Laxmichand Lodhi and Another Vs Gangadhar and Others

1. Appellants/plaintiffs have challenged the judgment and decree dated 30.07.2010 passed in Civil Suit No. 16-B/2009 by VII^th Additional District Judge (FTC), Durg whereby damages claimed by the plaintiffs to the tune of Rs. 1,23,000/- for malicious prosecution, loss of reputation and harassment has been dismissed.

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2. Plaintiffs are real brothers. Defendant No. 1 is the husband of defendant No. 3 and the father of defendant No. 2. There was some civil dispute between the plaintiffs and defendant No. 3 and a civil suit

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was pending since 1982. An FIR was registered by defendant No. 2 at Police Station Bori on 15.08.2005 to the effect that on the date of the incident at about 5:30 pm, one Devnath Dhobi assaulted defendant No. 1 with sharp-edged weapons. Crime No. 44/05 was registered for the commission of an offence punishable under Section 307 of IPC. Defendant No. 1 was hospitalized and looking to his condition, his dying declaration was recorded in which he named plaintiffs for the first time, thereafter, the plaintiffs were arrayed as accused in Crime No. 44/05 and they were arrested on 07.09.2005. On 22.12.2005, they were released on bail by the High Court. The plaintiffs were tried and later on, they were acquitted by the trial Court vide judgment dated 12.01.2007. The plaintiffs pleaded that they held a good reputation in society and false implication in a criminal case has caused loss of reputation and harassment. It is also pleaded that they were maliciously prosecuted by the defendants and thus, they claimed damages to the tune of Rs. 1,23,000/- from the defendants jointly and severally. Defendants No. 1 to 3 filed a written statement and denied the contents. They stated that the condition of defendant No. 1 was not good immediately after the incident and he was unable to talk. It is further pleaded that the eye-witnesses, namely, Ishwar, Santosh and Komal informed defendant No. 2 that defendant No. 1 was assaulted by Devnath Dhobi at the instance of the plaintiffs. Defendant No. 4, who was a police officer at P.S. Bori, recorded statements of witnesses. They further pleaded that the plaintiffs along with Devnath Dhobi planned to inflict injuries over the body of defendant No. 1. Learned trial Court framed issues and held that:-

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(i) The plaintiffs were prosecuted by defendants;

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(ii) The criminal case was concluded in favor of the plaintiffs; (iii) The plaintiffs were prosecuted on account of sufficient reasons.

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(iv) Prosecution of the plaintiffs was not malicious, thus, the plaintiffs are not entitled to get the relief sought.

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The Plaintiffs examined Laxmichand as PW/1; Ferharam as PW/2; Chetan as PW/3 and Devnath Dhobi as PW/4. Defendants examined Ripusudan as DW/1 and Gangadhar as DW/2. Learned trial Court after appreciating oral as well as documentary evidence, dismissed the civil suit.

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3. Learned Senior advocate appearing on behalf of the appellants submits that the plaintiffs succeeded in proving that the plaintiffs were prosecuted maliciously by defendants No. 1 to 3. He further submits that the names of plaintiffs were implicated in a false case on account of previous enmity. He also submits that the eye-witnesses, namely, Santosh, Komal and Ishwar did not name the plaintiffs and the presence of the plaintiffs has not been proved in the criminal trial. He argues that defendants No. 1 to 3 in connivance with defendant No. 4 falsely roped the plaintiffs into criminal cases and damaged their reputation. He further argues that initially plaintiffs were not named as accused but later on, on 06.09.2005, their names were arrayed in the supplementary statement of defendant No. 2. The plaintiffs in their affidavits filed under Order 18 Rule 4 of CPC have stated that they have a good reputation in the society and they are members of a political party. On 15.08.2005, they came to know that Devnath Dhobi had assaulted defendant No. 1. On 18.08.2005, Devnath Dhobi was arrested and thereafter, the plaintiffs were also arrested and they remained in jail till 26.12.2005. He also argues that plaintiffs were

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acquitted by the trial Court. He contends that the incident has caused mental agony and loss of the political, social and business reputation of plaintiffs. In support of his arguments, he placed reliance on the judgment rendered by the Hon’ble Supreme Court in the matter of S. Nambi Narayan Versus Siby Mathews and Ors., AIR 2018 SUPREME COURT 5112.

