S.D. Tiwari Vs. Gurmeet Singh Alias Billu and anr. - Court Judgment

Excerpt:
criminal - time barred - damages - public policy - sections 379 and 420 of indian penal code (ipc), sections 41, 42 and 52 of forest act and article 74 of limitation act, 1963 - plaintiff intercepted by defendant (town inspector) and alleged to have transported wood in violation of transit pass - offence under section 379 and 420 of ipc read with sections 41, 42 and 52 of act registered - however, trial court acquitted plaintiff from the offence under aforesaid sections - subsequently plaintiff instituted suit for recovery of damages occasioned due to interception by defendant - plaintiff further alleged that defendant acted deliberately with an intent to cause monetary and professional loss to plaintiff knowing fully well that there was no illegality in transportation of wood with requisite transit pass - defendant pleaded that suit is barred by limitation - trial judge decided in favour of plaintiff - hence, present revision - held, it is well settled that law of limitation is based on consideration of public policy and expediency - plaintiff was acquitted at first instance by trial court, an appeal was preferred against it which was contested by plaintiff - when same was dismissed by appellate court - suit instituted for damages on ground of malicious prosecution is obviously within a period of one year as required by article 74 of limitation act, 1963 - thus, suit is within limitation as per provision of limitation and there is no infirmity in deciding the issues of limitation in favour of plaintiff - hence, revision application dismissed - constitution of india 1055. article 141; [a.k. patnaik, c.j., dipak misra, abhay gohil, s. samvatsar, & s.k. gangele, jj] dismissal of slp arising from decision of high court whether binding precedent decision of division bench in rama and company v. state of madhya pradesh, [2007(ii) mpjr 229] overruled by full bench of same high court prior to delivery of decision of full bench order passed in division bench decision assailed in slp before supreme court dismissal of slp by short reasoned order, though declaration of law, but high court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by apex court and larger bench decision in jabalpur bus operators association, reported in [2003(1) mpjr 158]. court clarifies that dr. jaidev siddha v. jaiprakash siddha, 2007(2) mpjr (fb) 361; air 2007 mp 269 (fb) is not impliedly overruled in view of dismissal of slp articles 226 & 227; [a.k. patnaik, c.j., dipak misra, abhay gohil, s. samvatsar, & s.k. gangele, jj] power to issue writ under article 226 - [per majority] the high courts exercise original jurisdiction under article 226 of the constitution and supervisory jurisdiction and the power of superintendence under article 227 of the constitution. but, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. whenever word supervisory has been used in the context of article 226 it is in contrast with the appellate or revisional jurisdiction. when a writ is issued under article 226 of the constitution in respect of courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than article 227 of the constitution of india. it is worth noting that the power under article 227 was there in a different manner under the government of india act. power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. the confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. there is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior courts or administrative authorities. the word superintendence has not been used in article 226 of the constitution. it is also evident that the term writs is not referred to in article 227. on a scrutiny of article 227 it would be crystal clear that power of superintendence conferred on the high courts is a power that is restricted to the courts and tribunal in relation to which it exercises jurisdiction. on the contrary the power conferred on the high court under article 226 is not constricted and confined to the courts and tribunals but it extends to any person or authority. be it noted, article 226 as has been engrafted in the constitution covers entirely a new area, a broader one in a larger spectrum. when the legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the apex court. the words of the section have to be understood to mean exercise of powers under article 226 of the constitution of india which is always original. -- m.p. samaj ke kamjor vargon ke krishi bhumi hadapne sambandhi kuchakron se paritran tatha mukti adhiniyam [3/1977]. section 2: writ appeal maintainability from order of single judge-when permissible held, maintainability of a writ appeal from an order of the learned single judge would depend upon many an aspect and cannot be put into a strait jacket formula. it cannot be stated with mathematical exactitude. it would depend upon the pleadings in the writ petition, nature of the order passed by the single judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. it cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate courts has to be treated all the time for all purposes to be under article 227 of the constitution of india. it would depend upon the real nature of the order passed by the learned single judge. the pleadings also assume immense significance. it would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of articles 226 and 227 of the constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. in this context it is apt to note that there may be cases where the single judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that