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Dhanjishaw Rattanji Karani Vs. Bombay Municipality - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai
Decided On
Case NumberO.C.J. Suit No. 1699 of 1941
Judge
Reported inAIR1945Bom320; (1945)47BOMLR304
AppellantDhanjishaw Rattanji Karani
RespondentBombay Municipality
DispositionSuit dismissed
Excerpt:
malicious prosecution-judgment in criminal proceeding-admissibility of such judgment in civil case-elements of action-malice-prosecution-criminal charge-reasonable and probable cause, want of.;in a suit for malicious prosecution, the whole of the judgment of the criminal court acquitting the plaintiff is not admissible in evidence, but only that part of the judgment or order which contains the finding and order of acquittal,: except in those cases where the circumstances which resulted in the acquittal become relevant, e.g. where the conviction in the first court had been procured by the prosecutor by false or perjured evidence.;rai jung bahadur v. rai gudor sahoy (1897) 1 c.w.n. 537 and gulabchand v. chunilal (1907) 9 bom. l.r. 1134, referred to.;the fact of a conviction subsequently.....bhagwati, j.1. the judgment first set out the pleadings and discussed issues of facts and proceeded : in the course of the evidence which was led on behalf of the plaintiff, mr. maneksha tendered the certified copy of the judgment of the appeal court dated september 2, 1941. mr. joshi objected to the whole of the judgment going in except the last paragraph thereof which contained the finding and the order of the appeal court. mr. maneksha relied upon a passage from sarkar on evidence, 6th ed., at p. 124, which says that 'in a suit for damages for malicious prosecution, the order of the criminal court acquitting the plaintiff is admissible in evidence. although the reasonings in the judgment and the conclusions drawn from them are not binding or conclusive, yet the judgment may be looked.....
Judgment:

Bhagwati, J.

1. The judgment first set out the pleadings and discussed issues of facts and proceeded : In the course of the evidence which was led on behalf of the plaintiff, Mr. Maneksha tendered the certified copy of the judgment of the Appeal Court dated September 2, 1941. Mr. Joshi objected to the whole of the judgment going in except the last paragraph thereof which contained the finding and the order of the Appeal Court. Mr. Maneksha relied upon a passage from Sarkar on Evidence, 6th Ed., at p. 124, which says that 'in a suit for damages for malicious prosecution, the order of the Criminal court acquitting the plaintiff is admissible in evidence. Although the reasonings in the judgment and the conclusions drawn from them are not binding or conclusive, yet the judgment may be looked into for the purpose of seeing; what the circumstances were which resulted in the acquittal.' He also cited the case of Rai Jung Bahadur v. Rai Gudor Sahoy (1897) 1 C.W.N. 537 in support of that proposition. In that case the order of the criminal Court acquitting the plaintiff had been put in in order to show that the proceedings had terminated in favour of the plaintiff. It does not appear, however, what were the contents of the order or whether it was possible to sever that part of the order which contained the judgment and the reasoning of the Court from the part of the order which contained the finding and the order of acquittal. The Court held that the order of the criminal Court acquitting the plaintiff was admissible in evidence, and with that proposition I have not the slightest quarrel. But when it is sought to be argued on the authority of that case that the whole of the judgment of the criminal Court would be admissible in evidence, I am not prepared to accept that argument. It would be only in those exceptional cases where the circumstances which resulted in the acquittal of the plaintiff became relevant that the judgment could be looked at by the Court, but ordinarily it would not be relevant at all and hence not admissible in evidence. Such circumstances might become relevant for instance where the conviction had been procured by the prosecutor by false or perjured evidence. But apart from such circumstances I am of opinion that the judgment or that part of the order which contained the judgment and the reasoning of the Court would not be relevant and admissible in evidence. Mr. Maneksha also relied upon the observations of our Appeal Court in Gulabchand v. Chunilal : (1907)9BOMLR1134 : 'Now it appears to us that the existence of the judgment of course is a fact in issue, and the result of the judgment, the order of the Magistrate of acquittal, is also a fact in issue.' In that case, on the record before the Subordinate Judge there was no satisfactory evidence of the absence of the plaintiff at the scene of the offence, but the lower appellate Court treated the judgment of the Magistrate and the evidence given before the Magistrate as evidence in the case and came to the conclusion that the plaintiff was not present at the time when the alleged offence was committed. The question before the Appeal Court was whether the lower appellate Court was right in so treating the judgment of the Magistrate, and the Appeal Court held that he was wrong in doing so. The Appeal Court discussed the applicability of Sections 43, 13 and 11 of the Indian Evidence Act; and cited with approval the following passage from Ameer Ali's Evidence Act, Note to Section 43 (p. 427):

Therefore, if a party indicted for any offence has been acquitted, and sues the prosecutor for malicious prosecution, the record is conclusive evidence for the plaintiff to establish the fact of acquittal, although the parties are necessarily not the same in the action as in the indictment, but it is no evidence whatever that the defendant was the prosecutor, even though his name appear on the back of the bill, or of his malice or of want of probable cause; and the defendant, notwithstanding the verdict, is still at liberty to prove the plaintiff's guilt.

