1. This appeal by defendant 1 of the original suit arises out of a suit for damages for false and malicious prosecution. The plaintiff has been given by the concurrent decision of both Courts a decree for Rs. 124-11-0 damages and his costs. The suit was brought against five defendants of whom the fourth and fifth were police officers. Defendant 4 raised the plea inter alia that the institution of the suit was barred by the provisions of Section 80 of the CPC, because no notice under that section had been served on himself or defendant 5 though the acts on which the plaintiff rested his cause of action against them were acts done in their official capacity as police officers. The main point of law in this case is whether in the face of Section 80 of the CPC, the suit could proceed. I may here state briefly the facts on which the plaintiff relied.
2. On 19th January 1937 Noor Mohammad defendant 1 procured the arrest of the plaintiff Khub Lal Muchi in the house of Amir Buksh an uncle of Noor Mohammad. The plaintiff was taken to the police station by defendant 4 Ram Chander Singh Haveldar and defendant 5 Bishundeo Sukul constable, defendant 1 Noor Mohammad going with them and at the police station Noor Mohammad laid a first information report of theft against the plaintiff Khub Lal. The Sub-Inspector investigated the case and sent up charge-sheet. The plaintiff was put on his trial and was acquitted. All the defendants figured as witnesses for the prosecution. After his acquittal the plaintiff moved the trying Magistrate to order the prosecution of the informant under S. 211, I.P.C, for having wilfully brought a false case against him. The Magistrate refused to order such a prosecution and the plaintiff then went to the civil Court and brought this suit. The Courts below have not been very clear as to what exactly were the admitted facts and what were the facts in issue which the plaintiff had to prove. It was common ground that the plaintiff was arrested at Amir Buksh's house: the fact in issue was whether he had gone there for theft or under circumstances suggesting a criminal intent, or had gone there on an invitation from defendant 1. Neither Court has stated what is the evidence for and against the plaintiff's version or has noticed that the plaintiff himself is the only witness to support it.
3. The judgments are not altogether satisfactory for neither Court seems to have observed that there is no direct evidence of conspiracy and they have recorded a finding of conspiracy without apparently realizing that they were doing so on conjecture. The conjecture is based on the fact that antecedent events had happened which might be supposed to constitute a motive for such a conspiracy, but a criminal conspiracy of this kind ought to be proved and not presumed.
4. On the point of law, the view taken by the Subordinate Judge is that Section 80 of the CPC, does not apply to the suit unless it is proved that defendants 4 and 5 acted in their official capacities and not in collusion and conspiracy with the other defendants. The view was at one time expressed in certain decisions of the Calcutta High Court that S. 80 did not apply unless not only the act complained of was an act which the defendant might have done in exercise of functions belonging to his official capacity, but also he showed that he was acting in good faith within the powers entrusted to him by law; but these decisions must be held to have been overruled so far as the Calcutta High Court is concerned in 50 Cal 992.1 It was held that to read into the section words which would limit its application to cases in which an officer acted bona fide in the exercise of his powers would not be legitimate, and that the duty of the Courts was to give effect to the natural meaning of the language used in the sections of the Code. The same view was arrived at in the Madras High Court in 41 Mad 792.2 Sadasiva Ayyar, J. puts the matter clearly in saying that the question of the good faith of the bad faith of the public officer either as regards his belief in the legality or propriety of his act or the limit of his powers or the existence of facts justifying the exercise of each powers is irrelevant in the consideration of the question whether the officer is entitled to notice under Section 80 of the CPC.
5. The Allahabad High Court has taken a similar view in 46 ALL 8843 observing that:
On the language of the section the question seems to us to admit of no doubt. The section does not require that the act should have been done in good faith; it merely requires that it should purport to be done by the officer in his official capacity. If the act was one such as is ordinarily done by the officer in the course of his official duties, and he considered himself to be acting as a public officer and desired other persons to consider that he was so acting, the act clearly purports to be done in his official capacity within the ordinary meaning of the term ‘purport.’ The motives with which the act was done do not enter into the question at all.
6. Therefore, the grounds on which the Courts below have held that Section 80 of the CPC, did not come into effect, so as to require that the plaintiff should before bringing his suit give notice to defendants 4 and 5 are not sustainable. We have simply to see what act was done by these defendants and whether it purported to be an official act. The act done was that they arrested the plaintiff and led him to the police station as a person accused of theft. That was an act which every police officer has a statutory power to do under Section 64 firstly of the Cr PC. It was as police officers that defendants 4 and 5 took the plaintiff to the police station and although there may be a discrepancy as to whether one of them was in uniform or not that is an irrelevant matter because it was known to all parties concerned that they were police officers and it is perfectly clear that they purported to act as such whether in good or bad faith. Thus, it was essential that notice should be served on these defendants before instituting the suit.
7. The question then arises whether the bar of S. 80 applies to the suit as a whole or only to the claim for relief against these two defendants. The operative portion of S. 80 is “no suit shall be instituted against,” etc., and the consequence of instituting a suit in face of a statutory prohibition is that under O. 7, R. 11 of the CPC, the plaint should be rejected. It has been held in the Allahabad High Court in 29 ALL 3254 that a Court cannot reject a plaint in part. It has also been held in the Calcutta High Court in 58 Cal 850,5 that the proper course in a case like the present is to reject the plaint. The Privy Council decision in 51 Bom 7256 makes it quite clear that the requirements of S. 80 cannot be evaded or explained away and that a suit instituted in contravention of S. 80 is “unsustainable in limine.” In the result the decisions of both the Courts must be set aside. In lieu thereof, it must be ordered that the plaint be rejected and that the appellant shall have his costs throughout from the plaintiff. Leave to appeal under the Letters Patent is refused.
G.N/R.K
8. Appeal allowed.