article 226 of the constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. it will depend upon factual matrix of each case. dr. jaidev siddha v. jaiprakash siddha, 2007(2) mpjr (fb) 361: air 2007 mp 269 (fb) is not impliedly overruled in view of dismissal of slp preferred against order reported in rama and company v. state of madhya pradesh [2007 (2) mpjr 229 (db) (mp)]. - plaintiff further alleged that the revisionist acted deliberately with an intent to cause monetary and professional loss to the plaintiff knowing fully well that there was no illegality in the transportation of wood with the requisite transit pass. it is further alleged that the revisionist further insisted the government advocate to file an appeal challenging the acquittal as well as supurdginama. thus, he suffered mental agony as well as professional loss and claimed damages to the tune of rs. that is the reason given in the cases which established the doctrine, that, in actions for a malicious arrest or prosecution, or the like, it is requisite to state in the declaration the determination of the former suit in favour of the plaintiff, because the want of probable cause cannot otherwise be proper alleged. taking the word 'prosecution' in its wider sense we fail to see why it should not include a criminal proceeding of this nature before a sessions judge or a high court. 12. it is well settled that the law of limitation is based on consideration of public policy and expediency.orderabhay m. naik, j.1. this civil revision has been preferred against the impugned order dated 22-1-2008 passed by the court of 1st civil judge, class i, chhindwara in civil suit no. 8-b/05 deciding thereby the preliminary issue nos. 1 and 2 and holding thereby the suit of the plaintiff to be within limitation.2. short facts involved herein are that the plaintiff/respondent no. 1 instituted a civil suit for recovery of damages to the tune of rs. 50,000/- from the defendant/revisionist with the allegation that he was a registered contractor of forest department and used to purchase wood from the government. he further used to transport it after its cutting in different sizes in his saw mill situated at rambag, chhindwara on the basis of transit pass. once he was taking wood in this manner to chennai through nagpur. revisionist at the relevant time was posted as town inspector at police station, chhindwara. he stopped the truck of the plaintiff bearing registration no. nhg-4187 at nagpur naka, chhindwara on the ground that the wood was being carried in violation of conditions of transit pass issued by the forest department. an offence under sections 379 and 420 of ipc read with sections 41, 42 and 52 of the forest act was registered at crime no. 90/86. plaintiff was exonerated from the charges under sections 379 and 420 of ipc. however, a criminal case bearing no. 443/02 was registered against him in the court of jmfc, chhindwara. learned jmfc vide his judgment dated 16-6-2003 acquitted the plaintiff from the offence under the aforesaid sections of indian forest act with a finding that no offence was committed by the plaintiff. truck was delivered to the truck owner under supardginama despite opposition by the revisionist. plaintiff further alleged that the revisionist acted deliberately with an intent to cause monetary and professional loss to the plaintiff knowing fully well that there was no illegality in the transportation of wood with the requisite transit pass. it is further alleged that the revisionist further insisted the government advocate to file an appeal challenging the acquittal as well as supurdginama. appeal so preferred was dismissed on 7-10-2004. thus, it is stated that the plaintiff was forced to defend a false case for 17 years. he was prosecuted with a malicious intention. thus, he suffered mental agony as well as professional loss and claimed damages to the tune of rs. 50,000/-.3. defendant/revisionist submitted his written statement. he inter alia pleaded that the acquittal by jmfc was made vide judgment dated 16-6-2003 whereas the suit for damages was instituted on 5-4-2005. thus, it was stated that the suit being barred by limitation is liable to be dismissed.4. learned trial judge raised issue nos. 1 and 2 on the aforesaid objections and decided them in favour of the plaintiff vide the impugned order dated 22-1-2008. hence, this revision.5. heard the learned counsel and perused the record.6. suit for compensation for a malicious prosecution is governed by article 74 of the limitation act, 1963, which reads as under:_______________________________________________________________________________description of suit period of limitation time from whichperiod begins to run_______________________________________________________________________________74. for compensation one year when the plaintiff isfor a malicious acquitted or theprosecution prosecution isotherwise terminated._______________________________________________________________________________7. shri a.d. mishra, learned counsel contended that the plaintiff was acquitted by jmfc, chhindwara on 16-6-2003 and the limitation for the suit for damages on account of malicious prosecution commenced from that day. the suit in question having been instituted beyond one year after such acquittal is barred by limitation. reliance has been placed by him on the decision of bombay high court in the case of bhaskar narhar deshmukh v. kisanlal sadasukhdas and anr. : air1968bom21 and of allahabad high court in the case of madho lal v. han shanker and anr. : air1963all547 . bombay high court in bhaskar