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2014 DIGILAW 178 (JK)

Krishna Gupta v. D. D. Sadhotra

2014-04-24

HASNAIN MASSODI, M.M.KUMAR

body2014
JUDGMENT M.M. KUMAR, J. 1. In this batch of appeals a question of law of pristine importance has been raised, namely, whether the period of limitation for filing a suit for damages founded on malicious prosecution commences from the date of acquittal order passed by the trial court or from the date of dismissal of the appeal filed by the complainant or State against the acquittal order within the meaning of Article 23 of the Jammu and Kashmir Limitation Act, 1963 (for brevity Limitation Act). It is pertinent to notice at the outset that CIA No. 25 of 2000 along with CMA Nos. 226 of 2000 and 5 of 2009 was dismissed on account of non-appearance on 29-7-2009. Therefore, the order in respect of respondent No. 2-State of Jammu and Kashmir, has attained finality because no effort has been made for revival of that appeal although period of more than 4½ years have passed. 2. In order to put the controversy in its proper perspective few facts may first be noticed. There was an officer with the name of Shri D.D. Sadhotra - plaintiff-accused. He filed a suit for damages based on malicious prosecution against Shri A.C. Gupta, the then Superintendent of Police (now represented by L.R.-Krishna Gupta-appellant) alleging that at the instance of one Shri Ashok Kumar Thusoo-respondent No. 3 a case FIR 1 of 1976 was registered against the plaintiff-accused by the Anti-Corruption Organization under Section 5(2) of the Jammu and Kashmir Prevention of Corruption Act, Svt. 2006. In pursuance of registration of the FIR, Shri A.C. Gupta along with other officers of his department conducted a raid to recover the bribe money from the plaintiff-accused. This led to the arrest of the plaintiff-accused and his detention in the lock up for three nights and two days. As a necessary consequence the trial commenced and he was acquitted on 22-12-1980 by the trial Court. Against the acquittal order passed by the trial Court the State of Jammu and Kashmir filed acquittal appeal before this High Court which was dismissed vide order dated 24-12-1983, upholding the acquittal order. 3. After the acquittal order attained its finality the plaintiff accused Shri D.D. Sadhotra filed a suit for damages and compensation, alleging that the registration of FIR and subsequent presentation of challan had emanated from malice. 3. After the acquittal order attained its finality the plaintiff accused Shri D.D. Sadhotra filed a suit for damages and compensation, alleging that the registration of FIR and subsequent presentation of challan had emanated from malice. Accordingly a claim for damages founded on malice prosecution was made by filing the suit on 31-3-1984. The suit has been decreed by the learned First Additional District Judge Jammu vide judgment and decree dated 22-9-1999, awarding a sum of Rs. 2 lacs with costs against all the three defendants, namely, Shri A.C. Gupta, the State of Jammu and Kashmir and Shri Ashok Kumar Thusoo. 4. It is appropriate to notice that during the course of arguments before the trial Court the appellants filed an application raising the issue that the suit was barred by limitation and reference in that regard was made to Article 23 of the Limitation Act. The trial Court, after noticing the judgments of various Courts including Hon'ble the Supreme Court, cited by both the sides has concluded that the suit was filed within the period of limitation and placed reliance on the judgment of this Court rendered in the case of A.K. Wattal and Another vs. Khan Mohd. Sadiq, 1965 KLJ 64 , which in turn has placed reliance on a Full Bench judgment of Madras High Court in the case of Soora Kulasekara Chetty and Another vs. Tholasingam Chetty, AIR 1938 Madras 349, holding that the period of limitation commences not from the date of acquittal order but from the date of dismissal of revision/appeal according finality to the acquittal order. The view of the trial Court is discernible from the following paras of the judgment : "Defendant-1 who has made this application has referred to AIR 1958 SC 1036 wherein it has been held. Since the judgment referred above do not pertain to any civil or criminal litigation of the nature interpreting the law of limitation but it pertains to the interpretations, provisions of U.P. Municipalities Act and the implication of the commencement of the Limitation under the said Act, the judgment is not of any help in resolving the present matter in controversy directly. The defendant has further referred to AIR 163 Allahabad 547 wherein it has been held : "Limitation Act, Article 23 Acquittal by Trial Court Suit for malicious prosecution Time will run from acquittal in trial court and not from dismissal of revision against acquittal. Article 23 deals with the alternative cases: one envisages acquittal and the other, termination of the prosecution. The later governs such cases as those of discharge, the former governs the cases of acquittal. Acquittal means acquittal from the Trial Court or if there is conviction from a trial Court, then the order of acquittal passed in appeal or revision. In a case where acquittal has been ordered by the Trial Court and the complainant has filed revision, the filing of revision cannot affect the order of acquittal already passed. It will remain an order of acquittal till the acquittal is converted into an order of sentence. Under Article 23 the limitation would run from the date when the plaintiffs were acquitted by the Trial Court or in appeal if there was conviction from the Trial Court. Filing of a revision against the order of acquittal cannot suspend the period of limitation, which started running from the date of the order of acquittal. AIR 1930 All 326 and AIR 1935 OUDH 392, Relied on AIR 1938 Mad 349 (FB), Dissented from. A reference has also been made to AIR 1968 Bombay 21 wherein it has been held. Limitation Act, Article 76, Limitation Act, Article 23, when plaintiff is acquitted, plaint by A against B u/Ss. 147, 223, 451 IPC, is acquittal of B by the Trial Court on 18-5-59, appeal by A u/s. 417(3) Cr. P.C. dismissed on 3-2-1960. B suit for damages for malicious prosecution on 3-2-1961, held suit was not within time and must be dismissed, time begun to run from the date of acquittal in trial court, mere filing of appeal could not suspend the period of limitation, AIR 1938 Mad 349 , Dissented from, AIR 1922 Bombay 209, followed. While referring the judgments referred above the Ld. Advocate for the defendant has submitted that since in the present case the plaintiff was acquitted by the trial court on 22-12-80 and the plaintiff filed suit on 31-3-84 or thereafter i.e. after more than one year from the date of acquittal, the suit is barred by limitation. While referring the judgments referred above the Ld. Advocate for the defendant has submitted that since in the present case the plaintiff was acquitted by the trial court on 22-12-80 and the plaintiff filed suit on 31-3-84 or thereafter i.e. after more than one year from the date of acquittal, the suit is barred by limitation. This view of the Hon'ble High Court is on the basis of acquittal remains acquittal unless converted into conviction and in later case the suit for malicious prosecution shall be maintainable. In case of conviction by the trial court the position is different because the accused gets acquitted by the appellate court. So in the later case the period of limitation commences from the decision in the appellate court i.e. when the order of acquittal is passed. Limitation starts from the date of acquittal. Moreover, when