1. This is a suit filed by the plaintiff against the defendants to recover Rs. 7,300 as and by way of damages for malicious prosecution. The plaintiff was employed by the defendants on or about June 6,1945, at their jewellery shop as a part-time employee attending the shop only in the mornings. That was a temporary employment presumably on probation and the employment was confirmed on or about June 13, 1945, It appears that on or about June 16, 1945, some gold ornaments which had been entrusted by the customers to the defendants were missing and the plaintiff was amongst other employees questioned by the proprietor of the defendants, one Gharpure. Gharpure attended the shop and inquired of the plaintiff as well as the other employees what they knew about the theft of the ornaments and the plaintiff protested his innocence in the matter of the charge. On the night of June 16, 1945, one Anant Sakharam Joshi, a clerk of the defendants, gave the first information to the police and stated therein that all the other employees of the defendants were old and trustworthy but that the plaintiff was a recent employee of the defendants and that by certain actions of his which were observed in the shop the suspicion fell on the plaintiff that he might be the criminal. That fact was freely and frankly stated by Joshi in the first information which he gave to the police on the night of June 16, 1945. This was a cognizable offence and the police entered into investigation of the offence under Chapter V of the Bombay City Police Act. The police-officer in accordance with the provisions of Section 60 of the Act appears to have had reason to suspect the commission of the offence and proceeded to carry on the investigation in the matter of the offence. He was not entitled to keep the plaintiff in custody for more than 24 hours and therefore on June 18, 1945, he made an application to the Presidency Magistrate, 8th Court, Girgaum, for a remand of the plaintiff in custody, which remand was granted up to July 2,1945. The same story was repeated on July 2 and 9, 1945, the ultimate order for remand being up to July 16, 1945. Even up to July 16, 1945, the police were not in a position to do anything against the plaintiff, there being no evidence forthcoming to show that he had committed the offence, and therefore on July 16, 1945, the police made an application for discharge and cancellation of the bail bond of the plaintiff before the same Magistrate, which was granted. The bail bond was cancelled and the plaintiff was discharged. This is what happened in the matter of this first information given by Joshi, the clerk of the defendants, and the investigation by the police in the matter of the offence alleged to have been committed by the plaintiff.
2. These are the circumstances which have been alleged by the plaintiff as giving him a cause of action for malicious prosecution against the defendants, and it is on these circumstances that the plaint has been based. After recounting in paragraphs 3, 4, 5, 6 and 7 the facts with regard to the conduct of the defendants in the matter of this charge the plainiff proceeds to say that as a result of the charge made by the defendants against him and his consequent detention in jail, he lost his service with the Phoenix Mills, Ltd., Bombay, and also lost the benefit of the provident fund to which he was contributing. He says:
As a result of the said wrongful and malicious action of the defendants he suffered very greatly in body, mind and his reputation in addition to the loss of his employment and the benefit of the provident fund.
He states his cause of action in paragraph 10 of the plaint:
The plaintiff states that the complaint made by the defendants to the said police authorities -against the plaintiff in connection with the said patli besides being false in its particulars as regards the articles actually missing from the said shop was actuated by malice and entirely baseless without any cause whatever much less a reasonable and probable cause.
He further proceeds to state:
The plaintiff further states that as a result of the application for remand made by the said police authorities to the said Presidency Magistrate, the said learned Magistrate took cognizance of the offence alleged against the plaintiff as aforestated and that the said learned Magistrate later on discharged the plaintiff in the circumstances hereinabove described.
3. I may at this stage observe that besides the narration of the circumstances which I have already narrated above, there is nothing averred in the plaint by way of any conduct on the part of the defendants or any of their employees which instigated or induced the police to do anything by way of taking proceedings against the plaintiff, the only thing averred in the plaint being that Gharpure had stated that the matter would be reported to the police and that the action of the defendants in the matter of the first information which they gave to the police was wrongful and malicious. There was no other complaint made by the defendants before the police besides the first information which was given by Joshi, the clerk of the defendants, on the night of June 16, 1945. So far as the plaint goes, there was nothing further done by the defendants besides giving that first information to the police and there end, so far as the plaint is concerned, all the circumstances which are alleged by the plaintiff against the defendants.
