra) the defendant lodged a first information to the police of theft at their shop. In it they laid their suspicion on the plaintiff, an employee of the defendant's shop. Upon this information the police entered into investigation of the offence under Chapter V of the Bombay City Police Act. The plaintiff was arrested and on application to the Magistrate was remanded in custody. There being no evidence forthcoming to show that the plaintiff had committed the offence, upon application by the police for discharge, the bail bond was cancelled and the plaintiff was discharged. Then the plaintiff filed a suit against the defendants claiming damages for malicious prosecution. It was held by the Bombay High Court that the defendants did not prosecute the plaintiff. The defendants did nothing more than merely lay theinformation before the police and it was the police, that after being satisfied that there was reason to suspect the commission of the offence, proceeded to investigate the facts and circumstances of the case, took the necessary orders for remand which in law they were bound to do and ultimately discharged the plaintiff, there being no sufficient evidence to implicate him in the commission of the offence in spite of their best endeavours to see if there was any evidence forthcoming in that behalf.
15. The following reported cases were also referred to during argument: : AIR1970Ori91 (JogendraGarabadu v. Lingaraj Patra); (Ramnath v. Basir-ud-Din); : AIR1972Mad241 (C. Dakshinamurthy v. K. K. Venkata Swamy) and : AIR1989Ker83 (Kottam Thazhathu Veettil Krishnam v. Palri Thai-valapp Govindan). In the Orissa case it was observed that malice means the presence of some improper and wrongful motive, that is to say, an intent to use the legal process in question for some other than its legally appointed or appropriate purpose. In the Punjab case it was observed that the coexistence of malice and want of probable cause are essential prerequisites to the success of an action of malicious prosecution. Malice alone, however great, is insufficient. Want of probable cause cannot be inferred from malice, however great such malice may be, but malice may be implied or inferred as a fact from want of probable cause. The question is not what the actual facts were but what the defendant had reason to believe they were. In the Madras case it has been observed that malice has to be independently established apart from want of reasonable and probable cause. But where the defendant filed the false complaint that the plaintiff had cut the tree and the complaint was false to his knowledge; it is possible to infer want of reasonable and probable cause as also malice. In the Kerala case, the High Court discussed the essential element to found a cause of action for malicious prosecution and then observed that where the criminal prosecution initiated by the defendant against the plaintiff has ended in acquittal, the suit for malicious prosecution by the plaintiff would not succeed unlessit is further established that the defendant had no reasonable and probable cause in launching prosecution against the plaintiff and in doing so they were motivated by malice or their primary purpose was something other than to bring the law into effect.
16. As will be seen from my discussions of the various case laws and the treatises cited above, the principles relating to a malicious prosecution are found to be well established by now. In the case before us let me see whether the plaintiff has succeeded in proving that Chandernagore P. S. Case No. 17 dated 23-10-76 corresponding to G.R. Case No. 659 of 1976 in the Court of the Sub-Divisional Judicial Magistrate, Chandernagore was instituted or continued by the defendant and the said proceedings terminated in favour of the plaintiff and the defendant had initiated the proceedings without reasonable or probable cause and that the defendant had acted maliciously. The learned counsel of both sides dwelt at length on all the ingredients of a malicious prosecution and extensively quoted the evidence on record and the findings of the Courts below. While arguing the case, the learned counsel were not unmindful of the fact that I was hearing a second appeal but they craved for the Court's indulgence to quote extensively from records as according to them these are necessary for a just decision of the case. Referring to the background of the case, Sri Banerjee, learned counsel for the appellant has submitted that although the criminal prosecution against the plaintiff failed yet it cannot be said that the defendant had lodged a false F.I.R. within the police. Just before the alleged occurrence quoted in the F.I.R. (Ext. 3) the brother of the plaintiff was found pelting stones at the son of the defendant, who is deaf and dumb. Sri Banerjee submits that it is only natural for a mother that she would be angered when her children are subjected to physical tortures by others and that too when the child happens to be deaf and dumb. So Sri Banerjee submits, if something is done out of anger it can never be said that the defendant had acted out of malice in filing the F.I.R. Sri Banerjee has conceded that the proceedings terminated in favour of the plaintiff and therefore I need not dwell at length upon this ingredient. But theburden is on the plaintiff to prove that the defendant initiated the proceeding without reasonable or probable cause. On this point Sri Banerjee submits that the plaintiff has failed to discharge this burden. I agree with the observation of D. M. Sen, J. in AIR 1972 Gau 119 that although the task of proving a negative is notoriously difficult nevertheless the burden to prove absence of reasonable and probable cause in an action for malicious prosecution is on the plaintiff. In the case before us the plaintiff who is a teacher by profession, by examining himself and his student Tapash Kr. Sadhu (P.W. 4) has tried to show that at the relevant point of time he was not at all present at the place of occurrence and that he was by that time busy in coaching his student who came to his house. If