Vicarious Liability of the State for malicious prosecution by agent

Comment : In this decision the court was faced with the question “whether state is vicariously liable if its agent maliciously prosecutes a person ?” The court held yes – turning down specious pleas of the state such as :
i) No Vicarious Liability for Soveriegn Functions – relying on Kasturi Lal v. State – 1965
i) S.80 CPC Notice not served – since the act allegedly was in discharge of official functions. 
The Court turned down both pleas and held State liable – relying on Nagendra Rao v. Staate of A.P. 1994 SC and State of A.P. v. Challa Ramakrishna Reddy (2004 SC) it said that it is too late in the day now to shrug off responsibiltiy on the otiose concept of sovereign immunity – i.e King can do no wrong. Crown Proceedings Act, 1947 & Art. 300 clearly state that State is liable for tort and Contract. 
The Court went on to say that in a democratic society governed by rule of law – real power vests with the citizen and if the state transgresses on the Fundamental Rights of a person – it cannot be allowed to shield itself from consequences that would follow – The State is entrusted with protecting such rights not violating them. 
Punjab-Haryana High Court
State Of Punjab vs Des Raj And Ors. on 3 September, 2003
Equivalent citations: AIR 2004 P H 113
Author: S K Mittal
Bench: S K Mittal


Satish Kumar Mittal, J.

1. This Regular Second Appeal has been filed by the State of Punjab against the judgment and decree passed by both the Courts below, vide which the suit of the plaintiff for recovery of Rs. 10,000/- as damages for malicious prosecution was partly decreed to the extent of Rs. 2,000/- against the appellant and respondent No. 2.

2. Plaintiff Des Raj filed the instant suit against the State of Punjab and the respondent No. 2 Tarsem Lal Manju and respondent No. 3-ASI Gurdial Singh for the recovery of Rs. 10,000/- as damages for malicious prosecution launched against him. It was pleaded that the plaintiff was doing the business in foodgrains and was having a very good reputation in the market. Shri Tarsem Lal Manju (respondent No. 2) was Inspector in the Civil Supplies Department, Ludhiana. He was having ill-will against the plaintiff as he did not supply him one bag of rice free of cost which was demanded by him. Due to that grudge, he falsely implicated the plaintiff in a case under Section 7 of. the Essential, Commodities Act. 1955 (for short hereinafter to be referred as “the Act”) and the plaintiff was, put under arrest. The aforesaid prosecution was launched against the plaintiff at the instance of Shri Tarsem Lal Manju on the basis of a false report made by him. The allegations against the plaintiff were that he had stocked the food articles at.a place other than the certified godowns and second that he was in possession of excess rice than that shown in the stock register. On the aforesaid allegations, the plaintiff was put to trial before, the Chief Judicial Magistrate for an offence under Section 7 of the Act, Ultimately, the plaintiff was honourably acquitted, vide judgment dated 29-3-1968 by holding that the prosecution had failed to establish the allegations levelled against the accused. The Chief Judicial Magistrate found that there was no justification for prosecuting the petitioner for the aforesaid two allegations. Both the allegations were found to be false. It was held that the place where the food articles were stored was duly notified to the Department by the plaintiff and the rice which were found in possession of the plaintiff were duly shown in the stock register.

3. After his acquittal, the plaintiff filed the instant suit for recovery of damages for his malicious prosecution. The suit was resisted by the State of Punjab as well as the respondent-Tarsem Lal Manju. On behalf of the State, it was pleaded that State is not liable for the acts of respondent-Tarsem Lal Manju. It was also pleaded that the prosecution launched against the plaintiff was not mala fide and if the plaintiff was acquitted, it did not give him a cause to file the suit for damages against the State.

4. Respondent-Tarsem Lal Manju contested the suit on various grounds including that he was not served with any notice under Section 80, CPC; the suit was bad for non-joinder of necessary parties; he was protected under the law because he had acted bona fidely in the discharge of his official duties etc.

5. On the pleadings of the parties, following issues were framed by the learned trial Court :–

1. Whether the prosecution of the plaintiff was malicious one? OPP

2. If issue No. 1 is proved, whether the plaintiff is entitled to any damages.

If so, how much and from whom? OPP

3. Whether State of Himachal Pradesh is a necessary party? If so, to what effect. OPD

4. Whether the notice under Section 80, CPC was served on the defendant No. 2? If not to what effect? OPP

5. Relief.

6. After considering the evidence led by both the parties, it was held that the prosecution launched against the plaintiff was totally mala fide. Respondent-Tarsem Lal Manju totally made false report with malice in his mind. The arrest and detention of the appellant was without reasonable and probable cause and his prosecution was totally malicious. It was further held that the plaintiff was entitled for damages which were quantified at Rs. 2000/-. Learned trial Court awarded the damages only against the State while holding that the State was vicariously liable for the illegal and wrong acts done by its agent.

7. The appeal filed by the State of Punjab against the said judgment was dismissed. However, the Cross-Objections filed by the plaintiff were accepted and the respondent-Tarsem Lal Manju also held liable to pay the amount of damages.

8. Against the aforesaid judgments and decree, State of Punjab has filed the present Appeal.

9. I have heard learned counsel for the appellant and carefully gone through the record of the case.

10. Learned counsel for the appellant could not successfully point out any illegality or irregularity in the findings of facts recorded by the Courts below regarding the malicious prosecution of the plaintiff and his illegal detention for 7 days which was based upon a false report made by respondent-Tarsem Lal Manju, and regarding launching of the prosecution without proper investigation of the alleged offence. However, learned counsel for the appellant argued that in spite of the fact that both the Courts below have recorded the finding of malicious prosecution against the respondent Tarsem Lal Manju and the prosecution agency, even then the State cannot be held liable on the principle of vicarious liability.

11. I do not find force in the arguments advanced by the learned counsel for the appellant. It is how too late to hold that the State is not vicariously liable for the illegal act of its agent particularly when the illegal action of its, agent violates the personal liberty of a State (sic), in State of A.P. v. Challa Ramkrishna Reddy, (2000) 5 SCC 712 : (AIR 2000 SC 2083) the Hon’ble Supreme Court, while accepting the principle of vicarious liability of the State for the illegal acts of its officers and servants, has held as under :–

“……. .The maxim that the king can do no wrong or that the Crown is not answerable in tort has no place in Indian jurisprudence where the power vests, not in the Crown, but in the people who elect their representatives to run the Government, which has to act in accordance with the provisions of the Constitution and would be answerable to the people for any violation thereof.

………………….. So far as fundamental rights and human rights or human dignity are concerned, the law has marched ahead like a Pegasus but the Government attitude continues to be conservative and it tried to defend its action or the tortious action of its officers by raising the plea of immunity for sovereign acts or acts of the State, which must fail.”

12. In the instant case, both the Courts below have held that the plaintiff was innocent and the prosecution launched against him was wholly unjustified. It was further held that the launching of the prosecution against the plaintiff and his consequent arrest was totally malicious. In such findings, in my opinion, the State cannot be immune from the consequence of the act of its agent.

13. In view of the aforesaid, I do not find any merit in this appeal and the same is dismissed.

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