“Second agnipariksha” need not be undergone by the plaintiff to prove malicious prosecution: Madras High Court

In a suit for malicious prosecution, the plaintiff need not demonstrate that he was innocent of the charge upon which he was tried. On the other hand, it is the defendant who must discharge the onus once it is shifted to him. A bench comprising of Justice GR Swaminathan while adjudicating the matter in M Abubaker V. Abdul Kareem; [S.A.(MD)No.122 of 2013], dealt with the issue of onus of proving malicious prosecution.

The plaintiff was a permanent resident of Pettavaithalai Village. He was employed in TWAD Board. He questioned the manner in which the local mosque was being administered. The president of the Jamath which managed the mosque was the brother-in-law of the first defendant M.Abubacker. The first defendant accused the plaintiff of committing the crime of criminal trespass and criminal intimidation. The plaintiff was arrested and detained in custody for more than 24 hours. Following his acquittal, the plaintiff issued notice demanding compensation for malicious prosecution from the defendants. The first defendant sent a reply denying the claim. Thereafter, the present suit came to be filed. The defendants filed written statement controverting the plaint averments. The learned counsel for the appellants submitted that the acquittal of the plaintiff by the Criminal Court by itself will not furnish cause of action for maintaining the instant suit for malicious prosecution. The plaintiff had the legal burden to establish that the prosecution was vitiated by malice and that the defendants did not have any reasonable or probable cause for making the complaint. The plaintiff was obliged to show that he was innocent and that the complaint made against him was false. The first defendant was the defacto complainant but the other defendants were only witnesses. It was a police case and if due to negligence on the part of the investigation officer, the case had ended in acquittal, the appellants cannot subsequently be vexed with a claim for damages. The learned counsel took me through the pleadings as well as evidence and submitted that the substantial questions of law deserve to be answered in favour of the appellants. He wanted the impugned judgment and decree passed by the first appellate court to be set aside and the decision of the trial court restored.

The Court upon considering the aforesaid facts stated that’ “There is no doubt that the burden of proof lay only on the plaintiff. This burden can never shift. However, the plaintiff cannot be called upon to prove the negative. As regards the non-existence of reasonable and probable cause, the onus will shift to the defendant after the plaintiff asserts in the witness box that the complaint against him was false and after he adduces evidence demonstrating the existence of malice on the part of the defendant. The plaintiff need not undergo a second agnipariksha. On the other hand, it is the defendant who must discharge the onus once it is shifted to him. In this case, the first defendant had miserably failed to discharge the onus cast on him. The existence of malice has been amply established by the plaintiff. There was no cause at all for giving the complaint, let alone reasonable and probable cause. The twin reasons mentioned above culminated into a false complaint. The first appellate court rightly found that the plaintiff had proved all the ingredients of malicious prosecution. In a larger sense, this is more a question of fact and less of law.”

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