(1) The appeal is brought by defendants 2 and 3 in O. S. No. 43 of 1949 against the Decree and Judgment of the Subordinate Judge. Narasaraopet. In order to appreciate the points arising for determiantion in this case, it is necessary to trace briefly the background of this litigation. One Ramamma, the wife of defendant 1 died in October 1948. In connection with her death, a complaint was fikled by defendant with her death, a complaint was filed by defendant 1 and the same is marked as 'Ex B.2' in this case.
It was stated therein that Ramamma died as a result of homocidal violence, that two persons by name Badduri Chandra Reddi and Badduri Ramana Reddi (Appellants in this case) informed him that five persons (the present plaintiffs) were seen coming out of the backyard of the house of defendant 1 at about the time of the death of Ramamma.
On receipt of this complaint, the Police investiated into the case, filed a charge sheet against these five person under s. 302 of the Penal Code and they were committed to Sessions at Guntur to take their trial for the offences with which they were charged. The case for the accused in that case (the plaintiffs herein) was that it was not as a result of violence that Ramamma died, but she sustained afracture of the skull by falling on a Cuddappah slab while she was carrying some grain to the granary.
The learned Sessions Judge accepted the plea of the accused and acquitted them. It was also remarked by the Judge that the prosecution took advantage of the death on an old woman to make a false report against the accused therein. Consequent upon the acquittal of the acused therein, they have filed a suit for damages for malcious prosecution against the complainant, and the two persons who gave information to the complainant impleading them as defendant 1 to 3 respectively.
(2) The case for the plaintiffs as disclosed in the plaint is that on accountof enimity that existed between the plaintiffs on the one hand and the defendants on the other, they concocted a case of murder against them taking advantage of the death of Ramamma, that Ramamma who was suffering from biliousness had a fall in the laternoon on 9-10-1948, while attending to her domestic work and her head struck against a Cuddappah slab resulting in the fracture of her head.
It is recited in the plaint that the defendant actuated by malice and without any reasonable or probable cause set the law in motion against the plaintiffs. A sum of Rs.5,250/- was claimed as damages.
(3) The suit was contested by all the defendants denying that there was any conspiracy to give a false complaint against the plasintiffs. While defendant 1 stated that by reason of information which he received from defendant 2 and 3, he was led to believe that his wife died as a result of foul play by the plaintiffs and he merely mentioned his suspicion in the complaint, the case of defendants 2 and 3 was that they were not in any way responsible for the launching of the case, that informatioin given by them to defendant 1 was not without reasonable and probable cause, nor was there any malice.
A plea was laso taken that the plaintiffs did not suffer any damage and, at any rate, the damages claimed were excessiver.
(4) The trial court dismissed the suit against defendant 1, but gave decree against defendant 2 and 3 for Rs.3,250/-. Rs.750/- towards expenses of the litigation, and Rs.2,500/- towards mental suffering of all the plaintiffs i.e., at the rate of rs.500/- for each. The learned Judge thought that the evidence on record did not justify the plea of the plaintiffs that Ramamma died as a result of an acciental fall and that her death was due to injuries inflicted on her head with a heavy object like a big stone or a big pounder.
He also found against conspiracy amongs the defendants, to give a flase to report to the authorities concerned. In the opinion of the learned Judge no case was made out against defendant 1 because he merely communicated his suspicion in Ex. B.2 based upon the information given by the 2nd and 3rd defendants and that he was not over anxious tomake out a case against the plaintiffs as seen from the contends of Ex. B.2.
(5) So far as defendants 2 and 3 are concerned, his view was that defendants 2 and 3 did not actually see the plaintiffs going out of the house and yet told the 1st defendant that they saw the plaintiffs going out of the house which showed malice on their part and absence of reasonable and probable cause for them. In that view he found defendants 2 and 3 are liable for damages for malicious prosecution of the plaintiffs. These two defendants have preferred this appeal against that Judgment and decree.
(6) In support of this appeal, it is first argued by Mr. Ramachandra Rao that on the findings of the learned Judge the appellants cannot be mulcted with damages as they could not be regarded as prosecutors in any sense of the term. According to the learned Counsel, the view of the learned Judge that the appellants were responsible for the prosecution of the plasintiffs is errorneous. To substantiate this, the first case cited by the counsel for the appellants is -- 'Narasinga Row v. Muthayya Pillay, 26 Mad 362 (A).