appeal or revision is against the order of acquittal there is no suspension of order of acquittal and as such the limitation also continues running. On the other hand, the plaintiff has referred to 1965 KLJ 64 wherein it has been held. Limitation Act, Article 23 Time when starts. It has now been finally settled that the limitation in such cases starts not from the date of acquittal but from the date of dismissal of revision petition." The Hon'ble High Court of J. & K. while passing this judgment has relied upon AIR 1938 Mad 349 (FB) and AIR 1942 and 489. It is pertinent to mention here that AIR 1938 Mad 349 (FB) has been relied upon by our own Hon'ble High Court while holding that the limitation starts not from the date of acquittal but from the date of dismissal of revision whereas same judgment has been dissented upon by the Hon'ble High Court of Allahabad which has been referred by the defendant s Advocate reported in AIR 1963 All 547 . The plaintiff has also made reference to AIR 1946 Nagpur 46, wherein it has been held, Limitation Act, Article 23 Prosecution is otherwise terminated Order of discharge on 29th August 1933 Order upheld in revision on 8th May, 1934 Limitation starts from 8th May, 1934. The prosecution is terminated when it is brought to an end or is concluded. The language implies a final termination or end. The prosecution is terminated when it is brought to an end or is concluded. The language implies a final termination or end. The order of acquittal or order of discharge is not final and is liable to be set aside in appeal or revision as the case may be, by an order of the Appellate or revisional Court. So long as these proceedings are pending, no action lies on the ground of their wrongful institution. The judgment of our own Hon'ble High Court is binding and the judgment of other High Courts have only persuasive value with regard to the commencement of the limitation the findings of our own Hon'ble High Court being that it commences from the date of termination of appeal when the appeal is filed and not from the date of acquittal, as such the law cited by our own Hon'ble High Court that the limitation will commence from the date of dismissal of the appeal. Now let us see whether in the present case the plaintiff has filed the suit within limitation from the date of dismissal of the appeal. Admittedly the suit has been filed on 31.3.84 as is apparent from the endorsement made on the first page of the plaint presented before the Hon'ble High Court and the order of acquittal was passed by the trial court on 22.12.80 i.e. by the Special Judge Anti-Corruption and the appeal against the said acquittal was filed on 21.3.81 in the Hon'ble High Court which was dismissed by the D.B. of the Hon'ble High Court on 12.4.83 as is clear from the certified copy of the judgment of the Hon'ble High Court placed on record dated 12.4.83 i.e. within one year from the date of dismissal of the appeal. Ld. Ld. Advocate for the defendant in this regard has submitted that from the date of acquittal the limitation had commenced and even if the period spent by the defendants in prosecuting the appeal before the appellate court is excluded even the suit is time barred, from the date of acquittal till the date of dismissal of the appeal period from 21.3.81 i.e. the date on which the appeal was filed till 12.4.83 when the appeal came to be dismissed which total comes to 8 days has to be excluded and the remaining period has to be calculated right from 22.12.80 i.e. date of acquittal by the trial court, till the date of filing of suit and by excluding the said period the remaining period exceeds period of limitation prescribed and on that score also the plaintiff s suit is time barred. These arguments of the Ld. Advocate for the defendant are simply to be rejected because the decision of our own Hon'ble High Court being the limitation in such case starts not from the date of acquittal but from the date of dismissal of the revision or appeal. So, if the limitation is to be taken from the date of dismissal of appeal or revision against the order of acquittal, then there is no question of reckoning the limitation from the date of acquittal, and as such it is held that the plaintiff s suit is within limitation and the application is misconceived and decided accordingly. 5. The matter was again raised before the learned Appellate Court. The learned single Judge hearing the appeals doubted the view laid down by this Court in A.K. Wattals case (supra), wherein it is laid down that the period of limitation would commence from the date of the judgment passed in acquittal appeal and not from the date of acquittal order passed by the trial Court. Accordingly the matter was referred to the Division Bench. The learned Judge has recorded various reasons in the reference order. According to the learned single Judge the period of limitation once starts running then it does not stop as laid down in Section 9 of the Limitation Act and the period of limitation as per Article 23 of the Limitation Act would start running on the day acquittal order is passed. According to the learned single Judge the period of limitation once starts running then it does not stop as laid down in Section 9 of the Limitation Act and the period of limitation as per Article 23 of the Limitation Act would start running on the day acquittal order is passed. The view expressed by Bombay High Court in the case Bhaskar vs. Kisan Lal, AIR 1968 Bombay 2 and Allahabad High Court in case of Madho Lal vs. Hari Shanker and Another, AIR 1963 Allahabad 547, has been considered to be correct by the learned single Judge. The relevant paras of the reference order are set out below in extenso : "It is a settled principle of Law of Limitation that once the prescribed period of limitation starts to run, then no subsequent disability or inability to sue stops it. Section 9 of the Act reads as follows: "9. Continuous running of time Where once time has begun to run, no subsequent disability or inability to sue stops it: Provided that, where letters of administration to the estate of a creditor have been granted to his debtor, the running of the time prescribed for the suit to recover the debt shall be suspended while the administration continues." Under Article 23, the starting point for limitation in case of acquittal is the date on which the acquittal order is passed. No provision either in Article 23 or in other sections of the Limitation Act has been made for providing automatic suspension of the period of limitation prescribed in the event of appeal or revision being filed against the acquittal order. Mere filing of appeal or revision for question the legality of the acquittal of plaintiff, who seeks to sue for damages on account of his malicious prosecution, per se does not result in suspension, exclusion or extension of the period prescribed. If a cause of action arises on the passing of an order by an authority then that cause of action does not get suspended or deferred by mere filing of an appeal or revision against that order, unless there is something in the provision regulating the appeal or revision for suspending the order appealed against or sought to be revised or for rendering it inoperative on the reason of filing the appeal or revision. In case of acquittal, the cause of action for filing the suit for damages on the ground of malicious prosecution arises on the date of passing of the acquittal order in terms of Article 23. Article 23 nowhere provides that the cause of action to sue will remain suspended during the pendency of an acquittal appeal or revision against the order. Acquittal appeal lies under Section 417, Cr. P.C. There is