{"id":36130,"date":"1952-10-23T00:00:00","date_gmt":"1952-10-22T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/radhu-naik-vs-dhadi-sahu-on-23-october-1952"},"modified":"2018-08-17T18:03:14","modified_gmt":"2018-08-17T12:33:14","slug":"radhu-naik-vs-dhadi-sahu-on-23-october-1952","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/radhu-naik-vs-dhadi-sahu-on-23-october-1952","title":{"rendered":"Radhu Naik vs Dhadi Sahu on 23 October, 1952"},"content":{"rendered":"
Orissa High Court<\/div>\n
Radhu Naik vs Dhadi Sahu on 23 October, 1952<\/div>\n
Equivalent citations: AIR 1953 Ori 56<\/div>\n
Author: Mohapatra<\/div>\n
Bench: Mohapatra<\/div>\n<\/p>\n
<\/pre>\n
JUDGMENT<\/p>\n
  Mohapatra, J.   <\/p>\n
 1. This is a plaintiffs Second Appeal arising out of a suit for malicious prosecution against the reversing judgment of Sri J. K. Biswas, Civil Judge, Keonjhar State, in Civil Appeal No. 15 of 1947.\n<\/p>\n
 2. The plaintiff brought the suit for recovery of Rs. 300\/- as damages for malicious prosecution for having been prosecuted under Rule 81(4) of the Defence of India Rules on the information given by the defendant to the effect that the plaintiff was purchasing and selling rice in black-market without license and that on 17-2-46 the plaintiff had stored 17 maunds 4 seers of rice for sale in contravention of the Foodgrains Control Order, 1944 as adopted by this State. The police investigated matter and brought a charge-sheet. The prosecution ended in acquittal by the judgment of the Sub-divisional Magistrate (Ex. 2).\n<\/p>\n
 3. The plaintiff’s allegations were that the prosecution was malicious without any reasonable  and   reliable   cause   and   the   information given by the defendant was absolutely false.\n<\/p>\n
 4. The defence was that the occurrence was true, that the plaintiff really sold 40 maunds of rice on 15th and 16th February 1946, to the Agents of Companies at Ghasipura and again when he was attempting to transport 10 bags of rice on the night of 16-2-46 he informed the police to visit the spot and seize the rice.\n<\/p>\n
 5. The trial Court granted a decree in favour of the plaintiff on the findings that the information given by the defendant to the police was absolutely false and without any slightest reasonable and probable cause and thus actuated by malice.\n<\/p>\n
 6. The  lower  appellate  Court  finding  that the   defendant   acted   on   good   faith   when be informed   the  police   about  the  storage  of   10 bags of rice in the plaintiff’s house which the police found and seized at the spot  (plaintiff (sic) place).    Considering  the  circumstances  of  the case, he came to the finding that the defendant had left the matter to the investigation of the police and took no unduly active part against plaintiff’s prosecution by the State after giving information and getting the rice seized by the   police.      According   to   the    lower    appellate, Court,   therefore,   the   defendant   was   not   the prosecutor.    He relied upon” a decision of the Madras High Court, reported in — ‘Narasingha Row v. Muthaya Pillai’, 26 Mad 362.\n<\/p>\n
 7. It will be necessary to discuss the position of law as tp who is to be deemed to be the prosecutor in such criminal proceedings in India to be liable for damages in a suit for malicious prosecution. The above decision — ‘Veerian Chettiar v. Ponnusawmi Chettiar’, 36 Mad 362 was placed before their Lordships of the Privy Council in the case of –‘Gaya Prasad v. Bhagat Singh’, 30 All 525 (P.C.).\n<\/p>\n
 The  principle  laid   down   in  —  ‘Narasingha Row v.  Muthaya Pillai’, 26 Mad 362 was well clarified  and  explained by  their  Lordships  of the Privy Council, who  after quoting the pertinent portions of the Madras  case, observed:\n<\/p>\n
  “The    principle    here    laid    down  is  sound enough if properly understood, and its application  to  the particular  case was  no  doubt justified;  but in  the  opinion  of their Lordships, it is not of universal application.\n<\/p>\n
 X  X  X  X<\/p>\n
 But if the charge is false to the knowledge
\nof the complainant; if he misleads the police by bringing suborned witness to support it; if he influences the police to assist
\nhim in sending an innocent man for trial