In is laid down there by Boddam and Bhashyam Iyengar JJ. that the only person who can be sued in an action for malicious prosecution is the one that actually prosecutesand any person who merely gives information to the Police cannot be said to have prosecuted the plaitniffs. A decision in -- 'Gaya Prasad v. Bhagat Singh', 35 Ind App 189 (PC) (B), is cited as approving 26 Mad 362 (A).
Referring to 26 Mad 362 (A), the Privy Council in the latter case observed thus:
'The principle here laid down is sound enought 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 despends very much in the result of their investigation whether or not further proceedings are taken against the present accused.
If, therefore a complaint does not go beyond giving what he believes to be correct information to the police, and the police without further interference on his part (excepting giving such honest assistance as they may require) think fit to prosuecute, it would be improer to make him responsible in damages for the failure of the prosecution.
But, if the charge is false to the knowledge of the complainant; if he misleads the police by bringing suborned witnesses 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.
The question in all cases of this kind must be -- who was the prosecutor? -- and the answer must depend upon the whole circusmtances of the case. The mere setting of the law in motion is not the criterion, the conduct of the complainant before and after making the charge, must also be taken into consideration. Nor is it enough to say, the prosuection was instituted and conducted by the police.'
(7) In that case, a person by name Imam-ud-din Shah made a report to the police that several persons had cut and carried away crops of certain lands and stolen other crops and property belonging to some tenant. Another person by name Bhagat Singh was directed by the police to inquire and report and he submitted a report stating that Gaya prasad who subsequently filed the suit for malicious prosecution was one of those that participated in the tioting. Imam-ud-din and Bhagat Singh conducted the prosecution before police. They procured evidence that a riot was committed and that Gaya Prasad actually had taken part in it, and took an active part in the conduct of the prosecution at later stages.
When a suit was filed by Gaya Prasad after his acquit6tal in the criminal proceedings for damages for malicious prosecution, one of the pleas taken was that they did not institute any criminal proceedings, that they were merely witnesses for the prosecution and so no suit could he brought against them. The trial court gave a decree against the defendants as it found the defendants to be the chief cause of the plaintiffs having been accused or rioting and of having concocted and fabricated false evidence against the plaintiffs, although their names did not appear on the face of criminal proceedings.
This decision was reversed by the Judicial Commissioner of Oudh on the authority of -- Narasinga Rao v. Muthayya Pillai (A)', and -- 'Dudhanath Kandu v. Mathura Prasad', 24 All 317 (C), and it was held that a person who has made a formal complaint could not be sued for damages for malicious prosecution. On appeal the Privy Council set aside the Judgment of the Judicial Commissioner on the view referred to already.
It is seen that both the defendants were held responsible for the prosecution of the plaintiff, one directly for the charge against the plaintiff and the other having made the original report of unlawful assembly upon which the prosecution for rioting was ultimately based and that both of them acted together throughout the subsequent proceedings. The test propounded in that case is that mere filing of a complaint does not amount to malicious prosuection and something more must be done to indicate that the defendants were the real prosecutors.
I have referred to this pronouncement at some length because this has formed the basis of several rullings of various High Courts and of the Privy Council.
(8) In -- 'Periya goundan v. Kuppa Goundan', AIR 1919 Mad 229(2) (D), a Bench of the Madras High Court struck a note different from that in 'Narasingh Rao v. Muthayya Pillay (A)'. The opinion expressed in that is that any person who gives information to the authorities, which, to his knowledge, is false and has led to the prosecution of the person who is ultimately acquitted, renders himself liable for damages for malicious prosecution. They dissented from 'Narasinga Rao v. Muthayya Pillai (A)'.
In the opinion of the learned Judges, 'Gaya Prasad v. Bhagat Singh (B)', should not be regarded as having approved the principles underlying 'Narasinga Rao v. Muthayya Pillai (A)'. In -- 'Shunmugha Udayar v. Kandaswamy Asary', AIR 1920 Mad 789 (E), another Bench of the Madras High Court expressed its preference to AIR 1919 Mad 229 (2) (D), as against 'Narasinga Rao v. Muthayya Pillai (A)'.
(9) The principle laid down in 'Gaya Prasad v. Bhagat Singh (B)', was accepted by the Privy Council in another case-- 'Balbhadar Singh v. Badri Sah', AIR 1926 PC 46 (F). It may be taken taht it is now well established, that, if a person does nothing beyond giving information to the police which he considers to be true, an action for lamages for malicious prosecution is not maintainable against him. If on the other hand, besides setting the law in motion he takes an active part in the conduct of the prosecution he made be regarded as the real prosecutor, although the actual prosecution is by the police and renders himself liable for damages.