no provision in the Cr. P.C. which provides for automatic suspension or staying of the acquittal order on mere filing of the appeal. Likewise, the Court of Session and High Court have been vested with revisional jurisdiction under Sections 435 and 439 respectively for examining the legality or propriety of an order passee by a criminal Court subordinate thereto. There is no provision for providing automatic suspension or staying of the order sought to be revised. Therefore, merely because against the acquittal order an appeal or revision has been filed, the filing of the same does not stop the limitation to run. However, on filing of the appeal or revision against the acquittal order, if the appellate court or revisional court stays the operation of the acquittal order, in that event the period during which the stay remains in force gets excluded in terms of the provision contained in Section 15 of the Limitation Act. Section 15 reads: "Exclusion of time during which proceedings are suspended. (1) In computing the period of limitation prescribed for any suit or application for the execution of a decree, the institution prescribed for any suit or application for the execution of a decree, the institution or execution of which has been stayed by injunction or order, the time of the continuance of the injunction or order, the day on which it was issued or made, and the day on which it was withdrawn, shall be excluded. (2) In computing the period of limitation prescribed for any suit of which notice has been given in accordance with the requirements of any enactment for the time being in force, the period of such notice shall be excluded." Section 15(1) thus safeguards the interest of a person who is precluded from exercising his right to institute the suit by injunction or order of stay passed in appeal or revision. In the absence of stay order in appeal or revision, the fact of filing of the same by itself can have no effect on running of the limitation. There is another aspect of the matter. It may be argued that in Article 23 the phrase or the prosecution is otherwise terminated is to be read with first phrase when the plaintiff is acquitted, to mean that a prosecution finally terminates when all the remedies against the acquittal order get exhausted, i.e. when acquittal order becomes final. Therefore, in case of acquittal appeal or revision, the limitation starts to run from the date of dismissal of appeal or revision filed against the acquittal order. The above argument would not be legally tenable because if this were to be the intention of the legislature, there would have been no necessity to provide for two phrases in two fact situations in the article and it would have been sufficient to say that when prosecution is terminated. The purpose of using two expressions acquittal or otherwise termination of prosecution in the article is obvious. By incorporation of the word otherwise in second phrase, the legislature intended to maintain the distinction between acquittal and discharge. In Madho Lal vs. Hari Shanker, AIR 1963 Allahabad 547, it was observed : "5. A perusal of Article 23 of the Limitation Act goes to show that Article deals with two alternative cases one envisages acquittal and the other, termination of the prosecution. So far as the second alternative or the expression termination of the prosecution goes that is not applicable to the present case. That governs such cases as those of discharge. It is the first alternative which will govern the case of acquittal; and acquittal would mean acquittal from the Trial Court or if there is conviction from a Trial Court, then the order of acquittal was passed in appeal or revision. In a case where acquittal has been ordered by the Trial Court and the complainant has filed revision, the filing of revision cannot affect the order of acquittal already passed. It will remain an order of acquittal till the acquittal is converted into an order of sentence. In a case where acquittal has been ordered by the Trial Court and the complainant has filed revision, the filing of revision cannot affect the order of acquittal already passed. It will remain an order of acquittal till the acquittal is converted into an order of sentence. It would thus appear that under Article 23 of the Limitation Act, the limitation would run from the date when the plaintiffs were acquitted by the Trial Court or in appeal if there was conviction from the Trial Court. Filing of a revision against an order of acquittal cannot suspend the period of limitation, which started, running from the date of the order of acquittal. This view is fully justified by the case of Shankar Prasad, AIR 1935 Oudh 392. In that case the prosecution of the plaintiff ended in acquittal. There was also a revision against the order of acquittal, and it was held by the learned Judge, who decided that case, that the limitation started running from the date of the order of acquittal and the filing of revision did not give a fresh start to the period of limitation; and so the suit, if brought more than one year after the order of acquittal passed by the Trial Court would be beyond time. I respectfully agree with this view. The case of Madan Mohan Singh, 1930 All LJ 885 : AIR 1930 All 326, was a case of discharge and so that case was covered by the second alternative of Article 23. But the Division Bench, which decided that case, also observed at p. 887 (of All LJ) : (at p. 327 of AIR) : "Moreover in a case where the prosecution ended in acquittal the language of Article 23 leaves no room for argument, as it provides specifically that limitation is to run from the date of acquittal." This observation the Division Bench supports the view which is expressed above. 6. In the Madras case, AIR 1938 Mad 349 , it was thought that the words when the plaintiff is acquitted could not be divorced from the words or the prosecution is otherwise terminated. It appears that the Full Bench, which overruled the earlier view of that Court, thought that the two phrases were inter-dependent. With great respect to the learned Judges, I am unable to agree with that view. It appears that the Full Bench, which overruled the earlier view of that Court, thought that the two phrases were inter-dependent. With great respect to the learned Judges, I am unable to agree with that view. The purpose of the legislature is obvious by using two expressions acquittal or otherwise termination of prosecution. If the two expressions were inter-dependent or were meant to give starting point of limitation on termination of the prosecution, it was unnecessary for the legislature to use the expression when the plaintiff is acquitted it would have been sufficient to say when the prosecution is terminated. The legislature obviously maintained a distinction between acquittal and otherwise termination of the prosecution. In Bhaskar vs. Kisanlal, AIR 1968 Bombay 21, it has been held: "3. Article 23 of the Limitation Act, Schedule I prescribes one year s period of limitation for compensation for a malicious prosecution and the time begins to run when the plaintiff is acquitted, or the prosecution is otherwise terminated. Apart from authority, the language of this provision would seem to be plain. In the case of an acquittal, it provides a terminal point from which the time begins to run, the terminal point being the acquittal. Now, an acquittal is an acquittal, whether or not the complainant files a revision application against the order of acquittal or an appeal or the State files an appeal. The position is not altered by the addition of section 417(3) in the Code of Criminal Procedure which permits the complainant, in the case of a private