\nbefore the Magistrate — it would be equally
\nimproper to allow him to escape liability
\nbecause the prosecution has not, technically,
\nbeen conducted by him. The question in all
\ncases of this kind must be who was the prosecutor? and the answer must depend upon
\nthe whole circumstances of the case. The
\nmere setting of the law in motion is not the
\ncriterion; the conduct of the complainant be
\nfore and after making the charge, must also
\nbe taken into consideration. Nor is it
\nenough to say, the prosecution was instituted and conducted by the police. That against
\nis a question of fact.”\n<\/p>\n
 The whole question is made clear in these few sentences. The real question is to determine who is the real prosecutor, and for that,<\/p>\n
as their Lordships observed, the whole circumstances of the case have got to be taken into consideration. The conduct of the complainant before and after making the charge is really very pertinent. The matter again came up before their Lordships of the Privy Council in the case of — ‘Balbhaddar Singh v. Budri Sah’, 7 Pat L. T. 591 (P.C.) The plaintiffs in the suit for malicious prosecution were appellants.\n<\/p>\n
 Their Lordships observed:\n<\/p>\n
  “The question is ‘Have the appellants proved that Badri Sah invented and instigated the whole proceedings for prosecution. XXX But it must be kept in view, so far as the police were concerned, there was ample cause for the initiation of prosecution proceedings. There were the clear narratives of two people, Raghunath and Teja, concurrent in all necessary particulars. The appellants
\nis must, therefore, go the whole way. There is no halfway point of rest. They must show that Badri Sah invented the whole (sic)tory as far as it implicated the appellants, (sic)and. tutored Raghunath and Teja to say it.  That is a very heavy onus of proof, and
\nunless  they   sustain  it  the   appellants   must
\n fail.”\n<\/p>\n
 Their Lordships ultimately found that the plaintiffs in the suit for malicious prosecution failed to discharge the onus. From these two decisions, therefore, it is apparent that by taking into consideration the conduct of the informant before and after making the charge and the circumstances of the case it has got to be determined as a matter of fact that the informant was really taking active part in prosecuting the accused. Mere lodging of information before the police, or, as in the present case, getting the properties seized by the police is not enough to be the real prosecutor in the case. The learned lower appellate Court finds it as a matter of fact.\n<\/p>\n
  “Defendant’s  part in the prosecution ceased with the lodging of this information and with the pointing out of the seized 10 bags of rice at the plaintiff’s house as they were being transported from the carts. The prosecution started against the plaintiff was principally the result of the investigation as the police
\n scrutinised   the   defendant’s   complaint   and found  sufficient  evidence  to  proceed  in  the matter to prosecute the plaintiff.” <\/p>\n
\n \n\n  He further finds   \n  \"In   the   circumstances when   the   defendant     had  left the  matter to  the  investigation  of\n    the  police and  took  no   unduly  active  part\n  against  the  plaintiff  for  his  prosecution  by\nthe State, he is not liable for damages\". \n \n\n He  merely gave information   and   the   police,\nafter taking up investigation, appears to have\nthought fit to prosecute the plaintiff. The lower\nappellate   Court  has   come   to   these   findings\n after  a  fair   discussion  of  the   evidence   and\ncircumstances    appearing   in    the    case.     The\n lower  appellate  Court  having  found   it   as   a matter of fact and that after a fair discussion\n of the matter that the defendant was not the real   prosecutor   in   not   having   taken   unduly\n<\/pre>\n
 active part and his task having finished after   lodging   information   and   getting   the   proper-ties  seized,  there is no  point for interference in this Second Appeal.\n<\/p>\n
 I will also  refer to another  decision of the
\nPatna   High   Court,   reported   in   —   ‘Narain
\nPande  v.  Gaya   Rai’, AIR   1938  Pat   147.   Mr.