(10) In this case I am relieved of the necessity of choosing between -- 'Narasinga Rao v. Muthayya (A)' and -- 'Periya Goundan v. Kuppa Goundan (D)', and the rulings that followed it, is the defendants, in my opinion, are not the persons, that set the law in motion. The reason, why a person who gives information to the Police notwithstanding that he is not the actual prosecutor is said to be responsible for the malicious prosecution is that his information to the authorities, which naturally leads to prosecution is just the same as the prosecution.
The complainant is regarded as the person who has set the law in motion.
(11) Even in 'Periya Goundan v. Kuppa Goundan (D)', the position is summed up thus :
The fact that some Officer, whether Policeman or Magistrate, has to form an opinion on the apparent truth of the informant's information before the prosecution proceeds is no more reason in the one case than in the other for, exonerating the informant from liability for what follows. It is in each case his false information, out of which the prosecution atises, and it makes no difference whether the person led astray in the first instance is the Police Officer of the Magistrate.'
(12) It is thus seen that the basis of liability is the information to the police in the one case and the complaint to the Magistrate in the other, Responsibility is fastened upon the complainant, because it is his complaint that is responsible for the starting of prosecution against the plaintiff and the starting point of the proceedings against him. This rule is stated in almost all the cases.
To hold that any person who gives information to the complainant will be guilty of malicious proceedings is opposed to the principles enunciated in 'Gaya Prasad v. Bhagat Singh (B); 'Balbhadar Singh v. Badri Sah (F)' and even 'Periya Goundan v. Kuppa Goundan (D)'. It is too much to extend the principle embodied in 'Periya Goundan v. Kuppa Goundan (D)', to a person who had furnished some information to the complainant because he cannot be regarded as having set the law in motion.
(13) Mr. Kotayya, the learned Counsel for the respondent relied on a Bench decision of the Madras High Court in -- 'Venkatappa v. Ramakrishnamma, AIR 1932 Mad 53 (G). In that case Venkatasubba Rao and Pakenham Walsh JJ. thought that persons who concocted documents which created false evidence and helped others in giving false evidence on a charge were also liable in a suit for damages for malicious prosecution. I must express my respectful disagreement with this view as this is in the teeth of the several pronouncements of the Privy Council and of the Madras and other High Courts.
(14) In -- 'Baboo Gunnesh v. Mugneeram' 11 Beng LR 321 (PC) (H), the Privy Council ruled that witnesses could not be sued for damages in respect of evidence given by them in a judicial proceeding, and the only way of punish them if the evidence is found to be false was by chargesheeting them for perjury. This has been followed in a number of decided cases. In -- 'Templeton v. Lawrie', 25 Bom 230 (I), a Bench of the Bombay High Court expressed the opinion that giving of false evidence, however malicious and mala fide it might be, does nto furnish any basis for filing a suit for damages in a civil court, the only remedy being a prosecution of perjury.
The same view is expressed by the Madras High Court in -- 'Manickka Mudaliar v. Munuswamy Naidu', AIR 1916 Mad 666 (J). In this last mentioned case, reliance is placed on a number of English decisions, namely -- 'Revis v. Smith', 1856 18 CB 126 (K) and -- 'Henderson v. Broomhead' (1859) 4 H & N 569 (L). It may also be stated here that in 'Venkatapa v. Ramakrishnamma (G)', no reasons are given for holding that persons creating documentsto be used as false evidence should be held liable, nor is any decision referred to.
(15) Mr. Kotayya next called in aid the Judgment of the Patna High Court in -- 'Taharat Karim v. Malik Abdul Khaliq', AIR 1938 Pat 529 (M). There the first defendant wanted to escape liability by pleading that the complaint was not lodged by him, but by the other defendant on his own initiative and so he could not be made to pay any damages.
On the finding that defendant I had a great deal to do with the case brought by defendant 2 that he wanted to file a complaint and that he did not do so because defendant 2 filed one and that he was prevented from doing so by his legal advisers, the learned Judges held that he was the real prosecutor, defendant 2 was only a formal complainant. The learned Judges stated that the responsibility for prosecution in such a case is a question of substance, as pointed by Sir Andrew Scoble in 'Gaya Prasad v. Bhagat Singh (B)', depending upon the circumstances of the case and that the mere setting of the law in motion is not the criterion.