complaint, to file an appeal to the High Court against an order of acquittal with its permission of leave. The original acquittal is still operative, and on the language of the provision, it is the date of acquittal from which time begins to run. The other alternative is that the prosecution is otherwise terminated. Now, whenever a prosecution is otherwise terminated. Now, whenever a prosecution is started, it may not necessarily end in an acquittal. A prosecution may end, either in acquittal or conviction. If it is the first, then it is governed by the first part of this provision, and if it is the second, there can be no case for a suit. Now, whenever a prosecution is otherwise terminated. Now, whenever a prosecution is started, it may not necessarily end in an acquittal. A prosecution may end, either in acquittal or conviction. If it is the first, then it is governed by the first part of this provision, and if it is the second, there can be no case for a suit. It may also result in an order of discharge, or in a dismissal of the complaint if the complainant is absent on the date fixed for the hearing of the complaint. The latter part of the provision the prosecution is otherwise terminated is intended to meet such cases, and here again it is the end of that proceeding which is operative for all intents and purposes and governs the point of time when the period begins to run. 4. In our view the first part of this provision is indicative of the meaning to be attached the latter part, and it would only mean the first terminal point when the prosecution ends in the first Court, for the reason that the effect of such an ending is the same as in the case of an acquittal. In my considered opinion the view expressed by High Courts of Allahabad and Bombay is the correct proposition of law. Therefore, the ratio of the decision rendered in Wattal s case (supra) requires reconsideration by a larger Bench. 6. On the basis of the aforesaid order passed by the learned single Judge the matter has been referred to the Division Bench by learned single Judge and it is in this manner that we are seized of the matter. 7. We have heard learned counsel for the parties and have also perused their written submissions along with record. 8. Mr. L.K. Sharma, appearing on behalf of the appellant has submitted that the period of limitation started running on the very next day of the order of acquittal i.e. from 23-12-1980 for filing the suit for damages founded on malicious prosecution as per the correct interpretation of Article 23 of the Act. Mr. Sharma has supported the view taken in the reference order by the learned single Judge by referring to Section 9 of the Act and has argued that once the time has begun to run then no subsequent disability could snap the running of the period of limitation. Mr. Sharma has supported the view taken in the reference order by the learned single Judge by referring to Section 9 of the Act and has argued that once the time has begun to run then no subsequent disability could snap the running of the period of limitation. The State of Jammu and Kashmir filed the acquittal appeal on 21-3-1981 and the same was dismissed on 12-4-1983. The suit was filed by the plaintiff-accused Sh. D.D. Sadhotra on 31-3-1984. According to Mr. Sharma the suit should have been filed within one year from the date of the acquittal order. In other words the suit could have been filed on or before 23-12-1981 and therefore the suit is barred by limitation and the learned single Judge has taken the correct view. 9. Mr. Sharma has also submitted that the words prosecution otherwise terminates used in article 23 had its nexus with the word acquittal and the same cannot be divorced from the principal clause. Even otherwise the period of limitation would start running only after the acquittal order is suspended as per the provisions of Section 15 of the Act. Since there was no stay of the acquittal order, the petitioner-accused cannot take advantage of pendency of the appeal. In that regard, reliance has been placed on the judgment of Allahabad High Court rendered in the case of Madho Lals case ( AIR 1963 All 547 ) (supra) and the judgment rendered by Bombay High Court in Bhaskars case ( AIR 1968 Bom 21 ) (supra), which have taken into consideration the provisions of Sections 9 and 15 of the Limitation Act. However, those provisions have been completely ignored by the judgment rendered in like A.K. Wattals case (supra), Full Bench of Madras High Court in Kulasekara Chetty ( AIR 1938 Mad 349 ) (supra) and the judgment of Chief Court Oudh rendered in Bhikkam Singh s case. Accordingly, it has been suggested the judgment of this Court, the Madras High Court and the Qudh Chief Court do not lay down correct principles of law and are liable to be overruled for the purposes of interpreting Article 23 of the Limitation Act. Thus the suit of the plaintiff-accused is liable to be dismissed as barred by time. 10. Mr. P.S. Bhardwaj, learned counsel for the plaintiff-accused has vehemently argued that the suit filed by Sh. Thus the suit of the plaintiff-accused is liable to be dismissed as barred by time. 10. Mr. P.S. Bhardwaj, learned counsel for the plaintiff-accused has vehemently argued that the suit filed by Sh. D.D. Sadhotra is within the period of limitation as it was filed within one year of the dismissal of the acquittal appeal. According to the learned counsel the judgment of this High Court in A.K. Wattals case (supra) lays down correct principles of law and in turn has rightly placed reliance on a Full Bench judgment of Madras High Court in Kulasekara Chettys case ( AIR 1938 Mad 349 ) (supra) and the Division Bench judgment of Chief Court, Oudh. The Full Bench of the Madras High Court has interpreted the provisions of Article 23 by opining that the expression, when the plaintiff is acquitted could not be divorced from the words or the prosecution is otherwise terminated. According to the Full Bench the provision has to be read in injunctive rather than in two mutually exclusive watertight compartments, particularly when the Full Bench had overruled the earlier view of the Division Bench taken by Madras High Court itself, which had laid down that the two Clauses of Article 23 are independent of each other. Accordingly it has been argued that the period of limitation commences from decision of the acquittal appeal as has been held in A.K. Wattals case (supra), Kulasekara Chettys case ( AIR 1938 Mad 349 ) (supra) and the Division Bench judgment of Chief Court, Oudh. 11. It has also been argued that Division Bench of Allahabad High Court in Madholals case ( AIR 1963 All 547 ) (supra) and Chief Court, Oudh in Bhikkam Singhs case (supra) have followed the view taken by the Full Bench of Madras High Court which has also been followed by another Division Bench in the case of S.K. Mehtab vs. Balaji and Another, AIR 1946 Nag 46. According to the learned counsel the preponderance of the authorities is in favour of the plaintiff-accused, holding that the time starts running from the date of decision of the acquittal appeal or revision and not from the date of acquittal by the trial Court. Mr. According to the learned counsel the preponderance of the authorities is in favour of the plaintiff-accused, holding that the time starts running from the date of decision of the acquittal appeal or revision and not from the date of acquittal by the trial Court. Mr. Bhardwaj has also highlighted that according to the general principles concerning law of limitation the time starts running after all remedies are exhausted and not anywhere in between or on the order passed by the trial Court. In that regard reliance has been placed on the Constitution Bench judgment of Hon'ble the Supreme Court rendered in the cases of Maimoona Khatun and Another, AIR 1980 SC 1773 ; S.S. Rathore vs. State of Madhya Pradesh, AIR 1990 SC 10 and the judgment of Rajasthan High Court in the case of Ramdhan vs. Kanmal, 1981 WLN 87. According to the learned counsel, a well known principle of merger of the judgment of the trial Court in the judgment of the appellate Court would be completely defeated if the interpretation projected by the learned single Judge is accepted. Mr. Bhardwaj has argued that the order of acquittal by the trial Court cannot be regarded as final until and unless the acquittal appeal is decided. The contrary view would result in initiation of superficial litigation if the acquittal is eventually accepted. Accordingly, Mr. Bhardwaj has prayed for upholding the view taken by the learned Trial Court and the judgment of this Court in this Court in the case of A.K. Wattal (supra). 