1. This appeal arises out of a suit for damages for malicious prosecution. The appellant Radha Kishan and one Ganeshi Lal were the proprietors of rival cattle markets in the same village. They were constantly quarrelling, and finally a riot took place which, according to the appellant, developed into an attack on his house, in which his property was stolen and members of his household beaten. This affair was reported at the police station by a constable. Radha Kishan was sent for and his statement recorded by the Sub-Inspector. In this he named a large number of persons including Kedar Nath as having taken part in the riot. The police not taking what Radha Kishan considered to be a sufficiently active interest in the matter, he went to the District Magistrate, who told him to file a complaint. This he did asking that a Deputy Superintendent of Police might be sent to investigate. Some enquiries were made, and the District Magistrate ordered that the case should be sent up for trial The case was heard by a Magistrate, who discharged all the accused sent up by the police. The District Magistrate, however, ordered a retrial, and some of the persons accused were ultimately committed to the Sessions Court for trial. Several of them were convicted, but Kedar Nath was acquitted, the Sessions Judge finding that he had successfully proved an alibi, Kedar Nath thereupon filed the present suit for malicious prosecution. The first Court granted him a decree for Rs. 500 as damages, and this decision has been upheld by the lower Appellate Court.
2. The learned Counsel for the appellant has argued two points before us. The first is that the Trial Court instead of recording the evidence of the parties' witnesses and allowing them to be examined and cross-examined in the ordinary way used as evidence in the case copies of the depositions of those witnesses made in the Sessions Court and has based its decision on that evidence. It is admitted that this was done with the consent of both parties, but it is contended that the procedure adopted was so irregular that it could not be validated by such consent, and that the appellant has been seriously prejudiced. It is to be observed that no objection to the lower Court's procedure was taken at the time, nor was it made a ground of appeal before the District Judge. In the recent case of Sat Narain Prasad v. Ram Autar 78 Ind. Cas. 221 : 22 A.L.J. 153, it was remarked that 'it would be in the interests of the administration of justice in this province if it were generally understood that questions of law dealing with the admissibility and the legal effect of evidence will not, as a general rule, be entertained in second appeal in this Court, if they have not been taken at least at the stage of the first appeal in the Court below.' It does not appear to have entered the appellant's head to question the admissibility of the evidence relied on by the Courts below until he filed his appeal in this Court, and we should feel ourselves justified in refusing to consider this point at this late stage of the proceedings, but as this appeal has been referred for decision to a Bench by one of us with special reference to this question of law it will be' well to determine it. There can be no doubt that as a general rule a record of evidence given by a witness in the previous judicial proceeding cannot be used as evidence in a subsequent judicial proceeding between the same parties unless the conditions which are specified in Section 33 of the Indian Evidence Act exist. It is not suggested that any of those conditions are to be found in this case. It has, however, been held both in Bombay and Madras that, when in a civil suit the parties have agreed to the admission of such evidence, the irregularity of procedure is cured. In Lakshman Govind v. Amrit Gopal 24 B. 591 : 2 Bom. L.R. 924 : 12 Ind. Dec. (N.S.) 924 certain depositions recorded in a previous case were admitted in evidence by the Trial Court though the witnesses who made them were alive and had not been examined as witnesses in the case under appeal. The District Judge excluded this evidence. The High Court in appeal held that though no doubt the evidence was not admissible in the present suit, because the witnesses who were alive ought to have been called and examined, yet, as it had been allowed to go in without protest on the part of the defendants, and as the plaintiff had consequently cancelled his application to have his witnesses summoned, it was not fair for the Judge to question its admissibility. In Jainab Bibi Saheba v. Hyderally Sahib 56 Ind. Cas. 957 43 M. 609 : 88 M.LJ. 532 : 28 M.L.T. 23 : (1920) M.W.N. 360 : 12 L.W. 64 a Full Bench of the Madras High Court held that evidence recorded in a previous judicial proceeding between the same parties is made admissible in a subsequent proceeding by the consent of both parties. Krishnan, J., pointed out that the question was one of mode of proof of relevant facts and the rule that such facts must be proved by the evidence of witnesses examined before the Trial Judge had several recognized exceptions, such as the examination of witnesses on commission, the use of affidavits as evidence and the use of evidence taken by one Judge by another, and that the limitations prescribed by Section 33 of the Evidence Act to the use of the record of evidence taken in a former Judicial proceedings were intended to protect the opposing party from being prejudiced by such admission. He went on to say that 'if such evidence is to be admitted against the opposition of a party, the Judge should be satisfied that the conditions and restrictions imposed by Section 33 are fully complied with; but I can see no difficulty in holding that a party may waive the benefit of those provisions which are intended for his benefit, at any rate in a civil suit where no question of public policy is involved whatever the position may be in a criminal trial. A civil suit is a proceeding inter parties and as parties can by consent settle its final result by having a consent decree passed, there is no reason why they should not be permitted to consent to treat something as evidence of a relevant fact which it may not otherwise be; and when the Trial Judge has admitted and acted upon such evidence it is not only proper evidence but the parties ought not to be allowed to object to its admissibility in appeal.' I agree with this view of the law and consider that the Courts were justified in admitting the evidence taken in the Sessions trial.