narhar deshmukh's case (supra) has observed that the scheme of the limitation act suggests that once the period begin to run, there is nothing which could suspend the running of the time. it is further observed that whenever the legislature intended that the time should commence to run from the final order, it expressly said so. therefore, the word 'acquittal' occurring in article 74 was construed by the bombay high court as an acquittal at the first instance with no effect of abortive appeal or revision. in the case of madho lal (supra), a similar view is taken by allahabad high court. it has observed that filing of a revision against an order of acquittal cannot suspend the period of limitation, which started running from the date of the order of acquittal.8. there seems to be much controversy on the question of limitation with respect to article 74 of the limitation act. calcutta high court in the case of bibhuti bhusan chakravartiand anr. v. tarun gupta : air1978cal302 , has held the suit for damages on account of malicious prosecution as barred by limitation because the plaintiff had no notice of filing of an application for grant of leave to appeal before supreme court within one year from the date of acquittal. plaintiff was held to have notice of such filing of the application after the period of limitation of one year at expiry. therefore, it was held in such circumstances that such a leave application which was filed after one year from the date of acquittal cannot be taken advantage of by the plaintiff or extending the period of limitation.9. on the other hand, madras and nagpur high courts are of the view that the limitation would commence not from the discharge or acquittal at the first instance but from the date of attaining finality. full bench of madras high court while dealing with article 23 (present article 74) in the case of soora kulasekara chetty and anr. v. tholasingam chetty air 1938 mad 349, has observed:the wording 'when the plaintiff is acquitted' cannot be divorced from the words 'or the prosecution is otherwise terminated'. in our opinion the article provides that time shall run when the plaintiff is acquitted or when the prosecution comes to an end in some manner. if the acquittal is followed by other proceedings the prosecution is terminated not by the acquittal but by the order passed in the subsequent proceedings and this construction was placed on the article by a bench of this court consisting of bakewell and phillips, jj. in air 1920 mad 151 : 57 ic 635.10. this court may also be guided by the earlier decision of the nagpur high court (which happens to be the predecessor of this court) in the case of sk. mehtab s/o sh. farid v. balaji s/o krishnarao and anr. air 1946 nag 46. i may profitably quote following paragraph from the sk. mehtab's decision:under section 435, criminal procedure code, the high court or any sessions judge or district magistrate or any sub-divisional magistrate empowered by the provincial government in this behalf may call for an examine the record of any proceeding, before any inferior criminal court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order and as to the regularity of any proceedings of an inferior court. under section 436 of the code, the high court or the sessions judge, or the district magistrate, may send back for further enquiry into any complaint which has been dismissed under section 203 of sub-section (3) of section 204 or into the case of any person accused of an offence who has been discharged. an improper order of discharge may be set aside and the accused may be committed to stand his trial before a court of session under section 437, criminal procedure code. in 1. luck. 215, it was held that the proceedings came to an end when the sessions judge finally refused to commit the appellants for trial. in other cases, the sessions judge and the district magistrate can report the case to the high court under section 438 of the code with a recommendation that the sentence be reversed or altered. the powers of the high court in revision are given in section 439 of the code. the order of acquittal or order of discharge is not final and is liable to be set aside in appeal or revision as the case may be by an order passed by the appellate or revisional court. so long as these proceedings are pending, no action lies on the ground that they have been wrongfully instituted. this is based on the principle stated in (1861) 10 cb (ns) 592 at p. 604 in these words:it is a rule of law, that no one shall be allowed to allege of a still depending suit that it is unjust. this can only be decided by a judicial determination, or other final event of the suit in the regular course of it. that is the reason given in the cases which established the doctrine, that, in actions for a malicious arrest or prosecution, or the like, it is requisite to state in the declaration the determination of the former suit in favour of the plaintiff, because the want of probable cause cannot otherwise be proper alleged.11. i may also successfully refer to the decision of division bench of allahabad high court in the case of b. madan mohan singh v. b. ram sunder singh : air1930all326 , wherein it has been observed:when the application under section 436 is preferred before a sessions judge and notice to show cause has been issued, the judge has himself power to make further enquiry into the case of the accused person who has been discharged or direct any subordinate magistrate to make such enquiry. while such a proceeding is pending before a sessions judge, the accused, in our opinion, is