there had been any occurrence of pelting stones, the plaintiff was not aware of the same and he was not involved in any wordy dual with the defendant. From the submissions of the learned counsel of both sides and from the evidence on record I gather that the parties are related and they dwell in the same compound in separate houses. It may be true that the plaintiff was busy in his coaching at the relevant time and he might have kept himself busy in coaching shunning hue and cry outside. Both the Courts below believed the plaintiff's version that he had not at all come to the place of alleged occurrence. Sitting in second appeal I cannot interfere in that finding even if a Court in second appeal may form a different opinion. Even if there may be lurking doubt as to the findings of the Courts below it passes my comprehension as to why an educated person would stoop so low as to snatch away the ear-ring from the ear of a woman (defendant) and that too when she is related to him, more so when the parties belong to the Bengali community where womanhood is held in the high esteem. The evidence on record does not justify a conclusion to support the defendant's case. She had stated that she sustained bleeding injury on her ear when the plaintiff snatched away her ear-ring. But the medical evidence on record belied her case. P.W. 1, Dr. (Mrs.) Namita Sarkar (Roy) has deposed that on examination she did not find any injury mark on the person of Sova Rani Dutta(i.e., the defendant).She also did not find any injury on the lobule of either ear of Sova Rani Dutta. She (defendant) complained before her (P.W. 1) that she was assaulted by Debabrata Dutta. P.W. 3, Kalipada Das, Sub-Inspector of Police deposed that he searched the house of Prafulla Kr. Dutta (father of the plaintiff) and prepared a nil search report. P.W. 7 Nripendra Kumar Deb, Sub-Inspector of Police deposed that he submitted final report with his remark that the case was false and solicited permission from the Court to proceed against the complainant under S. 182/ 211, I.P.C. and that permission was granted.
17. Relying on the decision of the Bombay High Court as reported in AIR 1949 Bom 100 (supra), the learned counsel for the appellant has submitted that the defendant/ appellant in the case before us did nothing more than merely sending the information before the police and so it cannot be said that the defendant wanted to prosecute the plaintiff maliciously. On the other hand, the learned counsel for the respondent has relied upon the decision of the Patna High Court reported in : AIR1952Pat283 (supra) and has submitted that the said decision is attracted to the case before us. The decisions in both these two reported cases have been elaborately discussed by the first Court of appeal and the learned lower appellate Court came to the finding that the Patna High Court decision applies to the case before us. I need not once again dwell at length on these two reported decisions. On perusal, I find that the Patna High Court case stands on a different footing than the Bombay High Court case as referred to above. In the Bombay High Court case, the defendants laid their suspicion on the plaintiff who was an employee in their shop, when a theft occurred. The defendants did not suspect the other employees as they were old employees and were trustworthy. But the plaintiff was recently appointed and the theft occurred. So reasonable suspecion aroses as to the involvement of the plaintiff in the theft. But in the Patna case the defendant was specific in his assertion that he could recognise the dacoits as a result of which the plaintiffs had been arrested and detained for 39 days. Later they were found not involvedin the dacoity. So it was a case of falsehood on the part of the defendant which resulted in the detention of the plaintiffs. In the instant case before me the defendant filed the First Information Report against the plaintiff and his sister alleging among others, the theft of her ear-ring. The offence of theft is a cognizable offence. Police on the report of the F.I.R. took prompt action and took away the plaintiff and his sister to the police station in a police van. In my considered opinion, the defendant knew very well before filling the F.I.R. that the plaintiff had not snatched away her ear-ring but in order to set police machinery into motion, added the offence of theft with the offence of assault. Although there was no previous litigation between the parties yet it transpires that there were civil litigations between the father of the plaintiff and the husband of the defendant. So we cannot say that merely out of anger the defendant filed the F.I.R. Rather my clear finding is that the F.I.R. was lodged out of malice. Halsbury's Laws of England, Vol. 19 page 670 says that, 'A prosecution exists where a criminal charge is made before a judicial officer or tribunal.' Similarly Clerk and Lindsell's Tort, 7th Edn. page 637 says that to prosecut is to set the law in motion and the law is only set in motion by an appeal to some person clothed with judicial authority in regard to the matter in question. It is true that the police is not the judicial authority. But the police is the law enforcing authority and that authority very often empower law under the judicial authority. Police arrested the plaintiff and detained him in the night in the thana lock up. In my opinion, up to that point of time no judicial authority has any hand. But police took the plaintiff and his sister before the Court wherefrom they got their release by filing P. R. bonds. So there is no gainsaying the fact that from that point onward the judicial authority comes into the picture and therefore right from the time to time of arrest to the discharge of the accused (plaintiff and his sister) it was continuing process involving both the police authority and the judicial authority. It cannot be said therefore that in the case before us no judicial authority was involved. The logical conclusion therefore is that the defendant had setthe law in motion by prosecuting the plaintiff.
