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Calcutta High Court
Semaki Chutiani And Anr. vs Hemkanta Sarma Mauzadar on 26 February, 1913
Equivalent citations: 18 Ind Cas 830
Bench: Holmwood, Chapman


1. This is an appeal from the judgment and decree of the learned Subordinate Judge of Nowgong in Assam upholding the judgment and decree of the learned Munsif in a case for malicious prosecution in which the plaintiff, mouzadar, school master, Ganghura and Mandol, was accused, on facts which are now practically admitted of kidnapping a child and breaking into a private dwelling house. The Court of a Magistrate in Assam found this mouzadar guilty upon both these charges. In appeal, the learned Sessions Judge characterized the Magistrate’s judgment as one-sided and prejudiced and said that unnecessary heat had been displayed about a very simple family dispute. Now the facts being what they are, it appears to us impossible that any Court could have held that there was reasonable and probable cause for making these two grave charges against the mouzadar and that the Court was bound to hold on the admitted facts that there was malice at law.

2. It appears that the boy who was 9 years of age was living with his uncle when the 1st defendant, a female, on the allegation that the boy was her step son, claimed to be his guardian and for some time took no steps to recover him from the custody of his uncle. There was an arbitration called by the uncle who apparently wished to secure whatever property might be due to the bay. But the learned Judge found that he was acting in the true interest of the boy, inasmuch as the alleged step-mother was a young girl of 20 and in the hands of other people and in fact she had already dissipated her late husband’s inheritance. Be this as it may, the assembly, it is found, broke up without coming to any decision, and that thereupon the woman caught the boy by the arm and carried him off weeping and protesting, the uncle following. This mouzadar, who is a man of authority in the village and who had every right to interfere in a matter of this kind, met these people upon the road. He inquired into the cause of the row and told the woman to make the boy over to his uncle. Here the story diverges. According to the defence, the ‘woman obeyed the mouzadar, the uncle took the boy away to his house, but she was afterwards allowed to take the boy into her house and again after that the mouzadar broke into the house by force and brought out the boy and knocked the step-mother down.

3. Any more culpably malicious charge than this which has been found to be wholly without foundation cannot be imagined. The learned Judge with great constraint, has merely remarked that the story of the mouzadar is more probable than that of the woman. But it is clearly found on the facts that there was no foundation for this story of the woman. The mouzadar never did anything except tell the woman to give the child to his uncle, and thereupon the uncle took away the child. Upon this, the woman goes to the than a and it is distinctly found that the investigating head constable bore malice to the mouzadar and that whether Semaki Bewa, the woman, had originally made such a case as she sought to make in the Criminal Court or not, she was advised by the head constable, as the Munsif found, to get a petition written by a writer who was close by. Now this petition contains allegations which were held by the learned Judge in the Sessions Court to be inventions and that is sufficient, as the Munsif has held, to saddle the defendant, Semaki Bewa, with wrongfully and maliciously instituting criminal proceedings with the help of the head constable against the plaintiff which caused him injury in body, mind and reputation, he being a mouzadar respectably connected.

4. Great stress is laid before us in appeal upon the fact that the mouzadar was convicted by the Court of first instance, and a Treatise by Pollock on the Law of Torts (8th Edition, page 627), in which he sets out his proposals in a Draft Bill citing the opinion of Lord Justice Bowen in the case of Abrath v. North-Eastern Railway Company 11 Q.B.D. 440 at p. 455; 49 L.T. 618; 52 L.J.Q.B. 620; 32 W.R. 50; 47 J.P. 692 has been cited to us as well as a case in Boja Reddi v. Perumal Reddi 26 M. 506 at p. 508 and in Jadubar Singh v. Sheo Saran Singh 21 A. 26. As regards the question of acquittal in appeal after conviction in a Criminal Court of first instance, it is hardly necessary to point out that Lord Justice Bowen does not and could not refer to any such case for this simple reason that in the year 1883 at any rate, there was no Court of Criminal appeal in the British Isles and criminal cases only went before the Court of first instance, except certain petty cases which might have gone from rural Magistrates to the Quarter Sessions. Lord Justice Bowen says nothing about the conviction in the first Court being set aside by a Criminal Appellate Court. What he refers to as the first Court is the Court of the Judge of the Queen’s Bench Division sitting with a Jury to hear this action of malicious prosecution. This Court’s judgment was interfered with by the lower Appellate Court of the Queen’s Bench Division, and Lord Justice Bowen sitting in the Court of Appeal in second appeal refers to the original trial before Cave, J., and he lays down, what has always been the law, both in England and in this country and what we have always followed; firstly, that in an action for malicious prosecution, the plaintiff has to prove that he was innocent and that his innocence was pronounced by the tribunal before which the accusation was made, or in this country, of course, where there are regular Courts of Appeal, before the Court of Appeal, for the judgment of an inexperienced Magistrate cannot for one moment be said to weigh against the reversing judgment of the Court of the Sessions Judge. What weight is to be attached to the finding of the first Court we shall presently notice on the authority of Mr. Justice Banerjee in another case; secondly, Lord Justice Bowen says it must be shown that there was want of reasonable and probable cause for the prosecution, or as it may be otherwise stated, that the circumstances of the case were such as to be in the eyes of the Judge inconsistent with the existence of reasonable and probable cause, and lastly, that the proceedings of which he complains were initiated in a malicious spirit, that is, from indirect and improper motive and not in furtherance of justice.

5. Now all these conditions have been satisfied by the plaintiff in this case. He has shown that he was declared innocent by the tribunal before which his case finally came. He has shown that there was want of reasonable and probable cause for the prosecution, for he has shown that he was guilty of walking down the street exercising his influence as mouzadar to put a stop to a village quarrel when he was charged with these grave criminal offences, and we find that the circumstances of the case were such as in the eyes of the Judge who heard his appeal were inconsistent with the existence of reasonable and probable cause, and lastly as to the initiation of these proceedings in a malicious spirit, the finding of the Munsif is perfectly clear and this finding has been upheld by the lower Appellate Court. The indirect and improper motive not in furtherance of justice is clearly indicated in the finding that the head constable advised this woman to make a false and malicious complaint. She admittedly bore malice against the uncle of the child and she made this mouzadar a co-accused with the uncle with whom she was fighting for the possession of this infant. Of course these are all questions of fact upon which the lower Appellate Court had a light to decide that the plaintiff was entitled to damages, and we could not have gone behind that finding, but for what has been urged with regard to the effect of the conviction in the first Court. The true rule seems to have been laid down by Banerjee, J., in the case of Bhul Chand Patro v. Palun Bas 12 C.W.N. 818 note: “The fact that the plaintiff was convicted by the Court of first instance and was only acquitted on appeal ought to be considered in determining whether there was reasonable or probable cause, but it could not be regarded as conclusive in favour of the defendant.” In this case, as we have seen, the finding is that the judgment of the first Court was valueless and based upon improper considerations. We have never seen a case where the lower Courts were more fully justified on proved facts in giving a decree for damages.

6. We have only entered at some length into the merits of this case because we desired to clear up any doubts which might exist as to the findings in the judgment of the lower Appellate Court which, being a judgment of affirmance was somewhat short and did not deal with the point now raised before us.

7. The appeal is dismissed with costs.

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