1. The question in this appeal is whether the plaintiffs-appellants are entitled to damages from the defendant-respondent for malicious prosecution. The appellants succeeded in the trial Court but failed in first appeal.
2. The parties are Muhammadans of Sangamner, a town divided into several quarters. The appellants are the Panchas for the quarter called Naikwadpura und they are in management of the burial) ground appertaining to the Municipality, to which they had, at the expense of the Muhammadans of that quarter, made an embankment costing Rs. 3,000. This they sought to realise by contributions from the Muhammadans of that quarter and had passed a resolution, which, how ever, is not in writing, to that efiect.
3. The respondent is a retired police prosecutor and had occupied a house outside that quarter but has lately purchased a house which is just within the quarter. On October 19, 1918, the respondent's infant died. He brought it for burial to the appellants' ground but was informed that he could not bury it without payment of Rs. 25 as contribution towards the embankment. He declined to make any payment whatsoever. The quarrel lasted, for about five hours during which period the child lay unburied. Ultimately, the father had recourse to Magistrates and police. The appellants afterwards waived the amount and were willing to be content ' with any contribution, however, nominal, on the respondent's part. This too, the respondent declined to pay. Happily, a relative of his paid to the Panchas Re. 1-4-0 and the child was buried. Fifteen days afterwards, the respondent lodged a complaint under Sections 147, 297 and 385, Indian Penal Code, against the appellants, which ultimately resulted in their acquittal. Hence this suit.
4. The trial Court was of opinion that the appellants had proved the three ingredients which were necessary to succeed. In Gannesh Dutt v. Magneeram Chowdhry  11 B.L.R. 321 and Pestonji M. Mody v. Queen Insurance Co.  25 Bom. 332 it was laid down by their Lordships of the Privy Council, as in the case of Abrath v. North Eastern Hallway Co.  11 Q.B.D. 440 upheld by the House of Lords in appeal  11 A.C. 247 that in such cases the plaintiff, to succeed, has to prove, first, that he was innocent and that his innocence was conclusively made out; secondly, that there was no reasonable or probable cause for the prosecution; and lastly, that the proceedings were instituted with a malicious spirit and not in furtherance of justice. The District Court held that the appellants had no legal right to obstruct the burial; secondly, that, technically at least, the respondent had reasonable and probable grounds for bringing the complaint under these sections; but, thirdly, that malice has not been proved. It, therefore, dismissed the suit.
5. There is divergence between the two Courts as to the facts. It is clear, in our opinion, that on October 19, both sides bona fide believed in the right they sought to assert. The appellants thought that they had a right to levy the contribution and the respondent thought that he had a right to bury without paying it. The question in the present appeal, however, is as to the bona fides of the respondent not on October 19, but fifteen days later when he instituted the complaint. It is argued that he felt the indignity of his child's corpse lying unburied for five hours and considered, perhaps rightly, that the appellants had no right to delay the burial. That, however, is not, I think, decisive. A discreet man like him, after fifteen days reflection, lodged a prosecution under these three charges which involved motives on the part of the appellants quite other than the desire to levy contribution. That is the substantial question to which the lower Court has not addressed itself with the necessary detail. Whatever doubt there might have been on this point, it is, we think set at rest by the fact that not only did the respondent lodge his complaint after some days but that in the courses of the prosecution he gave evidence himself and called witnesses to show that the appellants had kicked his child's corpse, had abused it and they threatened to throw it into the river. Both the Magistrates who heard this evidence, as well as the learned Subordinate Judge, held it to be false. It is difficult to reconcile this evidence and the subornation with good faith on the part of the respondent. Similarly, he has supported his case in the civil Court by bringing doubtful evidence in regard to the previous burials of his mother and other relatives in this burial ground. Plaintiff No. 1 is, as a matter of fact, related to him and we cannot, therefore, believe that the plaintiffs were actuated by any other motive except the desire to raise the contribution. Particularly, being himself a police prosecutor, it is difficult to believe that the respondent could have thought that the Panch were unlawfully assembled within the meaning of Section 147 or that they were attempting extortion within the meaning of Section 385 or that they desired to offend his religious susceptibilities within the meaning of Section 297. Yet the respondent, lodged his complaint, under these sections, and got up false evidence in support of it. These facts, we think, show not merely that he had not sufficient and reasonable cause but that he was actuated by malice. If so, the appellants are entitled to succeed.
6. As for the amount of damages, the trial Court has allowed the amount actually spent by the appellants in defending themselves against the prosecution. That amount is, in our opinion, reasonable.
7. We allow the appeal, set aside the decree of the lower appellate Court and restore the decree of the trial Court with costs throughout on the respondent.
8. I wish only to add that the District Judge has, I think, committed an error of law justifying our interference in second appeal, for he has treated the issue as to reasonable and-probable cause and malice merely on the basis of the plaintiffs having no legal right to obstruct the burial as they did. The question of reasonable and probable cause depends upon the plaintiff having a reasonable bona fide belief in the existence of such facts as would justify a prosecution : Hicks v. Faulkner  8 Q.B.D. 167 and these facts necessarily cover the intention or knowledge which are necessary ingredients of any of the offences charged. It may, for instance, have been true that the plaintiffs had no right to require the money to be paid before allowing the infant to be buried. But it does follow that they did so dishonestly; again, they may have caused some humiliation in not; allowing the corpse to be buried at once, but it does not follow that they had the intention of wounding the feelings of the defendants or the knowledge that his feelings were likely to be wounded, 80 as to bring the case within Section 297.
9. The facts found by both the lower Courts go against any such intention, although, no doubt, the District Judge finds that the demand for money, in his view was technically dishonest. But the real intention clearly was not in the ordinary sense a dishonest, one, nor one to cause the insult to the defendant's religious feelings, which he alleges in his complaint; and the District Judge by excluding consideration of this particular portion of the facts, namely, the motives which could properly be attributed to the plaintiffs, has omitted to consider what is really the most material question in this case. Again, the facts of the defendant making false allegations, and giving false evidence in support of them, is a, most material circumstance, which has not been taken into consideration by the District Judge.
10. I, therefore, agree with the order proposed by my learned brother.