M. Lal, J.
1. This second appeal filed by the defendant arises out of a suit for malicious prosecution. The suit has been decreed by both the Courts below. The contention of the learned counsel for the appellant is that the appellant did nothing more than lodging a report in the Police and the prosecution of the plaintiffs-respondents having been launched by the Police the defendant-appellant could not be called a prosecutor, nor could be be held to be responsible for damages.
2. Briefly stated the facts are that the defendant lodged a report in the thana stating that on the evening of 24th May 1947 the plaintiffs entered their house, committed a theft and removed certain articles. After this report the Police investigation followed and the plaintiffs were prosecuted which resulted in their acquittal. The plaintiffs alleged that the defendant was the actual prosecutor, that the complaint was false, malicious and without reasonable and probable cause and so they claimed Rs. 575/- as damages. The defendant took the usual defence that the complaint was true and was based upon existence of the reasonable and probable cause and that it was not malicious. It was also stated, that he was not the prosecutor.
3. Both the Courts below have awarded a decree for Rs. 199/- and so this appeal.
4. It has been found by both the Courts below that the complaint lodged by the defendants, one of whom is appellant before this Court, was false to their knowledge; that no incident as alleged in the complaint took place. It has also been found that Amaldar Singh, the present appellant, was actively associated with the prosecution, that he used to come to Court every day and that he misled the Police and influenced it in sending innocent men for trial.
5. The only question which requires consideration in this appeal is whether on the findings of fact given by the Court below the appellant could be called to be a prosecutor. Learned counsel for the appellants has relied upon the observations of the Privy Council made in the case of Gaya Prasad Tewari v. Bhagat Singh, 5 All LJ 665 (reprint 550), the Orissa case of Radhu Naik v. Dhadi Sahu : AIR1953Ori56 and the case of Dattatraya Pandu-rang Datar v. Hari Keshav Gokhale AIR 1949 Bom 100.
In all such cases where the point for determination is whether a particular person was or was not a prosecutor, the Court has to look into the circumstances and facts of each case in order to determine as to what part the complainant played in the prosecution of the plaintiff. If it is found that the complaint was false to the knowledge of the complainant, that the complainant misled the Police and produced suborned witnesses and further influenced the Police to assist him in sending an innocent man for trial before the Magistrate, the person lodging the complaint would be a prosecutor. In the Privy Council case of Gaya Prasad Tewari, 5 All LJ 665 (PC), their Lordships of the Privy Council considered the proposition of law and expressed the view.
'Where 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, he cannot be held responsible in damages for the failure of prosecution.'
6. In the present case, there is the finding of fact that the appellant did something more than lodging a mere information in the Police. According to the finding of the two Courts below he did 'pairwi' in the case and also influenced the Police. The first part of the proposition laid down by the Privy Council, therefore, does not apply to the present case. The Privy Council further observed in that case:
'But if the charge is false to the knowledge of the complainant and he misleads the Police by bringing suborned witnesses or influences them to assist him in sending an innocent man to trial, he would be liable, although the prosecution has not technically been conducted by him.' It is this proposition of law which is applicable to the present case on the findings of fact given here.
7. Learned counsel contended that there is no justification for the findings of fact because what has come in evidence of the plaintiff is that Amal-dar Singh defendant was doing 'pairwi' wthout explaining as to what active part Amaldar Singh was taking in the prosecution of the plaintiff. The evidence of the plaintiff's father was looked into in this behalf. The only thing which the witness stated is that Amaldar Singh was doing 'pairwi'.
The word 'pairwi' has not been explained by alleging the acts or the part played by the defendant, but all the same the statement has gone un-cross-examined and it has not been put to the witness as to what was being done by the complainant. The word 'pairwi' denotes some thing more than giving mere information. It means taking active part in the prosecution by production of witnesses and doing all other things required for the success of the prosecution. It cannot be said that the finding of the Court below is in any way wrong in this behalf.
8. In the Orissa case : AIR1953Ori56 referred to by the learned counsel the facts were different. It was found that the defendant had not taken active part and whatever was done was done by the Police was done independently of the complainant and consequently that case is no authority.
9. In the Bombay case of Dattatraya Pandurang Datar AIR 1949 Bom 100 too the defendant had done nothing more than to give information to the Police of a theft at his shop laying suspicion upon the plaintiff. It was under the circumstances of that case that the learned Judge of the Bombay High Court held that the defendant could not be called to be the prosecutor of the plaintiff.
10. In the present case the evidence shows that the defendant-appellant besides lodging the report also did pairwi for the prosecution and as the word 'pairwi' explained above means some thing more than mere information the Court below came to the correct conclusion that the appellant was the prosecutor. He was, therefore, rightly held to be liable for damages.
11. The appeal fails and is dismissed with costs.
12. Leave to appeal is refused.