D.B. Lal, J.
1. This revision is directed against the order of the Additional Munisiff and J. M. F. C. Haveri in C. C. No. 208/76, passed Under Section 358 of the Cr. P. C. holding that the complainant caused the arrest of the accused though there were no sufficient grounds for causing such arrest, and hence awarding the compensation.
2. The case emerged out of a police complaint filed by Mallappa against several accused including the respondents 1 to 6, The complainant's case related to a parcel of land stated to be in possession of Mallappa and over such land the respondents 1 to 6 along with several other accused were stated to have trespassed-As such, the accused were charge-sheeted for the offence punishable Under Section 447 read with Section 109, I. P. C. It is manifest that the offence Under Section 447 was a cognizable one, and since the information regarding the accused was given by Mallappa in his complaint, investigation was conducted Under Section 157, Cr. P. C. leading to the arrest of the respondents 1 to 6. Subsequently, the said accused were put up for trial, but they were acquitted. The learned trial Magistrate found that although there was a dispute regarding possession, yet, It could be held to be of a civil nature. According to him, the respondents 1 to 6 were not present when the incident was alleged to have taken place. It was the seventh respondent who wag found at that time present at the spot as he claimed to be a watchman of cotton crop which was ready for plucking. It was also referred to by the learned trial Magistrate that there was a bona fide dispute of title and some proceeding was pending before the Land Tribunal. He also observed that at the previous occasion similar complaints were filed at the instance of the complainant or his father. With these observations, the finding was given that the dispute was of a civil nature, and as such, no such offence was formulated and the seven accused were acquitted. While making the order of acquittal, however, the learned trial Magistrate considered that the complainant Mallappa caused the respondents 1 to 6 to be arrested and since there was no sufficient ground for causing their arrest, he is liable to pay the compensation. Dissatisfied with that order, the complainant Mallappa has filed the present revision petition.
3. Sri B. V. Deshpande, the learned Counsel for the petitioner-complainant, strenuously contended that the very application of Section 358 at the instance of the learned trial Magistrate was wrong, inasmuch as the complainant could not be stated to have caused the arrest of the respondents. In that connection, the learned Counsel referred to Section 358 which according to him pointed out two stages, which were to be covered by the Magistrate before he could award compensation. The first stage was when the learned Magistrate had to give a finding that the complainant caused the accused to be arrested and the second stage was when the Magistrate had to give a finding as to whether there was sufficient ground or not for causing such arrest. Unless both the stages were covered, the learned Magistrate could not award compensation. The argument further proceeded, that in the instant case the complainant merely instituted the police complaint in which he named the accused. The investigation was conducted by the P. S. I. Under Section 157 who went to the spot and arrested the accused. According to the learned Counsel, it could not be stated that the complainant caused the arrest of the accused. It was rather the police officer who caused the arrest in furtherance of his public duties. In reply to that argument, Sri Suresh S. Joshi, the learned Counsel for the respondents, however, contended that the mere fact, that the complainant set the machinery of law in motion and named the accused for committing the offence, was sufficient to hold him responsible for the arrest. According to the learned Counsel it was due to the complainant that the investigation followed and the arrests were made. If the expression 'caused police officer to arrest' is given a liberal construction and could be held to include howsoever far-fetched nexus, is established between the complainant and the arrest, the result may be somewhat startling, because almost in every case the complainant will be held to have caused the arrest In most of the cases information is received by the police from someone for the commission of a cognizable offence. For that a police complaint is instituted and if it is a cognizable offence, arrests can be made without warrant Under Section 41 of the Cr. p. C. The process of the investigation starts Under Section 157 and since the police officer can arrest without warrant, he goes to the spot and if sufficient grounds are found that a cognizable offence is committed, he effects the arrest of the accused. It is also provided Under Section 157(1)(b) that if it appears to the police officer that there Is no sufficient ground for entering on an investigation he may not investigate the case. In other words, It is for the police officer to decide If there are sufficient grounds to investigate. If according to his decision a cognizable offence is committed, he will effect the arrest. Therefore, it is the police officer who investigates and makes the arrest and the complainant, If at all can be considered to have a nexus with the arrest, it is rather indirect and remote. In my opinion, some direct and proximate nexus between the complainant and the arrest is contemplated for applying Section 358. It is not difficult to visualise a case where under proviso (b) of Section 157(1) the police officer does not propose to hold the investigation, The complainant is not estopped from filing objections before the police officer or even before the Magistrate. He can ask for investigation leading to the arrest of the accused. Perhaps in that case, it may not be difficult to argue that it was the complainant who caused the arrest as the police officer initially did not arrest because, according to his information the case was not fit for investigation. Therefore, something more is needed than the mere information sent to the police officer in order to hold that the person who filed the police complaint caused the arrest within the meaning of Section 358. In other words, the test should be that but for the efforts of the complainant the arrest could not have been effected. Hence, it could not toe stated in the present case that it was the complainant who caused the arrest of these accused.