12. Mrs. Seema Shekhar, learned Additional Advocate General, appearing for the prosecution has argued that the judgment of the Full Bench of Madras High Court in Kulasekara Chetty s case or the Division Bench of Chief Court of Oudh cannot be accepted to have settled the issue and the aforesaid judgment are per incuriam. According to the learned counsel, there is no judgment of Hon'ble the Supreme Court to conclude the issue finally. Mrs. Shekhar has argued that the Legislature in its wisdom has prescribed two starting points of limitation in Article 23. The first point for commencement of limitation period is from the date the acquittal order is passed in favour of the plaintiff. The second period prescribed is from the date when the prosecution otherwise comes to an end. Mrs. Shekhar has argued that the Legislature in its wisdom has prescribed two starting points of limitation in Article 23. The first point for commencement of limitation period is from the date the acquittal order is passed in favour of the plaintiff. The second period prescribed is from the date when the prosecution otherwise comes to an end. According to the learned counsel, both the expressions are disjunctive as is evident from the use of word or and not by conjunctive which would have been clear from the use of word and. It implies that both the eventualities have to be construed separately. Otherwise, Legislature could not have provided for two different points of limitation and seems to have referred to the termination finally in acquittal. She has insisted that the legislation should be interpreted by providing every word its meaning and nothing said in the provisions should be rendered otiose. In the present case the intention of the legislature appears to be clear. A reference has also been made to the Limitation Act, 1871 where a different expression was used and only one time was prescribed from which the period was to start running, namely when the plaintiff is acquitted. The earlier phraseology has undergone change which has been adopted by the Jammu and Kashmir Limitation Act also. Accordingly, it has been argued that the date of acquittal alone would be the starting point of limitation and not the decision in the acquittal appeal. Any other interpretation would lead to confusion and misleading results. According to the learned counsel, if acquittal order is passed on 1-1-2013 then for filing a suit for damages the plaintiff-accused may have to wait for the expiry of three months prescribed for filing the appeal against the acquittal. In case no acquittal appeal is filed then he would get a right to file suit for damages founded on malicious prosecution. The question would be whether the period of limitation would start from 1-1-2013 or 1-4-2013. If the acquittal appeal is filed in such a case with an application seeking condonation of delay, then what would be the starting point of limitation for filing a suit for damages founded on malicious prosecution. 13. Mrs. Shekhar has also adopted the argument with regard to Section 9 of the Act advanced by Mr. If the acquittal appeal is filed in such a case with an application seeking condonation of delay, then what would be the starting point of limitation for filing a suit for damages founded on malicious prosecution. 13. Mrs. Shekhar has also adopted the argument with regard to Section 9 of the Act advanced by Mr. L.K. Sharma and has argued that the suit must be held to be barred because the period of limitation commenced from 20-12-1980 and not from the date of dismissal of the acquittal appeal on 12-4-1983. 14. What is the true interpretation of Article 23 occurring in the First Schedule of the Limitation Act is the pristine question which emerges for consideration of this Court. The aforesaid Article is in pari materia with Article 23 of the Limitation Act, 1908 which has now been re-numbered by the Parliament as Article 74 in the Limitation Act, 1963. The aforesaid provision of the Limitation Act is set out below in extenso : Description of Period of Time from which suit limitation period begins to run : 23. For compensation One Year When the plaintiff for a malicious is acquitted, or the prosecution prosecution is other-wise terminated. 15. According to the first part under the column Time from which period begins to run, would be when the plaintiff is acquitted. The case of the State as well as the other defendants is that the period of limitation would start from the date the plaintiff is acquitted by the trial Court and once the period start running then it does not stop. However, the case of the plaintiff is that time would start running from the date the prosecution otherwise has been terminated by dismissal of the acquittal appeal or any other appeal. What is the true meaning of the expression, the prosecution otherwise terminated employed in Article 23. 16. The aforesaid expression has been the subject-matter of interpretation before various Courts. However, the case of the plaintiff is that time would start running from the date the prosecution otherwise has been terminated by dismissal of the acquittal appeal or any other appeal. What is the true meaning of the expression, the prosecution otherwise terminated employed in Article 23. 16. The aforesaid expression has been the subject-matter of interpretation before various Courts. The Judicial Committee of the Privy Council in Balbhddar Singh vs. Badri Sah, AIR 1926 PC 46 has laid down that in an action for malicious prosecution the plaintiff has to prove (a) that he was prosecuted by the defendant; (b) that the proceedings complained of termiated in favour of the plaintiff if from their nature they were capable of so terminating; (c) that the prosecution was instituted against him without any reasonable and probable cause; and (d) that it was due to a malicious intention of the defendant and not with a mere intention of carrying the law into effect. While explaining the second requirement, namely, that the proceedings complained of terminated in favour of the plaintiff if from their nature they were capable of so terminating, the Judicial Committee proceeded to observe as under : This phraseology may be found in the judgment of Montague Smith, J. in Basebe vs. Mathews, (LR2 CP 684 : 15 WR 839). But the practice was in accordance with these words long before that case. Under the old forms of pleading a declaration, if the law were really as the Judges in this case defined it, would in all cases where there had not be an actual acquittal have been bad if there were not added the statement that the plaintiff was innocent of the crime charged, the reports may be searched in vain for any declaration so found bad, though there were many cases here prosecutions had terminated without acquittal. There was controversy as to what terminated proceedings, as, e.g. whether a nolls prosequi of the Attorney general was a termination. But at any rate it was quite settled that a prosecution comes to an end when a Magistrate declines to commit. 