It appears from the judgment that the Appeal Court considered the record of the case and the judgment of the Magistrate only relevant for the purpose of proving the fact of the acquittal, viz. the termination of the proceedings in favour of the plaintiff and for no other purpose whatever. This fortifies me in my conclusion that the judgment or that part of the order which contained the judgment and the reasoning of the Court would not be relevant and admissible in evidence. I am further fortified in this conclusion of mine by a ruling given by B.J. Wadia J. in, the case of Aminuddin Salebhai Tyabji v. Kurban Hussein Abdul Hussein (1937) O.C.J. 1932. That was an action for malicious prosecution and at the hearing counsel for the plaintiff tendered the judgment of the Chief Presidency Magistrate acquitting the plaintiff in evidence. Counsel for the defendant objected to its being admitted in evidence contending that the judgment was not relevant under the Indian Evidence Act. Counsel for the plaintiff contended that the judgment could be looked at by the Court, evidently relying on the authorities referred to by me above. The Court, however, upheld the objection and thereupon counsel for the plaintiff only tendered in evidence the order of the Chief Presidency Magistrate's Court, i.e. the last paragraph of the judgment.

2. Holding as I do that the judgment or that part of the order which contained the judgment and the reasoning of the Court would not be relevant and admissible in evidence except in the exceptional cases where the circumstances which resulted in the acquittal of the plaintiff were relevant-which was not the case here-I would have upheld Mr. Joshi's objection and admitted only the last paragraph of the judgment which contained the finding and order of the Appeal Court in evidence. Mr. Joshi, however, contended that he would rely upon the judgment of the Honorary Presidency Magistrates' Court delivered on June 16, 1941, which convicted the plaintiff, as evidence on which I might find that there was reasonable and probable cause for the prosecution.

3. As I have already observed, 1 was not prepared to admit in evidence the whole of the judgment of the Appeal Court but only the last paragraph thereof which contained the finding and the order of the Appeal Court. My observations on the admissibility of the judgment would have been apposite if the judgment of the Appeal Court was the only piece of evidence which was going to be tendered in evidence before me. In so far however as Mr. Joshi intimated to me that he was going to rely on the judgment of the Magistrate as a part of his evidence, I was called upon to consider the question of the admissibility of the judgment of the Appeal Court having regard to that position taken up by Mr. Joshi.

4. In those cases where the plaintiff has been in the first instance convicted by the trial Court and that conviction has been subsequently quashed by the Appeal Court-thus terminating the proceedings in favour of the plaintiff-different considerations arise. The proposition is thus laid down in Halsbury's Laws of England (Hailsham Edition), Vol. XXII, p. 12, para. 13;

Where there has been a successful appeal from a conviction, this would be, for the purpose of pleading, a sufficient termination of the proceedings in the plaintiff's favour. But, it seems, the conviction, though reversed, might be evidence on which the judge might find that there was reasonable and probable cause for the prosecution.

This statement of the law is taken from the case of Reynolds v. Kennedy (1748) I Wils. 232 : 95 E.R. 591, as explained in Sutton v. Johnstone (1786) I T.R. 493 : 99 E.R. 1215. In the case of Reynolds v. Kennedy, Lee C.J. had observed that (p. 233) 'the plaintiff himself has shown by his own declaration that the prosecution was not malicious, because the sub-commissioners gave judgment for the defendant, and therefore we cannot infer any malice in him'. The said observations were, however, considered in Sutton v. Johnstone and the Court of Exchequer there observed that (p. 506) 'Perhaps it would have been more correctly stated, if they had said, and therefore we will infer that there was probable cause for prosecuting that brandy to condemnation.' Halsbury's Laws of England, Vol. XXII, p. 12, para 13, has the following note (b) in respect of the above.

In the earlier of these cases it was held that malice could not be inferred as the original tribunal gave judgment for the defendants, but in the later it was said that it would have been more correct if the Court had ruled that that fact enabled it to hold that there was reasonable and probable cause;. It seems to be clear that the fact of a conviction, subsequently reversed, is not conclusive evidence of reasonable and probable cause.

It would thus appear that in England the conviction though reversed would afford prima facie evidence of reasonable and probable cause for the prosecution.