4. Sri B. V. Deshpande, then contended that within Section 358, a principle of tort is incorporated which relates to payment of compensation for false imprisonment. In a case under tort for false imprisonment, very often, the question arises as to whether the person caused the arrest so that he converted the police officer as his ministerial agent to effect the arrest and thereby made himself liable for compensation. In a case reported in F. R. P. Cannon v. Charles Peris 1963 Mys LJ (Supp) 473 a similar situation was considered by a learned Judge. In that case, the defendants complained to the police of obstruction of right of way by the plaintiff, and the police officer during the investigation arrested the plaintiff. The question arose as to whether the defendants caused the arrest of the plaintiff. It was held that the defendants could not be held responsible for the act of the police officer in arresting the plaintiff. The learned Judge quoted from a 'Law of Torts' (7th Edition) by Flemming, as follows :
Where the unlawful arrest has been procured with the aid of the police, the liability of the prosecutor depends on whether the detention wag carried out at his own direction or was the result of an independent decision by the police. Merely giving information and signing the charge sheet does not expose a person to an action for false imprisonment, if the police act on their own initiative in arresting the individual implicated. On the other hand, if a complainant does not content himself with preferring information but takes it upon himself to direct the officer to make an arrest, he thereby makes the constable his ministerial agent and incurs responsibility as if it were his own act. Thus, where a policeman had made it clear to the informant that he would not detain the plaintiff, unless the defendant directed him to make an arrest or signed the charge-sheet, It was held that the latter was liable for false imprisonment, because the officer had not Interposed his own discretion between the charge and the detention.
The police officer had interposed his own discretion in the present case. In fact he acted on his own initiative in arresting the accused. That being so, the complainant could not be stated to have caused the arrest of the accused. Therefore, the ratio of the aforementioned decision would be applicable to the present case and in my opinion Section 358 would not be applicable.
5. In the alternative, it could also be argued that there was not a sufficient ground for awarding compensation. According to the very finding of the learned trial Magistrate, there was a long standing dispute between the parties in respect of the possession over the land. There was a proceeding pending before the Land Tribunal. The 7th accused was present at the spot and when he was asked, he supplied information regarding the other accused, being the persons who had deputed him to keep watch over the cotton crop as it was already ripe for plucking. According to the complainant there was mens rea or criminal intention and the offence of criminal trespass was committed. There was a thin line between the criminal offence and the civil liability, in the very set up of the case. The learned trial Magistrate, however, considered that it was the case of a bona fide civil dispute. Having found the absence of mens rea of criminal intention he thought fit to acquit the accused. The mere fact that the finding of acquittal was given in these circumstances could not afford sufficient ground to award compensation nor ft could be held that there was no sufficient ground for causing arrest of the accused. The learned Counsel further argued that it was the police officer who exercised discretion for causing the arrests. According to the learned trial Magistrate it was admitted before the PSI that the respondents 1 to 6 were not present at the time of incident. If that was really stated before the PSI, it was for him to decide as to whether he would proceed with the investigation or would drop the same under the proviso (b) to Section 157(1). He chose the latter course and for that he was himself responsible. How could the complainant in that state of affairs could cause the arrest of the accused.
6. Taking into consideration of all these facts and circumstances, in my opinion, Section 358 was wrongly applied by the learned Magistrate. In fact, he wanted to cut short the proceeding and chose to proceed Under Section 358 and not Under Section 250 of the Cr. P. C. for which he was required to issue first a show cause notice and thereafter he could award compensation. Since Section 358 as well could not be applied to the facts of the case, the decision was decidedly perverse and illegal.
7. For the reasons stated above, the revision petition is allowed and the order of the learned Magistrate granting compensation Under Section 358 is set aside. If the petitioner hag paid the amount of compensation, the same shall be refunded to him.