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4. On the other hand, the learned counsel for the respondents No. 1 to 3 supports the judgment passed by the learned trial Court. He has placed reliance on the judgment rendered by the Hon’ble Supreme Court in the matter of West Bengal Electricity Board Versus Dilip Kumar Ray, AIR 2007 SUPREME COURT 976.

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5. Learned State counsel also supports the judgment passed by the learned trial Court.

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6. I have heard learned counsel appearing for parties and perused the record with utmost circumspection.

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7. In cross-examination, PW/1 has stated that even after release from judicial custody, he frequently visits social functions and his relation is almost similar to his relatives. In para-12, he stated that he is a member of a political party and he used to participate in the meetings frequently without any objection and he receives honor from the members of the party. PW/2, in cross-examination, has stated that there was a dispute between the plaintiffs and defendants No. 1 to 3 because of which they implicated the plaintiffs. PW/3, in his affidavit, has repeated the statement made by PW/1 but in cross-examination, he has stated that with regard to financial loss, the plaintiffs have not produced any document. PW/4 has stated that initially FIR was lodged against him but the plaintiffs were falsely implicated in the case. He has

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admitted the fact that the plaintiffs are getting equal honour and their reputation is the same as they were getting earlier.

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Defendants examined Ripusudan as DW/1 who stated that the plaintiffs were also involved and there was a conspiracy by the plaintiffs along with Devnath Dhobi, therefore they were arrested and prosecuted.

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8. In order to succeed in a suit for damages for malicious prosecution, the plaintiffs have to prove:-

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(a) that the plaintiff was prosecuted by the defendant;

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(b) that the prosecution ended in favor of the plaintiff;

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(c) that the defendant acted without reasonable and probable cause;

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(d) that the defendant was actuated by malice.

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In the present case, FIR was lodged against Devnath Dhobi by defendant No. 2 and the same was registered for the commission of an offence punishable under Section 307 of IPC. Thereafter, the dying declaration of defendant No. 1 was recorded, who named the plaintiffs and they were arrested. They were tried before the trial Court which culminated in the acquittal of the plaintiffs. Thus, the first issue is that the plaintiffs were prosecuted by the defendants and the second issue is that the prosecution ended in favor of the plaintiffs.

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Now, coming to the third issue, there existed a civil dispute between defendant No. 3 and the plaintiffs which remained pending and on the date of the incident, Devnath Dhobi assaulted defendant No. 1 by means of a sharp-edged weapon. Defendant No. 1 heard the voice of the plaintiffs, who were telling the plaintiffs to commit murder of defendant No. 1. Defendant No. 2 was informed by Ishwar, Santosh and Komal with regard to the presence of the plaintiffs and their

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involvement. The plaintiffs have not filed the statements of Ishwar, Santosh and Komal recorded under Section 161 of Cr.P.C. in the present suit, though other documents and charge-sheet have been filed, therefore, it cannot be said that the plaintiffs were prosecuted without reasonable and probable cause.

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With regard to issue No. 4 whether the defendants were actuated by malice, from a perusal of the charge sheet, dying declaration of defendant No. 1, and the judgment passed by the learned Criminal Court, it cannot be said that the plaintiffs were roped into the criminal case by the defendants due to malice. The plaintiffs were prosecuted by a competent Criminal Court and their acquittal in the absence of clinching evidence cannot be a ground for claiming damages for malicious prosecution by the plaintiffs. No doubt it is true that the acquittal of a person in a criminal case sometimes gives a presumption that is rebuttable in nature and there cannot be any universally accepted phenomenon that in case prosecution fails then the accused would be entitled to damages. Otherwise, in all those cases where the prosecution fails, would give rise to damages in favour of the accused.

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9. The Hon’ble Supreme Court in the matter of S. Nambi Narayan (supra) in paras 31, 37 and 39 held as under:-

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31. As stated earlier, the entire prosecution initiated by the State police was malicious and it has caused tremendous harassment and immeasurable anguish to the appellant. It is not a case where the accused is kept under custody and, eventually, after trial, he is found not guilty. The State police was dealing with an extremely sensitive case and after arresting the appellant and some others, the State, on its own, transferred the case to the Central Bureau of Investigation. After comprehensive enquiry, the closure report was filed. An argument has been advanced by the learned counsel for the State of Kerala as well as by the other respondents that the fault should be found with the CBI but not with the State police, for it had transferred the case to the CBI. The said submission is to be noted only to be rejected. The criminal law was set in motion without any basis. It was initiated, if

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one is allowed to say, on some kind of fancy or notion. The liberty and dignity of the appellant which are basic to his human rights were jeopardized as he was taken into custody and, eventually, despite all the glory of the past, he was compelled to face cynical abhorrence. This situation invites the public law remedy for grant of compensation for violation of the fundamental right envisaged under Article 21 of the Constitution. In such a situation, it springs to life with immediacy. It is because life commands self-respect and dignity.

