1. This second appeal arises out of a suit for malicious prosecution. The defendant, appellant, Raghubar Dayal, has a cousin Prabhu Dayal. Prabhu Dayal's wife by a previous marriage had a son Raja Ram and Raja Ram was married to the daughter of the plaintiff-respondent, Kallu. Raghubar Dayal was the victim of a theft of some ornaments from a box. He went to the police station and made a report of the theft stating at the same time that he suspected Raja Ram and the plaintiff Kallu. He gave as his reason that Raja Ram, owing to the relationship, had been in the habit of visiting his house and had often seen the women of the family taking clothes and ornaments out of the box, that Raja Ram had disappeared and that another person had told him that he had seen Raja Ram going off with a bundle. As for Kallu he said that Kallu had also been in the town on a visit and he had disappeared at the same time as Raja Ram. The police made an investigation on the basis of this report and they found the stolen ornaments in the house of Kallu. They prosecuted Raja Ram and Kallu and the two men were convicted by the trial Court. Kallu was however acquitted on appeal. He then instituted the suit for malicious prosecution which is now before me. The Courts below have found that there had been a dispute between Kallu and Prabhu Dayal because Kallu had refused to allow his daughter to join her husband, Raja Ram, on the allegation that Prabhu Dayal had unjustifiably detained his daughter's ornaments. They have also found that Kallu who lives in Delhi, was suffering from an injured leg at about the time when the offence was committed and that he could not have been in Fatehgarh where the defendant lives. They have therefore concluded that Raghubar Dayal's statement to the police was false in so far as it suggested a suspicion against Kallu and have given Kallu a decree for damages. At first sight the findings may seem to be findings of fact which are binding upon this Court, but in my judgment, they are vitiated by an inaccurate view of the law which the Courts below have taken. Learned counsel for the appellant argued that a person who makes a report to the police is not liable for damages even if the report is made without reasonable and probable cause and is malicious unless it can be shown that he has taken an active part in the prosecution of the plaintiff. He has referred to the case in Gaya Prasad v. Bhagat Singh (1908) 30 All 525. Learned counsel for the respondent has on the other hand, referred to the case in Balbhaddar v. Badri Sah (1926) 13 AIR PC 46. He has referred particularly to the passage in the judgment which is in the following terms:
In any country where, as in India, prosecution is not private, an action for malicious prosecution in the most literal sense of the word could not be raised against any private individual. But giving information to the authorities which naturally leads to prosecution is just the same thing. And if that is done and trouble caused, an action will lie.
2. The remarks made in this passage must, of course, be read in connexion with the circumstances of the particular case. The case before their Lordships was one in which a prosecution had been based on two confessions which were alleged to have been procured and fabricated by the defendants. Their Lordships in these circumstances laid it down that it was no defence if the facts were proved, that the defendants had not themselves made any statements on which the prosecution was based or had not themselves technically launched the prosecution in a Court of law. There is no reason for supposing that their Lordships intended to modify the law which was laid down in the earlier case in Gaya Prasad v. Bhagat Singh (1908) 30 All 525. In that case their Lordships referred to a passage in a judgment of the Madras High Court in Narasinga Row v. Muthaya Pillai (1903) 26 Mad 362 which was in the following terms:
The only person who can be sued in an action for malicious prosecution is the person who prosecutes. In this case, though defendant 1 may have instituted criminal proceedings before the police he certainly did not prosecute the plaintiff. He merely gave information to the police, and the police, after investigation, appear to have thought fit to prosecute the plaintiff. The defendant is not responsible for their act, and no action lies against him for malicious prosecution,
3. Their Lordships said that the principle laid down was sound enough if properly understood, but was not of universal application. They said:
In India the police have special powers in regard to the investigation of criminal charges, and it depends very much on the result of their investigation whether or not further proceedings are taken against the person accused. If therefore a complainant does not go beyond giving what he believes to be correct information to the police, and the police without further interference on his part (except giving such honest assistance as they may require), think fit to prosecute, it would be Improper 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 mislead 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 Magistrate it would be equally improper to allow him to escape liability because the prosecution has not, technically, been conducted by him.
4. It is obvious from these remarks that the question is whether the defendant is substantially responsible for the prosecution of the plaintiff and whether he has or has not acted in good faith. In the case before me Raghubar Dayal expressed merely a suspicion to the police. He did not positively say that the two persons whom he suspected were guilty. He left the matter to the investigation of the police. There is nothing to show that he thereafter took any unduly active part against the plaintiff. The question then arises whether he acted in good faith when he made the statement which was recorded in the report at the police station. The Courts below have made an assumption that it could not have been so. They say that the circumstances are such that they believe the evidence that Kallu was not at Fatehgarh and as far as that goes their finding is one of fact and is doubtless binding upon this Court, but it is to be noticed that there is no positive evidence that the appellant did not get the information from Prabhu Dayal that Kallu had been in Fatehgarh or that he knew that the information, if given, was false. The Courts have made an inference from the circumstance and they were not entitled to do so unless the circumstances were such that they were not consistent with any other finding. The appellant stated in the witness box that Prabhu Dayal had told him that Kallu had been in Fatehgarh just before the theft was committed and that he had disappeared at the same time as Raja Ram, Prabhu Dayal supported the appellant. There was no evidence to contradict them. If the Courts intended merely to hold that they were not quite satisfied that this evidence was necessarily true, then their finding was not sufficient to justify a decree against the defendant because it remained doubtful whether the defendant had or had not acted in good faith. On the other hand, if they intended to hold that the statements made by the appellant and Prabhu Dayal were positively false, their finding was a deduction from circumstances which was not justified. The reasons they gave why they did not believe that the appellant could have thought that Prabhu Dayal's statement was true were that Prabhu Dayal had quarrelled with Kallu in the manner I have already described and that Kallu would be unlikely to go and stay in Fatehgarh with his father-in-law. It seems to me quite consistent with the circumstances, even if there had been a quarrel between Kallu and Prabhu Dayal, that Kallu might go to Fatehgarh and stay with Prabhu Dayal in order to settle the dispute. It is not impossible that Kallu might have gone to stay with Prabhu Dayal. It may be, as the learned Judge says that a father-in-law would not usually accept hospitality from his son-in-law's family, but I do not suppose the rule is absolutely universal and in this particular case, Prabhu Dayal was no real relation of Raja Ram's was merely the son of a woman who was living with Prabhu Dayal as his wife. The Courts below may have been justified in their conclusion that Kallu did not go to Fatehgarh or that it was improbable that he should have been there, but they could not legally pass a decree for damages against the appellant unless they could hold positively that the appellant had either not been told by Prabhu Dayal that Kallu had lived with him or that he had been told but for certain that Prabhu Dayal was not speaking the truth. There is no finding of this nature and the result is that the decree for damages cannot stand. I allow the appeal and dismiss the suit with costs throughout. Leave to appeal under the Letters Patent is refused.