17. It is appropriate to mention that in the case before the Privy Council the Magistrate had discharged the plaintiff after recording the evidence during the course of committal proceedings. But at any rate it was quite settled that a prosecution comes to an end when a Magistrate declines to commit. 17. It is appropriate to mention that in the case before the Privy Council the Magistrate had discharged the plaintiff after recording the evidence during the course of committal proceedings. However, some doubts had arisen in the mind of the Sessions Judge which led to issuance of summons to the plaintiff to appear before him. The Sessions Judge again discharged the plaintiff. The Judicial Committee observed that it was sufficient for the plaintiffs to prove that the criminal proceedings against them came to an end so far as they were concerned when the Sessions Judge finally refused to commit them for trial. The Judicial Committee of the Privy Council was not concerned with the question with regard to limitation for filing of the suit for compensation for malicious prosecution but the aforesaid observations lend support to the submission made on behalf of the plaintiff-accused that the prosecution could be said to have terminated insofar as the plaintiff-accused was concerned only when the order in acquittal appeal was passed because the proceedings against the plaintiff-accused would be deemed to have finally terminated at that stage. 18. There was a conflict of view between the two Division Benches of Madras High Court which was resolved by a Full Bench of the said High Court in the case of Kulasekara Chettys case ( AIR 1938 Mad 349 ) (supra). In that case a complaint had been filed against two persons. One of the accused persons was discharged where as the other accused person was acquitted by the Magistrate. The complainant filed a revision petition before the District Magistrate. After dismissal of the revision petition the accused persons filed a suit for damages for malicious prosecution which was within the period of limitation of one year if computed from the order of dismissal of the revision petition, although it was beyond the period of one year if the date of discharge or acquittal order were taken into account. The trial Court dismissed the suit on the ground that it was barred by limitation by citing the Full Bench judgment of Madras High Court in Kulasekara Chettys case ( AIR 1938 Mad 349 ) (supra). The trial Court dismissed the suit on the ground that it was barred by limitation by citing the Full Bench judgment of Madras High Court in Kulasekara Chettys case ( AIR 1938 Mad 349 ) (supra). The Full Bench had taken the view that the words, when the plaintiff is acquitted cannot be divorced from the words, or the prosecution is otherwise terminated. It was further held that Article 23 of the Act provides that the time shall run when the plaintiff is acquitted or when the prosecution comes to an end in some other manner and that if the acquittal is followed by other proceedings, the prosecution is terminated not by the acquittal but by the order passed in the subsequent proceedings. The Full Bench reversed the judgment of the District Judge and while affirming the decision in Tanquturi Sriramulu vs. Nyapathi Subba Rao Pantulu Garu, AIR 1920 Madras 151, overruled the decision of the Division Bench in Narayya vs. Seshayya, ILR (1900) 23 Mad 24. 19. It is rule of law that no one shall be allowed to allege of a still depending suit because it would be unjust. The issue with regard to malicious prosecution could only be decided by judicial determination only on the final termination of the prosecution and the probable cause of action could be properly alleged. Obviously till the revision petition against the order of acquittal or discharge was dismissed the prosecution could not be regarded to have been terminated. It is patent that the proceedings have not terminated because the prosecution took steps with an object to secure conviction of the accused. The contention that the time would begin to run from the date of acquittal order was rejected in categorical terms holding that the said argument ignored the wording of Article 23 and the reason for the rule that so long as proceedings are pending, the accused would not be allowed to use acquittal. 20. Similar view has been taken by the Allahabad High Court in Madan Mohan Singh vs. Ram Sunder Singh, AIR 1930 All 326. There a complaint under Section 500, IPC was filed which ended in discharge of the accused. The complainant challenged the order of discharge before the Sessions Judge by filing an application seeking further enquiry under the provisions of Cr. P.C. The application was dismissed. There a complaint under Section 500, IPC was filed which ended in discharge of the accused. The complainant challenged the order of discharge before the Sessions Judge by filing an application seeking further enquiry under the provisions of Cr. P.C. The application was dismissed. It was after the dismissal of the application that accused filed a suit for damages for malicious prosecution which was within a period of one year from the date of dismissal of the application by the Sessions Judge but beyond the period of one year from the date of order of discharge. The suit was dismissed by the trial Court as well as by the First Appellate Court on the ground that it was barred by limitation. However, the High Court reversed the findings. The learned Judges have devoted themselves to construe the expression, or the prosecution is otherwise terminated under Article 23 of the Act as implying final termination. The Bench observed that the term prosecution under Article 23 has a very wide connotation and does not merely mean an actual trial or an enquiry which may result in conviction and imposition of imprisonment or fine. In an application for further enquiry when notice to show-cause was pending and the Sessions Judge himself has the jurisdiction to hold such an enquiry, then it could not be said that the accused is not being prosecuted. The learned Judges, therefore, observed as under : If this view were not acceptable, the result would be that the discharged person would be compelled to institute his suit for damages even though the matter is still sub judice and is being considered by the Sessions Judge or by the High Court. It seems extraordinary that a plaintiff should be compelled to sue while it is yet to question whether his retrial is not going on to be ordered of course as soon as the order of discharge was passed the prosecution in the Magistrate s Court terminated. If no further proceedings are taken the prosecution must be deemed to have terminated on that date. If no further proceedings are taken the prosecution must be deemed to have terminated on that date. But if, as a matter of fact, the matter is taken up in revision to a higher authority which has power of interference and proceedings sanctioned by the Criminal Procedure Code are being pursued, the prosecution no longer be said to have finally terminated, its final termination would be only when the proceedings in revision have come to an end. In favour of the discharged person. One may take the case of a Government appeal from an acquittal as an illustration. The order of acquittal terminates the prosecution for the time being. The filing of an appeal does not ipso facto vacate that order; and yet while the appeal is pending it can hardly be said that revisional application is pending the prosecution must be deemed to be still the prosecution has terminated. We think that in the same way while a continuing and not finally terminated. (Emphasis added.) 