4. The defendants disputed their liability to the plaintiff inter alia on the ground that the plaintiff was not prosecuted by them. Amongst the several issues which were raised by the defendants at the hearing, was issue No. 2, viz. 'Whether the plaintiff was prosecuted by the defendants?' and on an application of counsel for the defendants I ruled that that issue should be tried as a preliminary issue. Counsel for the plaintiff as well as the defendants have addressed me at considerable length on this aspect of the case. Counsel for the defendants has strenuously urged that the only thing which his clients did was to give the first information to the police on the strength of which no doubt the police acted in the exercise of their powers under Chapter V of the Bombay City Police Act, but what the police did thereafter was purely the concern of the police, they having had nothing further to do in the matter. After the first information was given by Joshi on behalf of the defendants to the police, the police entered into the investigation and because the investigation could not be finished within 24 hours of the arrest of the plaintiff, an application for remand was made as it should have been done on June 18, 1945. The investigation in the matter of the alleged offence could not be completed within the period of remand and therefore successive applications were made by the police for further remand of the plaintiff in police custody. It was only when the police found that no evidence was available as regards the complicity of the plaintiff in the offence that the police asked for a discharge of the plaintiff, which was accordingly granted by the learned Magistrate. Counsel for the defendants has therefore contended that merely giving information to the police in the manner it was done by the defendants was not the launching of a prosecution by the defendants against the plaintiff.
5. In support of his contention counsel for the defendants relied upon Ahmedbhai v. Framji Edulji I.L.R. (1903) Bom. 226 : 5 Bom. L.R. 940 and the observations of Chandavarkar J. at p. 234, viz.:.the authorities referred to by the Subordinate Judge in his judgment show that a prosecution commences when a complaint is made Imperatrix v. hakshman Sakharam I.L.R. (1877) Bom. 481 and that it is not necessary, in order to maintain an action for malicious prosecution, that the charge was acted upon by the Magistrate. It is enough if the charge was made to the Magistrate with a view of inducing him to entertain it. (Addison on Torts, 5th ed., p. 200).
It was therefore argued that in this case there was no commencement of the prosecution because the only thing which was done by the defendants was to give the first information to the police and what was done by the police by way of the application for remand before the Magistrate was not a step towards the prosecution of the plaintiff taken by the defendants themselves but was a step taken by the police in the course of their investigation into the offence. Counsel for the defendants also relied upon a passage from my judgment in Dhanjishaw Karani v. Bombay Municipality (1944) 47 Bom. L.R. 304:
To prosecute is to set the law in motion, and the law is only set in motion by an appeal to some person clothed with judicial authority in regard to the matter in question. The defendant must be the person who set the law in motion against the plaintiff. It is not necessary, however, that he should be a party to the proceedings. In the ease of malicious prosecution by way of indictment in the name of the King, the person liable is the prosecutor to whose instigation the proceedings are due. Instigating a prosecution is, however, to be distinguished from the act of merely giving information on the strength of which a prosecution is commenced by some one in the exercise of his own discretion. The gist of the action for malicious prosecution is that the defendant sets the Magistrate in motion.
The distinction according to the submission of the counsel for the defendants was between instigating a prosecution by the party himself and giving of information to the police on the strength of which the prosecution was commenced by the police, if at all it was so done, in the exercise of their own discretion, because it has been laid down in Section 60 of the Bombay City Police Act that the officer in charge must have reason to suspect the commission of an offence which he is empowered to investigate, and only if he has reason to suspect the commission of that offence he would forthwith proceed to investigate the facts and circumstances of the case and to take such measures as may be necessary for the discovery and arrest of the offender. In this case, therefore, it was argued that the defendants merely laid the information before the police-officer and beyond stating that they suspected the plaintiff' did nothing more. It was the police-officer before whom the information was laid that having regard to the circumstances of the case came to the conclusion that he had reason to suspect the commission of the offence which he was empowered to investigate and therefore proceeded to investigate the facts and circumstances of the case end to take such measures as may be necessary for the discovery and arrest of the offender. The arrest of the plaintiff and also the applications for remand of the plaintiff into police custody which were made from time to time were made by the police-officer in the course of the investigation and the defendants had nothing to do with the same.
6. In further support of his contention counsel for the defendants drew my attention to the case of NagendraNathRayv. Basanta Das Bairagya I.L.R. (1929) Cal. 25 which curiously happens to be a case almost on all fours with the present case before me. There the police had arrested the plaintiff on information supplied by the defendant suspecting the plaintiff immediately after a theft had been committed in his house, but the Magistrate had to discharge the plaintiff as the police submitted a final report not finding any evidence connecting the plaintiff with that theft. The plaintiff therefore filed a suit for malicious prosecution and the Court held that the suit by the plaintiff for damages for malicious prosecution could not lie against the defendant for, assuming that there was a 'prosecution' within the meaning of 'malicious prosecution,' as the expression was used in connection with suits of that nature, it was impossible to hold that the defendant was liable for damages, for there was not an iota of evidence to suggest that he ever went beyond giving a true information of the occurrence and also a true statement of the fact that he suspected the plaintiff. The Court also held that the plaint itself was liable to be thrown out, as there was no prosecution of the plaintiff at all, as police proceedings were distinct from 'malicious prosecution.' The learned Judge, Mukerji J. relied upon the Privy Council decision in Gaya Prasad Tewari v. Bhagat Singh (1908) L.R. 35 IndAp 189 : 10 Bom. L.R. 1080 : I.L.R. 30 All. 525 in support of the last proposition which he enunciated in his judgment. I need not go into the details of the reasoning of this judgment of Mukerji J. which he has fortified by reference to two Privy Council cases, viz. Balbhaddar Singh v. Badri Sahs (1926) 30 C.W.N. 866 : 28 Bom. L.R. 921 and Gaya Prasad v. Bhagat Singh.