5. This position has, however, been doubted by Winfield in his Law of Torts, (2nd Edn.), at pp. 670-671, where he states:

A reversal of the accused's conviction by a higher tribunal was held in Reynolds v. Kennedy to make the action inapplicable. The court seems to have held that the original condemnation showed that there was foundation for the prosecution and that its reversal did not entitle them to infer malice. But in the recent case of Herniman v. Smith [1938] A.C. 305, where the Court of Criminal Appeal had quashed a conviction of Herniman in the Court below and Herniman sued Smith for malicious prosecution, no question seems to have been raised either in the Court of Appeal or in the House of Lords as to the effect of upsetting a conviction on appeal. Herniman lost his action on the ground that Smith at the time that he prosecuted Herniman had, on all the facts then before him, reasonable and probable cause for doing so. This appears to be a much wiser way of treating the matter than to hold that, if a man has once been convicted, then the isolated fact of the conviction always shows that the prosecutor had reasonable and probable cause ; for in truth he may have had none whatever and may have secured the conviction wholly through his own fraud and perjury, and in such circumstances it would be queer law if he were allowed to snatch at the fact of conviction as giving him reasonable and probable cause where he had none before.

Quashing of the conviction is, however, relevant to the termination of the prosecution in the plaintiff's favour, and, if it were quashed on the ground of fraud or perjury of the defendant, it might be evidence of malice.

Winfield has, however, not referred to the observations of the Court of Exchequer in Sutton v. Johnstone, above set out, and has further based his observations on the absence of any question as to the effect of upsetting a conviction on appeal having been raised either in the Court of Appeal or in the House of Lords in the case of Herniman v. Smith. On a perusal of that case one finds that the main question before the House was whether there was evidence on which the Judge could leave any question to the jury and whether on the whole of the facts on record he should have decided that there was no want of reasonable and probable cause and should not have left to the jury the first two of the questions which he did leave to them. It appears that in that case there was abundant material on the record which was sufficient to enable the Court to come to the conclusion that there was no reasonable and probable cause for the prosecution and it must have been because of that that no question was raised either in the Court of Appeal or in the House of Lords as to the effect of upsetting the conviction on appeal. Moreover Winfield himself goes on to say in the passage cited above that the conviction might have been secured by the prosecutor wholly through his own fraud and perjury and in such circumstances it would be queer law if the isolated fact of conviction could be considered as giving him reasonable and probable cause for the prosecution. These very observations support the position as laid down in Halsbury's Law of England, p. 12, para. 13, note (b), cited above, that the fact of a conviction subsequently reversed would be prima facie and not conclusive evidence of reasonable and probable cause for the prosecution, and that, I take it, is the position in English law.

6. Turning to the authorities in India, the earliest case on the point appears to be the case of Parimi Bapirazu v. Bellamkonda Chinna Venkayya (1886) 3 M.H.C.R. 238, where the learned Judge observed (p. 239):

We do not know of any instance of a suit of this kind being successfully maintained after a conviction of the plaintiffs by the sentence of one competent tribunal.

These observations were quoted with approval by Banerji J. in Jadubar Singh v. Sheo Saran Singh I.L.R. (1898) All. 26, where the Court held that the fact of a Court of competent jurisdiction having believed that the complaint is a true complaint was strong evidence to show that it was not brought without reasonable and probable cause and that the fact of the conviction by a competent Court though subsequently reversed on appeal was evidence, if unrebutted, of the strongest possible character against the plaintiff's necessary plea of want of reasonable and probable cause. Both these cases were considered by the Appeal Court of Madras in Boja Reddi v. Perumal Reddi I.L.R. (1902) Mad. 506, and the Court there observed that they could not be regarded as authorities in support of the proposition that in no case will a suit for damages for malicious prosecution be maintained if the plaintiff had been convicted by a competent Court though the conviction had afterwards been set aside and the plaintiff acquitted on appeal. They cited with approval a passage from Pollock on Torts that the action would lie if the plaintiff was acquitted on appeal by reason of the original conviction having proceeded on evidence known by the complainant to be false or on the wilful suppression by him of material information, in effect treating the conviction though subsequently reversed as prima facie and not conclusive evidence of reasonable and probable cause for the prosecution. There is however a later decision of the Appeal Court of Allahabad reported in Shubrati v. Shams-ud-din (1912) 10 A.L.J.R. 423, in which the earlier decision of Banerji J. in Jadubar Singh v. Sheo Saran Singh, supra, was distinguished and the Court held that in cases where the facts contained in the plaint were professedly within the personal knowledge of the complainant, the mere fact that the first criminal Court believed the complainant's statement and convicted the accused would not be any evidence of the existence of reasonable and probable cause if the appellate Court came to a contrary conclusion. The Court further held that the judgments of the criminal Courts were admissible for the purpose of shewing that the prosecution terminated in favour of the plaintiff and it was not so material whether it was the first Court which acquitted the accused or it was the appellate Court. Reliance was placed on two decisions of the Allahabad High Court, one being the case of Padarath v. Dulam (1912) 10 A.L.J.R. 423, where Knox J. had held that the mere fact of one Court having believed the complainant is not sufficient evidence of reasonable and probable cause, and the other being the case of Radhe Lal v. Munnoo (1913) 11 A.L.J.R. 125, where it had been held that no question of reasonable or probable cause arises where the charge is such as must be true or false to the knowledge of the defendant. In my opinion the observations of the Appeal Court in the case of Shubrati v. Shams-ud-din, above referred to, only lay down an exception to the general rule enunciated above, in that the conviction though subsequently reversed is not treated as any evidence of reasonable and probable cause for prosecution in cases where the facts are quite well known to the defendant and the charge is such as must be true or false to the knowledge of the defendant.