18. As regards the humiliation suffered by the plaintiff due to his handcuffing and tying with rope and his transportation to the Court, the learned counsel for the appellant argued that the defendant/ appellant had no hand in the handcuffing of the plaintiff. It is true that she could not order or compel the police in any way to handcuff the plaintiff but as I have already said, her intention was very clear. She knew for certain that as she had alleged a cognizable offence in her F.I.R., police would handcuff the plaintiff. From the the facts and circumstances of the case it cannot be said whether the police unwittingly got themselves trapped in the design of the defendant in handcuffing the plaintiff. Time without number the Supreme Court depricated handcuffing of an accused when there is not the least apprehension that the accused would not submit to the authority of the police of that he would run away from the grip of the police. The Supreme Court laid down the law in this regard in Sunil Batra's case (Sunil Batra v. Delhi Administration, : 1978CriLJ1741 ). The law as laid down in Sunil Batra's case was reiterated in Prem Shankar's case (Prem Shankar Shukla v. Delhi Administration, : 1980CriLJ930 . In Prem Shankar's case the Supreme Court observed as follows: 'It is implicit in Articles 14 and 19 (of the Constitution) that where there is no compulsive need to fetter a person's limbs, it is sadistic, capricious, despotic and demoralising to humble a man by manacling him. Such arbitrary conduct surely slaps Article 14 on the face. The minimal freedom of movement which even a detainee is entitled to under Article 19 cannot be cut down by application of handcuffs or other hoops. It will be unreasonable so to do unless the State is able to make out that no other practical way for forbidding escape is available, the prisoner being so dangerous and desparate and the circumstances so hostile to safe-keeping.' In the said case the Supreme Court also discussed the scope of Sections 46 and 49 of the Code of Criminal Procedure and observed as follows:- 'In making an arrest the police officer on otherperson making the same shall actually touch or confine the body of the person to be arrested, unless there is forcible resistance to the endeavour to arrest or an attempt to evade arrest, the law allows the police officer or other person to use all means necessary to effect the arrest. Section 49 provides that the person arrested, must not be subjected to more restraint than is necessary to prevent his escape ..... Too often it is forgotten that if a police officer is vested with the power to restrain a person by handcuffing him or otherwise, there is a simultaneous restraint by the law on the police officer as to the exercise of that power.' While handing down the aforesaid ruling, the Supreme Court never disputed the discretionary power of the investigating machinery as to whether handcuffs or other restraint should be imposed on a prisoner which is primarily a matter for decision of the authority responsible for his custody. In the case before me, the plaintiff is a school teacher fully conscious of his duties and responsibilities not only to the student community but to the society as a whole. It is unthinkable that he would have made any attempt to run away from the custody of the police and the facts as they appear give lead me to the conclusion that handcuffing of the plaintiff was unwarranted. Any way, the result is that the plaintiff suffered the pangs of humiliation and the defendant was directly involved in the humiliation suffered by the plaintiff. There may be people who can take the handcuffing lightly. A recent incident known all over the world is a pointer to this aspect. The febulously wealthy Soudi Financier, Adhan Khashoggi wanted by police in America, took, shelter in Switzerland. He was extradited to America and he was produced before the Court under handcuff. Mr. Khashoggi could smile and wave his hand to the photographers which was flashed all over the world. But in the case before us, the arrest and then handcuffing were too much for a teacher who has his own moral values. Unnecessarily his image in society got tainted.
19. In view of my above discussions, I hold that the plaintiff has succeeded in establishing the fact that the defendant had maliciously prosecuted him without any justand reasonable cause. I therefore do not find any necessity to interfere in the judgment and decree appealed against except in the quantum of damage assessed by the learned lower appellate Court which appears to me to be high.
20. In the result, the appeal is dismissed with modification in the quantum of damage which I now fix at Rs. 500/-.
21. No order is passed as to the cost of this appeal.
22. Appeal dismissed.