It is not necessaryo for me to consider whether the principle in 'Gaya Prasad v. Bhagat Singh (B)', was correctly applied in the case cited, because of the finding that the second defendant in that case was only a name-lender and that the person behind the prosecution was defendant 1, who, in fact, went to thana to give the complaint but was prevented from doing so by his legal adviser. In my opinion, this case does not carry the respondents very far.
(16) Mr. Kotayya also cited the decision of the Sind Court in -- 'Issardas Krishinchand v. Assudamal Ramandas', AIR 1940 Sind 90 (N). The opinion expressed by a Bench of that Court was that a person, who instigated false and malicious prosecution and is thus responsible for it, is liable for damages. This ruling is again inapplicable to this case, because it is not proved that the defendants 2 and 3 instigated defendant 1 to file a compliant. It may be that their information was in a way responsible for the malicious prosecution.
Further the principle that should guide the determination of the liability for damages for malicious prosecution, as already stated by me, is that the person sought to be made liable for damages should be directly or primarily responsible for the prosecution. It is difficult to say that one who gives some information to another who lodges a report before the Police can be brought within the scope of such a principle.
(17) Finally, Mr. Kotayya called in aid passages from Halsbury's Laws of England Volume 22 (2nd edition by Hailsham) at p. 3 :
'A prosecution exists where a criminal charge is made before a Judicial Officer or Tribunal and any person who makes or is actively instrumental in the making or prosecuting of such a charge is deemed to prosecute it, and is called the Prosecutor. Thus a person who lays before a Magistrate an information stating that he suspects and has good reason to suspect another, or who prefers a bill of indictment, is engaged in a prosecution and he may be responsible for the prosecution even though the charge made before the Magistrate is an oral one.'
(18) In para 3 at p. 4, it is stated :
'A person who prosecutes another in the sense explained above may be liable as prosecutor, and so may one who represent himself as prosecutor, though he did not in fact initiate the prosecution and is present only as witness.'
(19) These passages do not in any way substantiate the proposition of Mr. Kotayya. All that they mean is that not only the actual Prosecutor but one who causes or procures the prosecution as in the case of a person who moves the police by his complaint who starts a prosecution against the defendant, is liable. It follows from the above discussion that the defendants cannot be made liable for damages for malicious prosecution.
(20) The above finding is sufficient to dispose of the appeal. However, as the question of quantum of damages also was argued before me, I proceed to give my finding on that aspect also. In the plaint, a sum of Rs. 5,250/- was claimed, without apportioning it under different heads. It is merely stated that the defendants are liable to pay to the plaintiffs damages which the plaintiffs estimated at the moderate figure of Rs. 5,250/-.
(21) But, in the witness-box, P. W. 1 stated that a sum of Rs. 3,000/- was expended in connection with the criminal case and that the total loss of the plaintiffs was more than Rs. 5,000/-. He also deposed that the health of the plaintiffs was affected because of the life in jail. P. W. 2, the 1st plaintiff, did not say anything about expenses in connection with the criminal case, but testified to a loss of Rs. 2,000/- on account of their inability to carry on the cultivation, having been confined in jail. P. W. 3 claims Rs. 5,000/-, Rs. 3,000/- as having been spent in connection with the case and Rs. 2,000/- towards the loss of income due to the non-cultivation of the lands.
(22) It is thus seen that non of the witnesseshas claimed anything towards mental suffering. It is true that plaintiff 5 as P. W. 3 stated that he suffered bodily and mentally on account of the jail life, but he did not try to evaluate the mental suffering in terms of money. In the circumstances, it looks to me that it is difficult to support the Judgment of the trial court in so far as it awards Rs. 2,500/- as damages for mental suffering of the plaintiffs. Even in the plaint, all that is stated is that they had suffered a great deal in mind, body, finance and reputation.
Even if any damages could be awarded under that head notwithstanding the circumstances pointed out above, it looks to me that a sum of Rs. 500/- awarded to each of the plaintiffs is very excessive. There is no basis for the learned Judge having awarded Rs. 500/- to each of the plaintiffs. There is no discussion on this question. Assuming they are entitled to damages on account of mental suffering anything more than Rs. 200/- for each of the plaintiffs seems to be excessive.
(23) In the result, the appeal is allowed ; the decree of the trial court is set aside and the suit dismissed. In the circumstances of the case, I direct each party to bear its own costs throughout.
(24) D. H. Z.Appeal dismissed.