7. Having regard to the state of the above authorities I am of opinion that Mr. Joshi was entitled to rely upon the fact of the conviction though subsequently reversed as prima facie evidence on which he could ask the Court to hold that there was reasonable and probable cause for the prosecution.

8. This, however, leaves open the question whether even if I admitted in evidence the findings and orders of the Honorary Presidency Magistrates' Court and the Appeal Court, I should have admitted in evidence the whole of the judgments of both the Courts. As I have already observed the judgment or that part of the order which contained the judgment and reasoning of the Court would not be relevant and admissible in evidence except in those exceptional cases where the circumstances which resulted in the acquittal of the plaintiff became relevant. No such circumstances were pleaded or relied upon by the plaintiff, and in the absence of any such circumstances, I should not have been justified in admitting the whole of the judgments of both the Courts in evidence. Mr. Maneksha, however, in the course of the argument on the admissibility of the judgment of the Appeal Court tendered by him was prepared to tender in evidence not only the judgment of the Appeal Court but also the judgment of the Honorary Presidency Magistrates' Court, on my suggestion to him that he should do so, and I accordingly admitted in evidence the whole of the judgments of both the Courts. On further consideration of the question, however, I have come to the conclusion that the plaintiff not having pleaded or relied upon any such circumstances I should have only admitted in evidence those portions of the judgments which contained the findings and orders of both the Courts and not the whole of the said judgments as I did. I shall therefore discard from my mind's eye in the consideration of the evidence hereafter those portions of the judgments which contain the judgment and reasoning of the Courts and will rely only on the findings and orders of the Courts therein recorded for the purposes of my judgment.

9. This is an action for ' Malicious Prosecution'. The law on the subject is perfectly well-settled. As stated in Clerk & Lindsell on Torts, 9th Edn., at p. 662, it is obviously a grievance that an individual should be harassed by legal proceedings improperly instituted against him. If there is no foundation for them no doubt they will not ultimately succeed, but: during their progress they may cause great injury. It is the right of everyone to put the law in motion if he does so with the honest intention of protecting his own or the public interest, or if the circumstances are such, be his motives what they may, as to render it probable prima facie that the law is on his side. But it is an abuse of that right to proceed maliciously, and without reasonable and probable cause for anticipating success. Such an abuse may of necessity be injurious, as involving damage to character, or it may in any particular case bring about damage to person or property. There are, says Lord Holt, three sorts of damages anyone of which would be sufficient ground to support an action of malicious prosecution. (1) The damage to a man's feme, as if the matter whereof he is accused be scandalous, (2) The second sort of damages which would support such an action are such as are done to the person; as where a man is put in danger to lose his life or limb or liberty which has been always allowed a good foundation of such an action, (3) The third sort of damage which will support such an action is damage to a man's property as where he is forced to expend his money in necessary charges to acquit himself of the crime of which he is accused (Savile v. Roberts (1823) 1 Ld. R. 374). Whenever a plaintiff can shew that he has suffered under any of these heads of damages by reason of the defendant having wrongfully put the law in motion against him whether civilly or criminally he has a remedy.