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37. If the obtaining factual matrix is adjudged on the aforesaid principles and parameters, there can be no scintilla of doubt that the appellant, a successful scientist having national reputation, has been compelled to undergo immense humiliation. The lackadaisical attitude of the State police to arrest anyone and put him in police custody has made the appellant to suffer the ignominy. The dignity of a person gets shocked when psychopathological treatment is meted out to him. A human being cries for justice when he feels that the insensible act has crucified his self-respect. That warrants grant of compensation under the public law remedy. We are absolutely conscious that a civil suit has been filed for grant of compensation. That will not debar the constitutional court to grant compensation taking recourse to public law. The Court cannot lose sight of the wrongful imprisonment, malicious prosecution, the humiliation and the defamation faced by the appellant. In Sube Singh v. State of Haryana and others, the three-Judge Bench, after referring to the earlier decisions, has opined:-

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"38. It is thus now well settled that the award of compensation against the State is an appropriate and effective remedy for redress of an established infringement of a fundamental right under Article 21, by a public servant. The quantum of compensation will, however, depend upon the facts and circumstances of each case. Award of such compensation (by way of public law remedy) will not come in the way of the aggrieved person claiming additional compensation in a civil court, in the enforcement of the private law remedy in tort, nor come in the way of the criminal court ordering compensation under Section 357 of the Code of Criminal Procedure."

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39. In the instant case, keeping in view the report of the CBI and the judgment rendered by this Court in K. Chandrasekhar (AIR 1998 SC 2001) (supra), suitable compensation has to be awarded, without any trace of doubt, to compensate the suffering, anxiety and the treatment by which the quintessence of life and liberty under Article 21 of the Constitution withers away. We think it appropriate to direct the State of Kerala to pay a sum of Rs. 50 lakhs towards compensation to the appellant and, accordingly, it is so ordered. The said amount shall be paid within eight weeks by the State. We hasten to clarify that the appellant, if so advised, may proceed with the civil suit wherein he has claimed more compensation. We have not expressed any opinion on the merits of the suit.

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In the above-mentioned case, the appellant therein was arrested by CBI and the final report was submitted, later on, the allegations of espionage against the scientist of ISRO were not proved. Subsequently, he was discharged. Later on, the Government of Kerala issued a notification withdrawing its earlier notification and decided to conduct a re-investigation and against such decision, SLP was filed and in that context, the Hon’ble Supreme Court held that the prosecution initiated by the State Police was malicious and caused tremendous harassment and immeasurable anguish to the appellant. It is further held that the lackadaisical attitude of the State Police to arrest anyone and put him in police custody has made the appellant suffer ignominy. The dignity of a person gets shocked when psychopathological treatment is meted out to him. A human being cries for justice when he feels that the insensible act has crucified his selfrespect and the State of Kerala was directed to pay a sum of Rs. 50 Lacs towards compensation to S. Nambi Narayan.

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However, the facts of the present case are entirely different from S. Nambi Narayan (supra). In that case, without there being any reason, he was arrested by the police and later on, at the time of filing of charge sheet, no evidence was found against him. But in the present case, the plaintiffs were named by defendant No. 1/injured in his dying declaration and independent witnesses also named the plaintiffs in their statements recorded under Section 161 of Cr.P.C. The charge sheet was filed against the plaintiffs and Devnath Dhobi and they were tried before the competent Criminal Court and after the conclusion of the trial, they were acquitted.

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10. Taking into consideration the above-stated facts, I do not find any good ground to interfere with the judgment and decree passed by the learned Trial Court.

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11. Consequently, this first appeal fails and is hereby dismissed. No order as to cost(s).

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12. A decree be drawn accordingly.

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Sd/-

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Rakesh Mohan Pandey JUDGE

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Ajinkya

Laxmichand Lodhi and Another v. Gangadhar and Others

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Laxmichand Lodhi and Another v. Gangadhar and Others

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