Shiv Dayal, J.
1. This appeal arises out of a suit for the recovery of damages for malicious procecution. Defendant No. 2 -- Bala Shai had made a complaint against the appellant on the basis of which he was prosecuted under Sections 419 and 39D of the I. P. C. The result of that prosecution was that the appellant was discharged. The plaintiff's case is that the prosecution was malicious and in consequence he is entitled to damages. Bala Sahai was the Mukhtar Am and Karinda of Diwan Laxman Singh, who was made the first defendant. Both the defendants resisted the suit.
2. The trial Judge passed a decree for Rs. 500/5/9 against defendant No. 2 but dismissed the suit against defendant No. 1. From that decree of the first Court, the second defendant preferred an appeal for the dismissal of the suit while the plaintiff took a cross-appeal to the District Judge for a decree to be passed in his favour against the first defendant also.
3. The learned District Judge, Gwalior, allowed the appeal preferred by the second defendant and dismissed the plaintiffs suit on the ground that the plaintiff failed to establish want of reasonable and probable cause, and essential element in such a suit. Aggrieved by that judgment the plaintiff has come to this Court in second appeal.
4. Shri Patankar the learned counsel for the appellant relies on a decision of Deo, J., reported in Sitaram v. Dudharam, AIR 1952 Nag 310, where it has been held :
'Innocence is proved by proving acquittal in criminal proceeding where the prosecutor must know whether his accusation against the accused is false or true. If the accused is innocent it follows that the prosecutor must be telling a falsehood and there must be a want of reasonable and probable cause. Thus, in this class of case proof of innocence of the accused by production of the judgment in the criminal case is sufficient for the plaintiff to discharge the burden of proving want of reasonable and probable cause for the prosecution.'
With great respect I find myself unable to agree with that view. There are a number of decisions to the contrary including the case of Balbbadra Singh v. Budri Shah. AIR 1926 PC 46 and a decision of my learned brother Dixit J., (as a Judge of the M. B. High Court) reported in Baldeo Singh v. Pyarelal, (S) AIR 1956 MB 32.
5. This is an important question of frequent occurrence and it is expedient that it must be settled by a Division Bench or a larger Bench of this Court. I would set the point for reference as under:
'In a suit for the recovery of damages for malicious prosecution, is the production of the judgment in the criminal case sufficient for the plaintiff to discharge the burden of proving want of rea- sonable and probable cause for the prosecution.'
6. Let this case be placed before my Lord the Chief Justice for constituting a Bench.
(The Reference was heard by a Division Bench consisting of Khan and Shiv Dayal, JJ., who expressed the following'
Opinion Khan, J.
7. In a suit of torts, instituted for the recovery of damages for malicious prosecution, it was argued before a Single Bench of this Court on the authority of AIR 1952 Nag 310, that the production by the plaintiff of a judgment of Criminal Court, discharging or acquitting the accused, dispenses with the necessity of proving want of reasonable or probable cause for the prosecution. By an order of my Lord the Chief Justice, this point has been referred to a Division Bench for determination. In the referring order, the point of reference has been stated thus :
'In a suit for the recovery of damages for malicious prosecution, is the production of the judgment in the criminal case sufficient for the plaintiff to discharge the burden of proving want of reasonable and probable cause for the prosecution.'
8. Before answering the reference, I should like to refer briefly to the genesis of the tortious wrong, in order that the point in reference may be better appreciated.
9. The wrong known as malicious prosecution consists in causing damage by perversion of the machinery of law. A wrong prosecution of a person causes unnecessary harassment and is regarded as an abuse of the process of the Court and as such from mediaeval times in English legal history, it has given rise to an actionable claim for damages. The gist of the action is damage because a wrong prosecution has three damaging aspects :
One, it damages a man's fair name; Two, it puts one in jeopardy of his liberty; and Three, one is forced to spend money in defending one self. (See Savile v. Roberts, (1698) 12 Mod. Rep 2081. An action for malicious prosecution bears some analogy to an action for defamation, inasmuch as it is an action in vindication of character, which is necessarily involved in a criminal charge by throwing a cloud over one's name.
10. Although all wrong prosecutions are obnoxious, yet English law has prescribed limits, within which an actionable claim lies. In a suit for malicious prosecution, the plaintiff must prove three things: one, that the plaintiff was prosecuted by the defendant and that the prosecution terminated in plaintiff's favour. Two, that the defendant was actuated by malice, and, three, that the defendant acted without reasonable and probable cause. Unless the plaintiff succeeds in proving all the above three points, he cannot succeed. If he fails in establishing any of the points, no decree can be passed in his favour. Abrath v. North Eastern Rly. Co., (1883) 11 0- B. D. 440 (455). Each of the point is independent of the other.
11. In this reference, we are concerned only with the last point, namely, whether it is necessary for the plaintiff to prove that the defendant acted without reasonable and probable cause.
12. In AIR 1952 Nag 310. the following passage occurs :
'Innocence is proved by proving acquittal in criminal proceedings where the prosecution must know whether his accusation against the accused is false or true. If the accused is innocent, it follows that the prosecutor must be telling a falsehood and there must be a want of reasonable and probable cause. Thus, in this class of case proof of innocence of the accused by production of the judgment in the criminal case is sufficient for the plaintiff to discharge the burden of proving want of reasonable and probable cause for the prosecution.'
13. This passage seems to give the impression as if the fact that the plaintiff was acquitted or discharged in criminal proceedings and was held to be innocent is tantamount to want of reasonable and probable cause and the plaintiff need not prove it. In other words, if the plaintiff has proved that he was acquitted, then he need not prove want of reasonable and probable cause on the part of the defendant. But I am afraid that the mixing of the two points has no sanction in law, nor is there any good reason for doing so. No authority has been cited in support of the view taken.