10. An action for malicious prosecution may lie where the proceedings are civil and not criminal. But as was pointed out by Bowen L.J. in Quartz Hill Gold Mining Company v. Eyre (1883) 11 Q.B.D. 674, it is in very few cases that an action for malicious prosecution will lie where the matter is one of civil proceedings. The Lord Justice gave this reason at p. 689:

It is clear that Holt, C.J., considered one of those three heads of damage necessary to support an action for malicious prosecution. To apply this test to any action that can be conceived under our present mode of procedure and under our present law, it seems to me that no mere bringing of an action, although it is brought maliciously and without reasonable or probable cause, will give rise to an action of malicious prosecution. In no action, at all events in none of the ordinary kind, not even in those based upon fraud where there are scandalous allegations in the pleadings, is damage to a man's fair fame the necessary and natural consequence of bringing the action. Incidentally matters connected with the action, such as the publication of the proceedings in the action, may do a man an injury; but the bringing of the action is of itself no injury to him. When the action is tried in public, his fair fame will be cleared, if it deserves to be cleared : if the action is not tried, his fair fame cannot be assailed in any way by the bringing of the action.

So the exception of civil proceedings, so far as they are excepted, depends, not upon any essential difference between civil and criminal proceedings, but upon the fact that in civil proceedings the poison and the antidote are presented simultaneously. The publicity of the proceedings is accompanied by the refutation of the unfounded charge, if it be unfounded, which was made. If there be no scandal, if there be no danger of loss of life, limb, or liberty, if there be no pecuniary damage, the action will not lie.' Per Buckley L.J. in Wiffen v. Bailey and Romford Urban Council [1915] 1 K.B. 600.

It is therefore the malicious preferring of an unreasonable criminal charge that is the usual foundation for the form of the action and this is what is ordinarily understood by the familiar title of an action of malicious prosecution.

11. In an action for malicious prosecution the plaintiff has to prove (1) That he was prosecuted by the defendant, that is to say, that the law was set in motion against him by the defendent on a criminal charge; (2) That the proceedings complained of terminated in favour of the plaintiff if from their nature they were capable of so terminating; (3) That the prosecution was instituted against him without reasonable and probable cause and (4) That it was due to a malicious intention of the defendant, and not with a mere intention of carrying the law into effect (Per Viscount Dunedin in Balbhadar Singh v. Badri Sah : (1926)28BOMLR921 ., followed in Shubrati v. Shams-ud-din I.L.R. (1928) 50 All. 713. See also Bhaguji v. Alandi Municipality : AIR1937Bom37 . The onus of proving every one of these is on the plaintiff.

12. 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 case 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. A person who simply makes a candid statement of facts to a Magistrate without formulating any charge is not responsible for the consequences of any step which the Magistrate may thereupon in the exercise of his discretion think fit to take. The Magistrate acts of his own motion and not at the instigation of the person giving the information, who therefore is not to be considered as a prosecutor : Cohen v. Morgan (1825) 6 D. & R. 8.

13. The term 'criminal charge' includes all indictments involving either scandal to reputation or the possible loss of liberty to person. At the same time there are many regulations which the State has laid down for the public convenience and of which the infraction is punished by a fine but which it is apprehended could not give rise to an action for malicious prosecution on the ground of scandal to reputation; for instance a man's reputation would hardly suffer because he was proceeded against for laying a drain pipe in an improper manner or keeping a pig in an improper place. A complaint under Section 94(1) of the Public Health Act, 1936, for noncompliance with a notice requiring the abatement of a nuisance has been held not sufficient : Wiffen v. Bailey and Romford Urban Council [1915] 1 K.B. 600. In all these cases, however, if the prosecutor set the law in motion maliciously and without reasonable and probable cause, an action of malicious prosecution would lie, though not on the first two counts of damage enunciated by Lord Holt C.J. but on the third count as where he was forced to expend money in necessary charges to acquit himself of the crime of which he was accused. No action for malicious prosecution or for any other malicious proceeding which involves a judicial decision of any question at issue between the parties will lie, until or unless the prosecution or other proceeding has been terminated in favour of the person complaining of it. Sometimes, however, from the circumstances of the case it is impossible that the proceeding in question should have been determined in the plaintiff's favour. Thus if his house is ransacked under a search warrant and nothing is found there to incriminate him, the matter goes no further but it cannot be said to be decided in his favour. Yet in such a case he would have a right of action if malice and absence of reasonable and probable cause were shown. So long as proceedings are pending, no action lies on the ground that they have been wrongfully instituted. 'It is a rule of law that no one shall be allowed to allege of a still depending suit that is unjust'. It must, however, appear that they were brought to a legal end, even though the end might not be a final and conclusive one. It would be enough if the prosecution has been discontinued or if the accused person has been acquitted by reason of some formal defect in the indictment, or if a conviction has been quashed for some technical defect in the proceedings. The judgment of the criminal Courts would be conclusive for the purpose of shewing that the prosecution terminated in favour of the plaintiff. It is for the civil Court, however, to go into all the evidence and decide for itself whether there was want of reasonable and probable cause for the prosecution and whether there was also malice. See Gulabchand v. Chunilal : (1907)9BOMLR1134 ; Shubrati v. Shams-ud-din I.L.R. (1928) All. 713.