21. However, some doubts drawing distinction between the case of acquittal and that of discharge were raised in Madan Mohans case (AIR 1930 All 326) (supra) which were put to rest by another Division Bench of Allahabad High Court in the case of Madholal vs. Hari Shanker, ILR 1969 AH (Vol. II) (sic). Expressing their agreement with the view taken by Full Bench of Madras High Court in Kulasekara Chettys case ( AIR 1938 Mad 349 ) (supra), the Division Bench held that the distinction drawn between cases of acquittal and those of discharge, so far as limitation for filing suit for damages for malicious prosecution was concerned, was illogical and that such an interpretation would, in many cases of acquittal and cases of discharge so far as the limitation for filing a suit for damages for malicious prosecution is concerned, give rise to hardship, because the plaintiff is obliged to institute his suit without waiting for the decision on appeal or revision against the acquittal. He may find that he has wasted his time and money in case the appeal or revision eventually succeeds and the acquittal order is set aside. He may find that he has wasted his time and money in case the appeal or revision eventually succeeds and the acquittal order is set aside. The learned Judges proceeded to observe as under : Our conclusion is that the phrase used in Article 23 fixing the point of time from which the period of limitation begins to run as when the plaintiff is acquitted or the prosecution is otherwise terminated, must be construed as equivalent to when the prosecution of the plaintiff is terminated by acquittal or otherwise and termination of the prosecution by acquittal should be deemed to occur only when all appeals and revision that may have been filed against the basic order of acquittal have been finally disposed of. This interpretation obviates the necessity for making an illogical distinction between cases of acquittal and cases where the prosecution is terminated by discharge; and it has the further merit of avoiding the possibility of hardship for the plaintiff by permitting him to wait until his acquittal has been placed beyond doubt before he files his suit for compensation for malicious prosecution. 22. A Division Bench of the Rajasthan High Court in the case of Ramdhan vs. Kanwal, 1981 WLN 87, has analyzed the view taken by the Bombay High Court in the case of Bhaskar Narrhar Deshmukh vs. Kisanlal, AIR 1968 Bombay 21 and has stated about the results that would follow from the approach adopted by the Bombay High Court. In para 38 of the judgment the following pertinent observations have been made which read as under : 38. In para 38 of the judgment the following pertinent observations have been made which read as under : 38. At this stage it may be observed that if the standing point of limitation for a suit for compensation for malicious prosecution is held to be date of the order of acquittal or discharge passed by the original Court, as held by the Bombay High Court in Bhaskar Narhar Deshmukh vs. Kisanlal (supra), the result would be : (i) That in a case where a person has been acquitted or discharged by the trial Court and an appeal or revision has been filed by the complainant against the order of acquittal, or discharge, the suit for compensation for malicious prosecution will have to be filed without waiting for the decision in the appeal or revision and the plaintiff must take the risk of an adverse decision against him in the appeal or revision and loss the amount spent by way of court fee and expenses in instituting the suit. (ii) That the said suit for compensation for malicious prosecution will remain stayed till the appeal or revision filed by the complainant against the order of acquittal or discharge is disposed of by the appellate or the revisional Court. (iii) That after the dismissal of the appeal or revision against the order of acquittal or discharge the plaintiff will have to file another suit for compensation for malicious prosecution arising out of the aforesaid appellate or revisional proceedings. 23. The aforesaid view has been rejected by the Rajasthan High Court on the reasoning that it would gave rise to multiplicity of legal proceedings and would also result in hardship as well as inconvenience to the plaintiff-accused. There would be unnecessary wastage of time and money if a suit is filed without waiting for the decision of the acquittal appeal or the revision petition. In case the acquittal appeal is allowed or revision filed by the prosecution succeeds, then the payment of court-fee and the effort made by the plaintiff-accused would be rendered futile. All such consequences would be avoided if the provisions of Article 23 are construed to mean that the starting point of limitation for a suit for compensation for malicious prosecution is the date when the prosecution finally comes to an end. All such consequences would be avoided if the provisions of Article 23 are construed to mean that the starting point of limitation for a suit for compensation for malicious prosecution is the date when the prosecution finally comes to an end. The Division Bench of the Rajasthan High Court further held that it is a cardinal rule of statutory construction to lean towards interpretation which does not result in inconvenience or hardship and it should be preferred over the construction which results in inconvenience or hardship. In that regard reliance was placed on the judgment of Hon'ble the Supreme Court rendered in the case of Maimoona Khatun vs. State of U.P., AIR 1980 SC 1773 . 24. Even otherwise, we are of the considered view that use of word, or in Article 23 of the Limitation Act represents a disjunctive particle that marks an alternative generally corresponding to either. In that regard we draw support from Law Laxicon (English Law Dictionary) 1997 Edition. The word, or has been defined as under : Or The word or is a disjunctive particle that marks an alternative, generally corresponding to either, as, either this or that, a connective that marks an alternative, as you may read or may write that is, you may do one of the things at your pleasure, but not both. A conjunction marking distribution or an alternative. 25. It can also be construed as conjunctive if there is any legislative intendment. The word or is often used to express an exclusive subject which are disjunctive. In the present case there is no legislative intendment nor any other factor compelling us to construe the expression or as conjunctive, therefore, the expression, when the plaintiff is acquitted has to be construed independently by keeping the other parts separate, or the prosecution otherwise terminated. Similar meaning has been assigned to the expression or in the New Shorter Oxford English Dictionary (Volume 2) by Leslay Brown, and the same reads as under : Or .......A conj. 1 Introducing the second of two, or all but the first or only the last of several, alternatives. ME. B Introducing an emphatic repetition of a rhetorical question. Colloq. M2). 2. Introducing the only remaining possibility or choice of two or more quite different or mutually exclusive alternatives. Freq. following either, other, (in neg. contexts, colloq.) neither, ME. 3 Followed by or: as an alternative; either. ME. B Introducing an emphatic repetition of a rhetorical question. Colloq. M2). 