being prosecuted and in order to save himself from a retrial he must satisfy the judge that there is no case against him. taking the word 'prosecution' in its wider sense we fail to see why it should not include a criminal proceeding of this nature before a sessions judge or a high court. if this view were not to be accepted the result would be that the discharged person would be compelled to institute his suit for damages even though the matter is still sub judice and is being considered by the sessions judge or by the high court. it seems extra-ordinary that a plaintiff should be compelled to sue while it is yet a question whether his retrial is not going to be ordered. of course as soon as the order of discharge was passed the prosecution in the magistrate's court terminated. if no further proceedings are taken the prosecution must be deemed to have terminated on that date. but if, as a matter of fact, the matter is taken up in revision to a higher authority which has power of interference and proceedings sanctioned by the criminal procedure code are being pursued, the prosecution can no longer be said to have finally terminated. its final termination would be only when the proceedings in revision have come to an end in favour of the discharged person.12. it is well settled that the law of limitation is based on consideration of public policy and expediency. the cardinal point in limitation law is not the fixation of periods to enable filing of suits but to demarcate the period after which no suit can be brought in respect of a particular cause of action. conservative view adopted by bombay and allahabad high courts seems to have been taken ignoring the object of limitation. an order of acquittal or discharge which is under scrutiny before superior court, if is treated as ultimate date of limitation, the plaintiff would be compelled to institute a suit under this article which would remain subject to the outcome of the proceedings before the superior court. on the contrary, if the said article is construed so as to allow the plaintiff to sue on attaining finality of the order of acquittal or discharge, it would truly serve the object of limitation. on the other hand, if the plaintiff is compelled under this article to sue within one year after the acquittal at first instance and the acquittal is thereafter converted into conviction nothing would remain with the civil court to be adjudicated upon on account of vanishing of the cause of action itself. law of limitation is always to be interpreted in a manner beneficial to the plaintiff. if narrow construction is given to the word 'acquittal' in article 74, it may in peculiar circumstances lead to irreversible situation. if the plaintiff immediately on his acquittal but during pendency of appeal against it sues for damages for malicious prosecution and obtains decree in his favour during pendency of criminal appeal itself and further such a decree attains finality with the passage of time, afterwards, if the appeal is allowed and the acquittal is converted into conviction, the defendant would be highly prejudiced because he would be facing a decree with no cause of action resulting into irretrievable injustice. thus, in my considered opinion, the learned trial judge has acted with a correct and reasonable approach while interpreting article 74 and has not committed any jurisdictional error. there cannot be the contrary intention of the legislature.13. in article 74 time from which the period begins to run is described as 'when the plaintiff is acquitted or the prosecution is otherwise terminated. final termination of prosecution is not expressly mentioned. if an order of discharge is challenged in superior court it is treated as continuation of the prosecution. likewise, if the acquittal is challenged in superior court, there would be no justification in not allowing the plaintiff to watch the outcome of such proceedings and to sue for damages for malicious prosecution under this article after the order of acquittal in his favour attains finality. this in my considered opinion would be a correct and reasonable approach while interpreting article 74. contrary construction may increase the litigation because if the plaintiff is compelled to sue immediately after the order of acquittal at first instance during pendency of challenge to order of acquittal in superior court, he would be severally prejudice if the order of acquittal is converted into order of conviction by superior court. moreover, cause of action on the basis of acquittal cannot be legally said to be undisputably available to the plaintiff if the order of acquittal is under scrutiny in legal proceedings before superior court. this being so, i prefer to take support from full bench decision of madras high court and of nagpur high court (supra).14. applying the aforesaid, it may be seen that although, the plaintiff was acquitted at first instance by the court of jmfc, chhindwara on 16-6-2003, an appeal was preferred against it which was contested by the plaintiff till 7-10-2004 when the same was dismissed by the court of iasj, chhindwara. the suit instituted of 5-4-2005 for damages on the ground of malicious prosecution is obviously within a period of one year as required by article 74 of the limitation act, 1963. thus, the suit is within limitation as per the said provision and there is no infirmity in deciding the issues of limitation in favour of the plaintiff/ respondent no. 1.15. in the result, i do not find any force in the revision application and the same is hereby dismissed, however, with no order as to costs.