3. The second argument advanced on behalf of the appellant is that, as a matter of fact, the prosecution complained of by the respondent was not instituted by him. The first report was not made by him, but by a constable, and it was only at the bidding of the Sub-Inspector of Police that he made the statement in which he named the respondent and others. The actual proceedings in Court did not originate on his complaint but were set on foot by the order of the District Magistrate It was that officer's order again which gave vise to the second enquiry before the Magistrate which resulted in the commitment of the accused persons to the Court of Session. It is stated that neither the appellant nor any pleader on his behalf was allowed to conduct the proceedings either before the Magistrate or before the Sessions Judge. The witnesses wore all summoned by the police and examined either by the Prosecuting Inspector or by the Government Pleader.
4. That these assertions are not all entirely correct is proved by the statement of a vakil who appeared on the appellant's behalf both in the Courts of the Magistrate and of the Judge. In this it is admitted that the witness himself, and from time to time four or five other vakils with him, appeared on behalf of the appellant in the Magistrate's Court. This vakil himself examined three witnesses on behalf of the prosecution and cross-examined all the witnesses produced by the opposite party and also addressed the Court acting under instructions given by the present appellant. The Prosecuting Inspector, he says, only worked for one or two days, and the rest of the time he himself did all the work in Court. He filed an application to the District Magistrate for revision of the order of the first Magistrate dismissing the case; and he received about Rs. 3,000, as remuneration for the work done by him in the case. The principles laid down by Their Lordships of the Privy Council in Gaya Prasad v. Bhagat Singh 30 A. 525 : 5 A. L.J. 665 : 14 Bur. L.R. 318 : 11 O.C. 371 : 8 C.L.J. 337 : 35 I.A. 189 : 12 C.W.N. 1017 : 10 Bom. L.R. 1080 : 4 M.L.T. 204 : 18 M.L.J. 394 (P.C.) evidently apply to this case. They said (p. 534). 'The question in all cases of this kind must be--who was the prosecutor ?--and the answer must depend upon the whole circumstances 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 prosecution was instituted and conducted by the police. That again is a question of fact. Theoretically all prosecutions are conducted in the name and on behalf of the Crown, but in practice this duty is often left in the hands of the person immediately aggrieved by the offence, who pro hoc vice represents the Crown...' 'The foundation of the action is malice, and malice may be shown at any time in the course of the inquiry'. In the present case it is clear that though technically the prosecution may not have been instituted on the complaint of the appellant, yet he took a most active part in carrying it on, engaging a pleader at considerable expense to assist the Prosecuting Inspector and through this pleader himself controlling the examination and cross-examination of the witnesses in the case. It is extremely doubtful whether the prosecution would ever have started without his active assistance, and it would certainly never have gone the length it did. For all practical purposes ha was the prosecutor.
5. The appeal fails on both the points and is dismissed with costs.
6. I concur. On the point on which the appeal was mainly pressed the rule laid down in Sat Narain Prasad v. Ram Autar 78 Ind. Cas. 221 : 22 A.L.J. 153 is applicable. It would be inequitable and improper to upset the result of four years of litigation on a ground of admissibility of evidence which was taken for the first time in second appeal. The suit was instituted in April 1920. The parties, to save themselves trouble and expense, agreed that it should be decided on the evidence recorded in the criminal trial. There have been many instances of agreements analogous to this. The parties may agree that the case shall be decided on the evidence of a particular witne Sections They may agree, as they did in a recent case, that it shall be decided on the result of the Munsif's inspection of the locality. It is difficult to say that such agreements are unlawful. There is much force in the reasoning of Krishnan, J., in the madras Full Bench case that where the whole result of the trial can be determined by consent of the parties, it is equally open to them to agree to treat statements as evidence which might not otherwise be so. This forms a valid ground of distinction from criminal trials, where a stricter rule is applied because the public interest, as represented by the Grown, is involved.
7. The decision of the Trial Court was against the appellant. He filed seven grounds of appeal before the District Judge, but it never once occurred to him to suggest that the decision was bad ab initio because there was no legal evidence to support it. The learned Subordinate Judge to whom the appeal was made over reviewed the evidence in detail and came to the conclusion that the complaint against the plaintiff was false and malicious and made without reasonable and probable cause. The appellant's proceedings are too much like the game of 'heads I win, tails you lose'. So long as he had a chance of success on the facts he was quite content that the case should be decided on the evidence on which he had agreed to rest it. When a plea on the facts is no longer open to him he claims the right to repudiate his agreement. If we accepted his plea, no order which we might pass as to costs would suffice to put the plaintiff back into the position he would have occupied if the agreement had not been made. Evidence which was available in 1920 will no longer be available in 1924. Even if the witnesses are alive and subject to the process of the Court, their recollection of the events, to which they would be required to depose, will be vague and incomplete. I concur therefore in dismissing the appeal with costs.
8. By the Court.--The appeal is dismissed with costs including in this Court fees on the higher scale.