7. The first of these cases was particularly relied upon by counsel for the plaintiff as enunciating that in any country where as in India prosecution is not private, an action for malicious prosecution in the most liters sense of the word cannot be raised against any private individual, but giving information to the authorities, which naturally leads to prosecution is just the same thing ; and it was sought to be argued on the strength of this dictum of their Lordships of the Privy Council that giving of information to the authorities, viz. the police here, by laying the first information before them on the night of June 16, 1945, which naturally led to the prosecution of the plaintiff by the police making the applications for remand on June 18, 1945, July 2 and 9, 1945, was just the same thing. It was therefore argued that the prosecution was launched by the defendants against the plaintiff. If the prosecution was launched and it commenced by the application for remand which was made before and was entertained by the Magistrate in the manner it was done, the defendants could not be heard to say that they had not prosecuted the plaintiff. These very observations of their Lordships of the Privy Council were considered by Mukerji J. in the case of Nagendra Nath Bay v. Basanta Das Bairagya I.L.R. (1929) Cal. 25 and the learned Judge held that there was sufficient in the observations of their Lordships of the Privy Council to indicate that proceedings before the police were proceedings anterior to ' prosecution,' in view of what their Lordships had said, via. ' information to the authorities which naturally leads to prosecution' and 'so far as the police were concerned there was ample cause for the initiation of prosecution proceedings.' The case before their Lordships of the Privy Council in Balbhadar Singh v. Badri Sah : (1926)28BOMLR921 was a peculiar case where certain information which had been given before the police and which was the starting point of the proceedings taken by the police against the plaintiff there was alleged to have been definitely engineered by the defendant and it was held that under those circumstances the defendant could not take shelter under the circumstance that the prosecution was a prosecution launched by the Crown and not by any private individual. The matter has been particularly dealt with by their Lordships of the Privy Council in the other case which was referred to by Mukerji J., viz. Gaya Prasod Tewari v. Bhagat Singh (1908) L.R. 35 IndAp 189 : 10 Bom. L.R. 1080 : I.L.R. 30 All. 525 and their Lordships have there categorically stated that the question in all cases of this kind must be, who was the prosecutor? and the answer must depend upon the whole circumstances of the case. Their Lordships in that judgment quoted a passage from a decision of the Madras High Court in Narasinga Row v. Muthaya Pillai I.L.R. (1902) Mad. 362 and said (p. 192):
It will be convenient to refer at once to the decision of the Madras High Court Narasinga Row v. Muthaya Pillni which the learned Judicial Commissioner appears to have followed with some reluctance. The judgment is in these terms : The only person who can be sued in an action for malicious prosecution is the person 'who prosecutes. In this case, though the first defendant may have instituted criminal proceedings before the police, he certainly did not proseute the plaintiff. He merely gave information to the police and the police, after investigation, appear to have thought fit to prosecute the plaintiff. The defendant is not responsible for their act and no action lies against him for malicious prosecution.
Their Lordships proceeded to observe (p. 192):
The principle here laid down is sound enough if properly understood, and its application to the particular case was no doubt justified; but, in the opinion of their Lordships, it is not of universal application. In India the police have special powers in regard to the investigation of criminal charges, and it depends very much on the result of their investigation whether or not further proceedings are taken against the person accused. If, therefore, a complainant does not go beyond giving what he believes to be correct information to the police, and the police, without further interference on his part (except giving such honest assistance as they may require), think fit to prosecute, it would be improper to make him responsible in damages for the failure of the prosecution.
It is only in those cases where besides these circumstances some further circumstances are found against the defendant that their Lordships further observe (p. 92):
But if the charge is false to the knowledge of the complainants if he misleads the police by bringing suborned withnesses to support it, if he influences the police to assist him in sending an innocent man for trial before the magistrate, it would be equally improper to allow him to escape liability because the prosecution has not, technically, been conducted by him.