Judgment:
ORDER

Abhay M. Naik, J.

1. This civil revision has been preferred against the impugned order dated 22-1-2008 passed by the Court of 1st Civil Judge, Class I, Chhindwara in Civil Suit No. 8-B/05 deciding thereby the preliminary issue Nos. 1 and 2 and holding thereby the suit of the plaintiff to be within limitation.

2. Short facts involved herein are that the plaintiff/respondent No. 1 instituted a civil suit for recovery of damages to the tune of Rs. 50,000/- from the defendant/revisionist with the allegation that he was a registered contractor of forest department and used to purchase wood from the Government. He further used to transport it after its cutting in different sizes in his saw mill situated at Rambag, Chhindwara on the basis of transit pass. Once he was taking wood in this manner to Chennai through Nagpur. Revisionist at the relevant time was posted as Town Inspector at Police Station, Chhindwara. He stopped the truck of the plaintiff bearing registration No. NHG-4187 at Nagpur Naka, Chhindwara on the ground that the wood was being carried in violation of conditions of transit pass issued by the forest department. An offence under Sections 379 and 420 of IPC read with Sections 41, 42 and 52 of the Forest Act was registered at Crime No. 90/86. Plaintiff was exonerated from the charges under Sections 379 and 420 of IPC. However, a criminal case bearing No. 443/02 was registered against him in the Court of JMFC, Chhindwara. Learned JMFC vide his judgment dated 16-6-2003 acquitted the plaintiff from the offence under the aforesaid sections of Indian Forest Act with a finding that no offence was committed by the plaintiff. Truck was delivered to the truck owner under Supardginama despite opposition by the revisionist. Plaintiff further alleged that the revisionist acted deliberately with an intent to cause monetary and professional loss to the plaintiff knowing fully well that there was no illegality in the transportation of wood with the requisite transit pass. It is further alleged that the revisionist further insisted the Government Advocate to file an appeal challenging the acquittal as well as Supurdginama. Appeal so preferred was dismissed on 7-10-2004. Thus, it is stated that the plaintiff was forced to defend a false case for 17 years. He was prosecuted with a malicious intention. Thus, he suffered mental agony as well as professional loss and claimed damages to the tune of Rs. 50,000/-.

3. Defendant/revisionist submitted his written statement. He inter alia pleaded that the acquittal by JMFC was made vide judgment dated 16-6-2003 whereas the suit for damages was instituted on 5-4-2005. Thus, it was stated that the suit being barred by limitation is liable to be dismissed.

4. Learned Trial Judge raised Issue Nos. 1 and 2 on the aforesaid objections and decided them in favour of the plaintiff vide the impugned order dated 22-1-2008. Hence, this revision.

5. Heard the learned Counsel and perused the record.

6. Suit for compensation for a malicious prosecution is governed by Article 74 of the Limitation Act, 1963, which reads as under:

_______________________________________________________________________________Description of suit Period of limitation Time from whichperiod begins to run_______________________________________________________________________________74. For compensation One year When the plaintiff isfor a malicious acquitted or theprosecution prosecution isotherwise terminated._______________________________________________________________________________

7. Shri A.D. Mishra, learned Counsel contended that the plaintiff was acquitted by JMFC, Chhindwara on 16-6-2003 and the limitation for the suit for damages on account of malicious prosecution commenced from that day. The suit in question having been instituted beyond one year after such acquittal is barred by limitation. Reliance has been placed by him on the decision of Bombay High Court in the case of Bhaskar Narhar Deshmukh v. Kisanlal Sadasukhdas and Anr. : AIR1968Bom21 and of Allahabad High Court in the case of Madho Lal v. Han Shanker and Anr. : AIR1963All547 . Bombay High Court in Bhaskar Narhar Deshmukh's case (supra) has observed that the scheme of the Limitation Act suggests that once the period begin to run, there is nothing which could suspend the running of the time. It is further observed that whenever the Legislature intended that the time should commence to run from the final order, it expressly said so. Therefore, the word 'acquittal' occurring in Article 74 was construed by the Bombay High Court as an acquittal at the first instance with no effect of abortive appeal or revision. In the case of Madho Lal (supra), a similar view is taken by Allahabad High Court. It has observed that filing of a revision against an order of acquittal cannot suspend the period of limitation, which started running from the date of the order of acquittal.