2. Introducing the only remaining possibility or choice of two or more quite different or mutually exclusive alternatives. Freq. following either, other, (in neg. contexts, colloq.) neither, ME. 3 Followed by or: as an alternative; either. Formerly also, introducing alternative questions. Now arch. & poet. ME. 4 Introducing, after a primary statement, a secondary alternative, or consequence of setting aside the primary statement; otherwise, else; if not. ME. 5 Connecting two words denoting the same thing, or introducing an explanation of a preceding word etc. otherwise called, that is. ME.6 Introducing a significant afterthought, usu. In the form of a question, which casts doubt on a preceding assertion or assumption, E20.............. 26. It may be true that in cases where legislative intendment is present in a statute, then the word or may have to be construed as conjunctive rather than disjunctive but it does not mean that in every case it should be followed as a rule. (State of Delhi vs. Puran Mal, (1985) 2 SCC 589 : AIR 1985 SC 741 ). 27. The question then is whether the Homer Nods and the decision of this Court in A.K. Wattals case (supra) required to be overruled. It is pertinent to mention that in the case of the Palace Administration Board vs. Rama Varma Bharathan Thampuran, 1980 (Supp) SCC 234 : AIR 1980 SC 1187 Justice Krishna Iyer has observed that Horace has written But if Homer, who is good, nods for a moment, I think it is a shame. The learned Judge then went on to observe that we, in the Supreme Court, do nod despite great care to be correct, and once a clear error in our judgment is revealed, no sense of shame or infallibility complex obsesses us or dissuades this court from the anxiety to be ultimately right, not consistently wrong. We are happy to notice that we are saved of Homer s nod. Therefore, we uphold the view taken by this Court in the case of A.K. Wattal (supra). 28. There is another aspect of the matter. In our jurisprudence the doctrine of merger has taken deep roots and once the order of an inferior Court merged into the order of the Superior Court then for all intents and purposes the order of the Superior Court has to be read. 28. There is another aspect of the matter. In our jurisprudence the doctrine of merger has taken deep roots and once the order of an inferior Court merged into the order of the Superior Court then for all intents and purposes the order of the Superior Court has to be read. In a way the order of the inferior Court is withdrawn out of existence. A 7-Judges Bench of Hon'ble the Supreme Court in the case of S.S. Rathore vs. State of M.P. (1989) 4 SCC 582 : AIR 1990 SC 10 held that where the statutory remedy was provided against an adverse order in a service dispute and that remedy was availed, the limitation to file the suit challenging the adverse order would commence not from the date of original adverse order but on the date when the order of the higher authority disposing of the statutory remedy was passed. In that regard reference was invited to the observations made in CIT vs. Amritlal Bhogilal and Co., AIR 1958 SC 868 . The view of Hon'ble the Supreme Court is discernible from the following para of the judgment, which reads as under : There can be no doubt that, if an appeal is provided against an order passed by a tribunal, the decision of the appellate authority is the operative decision in law. If the appellate authority modifies or reverses the decision of the tribunal, it is obvious that it is the appellate decision that is effective and can be enforced. In law the position would be just the same even if the appellate decision merely confirms the decision of the tribunal. As a result of the confirmation or affirmance of the decision of the tribunal by the appellate authority the original decision merges in the appellate decision and it is the appellate decision alone which subsists and is operative and capable of enforcement. 29. However, some doubts were expressed that the order passed by the Supreme Court is non-speaking. These aspects are not in fact relevant to the issues raised in this case as has been held by Hon'ble the Supreme Court in the case of Kunjay Ammed vs. State of Kerala, (2000) 6 SCC 359 : AIR 2000 SC 2587 . 29. However, some doubts were expressed that the order passed by the Supreme Court is non-speaking. These aspects are not in fact relevant to the issues raised in this case as has been held by Hon'ble the Supreme Court in the case of Kunjay Ammed vs. State of Kerala, (2000) 6 SCC 359 : AIR 2000 SC 2587 . Referring to the view expressed in Armitlal Bhogilals case ( AIR 1958 SC 868 ) (supra), their Lordships of the Supreme Court proceeded to observe as under : The logic underlying the doctrine of merger is that there cannot be more than one decree or operative orders governing the same subject-matter at a given point of time. When a decree or order passed by inferior court, tribunal or authority was subjected to a remedy available under the law before a superior forum then, though the decree or order under challenge continues to be effective and binding, nevertheless its finality is put in jeopardy. Once the superior Court has disposed of the lis before it either way whether the decree or order under appeal is set aside or modified or simply confirmed, it is the decree or order of the superior Court, tribunal or authority which is the final, binding and operative decree or order wherein merges the decree or order passed by the court, tribunal or the authority below. However, the doctrine is not of universal or unlimited application. The nature of jurisdiction exercised by the superior forum and the content or subject-matter of challenge laid or which could have been laid shall have to be kept in view. (Emphasis added.) 30. It was, thus, clarified that doctrine of merger is not a doctrine of universal or unlimited application. It would depend on the nature of jurisdiction exercised by the superior forum and the content laid or capable of being laid which would be determinative of the applicability of merger. The superior jurisdiction should be capable of reversing, modifying or affirming the order put in issue before it. Under Article 136 of the Constitution the Supreme Court may reverse, modify or affirm the judgment-decree or order appealed against while exercising its appellate jurisdiction and not while exercising the discretionary jurisdiction disposing of petition for special leave to appeal. The doctrine has been made expressly applicable to the appellate jurisdiction and not to the special leave to appeal jurisdiction. 31. The doctrine has been made expressly applicable to the appellate jurisdiction and not to the special leave to appeal jurisdiction. 31. When the aforesaid principles are applied to the facts of the present case, it is evident that the Appellate Court under Section 423 of the Jammu and Kashmir Code of Criminal Procedure has the jurisdiction to set aside the acquittal of an accused person and convict him. Therefore, doctrine of merger would apply to the facts and circumstances of the present case. Accordingly, we are of the view that on the rationale underlying the doctrine of merger the period of limitation for a suit founded on malicious prosecution would commence from the date when the acquittal appeal is decided by the appellate Court and not from the date when the trial Court passed the order of acquittal. 32. As a sequel to the above discussion the reference is answered in favour of the plaintiff-accused. The view taken by the trial Court is upheld and the appeals preferred by the private defendants are dismissed. The judgment is pronounced in terms of Rule 138(4) of the Jammu and Kashmir High Court Rules, 1999. Appeals dismissed.