These wrongs of malicious prosecution and malicious arrest are wrongs in Tort being essentially different from each other and different criteria have been specified for each of these wrongs to be brought home. An action for such false imprisonment will lie against any person who authorises or directs the unlawful arrest or detention of the plaintiff by a merely ministerial officer of the law, as distinguished from a judicial officer or Court of Justice. For such malicious prosecution, the following ingredients are necessary. (1) the defendant has prosecuted the plaintiff, namely, instituted criminal proceeding or certain other proceeding reflecting upon the plaintiffs honour or character, (2) the prosecution has ended in favour of the plaintiff, and (3) the defendant has prosecuted without any reasonable or probable cause, and (4) the defendant while prosecuting was actuated by malice i.e. an indirect or improper motive. Therefore in the malicious prosecution, the existence of malice on the part of the Defendant is necessary but in case of false imprisonment, it is not necessary for the plaintiffs to prove malice on the part of defendants. If the plaintiff proves that the false imprisonment was caused by the defendants, the defendants are liable unless they establish sufficient justification for their action. He who sets in motion a merely ministerial officer, such as a constable, has no protection similar to that which is extended to the litigant in a Court of Justice. He makes the ministerial officer his agent, and is responsible for any arrest or detention so procured or authorised, as if it were his own act. It is necessary, however, to prove actual direction or authorisation, such as is sufficient to make the ministerial officer the agent of the defendant. Mere information given to such an officer, on which he acts at his own discretion, is no-ground of liability.
Unlike the case of malicious prosecution, for false imprisonment, it is not necessary for imposition of liability that the arrest should have been malicious, it is enough that it was without reasonable and probable cause, The burden of proving the existence of reasonable and probable cause is on the defendant. It is therefore necessary always to consider while determining the liability as to whether (1) the arrest of the plaintiff as alleged was at the instance or in collusion with the defendant or it was in the exercise of an independent judgment of the Sub-Inspector or any other police officer who arrested him and whether there was any reasonable or probable cause for the arrest.
Orissa High Court
Rusi Sahu And Ors. vs Debaraj Biswal And Ors. on 12 July, 1990
Equivalent citations: AIR 1991 Ori 30
K.C. Jagadeb Roy, J.
1. The present appellants were plaintiffs in Money Suit No. 30 of 1976 in the court of the Munsif, Bargarh and brought the suit for recovery of damages amounting to Rs. 2000/- from Defendants 1 and 2. Their allegation was that the defendant 1 having hostility and ill-feeling to the plaintiffs caused to be implicated them in a criminal case and got them arrested by the police maliciously and they remained under arrest for two days under painful mental and physical condition. This was pursuant to a F.I.R. lodged by Defendant 1 dated 16-5-1973 against them for which a G.R. Case No. 247 of 1973 was registered in the police station and final report having been passed by the police, the case struck off by the order of the Sub-Divisional Officer dated 20-7-1973. The Defendant No. 2 again falsely implicated the plaintiffs on 1-5-1987 in an arson case and managed to get them arrested by the police maliciously and the plaintiffs were under arrest from morning till midnight with mental and physical torture. Ultimately the said F.I.R. dated 4-1-1974 by Defendant No. 2 being found to be false, the G.R. Case No. 13/74 which was started against them was struck off by the order of the Sub-' Divisional Officer dated 19-3-1974. Plaintiffs are close agnatic relations. The motive of the defendants in lodging these false cases was due to some disputes between them relating to the land in village. The police, however, filed final reports in both these cases on account of insufficient evidence. Since the plaintiffs, because of the false accusations in the F.I.R. suffered humiliation and their reputation were brought down in the estimation of their friends and relations and that they were wrongfully kept in the police custody, have claimed damage in the suit against defendants 1 and 2.
2. In the written statement filed by the defendants in the suit, they denied the allegations of the plaintiffs. In the suit itself, some of the plaintiffs examined themselves as P. Ws. 1 to 3 and the defendants examined one witness as D.W. 1. In the evidence the plaintiffs have stated that the allegations against them were false and there was no justification in filing the F.I.Rs.
3. The trial court found that there was reasonable and probable cause for the defendants to file the F.I.Rs. and defendants did nothing more than mere lodging the F.I.R. before the police and took no active part thereafter in prosecuting them or arresting them. The trial Court therefore dismissed the suit by judgment dated 11-3-3976.
