H.R. Krishnan, J.
1. This is a second appeal by the plaintiff's whose suit for damages for malicious prosecution has been dismissed by both the lower Courts. There is no dispute on the allegations of facts, the questions being, whether in the circumstances of this case, the defendant can be deemed to have started the prosecution; whether the infor-mation given by him was false or one without sufficient cause; and whether in the present case the background of old feud was at all material.
2. The relevant facts are the following. The defendant is a doctor and a neighbour of the plaintiffs who are father and son, and who used to do business in the sale of different commodities including kerosene oil. Sometime in 1946, when the Defence of Gwalior Rules (which were a copy of the Defence of India Rules) were in force, and kerosene oil was a controlled commodity, the defendant informed the police that the appellants had stored 20 tins of kerosene oil.
The actual wording of the information contained either in a letter by the defendant or in the station diary entries of the police, has not been produced, though in view of what happened subsequently, the plaintiff-appellants must have had copies of the information. Be that as it may, on getting this information, the police went to the residence of the plaintiff-appellant, made a house search in accordance with law and actually recovered 20 tins of kerosene oil. In other words, the information given by the defendant was correct on the facts. If, in addition, the defendant had reported that the plaintiffs were black-marketeers or had otherwise broken the law, we do not have the report. But as a fact, the plaintiffs had at that time no valid licence for storing kerosene oil. They had been licensees in the previous year, and had applied for renewal of the licence. However, the plaintiffs were continuing to store kerosene oil, though the renewal had not come, on the assumption that the application for renewal justified it. Whether or not this was sufficient justification, the police started a case under the Defence of Gwalior Rules.
3. The plaintiffs aver, probably correctly, that the investigation by the police was carried out with a considerable amount of harassment and publicity, such as putting the two of them in fetters, marching them along the streets and detaining them in lock-up for some time. The prosecution itself was on the straightforward allegation that the police recovered from the plaintiffs 20 tins of kerosene oil and that they had no valid licence at that time. The defence was that they certainly had the quantity of kerosene oil, and as for the licence, they had applied for renewal which they expected would come and in anticipation of which they continued the business. Whether in these circumstances, the police should have started a case and whether, having started the case they should have put the plaintiffs, in fetters and humiliated them in the manner described, and whether bail shouldnot be given earlier, are all matters with which the defendant was not, and could not be concerned. Ultimately, the Magistrate trying the case, found on these facts that no contravention had been made out and there was a reasonable, anticipation on the part of the plaintiffs that the licence would be renewed though the. renewal itself was delayed. Thus they were acquitted. After the acquittal, the plaintiffs noticed the defendant calling upon him to compensate them for the harassment caused by the malicious prosecution, The defendant replied that as far as ho was concerned, he gave a piece of information which was found correct by the police. The case itself was not on his information but on the recovery of the oil from the place of the plaintiff. This is substantially the content of the written statement but in addition, the defendant also states that 'the plaintiffs were black-marketeers and they deserved what they suffered.'
4. Shri Pando, counsel for the plaintiff, appellants, has urged in this Court that the very fact that the defendant has in his written statement called the plaintiffs black-marketeers, shows his malicious intention. I am not prepared to go into what is after all a side track. If any statement made by a party in its pleadings is defamatory, then there is nothing to prevent the other party from prosecuting or suing for defamation. But that has no bearing on the merits of the suit.
5. In the criminal case as well as in the present suit, the parties led evidence but as already noted, the salient facts are a common ground. Certainly, the defendant informed the police of the plaintiffs having stored 20 tins of kerosene oil which was found true.
6. Both the lower Courts held that in this case the prosecution was not by the defendant, but by the police. According to them that alone justified the dismissal of the suit.
7. Whether or not the defendant is the veal prosecutor in this case, that will not decide the present case. Still, it is worth examining. If the basic allegation of the res gestae in a criminal case is the information given by somebody, we can certainly say that he has started the prosecution. On the other hand, if the res gestae arc based not upon the allegation by the informant, but upon the discovery of a physical object by the authorities, it would be more proper to say that the prosecution is started by the authority, though, in a way, the information may have led to it. When a man says that he saw or has reason to believe that A has killed B and the police start a case against A, we can hold that the informant is the prosecutor and the police form the agency only because they have started the case, solely or primarily on the information.
On the other hand, when the informant reports that the police would find 20 tins of kerosene oil with A, and they find the oil, and start a case on the basis of this discovery, it cannot be said that the prosecution is started by the informant, because the res gestae are primarily the discovery by the authorities and not the informa-tion given by the informant. That, in fact, is the position here. The question is, whether the in-formation naturally leads to the prosecution by itself or it is essential that something more has to happen independently of the volition of the informant. As stated in Balbhaddar Singh v. Badri Sah, AIR 1926 PC 46:
'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 is caused, an action will lie.'
It often happens that the informant speaks of his own knowledge, and the authorities reduce it to a report, and proceed straightway having reason to believe that the informant is telling the truth. It also happens that the authorities conduct an independent investigation of their own before starting the prosecution; in other words, the prosecution is not naturally and necessarily a consequence of the information given, but one consequent upon the discovery by the authorities concerned.
8. As already noted, this is not the main point. The main point is, the other material tests laid down by the Privy Council. Have the plaintiffs proved that the defendant invented and instigated the whole proceedings for prosecution?
9. Kerosene oil was a controlled commodity and the possession of a quantity more than necessary for personal use would call for an explanation. The defendant did not invent a story that the plaintiffs had 20 tins of kerosene, oil. Whether this was an offence or not, was a matter for. the authorities to think about. Here, the plaintiffs had not the licence, but urged that they were awaiting a renewal. The police did not wait and started the prosecution. Certainly, this was not at the instigation of the defendant, the defendant moving, as it were, out of the picture as soon as he had shown to the authorities that bis information was factually true.
10. It has been alleged by the plaintiff, appellants that there was a background of difference and enmity between them and the defendant. All this is irrelevant in the present case. They have cited a ruling reported in Sitaram v. Dudharam AIR 1952 Nag 310. About the principles contained there, there can be no doubt but I fail to see how it helps the present plaintiffs;
'Where the defendant does not believe in the. truth of the charge he makes against the plaintiff and there is a long standing feud between the parties, the defendant's predominant motive cannot be to vindicate the law but to humiliate and harass the plaintiff.'
But in the present case we do not even come to that stage. If the information turns out to be false, and given without sufficient reason, then the question would arise whether it is prompted by malice, or by a genuine desire to vindicate the law. Here, the information is true and has been found to be true by the authorities concerned. So, it is immaterial in a case like this, whether or not there was a feud in the past.
11. Thus, on the showing of the plaintiffs themselves the suit was bound to fail. I dismissthe second appeal with costs and pleaders fee payable to the defendant respondent according to rules.