-Discharge in police report---Malice, proof of---On the complaint of petitioner/defendant, criminal case was registered against respondent/plaintiff---After investigation, respondent/plaintiff was discharged from the offence---

  2022 MLD 1

Malicious prosecution---Discharge in police report---Malice, proof of---On the complaint of petitioner/defendant, criminal case was registered against respondent/plaintiff---After investigation, respondent/plaintiff was discharged from the offence--- Suit was dismissed by Trial Court but Lower Appellate Court decreed the same in favour of respondent/plaintiff---Validity---Lower Appellate Court was drawing presumption of 'malice' from report of police officer filed under S.173, Cr.P.C. without even examining maker of the report to unearth as to the reason of discharge and that how investigating officer found respondent/plaintiff innocent during 'face to face' discussion (??????? ?????)---Important for respondent/plaintiff to provide possible evidence to prove entire ingredients of 'Malicious prosecution' and it was duty of Trial Court to secure all possible evidence as to the elements of 'Malicious prosecution' before reaching to finding and allowing damages---Finding of 'malice' on the basis of report under S.173, Cr.P.C., without examining maker of statement/report was unsafe---High Court set aside judgment and decree passed by Lower Appellate Court and remanded the matter for decision afresh after procuring evidence of concerned police officials and careful examination as to the ingredients of 'Malicious prosecution'---Revision was allowed in circumstances.

Court, duty of---Principle---To ensure that upright citizens and right minded persons of society can discharge their responsibility of reporting crimes to law enforcement agencies without any fear of being sued for 'Malicious prosecution' in discharge or acquittal of accused and on the other hand to confirm that no innocent person becomes victim of false involvement in criminal litigation in the hands of persons having influence in the society due to their position, contacts or long pockets as well as to strike a balance between such two important rights of citizens---Courts must cautiously verify that one who claims damages under tort of 'Malicious prosecution' must prove its all ingredients by discharging burden of proof up to requisite standard.

Necessary ingredients---Proof---Plaintiff is required to prove 'malice' and 'reasonable and probable cause' independently in cases of 'Malicious prosecution'---When issue of 'reasonable and probable cause' is not established, question of 'malice' becomes irrelevant and even otherwise Court may not be required to prove further because of failure of claimant to cross one hurdle---When 'reasonable and probable cause' is established, Court should carefully examine element of 'malice' on the part of defendant.