8. There seems to be much controversy on the question of limitation with respect to Article 74 of the Limitation Act. Calcutta High Court in the case of Bibhuti Bhusan Chakravartiand Anr. v. Tarun Gupta : AIR1978Cal302 , has held the suit for damages on account of malicious prosecution as barred by limitation because the plaintiff had no notice of filing of an application for grant of leave to appeal before Supreme Court within one year from the date of acquittal. Plaintiff was held to have notice of such filing of the application after the period of limitation of one year at expiry. Therefore, it was held in such circumstances that such a leave application which was filed after one year from the date of acquittal cannot be taken advantage of by the plaintiff or extending the period of limitation.

9. On the other hand, Madras and Nagpur High Courts are of the view that the limitation would commence not from the discharge or acquittal at the first instance but from the date of attaining finality. Full Bench of Madras High Court while dealing with Article 23 (present Article 74) in the case of Soora Kulasekara Chetty and Anr. v. Tholasingam Chetty AIR 1938 Mad 349, has observed:

The wording 'when the plaintiff is acquitted' cannot be divorced from the words 'or the prosecution is otherwise terminated'. In our opinion the Article provides that time shall run when the plaintiff is acquitted or when the prosecution comes to an end in some manner. If the acquittal is followed by other proceedings the prosecution is terminated not by the acquittal but by the order passed in the subsequent proceedings and this construction was placed on the Article by a Bench of this Court consisting of Bakewell and Phillips, JJ. in AIR 1920 Mad 151 : 57 IC 635.

10. This Court may also be guided by the earlier decision of the Nagpur High Court (which happens to be the predecessor of this Court) in the case of Sk. Mehtab s/o Sh. Farid v. Balaji S/o Krishnarao and Anr. AIR 1946 Nag 46. I may profitably quote following paragraph from the Sk. Mehtab's decision:

Under Section 435, Criminal Procedure Code, the High Court or any Sessions Judge or District Magistrate or any Sub-Divisional Magistrate empowered by the Provincial Government in this behalf may call for an examine the record of any proceeding, before any Inferior Criminal Court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order and as to the regularity of any proceedings of an Inferior Court. Under Section 436 of the Code, the High Court or the Sessions Judge, or the District Magistrate, may send back for further enquiry into any complaint which has been dismissed under Section 203 of Sub-section (3) of Section 204 or into the case of any person accused of an offence who has been discharged. An improper order of discharge may be set aside and the accused may be committed to stand his trial before a Court of Session under Section 437, Criminal Procedure Code. In 1. Luck. 215, it was held that the proceedings came to an end when the Sessions Judge finally refused to commit the appellants for trial. In other cases, the Sessions Judge and the District Magistrate can report the case to the High Court under Section 438 of the Code with a recommendation that the sentence be reversed or altered. The powers of the High Court in revision are given in Section 439 of the Code. The order of acquittal or order of discharge is not final and is liable to be set aside in appeal or revision as the case may be by an order passed by the Appellate or Revisional Court. So long as these proceedings are pending, no action lies on the ground that they have been wrongfully instituted. This is based on the principle stated in (1861) 10 CB (NS) 592 at p. 604 in these words:It is a rule of law, that no one shall be allowed to allege of a still depending suit that it is unjust. This can only be decided by a judicial determination, or other final event of the suit in the regular course of it. That is the reason given in the cases which established the doctrine, that, in actions for a malicious arrest or prosecution, or the like, it is requisite to state in the declaration the determination of the former suit in favour of the plaintiff, because the want of probable cause cannot otherwise be proper alleged.

