Louis P. Russell, Acting C.J.
1. It appears that the learned Judge, in the Court below, in confirming the decree, felt himself, upon the evidence which had been given in the first Court, unable to come to any satisfactory conclusion, the case for the plaintiff, in the present case, being that on the occasion that he was alleged to have committed this criminal trespass in the house in question at Yeola, he was not present there at all.
2. The case for the defendant, the alleged malicious prosecutor, is that the plaintiff was there; but as I said above, on the evidence in the Civil proceedings neither the lower appellate nor the first Court could come to any satisfactory conclusion as to the presence or absence of the present plaintiff, the accused.
3. That being so, the learned Judge of the lower appellate Court went very carefully indeed into the question as to whether or not he was entitled to treat the judgment of the Magistrate and the evidence given before the Magistrate, as evidence in the case; and it is clear from his judgment, in fact he says so in so many words, that looking at the judgment of the Magistrate as being a record of the facts found, he came to the conclusion that the plaintiff was not present at the time when this alleged offence was committed. We are of opinion that the lower appellate Court was wrong in so treating the judgment of the Magistrate. The main grounds upon which the lower appellate Court relied on the judgment of the Magistrate are that the facts were much more fresh before the Magistrate, that the Magistrate was a dependable officer and that the lower Court had confidence in his judgment.
4. Under Section 43 of the Evidence Act, it is clear, we think, that it was wrong to use the judgment in that way, because, according to that section, the only way a judgment of that sort could be used was to prove the fact whether or not there had been acquittal in the case. The concluding part of the section runs as follows;-
Judgments... are irrelevant, unless the existence of such judgment order or decree is a fact in issue, or is relevant under some other provision of this Act.
5. 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, but we are unable to follow the reasoning of the lower appellate Court when it goes on to say that the judgment of the Magistrate was relevant underSection 13 of the Evidence Act. To our mind Section 13 cannot have any application to this case, andSection11 cannot be treated as rendering this judgment admissible. See Taylor on Evidence,Section1667 and in Ameer Ali, Note toSection 43, it is said, citing several cases: -
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.
6. Now that being so, we find that in the well-known case of Modi v. Queen Insurance co. ILR (1900) 25 Bom. 335 : 2 Bom. L. R. 939, which went up to the Privy Council, it is said: 'Mr. Modi was acquitted of the charge made against him. It must therefore be taken that he was innocent.' Not that his presence was not satisfactorily proved but he was innocent. Therefore the first thing that the plaintiff has to prove is that he was innocent. Then the passage goes on: 'But that circumstance of itself goes very little way towards entitling him to a verdict on the issue raised in the present action. In order to succeed he must prove that the respondents acted maliciously, that is from some indirect motive and that there was no reasonable or probable cause for their action.'
7. Accordingly, there we find-and this was the point upon which I wanted fuller time to consider-that the law applicable in India with regard to suits for malicious prosecution is the same as was laid down in the case of Abrath v. North Eastern Railway Co. (1886) 11 App. Cas 247 B 143 which went up to the House of Lords.
8. That being so, we are of opinion that the decree of the lower appellate Court must be reversed and the costs paid by the plaintiff throughout.
9. Decree reversed and suit dismissed with costs on the plaintiff throughout.
10. With regard to the remand, my learned colleague and myself are both of opinion that inasmuch as the evidence excluding the opinion and finding of the Magistrate failed to satisfy the lower appellate Court, it would be of no use to remand the case.