14. The burden of proving that the prosecution was instituted against him without any reasonable and probable cause is also on the plaintiff. As observed by Bowen L.J. in Abrath v. North Eastern Railway Co. (1883) 11 Q.B.D. 440:

.in an action for malicious prosecution the plaintiff has the burden throughout of establishing that the circumstances of the prosecution were such that a judge can see no reasonable or probable cause for instituting it. In one sense that is the assertion of a negative, and we have been pressed with the proposition that when a negative is to be made out the onus of proof shifts. That is not so. If the assertion of a negative is an essential part of the plaintiff's case, the proof of the assertion still rests upon the plaintiff. The terms 'negative' and 'affirmative' are after all relative and not absolute. In dealing with a question of negligence, that term may be considered either as negative or affirmative according to the definition adopted in measuring the duty which is neglected. Wherever a person asserts affirmatively as part of his case that a certain state of facts is present or is absent, or that a particular thing is insufficient for a particular purpose, that is an averment* which he is bound to prove positively. It has been said that an exception exists in those cases where the facts lie particularly within the knowledge of the opposite party. The counsel for plaintiff have not gone the length of contending that in all those cases the onus shifts, and that the person within whose knowledge the truth peculiarly lies is bound to prove or disprove the matter in dispute. I think a proposition of that kind cannot be maintained,.

15. This position has been accepted by the House of Lords in Abrath v. North Eastern Railway Co. (1886) 11 AC. 247 and by the Privy Council in Pestonji M. Mody v. The Queen Insurance Company I.L.R. (1900) 25 Bom. 332 : 2 Bom. L.R. 938 ., and has been followed by our Appeal Court in Chhaganlal v. Thana Municipaiity (1931) 34 Bom. L.R. 143. The plaintiff in proving the absence of reasonable and probable Cause has to prove a negative and in general need only give slight evidence of such absence (Halsbury's Laws of England (Hailsham Edition), Vol. XXII, p. 21, para. 32), but it cannot be inferred from the most express malice. The mere innocence of the plaintiff is also not prima facie proof of such absence.

16. Reasonable and probable cause means a genuine belief based on reasonable grounds that the proceedings are justified. In a criminal prosecution, for example, the prosecutor must have believed on reasonable grounds that the probability of guilt of the accused was sufficient to render a prosecution reasonable and justifiable. As Lord Atkin said in Herniman v. Smith [1938] A.C. 305, no better statement of what is reasonable and probable cause is to be found than in the words of Hawkins J. in Hicks v. Faulkner (1878) 8 Q.B.D. 167:

Now I should define reasonable and probable cause to be, an honest belief in the guilt of the accused based upon a full conviction, founded upon reasonable grounds, of the existence of a state of circumstances, which, assuming them to be true, would reasonably lead any ordinarily prudent and cautious man, placed in the position of the accuser, to the conclusion that the person charged was probably guilty of the crime imputed. There must be : first, an honest belief of the accuser in the guilt of the accused; secondly, such belief must be based on an honest conviction of the existence of the circumstances which led the accuser to that conclusion; thirdly, such secondly-mentioned belief must be based upon reasonable grounds; by this I mean such grounds as would lead any fairly cautious man in the defendant's situation so to believe; fourthly, the circumstances so believed and relied on by the accuser must be such as amount to reasonable ground for belief in the guilt of the accused.

Hawkins J. further goes on to say that (p. 172):

The belief of the accuser in the guilt of the accused; his belief in the existence of the facts on which he acted, and the reasonableness of such last mentioned belief, are questions of fact for the jury, whose findings upon them become so many facts from which the Judge is to draw the inference, and determine whether they do or do not amount to reasonable and probable cause. This also is an inference of fact, not of law as is sometimes erroneously supposed; and the Judge is to draw it from all the circumstances of the case : Lister v. Perryman (1870) L.R. 4 E. & I. App. 521, per Lords Chelmsford and Westbury.

See also Herniman v. Smith [1938] A.C. 305.

There is no reasonable and probable cause unless the defendant genuinely and honestly believed that the prosecution, or other proceeding complained of, was justifiable. Even, however, if the defendant honestly believed the proceedings to be justified, there is no reasonable and probable cause unless this belief is based on reasonable grounds. This question is to be determined by reference to the facts actually known to the defendant, not to the facts as they actually existed. He who prosecutes when the facts known to him do not constitute reasonable and probable cause cannot defend himself, in an action for malicious prosecution, on the ground that there were other facts unknown to him which would have justified a prosecution Conversely, facts unknown to the prosecutor do prevent the facts which were known to him from constituting reasonable and probable cause. Having regard, however, to the facts known to the defendant, he must show a reasonably sound judgment and use reasonable care in determining whether there are sufficient grounds for the proceedings instituted by him, and any failure to exhibit such judgment or care will be imputed to him as a want of reasonable and probable cause. (Salmond on the Law of Torts, 9th Edn., pp. 658-659).