11. I may also successfully refer to the decision of Division Bench of Allahabad High Court in the case of B. Madan Mohan Singh v. B. Ram Sunder Singh : AIR1930All326 , wherein it has been observed:

When the application under Section 436 is preferred before a Sessions Judge and notice to show cause has been issued, the Judge has himself power to make further enquiry into the case of the accused person who has been discharged or direct any subordinate Magistrate to make such enquiry. While such a proceeding is pending before a Sessions Judge, the accused, in our opinion, is being prosecuted and in order to save himself from a retrial he must satisfy the Judge that there is no case against him. Taking the word 'prosecution' in its wider sense we fail to see why it should not include a criminal proceeding of this nature before a Sessions Judge or a High Court. If this view were not to be accepted the result would be that the discharged person would be compelled to institute his suit for damages even though the matter is still sub judice and is being considered by the Sessions Judge or by the High Court. It seems extra-ordinary that a plaintiff should be compelled to sue while it is yet a question whether his retrial is not going to be ordered. Of course as soon as the order of discharge was passed the prosecution in the Magistrate's Court terminated. If no further proceedings are taken the prosecution must be deemed to have terminated on that date. But if, as a matter of fact, the matter is taken up in revision to a Higher Authority which has power of interference and proceedings sanctioned by the Criminal Procedure Code are being pursued, the prosecution can no longer be said to have finally terminated. Its final termination would be only when the proceedings in revision have come to an end in favour of the discharged person.

12. It is well settled that the law of limitation is based on consideration of public policy and expediency. The cardinal point in limitation law is not the fixation of periods to enable filing of suits but to demarcate the period after which no suit can be brought in respect of a particular cause of action. Conservative view adopted by Bombay and Allahabad High Courts seems to have been taken ignoring the object of limitation. An order of acquittal or discharge which is under scrutiny before Superior Court, if is treated as ultimate date of limitation, the plaintiff would be compelled to institute a suit under this Article which would remain subject to the outcome of the proceedings before the Superior Court. On the contrary, if the said Article is construed so as to allow the plaintiff to sue on attaining finality of the order of acquittal or discharge, it would truly serve the object of limitation. On the other hand, if the plaintiff is compelled under this Article to sue within one year after the acquittal at first instance and the acquittal is thereafter converted into conviction nothing would remain with the Civil Court to be adjudicated upon on account of vanishing of the cause of action itself. Law of limitation is always to be interpreted in a manner beneficial to the plaintiff. If narrow construction is given to the word 'acquittal' in Article 74, it may in peculiar circumstances lead to irreversible situation. If the plaintiff immediately on his acquittal but during pendency of appeal against it sues for damages for malicious prosecution and obtains decree in his favour during pendency of criminal appeal itself and further such a decree attains finality with the passage of time, afterwards, if the appeal is allowed and the acquittal is converted into conviction, the defendant would be highly prejudiced because he would be facing a decree with no cause of action resulting into irretrievable injustice. Thus, in my considered opinion, the learned Trial Judge has acted with a correct and reasonable approach while interpreting Article 74 and has not committed any jurisdictional error. There cannot be the contrary intention of the Legislature.

13. In Article 74 time from which the period begins to run is described as 'when the plaintiff is acquitted or the prosecution is otherwise terminated. Final termination of prosecution is not expressly mentioned. If an order of discharge is challenged in Superior Court it is treated as continuation of the prosecution. Likewise, if the acquittal is challenged in Superior Court, there would be no justification in not allowing the plaintiff to watch the outcome of such proceedings and to sue for damages for malicious prosecution under this Article after the order of acquittal in his favour attains finality. This in my considered opinion would be a correct and reasonable approach while interpreting Article 74. Contrary construction may increase the litigation because if the plaintiff is compelled to sue immediately after the order of acquittal at first instance during pendency of challenge to order of acquittal in Superior Court, he would be severally prejudice if the order of acquittal is converted into order of conviction by Superior Court. Moreover, cause of action on the basis of acquittal cannot be legally said to be undisputably available to the plaintiff if the order of acquittal is under scrutiny in legal proceedings before Superior Court. This being so, I prefer to take support from Full Bench decision of Madras High Court and of Nagpur High Court (supra).

14. Applying the aforesaid, it may be seen that although, the plaintiff was acquitted at first instance by the Court of JMFC, Chhindwara on 16-6-2003, an appeal was preferred against it which was contested by the plaintiff till 7-10-2004 when the same was dismissed by the Court of IASJ, Chhindwara. The suit instituted of 5-4-2005 for damages on the ground of malicious prosecution is obviously within a period of one year as required by Article 74 of the Limitation Act, 1963. Thus, the suit is within limitation as per the said provision and there is no infirmity in deciding the issues of limitation in favour of the plaintiff/ respondent No. 1.

15. In the result, I do not find any force in the revision application and the same is hereby dismissed, however, with no order as to costs.