\nJustice Fazl Ali   (as  he  then was), after dis-\n<\/p>\n
cussing the principle laid down in the Privy Council decision reported in 7 Pat LT 591, observes:\n<\/p>\n
     “In    my    opinion    the    learned    Subordinate Judge  in  deciding  this  case  overlooked  the true   significance   and  meaning  of  these  observations & did not apply his mind to the fact that there is in the present case a total absence of evidence to show that the statements   made   by   the   defendants   before   the police   were   directly   and   primarily   responsible   for  the   prosecution   of   the   plaintiffs. As this  was  one  of the principal  points in this   action,  the  plaintiffs’   suit  is  bound  to fail  on  this   ground   alone,  and   it   is   not necessary to discuss  the  question  of malice or want of reasonable and probable  cause”.\n<\/p>\n
 In my opinion, the above observations apply to  the  facts of  the  present  case.    The police did not mind to take a record of the information   given  by  the  defendant   and  further  the plaintiff did not  choose to  examine the A.  S. I.   to   whom the   information   was    given   to establish   that,  in   fact,  it  was  primarily   and directly   in   consequence   of   the    information given  by the  defendant that  the present prosecution   was   started   and   also   the   appellate Court has found that the police after thorough investigation   of   the  matter,   started   prosecution.   So,  in  my  opinion,  as  was  observed by Fazl Ali J.   (as   he   then  was),   in   the   case reported in AIR 1938 Pat 147, when it is found, that the plaintiff has failed to prove that the defendant  was  primarily  and  directly  responsible  for   the   prosecution,   the   other   question of  reasonable   and   probable   cause,  of   malice & etc., need not be considered & the plaintiff’s suit must fail on this  ground alone.\n<\/p>\n
 8. Mr. Rao, appearing on behalf of the plaintiff-appellant, contends that mere giving false information before the police is sufficient for the purpose of giving cause of action in a suit for malicious prosecution even though the defendant had not taken any other part after lodging information. For that he relies upon the finding of the trial Court that the information lodged by the defendant was false. The lower appellate Court, however, has found that the defendant gave the information in good faith and in fact 10 bags of rice were admittedly found in the pltff’s possession on 17-2-46. This is no doubt an unsatisfactory finding of the lower appellate Court inasmuch as he has not discussed thoroughly all the circumstances which had led the trial Court to come to a different finding. But in my opinion, on a perusal of the decisions, quoted above, the mere giving of information, even though it was false, to the police cannot give cause of action to the plaintiff in a suit for malicious prosecution if he (the defendant) is not proved to be the real prosecutor by establishing that he was taking active part in the prosecution, and that he was primarily and directly responsible for the prosecution, <\/p>\n
 9. Mr. Rao relies very much on the observations in the case reported in — Bal-bhadar Singh v. Budri Sah’, 7 Pat LT 591, (P.C.), referred to above;\n<\/p>\n
  “In any country where, as in India, prosecution is not private, an action for malicious prosecution in the most literal sense of the word could not be raised against any private individual. But giving information to the authorities which naturally leads to prosecution is just the same thing. And if that is done and trouble caused an action will lie.”\n<\/p>\n
 But we must not lose sight of the other passages in the judgment in order to understand what is the principle laid down in the case. Just a few lines earlier, their Lordships formulated the point thus:\n<\/p>\n
  “Have the’ appellants proved that Badri Sah invested and instigated the whole proceedings for prosecution?”\n<\/p>\n
 And just after the lines relied upon by Mr. Rao, their Lordships made further observations, which I had quoted earlier and should quote again:\n<\/p>\n
  “But it must be kept in view that, so far as the police were concerned, there was ample cause for the initiation of prosecution proceedings. There were the clear narratives of two people, Raghunath and Teja, concurrent in all necessary particulars. The appellants must, therefore, go the whole way. There is no halfway point of rest. They must show that Badri Sah invented the whole story as far as it implicated the appellants, and tutored Raghunath and Teja to say it. That is a very heavy onus of proof, and unless they sustain it the appellants must fail.”\n<\/p>\n
 Therefore, the plaintiffs had further to prove that the defendants tutored Raghunath and Teja. These observations clearly indicate that mere giving an information even though false is not enough. The defendant must have taken an active part in the further proceedings of the prosecution. Moreover in view of tbe fact that actually 10 bags of rice were seized from the custody of the plaintiff on the date, it cannot be said that the whole story was invented.\n<\/p>\n
 (10) In conclusion, therefore, the appeal fails and is dismissed with costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Orissa High Court Radhu Naik vs Dhadi Sahu on 23 October, 1952 Equivalent citations: AIR 1953 Ori 56 Author: Mohapatra Bench: Mohapatra JUDGMENT Mohapatra, J. 1. This is a plaintiffs Second Appeal arising out of a suit for malicious prosecution against the reversing judgment of Sri J. K. Biswas, Civil Judge, Keonjhar State, in Civil […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,25],"tags":[],"class_list":["post-36130","post","type-post","status-publish","format-standard","hentry","category-high-court","category-orissa-high-court"],"yoast_head":"\nRadhu Naik vs Dhadi Sahu on 23 October, 1952 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/radhu-naik-vs-dhadi-sahu-on-23-october-1952\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Radhu Naik vs Dhadi Sahu on 23 October, 1952 - 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