17. The question of reasonable and probable cause therefore does not depend upon the actual existence but upon a reasonable bona fide belief in the existence of such facts as would justify a prosecution. This belief or belief in. the accused's guilt may arise out of the recollection of the prosecutor, if he has always found his memory trustworthy or out of information furnished to him by others and accepted by him as true. In regard to this position Hawkins J. observed in the case of Hicks v. Faulkner cited above (pp. 173-174):

The question of reasonable and probable cause depends in all cases, not upon the actual existence, but upon the reasonable bona fide belief in the existence of such a state of things as would amount to a justification of the course pursued in making the accusation complained of-no matter whether this belief arises out of the recollection and memory of the accuser, or out of information furnished to him by another. It is not essential in any case that facts should be established proper and fit and admissible as evidence to be submitted to the jury upon an issue as to the actual guilt of the accused. The distinction between facts to establish actual guilt and those required to establish a bona fide belief in guilt should never be lost sight of in considering such cases.. Many facts admissible to prove the latter, would be wholly inadmissible to prove the former.. It cannot of course be laid down as an abstract proposition that an accuser is justified in acting either upon the credited statement of an informant, or upon his own memory. The question must always arise according to circumstances whether it was reasonable to trust either the one or the other. A person who acts upon the information of another, trusts the veracity, the memory, and the accuracy of that other, in each of which he may be completely deceived. His informer's veracity may be questionable, his memory fallacious, and his accuracy unreliable. Yet it does not follow that it was unreasonable to believe in his information if he never had cause to doubt him. In like manner a man may be deceived by his own memory, yet it does not follow that it was unreasonable to trust it, if he never before knew it to be defective.

18. No action will lie for the institution of legal proceedings howsoever destitute of reasonable and probable cause unless they are instituted maliciously, that is to say from some wrongful motive. Malice means the presence of some improper and wrongful motive-that is to say an intent to use the legal process in question for some other than its legally appointed and appropriate purpose. Hawkins J observed in Hicks v. Faulkner (supra, p. 175) that the malice necessary to be established is not even malice in law such as may be assumed from the intentional doing of a wrongful act, but malice in fact-malus animus-indicating that the party was actuated either by spite or ill-will towards an individual, or by indirect or improper motives, though these may be wholly unconnected with any uncharitable feeling towards anybody. Cave J. also observed in Brown v. Hawkes [1891] 2 Q.B. 718:

Now malice, in its widest and vaguest sense, has been said to mean any wrong or indirect motive; and malice can be proved, either by shewing what the motive was and that it was wrong, or by shewing that the circumstances were such that the prosecution can only be accounted for by imputing some wrong or indirect motive to the prosecutor.

19. Apart therefore from the evidence directly pointing to spite or ill-will towards the plaintiff or indirect or improper motives actuating the prosecutor, or in the absence thereof, the plaintiff might also rely upon the want of reasonable and probable cause itself as in certain cases sufficient evidence of malice to go to a jury. As Cave J. observed in Brown v. Hawkes (p. 723):

Of course, there may be such plain want of reasonable and probable cause that the jury may came to the conclusion that the prosecutor could not honestly have believed in the charge he made, and in that case want of reasonable and probable cause is evidence of malice. But I am not prepared to assent to the proposition that, where there is want of reasonable and probable cause, the jury may always find malice, no matter what the circumstances may be. In this country we rely on private initiative in most cases for the punishment of crime ; and while, on the one hand, it is most important firmly to restrain any attempt to make the criminal law serve the purposes of personal spite or any other wrongful motive, on the other hand it is equally important, in the interest of the public, that where a prosecutor honestly believes in the guilt of the person he accuses, he should not be mulcted in damages for acting on that belief except on clear proof, or at all events reasonable suspicion, of the existence of some other motive than a desire to bring to justice a person whom he honestly believes to be guilty.

Nevertheless, a jury is not at liberty in all cases to infer malice from want of reasonable cause. Want of reasonable cause is sufficient evidence of malice in those cases only in which it is sufficient evidence that there was no genuine belief in the accusation made. If it appears that there was such a belief, the plaintiff must produce some independent evidence of malice, and cannot rely on the absence of reasonable cause. On the other hand, malice is never evidence of want of reasonable cause.. For a prosecutor may be inspired by malice and yet have a genuine and reasonable belief in the truth of his accusation. (Salmond on the Law of Torts, 9th Edn., p. 662.)