This, in my opinion, is the correct method of approach. If the defendant does not go beyond what he believes to be the correct information to the police and the police without interference on his part think fit to prosecute, it would certainly be improper to make him liable for damages for the prosecution, and in the case before me having regard to the averments in the plaint the plaintiff has averred nothing more than this. I may at the cost of repetition say that the only averments against the defendants arc, even if they can be spelt out from what has been stated therein, that the defendants laid the first information before the police on June 16, 1945, and various applications for remand were made by the police during the course of their investigations into the offence and ultimately the plaintiff was discharged because no evidence was forthcoming. These averments do not bring the case of the plaintiff against the defendants into the latter category which their Lordships discussed, viz. that the charge was false to the knowledge of the complainant, or that the complainant misled the police by bringing suborned witnesses to support it, or that he influenced the police to assist him in sending an innocent man for trial before the Magistrate, etc. On the state of the pleadings as they are before me, and I am entitled to take them on this plea of demurrer as the truth, the whole truth and nothing but the truth, without adding anything to or embellishing them in any manner whatever, the only thing which can be said about the defendants is that they gave the information to the police and they were the persons on whose information the police-officer started his investigation. It may be observed while considering this aspect of the case that counsel for the plaintiff sought to draw a distinction between what are cognizable offences and what are non-cognizable offences. He said that all the authorities which were cited by counsel for the defendants were in connection, with non-cognizable offences, where the Magistrate would take cognizance of the offence if satisfied about the same, only on a complaint being filed in respect of the same by the complainant. He contended that in the cases of cognizable offences the police-officer before whom the information was laid was entitled to enter into the investigation of the case and the moment he made an application for remand, as was done in this case on June 18, 1945, the Magistrate took cognizance of the offence and the prosecution was launched. He further contended that in the case of cognizable offences the commencement of the prosecution against the accused was the application for remand made by the police when the investigation could not be completed by them within 24 hours of the arrest of the accused. That commencement of the prosecution was no doubt by the police, but it was really at the instigation of the party who laid the information before the police and therefore the defendants were in this case liable as having instituted the prosecution through the police on June 18, 1945, when the application for remand was made by them before the learned Magistrate. I am unable to accept this contention of counsel for the plaintiff. Even though in the case of a non-cognizable offence the complainant instigates the prosecution by filing a complaint before the Magistrate and asking him to issue the necessary process, in the case of a cognizable offence where information is given by the complainant to the police, in the manner it was done in this case, the only thing which the complainant docs is to lay the information before the police. No doubt in the first information which he lays before the police-officer he narrates all the circumstances of the case and he also to the best of his knowledge, information and belief states whom he suspects in the matter of the commission of the alleged offence, but it is merely the information which he that laid before the police-officer. The police-officer is not merely his agent or a conduit pipe. The police-officer has under Section 60 of the Bombay City Police Act an independent volition of his own. He has got to be satisfied that there is reason to suspect the commission of the offence. It is open to the police-officer to say that on the information laid before him, there is no reason to suspect the commission of the offence and he would not act any further in the matter of investigation. It is only when, after applying his mind on the first information, he comes to the conclusion that there is reason to suspect the commission of the offence, that in terms of that section he proceeds to investigate the facts and circumstances of the case and to take such measures as may be necessary for discovery and arrest of the offender and then the whole machinery which has been laid down in Chapter V of the Bombay City Police Act is set in motion. The investigation which the police-officer has started on his having reason to suspect the commission of the offence has to be carried on. to its final conclusion. If in spite of the various remand applications made and the remands granted by the learned Magistrate the police officer does not find evidence sufficient to charge-sheet the accused, he may under Section 73 of the Bombay City Police Act release him on his executing a bond with or without sureties, as such officer may direct, to appear if and when so required before a Magistrate empowered to take cognizance of the offence and forward the report prepared by him to the Commissioner of Police together with any weapon or other article which it may be necessary to produce before him. In this case, it appears that the police-officer could have discharged the plaintiff but for the fact that the bail bond which had been given by the accused before that date had got to be cancelled.
8. This being the position, I agree with the decision of Mukerji J. in Nagendra Nath Bay's case and have come to the conclusion that the defendants did not prosecute the plaintiff. The defendants did nothing more than merely lay the information before the police and it was the police, that after being satisfied that there was reason to suspect the commission of the offence, proceeded to investigate the facts and circumstances of the case, took the necessary orders for remand which in law they were bound to do and ultimately discharged the plaintiff, there being no sufficient evidence implicating him in the commission of the offence in spite of their best endeavours to see if there was any evidence forthcoming in that behalf.
9. I, therefore, answer issue No. 2 in the negative. The circumstance, that the plaintiff was prosecuted by the defendants is an essential sine qua non of an action for malicious prosecution. Having regard to the conclusion which I have come to that the plaintiff was not prosecuted by the defendants, I consider it futile for me to go into the other questions which are the subject-matter of issues Nos. 3 and 4 before me, and I, therefore, decline to go into the same. This finding of mine on this preliminary issue is sufficient to dispose of the ease, and I accordingly dismiss the suit with costs.