4. Against the judgment and decree passed by the Munsif, Bargarh, plaintiffs preferred Money Appeal before the Subordinate Judge, Bargarh in which the order passed by the Munsif was upheld. Though there was no specific allegation in the plaint that the claim of the damage was for malicious prosecution, the lower court in para 2 of the judgment has described the suit as one for malicious prosecution and wrongful confinement when in fact the recital of the plaint would show that the damage claimed by the plaintiff was due to loss of his reputation because of the allegation made in the alleged F.I.Rs. and for the physical and mental suffering on being wrongfully detained in police custody on the allegations made in the F.I.Rs. filed by defendants 1 and 2. The courts below therefore were misdirected and treated the case of the plaintiffs as a suit for damage for malicious prosecution and not false imprisonment or malicious arrest. These wrongs of malicious prosecution and malicious arrest are wrongs in Tort being essentially different from each other and different criteria have been specified for each of these wrongs to be brought home. An action for such false imprisonment will lie against any person who authorises or directs the unlawful arrest or detention of the plaintiff by a merely ministerial officer of the law, as distinguished from a judicial officer or Court of Justice. For such malicious prosecution, the following ingredients are necessary. (1) the defendant has prosecuted the plaintiff, namely, instituted criminal proceeding or certain other proceeding reflecting upon the plaintiffs honour or character, (2) the prosecution has ended in favour of the plaintiff, and (3) the defendant has prosecuted without any reasonable or probable cause, and (4) the defendant while prosecuting was actuated by malice i.e. an indirect or improper motive. Therefore in the malicious prosecution, the existence of malice on the part of the Defendant is necessary but in case of false imprisonment, it is not necessary for the plaintiffs to prove malice on the part of defendants. If the plaintiff proves that the false imprisonment was caused by the defendants, the defendants are liable unless they establish sufficient justification for their action. He who sets in motion a merely ministerial officer, such as a constable, has no protection similar to that which is extended to the litigant in a Court of Justice. He makes the ministerial officer his agent, and is responsible for any arrest or detention so procured or authorised, as if it were his own act. It is necessary, however, to prove actual direction or authorisation, such as is sufficient to make the ministerial officer the agent of the defendant. Mere information given to such an officer, on which he acts at his own discretion, is no-ground of liability.
Unlike the case of malicious prosecution, for false imprisonment, it is not necessary for imposition of liability that the arrest should have been malicious, it is enough that it was without reasonable and probable cause, The burden of proving the existence of reasonable and probable cause is on the defendant. It is therefore necessary always to consider while determining the liability as to whether (1) the arrest of the plaintiff as alleged was at the instance or in collusion with the defendant or it was in the exercise of an independent judgment of the Sub-Inspector or any other police officer who arrested him and whether there was any reasonable or probable cause for the arrest.
In the case of Radhu Nayak v. Dhadi Sahu, reported in AIR 1953 Orissa 56, this Court discussed the nature of the tort of malicious prosecution and the conditions under which the defendant would be liable for damage. In case of malicious prosecution, however, the law is well settled that if the charge is false to the knowledge of the complainant, if he misleads the police by bringing suborned witness to support it, if he influences the police to assist him in sending an innocent man for trial before the Magistrate, it would be equally improper to allow him to escape liability because the prosecution has not, technically, been conducted by him.
The question in all cases of this kind must be who was the prosecutor? and the answer must depend upon the whole circumstances of the case. The mere setting of the law in motion is not the criterion, the conduct of the complainant before and after making the charge, must also be taken into consideration. Nor is it enough to say, the prosecution was instituted and conducted by the police. That again is a question of fact. This view of the Privy Council was duly noticed by this court in Radhu v. Dhadi, reported in AIR 1953 Orissa 56, and this Court held that: "The real question is to determine who is the real prosecutor. 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 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. If the defendant had left the matter to the investigation of the police and took no unduly active part against plaintiffs prosecution by the State after giving information and getting rice seized by the police the defendant is not the prosecutor. When 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 and the plaintiffs suit must fail on this ground alone."
The trial Court and the lower appellate Court observed in the present case that the defendants 1 and 2 after lodging these F.I.Rs. dated 16-5-1973 and 4-1-1974 respectively took no further part in getting the plaintiffs arrested and both the Courts found that there was enmity between the parties and admittedly there were injuries on the person of the informant in support of his allegation. As such, the defendants had reasonable and probable cause for giving information before the police and were not liable for damages even if the claim was made for malicious prosecution.
5. In the case reported in Garikipati Ramayya v. Araza Biksham (AIR 1979 Andhra Pradesh 31), the Hon'ble Court was considering a case for damages for malicious arrest of the plaintiff. The Hon'ble Judge who delivered the judgment held as follows (at page 35 of AIR):--
"........ In the case of the tort of malicious arrest or false imprisonment, it is not necessary for the plaintiff to prove malice or negligence on the part of the defendant. It is sufficient if he proves that false imprisonment was caused by the defendant and if the defendant cannot establish sufficient justification he would be liable."
Again it said in para 13 of the judgment (at pages 35 & 36 of AIR)-- :--
"......... The ultimate question is whether the defendant has justification for causing the arrest. If he has made a false report on the strenght of which the arrest was made it cannot be held that there was justification for the arrest even though he did not take any active part in the arrest of the person concerned. In this case, but for the false report of the police would not have arrested the plaintiffs. It is no doubt true that the police made thereon an investigation, but the result was the direct consequence of the false report given by the defendant. I am, therefore, of the view that the Court below was right in holding that the defendant was liable for damages for the arrest and the consequent detention in lock up of the police."
In the present case, as I have already indicated above, the claim of damage was not for the malicious prosecution but for the malicious arrest and the allegation was that the report by the defendant was false and they suffered damage because of being held up in police custody in police station and their loss of reputation in the public because of the allegations in the F.I.Rs. made by the defendants. Both the Courts below have not examined the case of the plaintiffs keeping all these principles of law in view and have failed to discuss the depositions of any of the witnesses produced by both the parties in order to determine if the allegation was false or if there was justification for causing the arrest even though the defendants took no active part in the arrest of the persons concerned. 1 accordingly set aside the judgments and decrees passed by the Courts below and remit the case back to the lower Court for fresh disposal in accordance with law. No fresh or further evidence be permitted to be adduced by the parties. The court is to dispose of the suit only on the evidence available on record.
6. In the result, the appeal is allowed. In the circumstances of the case, parties to bear their own costs of this appeal.
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