The same position was discussed by Chandavarkar J. in Munhordas v. Goculdas (1902) 4 Bom. L.R. 560, where referring to the above view taken by Cave J. in Brown v. Hawkes, the learned Judge observed that it is not in every case that because there is no reasonable and probable cause a Judge is justified in inferring malice; there must be something more of the nature of indirect or sinister motive for the prosecution than the mere absence of reasonable and probable cause. See also Chhaganlal v. Thana Municipality (1931) 34 Bom. L.R. 143, per Baker J. at pp. 151-153.

20. The absence of reasonable and probable cause and malice must, however, unite in order to produce liability. So long as legal process is honestly used for its proper purpose, mere negligence or want of sound judgment in the use of it creates no liability, and conversely, if there are reasonable grounds for the proceedings (for example, the probable guilt of an accused person) no impropriety of motive on the part of the person instituting these proceedings is in itself any ground of liability. Tindal C. J. observed in Willans v. Taylor (1829) 6 Bing. 183

It is true, as admitted on both sides, that, in order to support such an action, there must be a concurrence of malice in the defendant and want of probable cause. Malice alone is not sufficient, because a person actuated by the plainest malice may nevertheless have a justifiable reason for prosecution. On the other hand, the substantiating of the accusation is not essential to exonerate the accuser from liability to an action; for he may have had good reason to make the charge, and yet be compelled to abandon the prosecution by the death or absence of witnesses, or the difficulty of producing adequate legal proof. The law, therefore, only renders him responsible where malice is combined with want of probable cauae. What shall amount to such a combination of malice and want of probable cause is so much a matter of fact in each individual case as to render it impossible to lay down any general rule on the subject; but there ought to be enough to satisfy a reasonable man that the accuser had no ground for proceeding but his desire to injure the accused.

Hawkins J. also observed in Hicks v. Faulkner (supra) at p. 170 that to succeed in an action for malicious prosecution the plaintiff must allege and establish two things; absence of reasonable and probable cause and malice. The affirmative of both these allegations is upon him. Failing to establish both of them he fails altogether. The same position was also recognised by the House of Lords in Herniman v. Smith (supra) at p. 320, where Lord Atkin after coming to the conclusion that there was no evidence to go to the jury in support of the affirmative of either of the first two questions there left to the jury observed:

Whether independently of the want of reasonable and probable cause there was any evidence of malice is a question which in the circumstances becomes irrelevant.

21. The questions therefore which the Judge has to address himself as exercising the functions of the jury in this country in an action for malicious prosecution are those contained in the summing up of Cave J. in his charge to the jury in the case of Abrath.v. North Eastern Railway Co. (supra) at p. 444 of the report:

The questions which I ask you are these : First, did the defendants take reasonable care to inform themselves of the true state of the case? Secondly, did they honestly believe the case which they laid before the magistrates? If both questions are answered in the affirmative, that they did take reasonable care, and they honestly believed the case they laid before the magistrates, that is a verdict for the defendants, because, please bear in mind, that it is for the plaintiff to prove that they did not. Then if either question is answered in the negative, that is, if the defendants did not take reasonable care, or if they did not honestly believe the case which they laid before the magistrates, then you must ask yourselves this further question, were the defendants actuated by any indirect motive in preferring this charge? If they were not, then again your verdict must be for the defendants. If they were, then you must find your verdict for the plaintiff, and then in that case you must ask yourselves what damages you give.

The position may be otherwise expressed in the words of Lord Atkinson who delivered the judgment of their Lordships of the Privy Council in Corea v. Peiris [1909] A.C. 549 as follows (p. 555):

The District Judge seems to have been fully aware that in an action for malicious prosecution the law throws upon the plaintiff the burden of proving the presence of malice in the mind of the prosecutor and the absence of reasonable cause for the prosecution; but he appears to have been led into error by not keeping steadily before his mind the fact that the pivot upon which almost all such actions turn is the state of mind of the prosecutor at the time he institutes or authorizes the prosecution. If he receives information from others and acts upon it by making a criminal charge against any person, the motives of his informants, or the truth, in fact, of the story they tell, are to a great extent beside the point. The crucial questions for consideration are : Did the prosecutor believe the story upon which we acted? Was his conduct in believing it, and acting on it, that of a reasonable man of ordinary prudence? Had he any indirect motive in making the charge?.

22. Having regard to the above position in law the judgment next considered whether on the facts the plaintiff had succeeded in establishing his case. The conclusions reached were that the plaintiff had failed to prove that the prosecution was launched and continued by defendant No. 3 against him maliciously and without reasonable and probable cause. The suit was accordingly dismissed with costs.


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