The, reason why the two points should not be equated with each other is this : A Criminal Court may acquit or discharge a person for more than one reason. There may not be, in the opinion of the Criminal Court, enough evidence. Or the evidence may not have been relied upon for some reason by the Criminal Court. Or there may be other technical defects, which may result in an acquittal or discharge. And yet, the prosecutor (defendant) may have good reason to launch the prosecution. In the circumstances the rule of common law is that the plaintiff is bound to give some evidence, which may prima facie suggest absence of reasonable and probable cause. If he does, the onus then shifts to the defendant to rebut it.
14. I can quite realise the difficulty of the plaintiff in furnishing proof of absence of reasonable and probable cause in that it involves the negative proof of a fact. The English jurists are not unmindful of this. Sir John Salmond in his treatise on Torts (1953 Edition) has observed :
'The burden of proving absence of reasonable and probable cause is on the plaintiff, who thus undertakes the notoriously difficult task of proving a negative.'
Thus there is both authority and reason for the proposition that want of reasonable and probable cause is a necessary ingredient in an action for malicious prosecution, and, that innocence pronounced by a Criminal Court does not relieve the plaintiff from the necessity of adducing evidence of want of reasonable and probable cause.
15. For the above reasons, I would answer the I reference in the negative.
Shiv Dayal, J.
16. The law relating to malicious prosecution is based on two fundamental principles : (1) On the one hand it is the right of every one to put the law in motion with an honest intention of protecting his own rights ox the public interest, or in such circumstances as to render it probable that the law is on his side, whatever his motives may be. (2) On the other hand, it is an abuse of that right to proceed maliciously and without a reasonable and probable cause for anticipating success. And it is not enough that legal proceedings in such a case will not ultimately succeed. In the absence of Foundation for them during their progress they may cause great injury. It is against this harassment that an individual must be protected. It is, therefore, the malicious institution of an unreasonable criminal charge which is the foundation of the action familiarly known as an action for malicious prosecution. The law in this regard is well recognised and settled. Suffice to recapitulate it.
17. To succeed in an action for damages for malicious prosecution a plaintiff must prove :
(i) That there was prosecution by the defendant of a criminal charge against the plaintiff before a tribunal into whose proceedings the Civil Courts are competent to inquire;
(ii) that the proceedings complained of terminated in his favour, if from their nature they were capable of so terminating;
(iii) that there was an absence of reasonable and probable cause for such proceedings;
(iv) that the defendant instituted or carried on such proceedings maliciously; and
(v) that the plaintiff has suffered damages. (See (1883) 11 QBD 440 (455), per Bowen L. J. That decision of the Court of Appeal was affirmed by the House of Lords, Abrath v. North Eastern Rly. Co., (1886) 11 AC 247.
18. It is not sufficient for the plaintiff to prove that he was innocent of the crime for which he was prosecuted by the defendant by proving that the prosecution terminated in his favour. He must also show that the defendant acted maliciously and without reasonable and probable cause. Reasonable and probable cause is
'an honest belief in the guilt of the accused based upon a full conviction, founded upon reasonable ground, of the existence of a state of circumstances, which, assuming them to be true, would reasonably lead an ordinarily prudent and cautious man, placed in the position of the accuser, to the conclusion that the person charged was probably guilty of the crime imputed.' Per Hawkins, J. in Hicks v. Faulkner, (1881) 8 QBD 167 (172).
The House of Lords approved this definition in Herniman v. Smith, (1938) AC 305. There must be first an honest belief of the accuser in the guilt of the accused; secondly, such belief must be based on an honest conviction of the existence of the circumstances which led the accuser to that conviction; thirdly, such secondly mentioned belief must be based upon reasonable ground, that is to say, such grounds as would lead any fairly cautious man an the defendant's situation so to believe; fourthly, the circumstances so believed and relied on by the accuser must be such as amount to reasonable ground for belief in the guilt of the accused. In AIR 1926 PC 46. it is laid down :
'The question is not : Did the plaintiff commit the offence or did the defendant invent the offence against plaintiff, the two queries exhausting the possibilities of the situation. The question is : Has plaintiff proved that defendant invented and instigated the whole proceeding for prosecution'.
19. The question of reasonable and probable cause frequently occasions no little embarrassment in the conduct of a trial, not so much from its own inherent difficulty as from the manner in which it presents itself. Lord. Tanterden, C. J. in Cotton v. James, (1830) 109 ER 735, observed :
'In general the plaintiff must give some evidence showing the absence of probable cause. But such evidence is, in effect, the evidence of a negative, and very slight evidence of a negative is sufficient to call upon the other party to prove the affirmative, especially where the nature of the affirmation is such as to admit of proof by witnesses, andcannot depend upon matter lying exclusively within the party's own knowledge, as in some case ofcriminal prosecution, it may do.'
20. The judgments of the Criminal Courts are conclusive for the purposes of showing that the prosecution terminated in favour of the plaintiff, but the findings o the Criminal Courts by themselves are not evidence of malice or want of reasonable and probable cause. It is for the civil court to go into all the evidence and decide for itself whether such malice or cause existed or not.
21. If want of reasonable care on the part of the defendant is relied upon, that, as an element in the absence of reasonable and probable cause, must be proved by the plaintiff; and so, if facts existed which, if known to the defendant, would have constituted reasonable and probable cause, the burden of showing that they were not known to him would lie on the plaintiff. The burden ot proof, in the sense of the burden of adducing evidence, is not stationary; when the plaintiff has given such evidence as, if not answered, will entitle him to a verdict, the burden of proof is shifted to the defendant.
The amount and nature of evidence requited to fulfil the initial burden depends upon the facts and circumstances of each case. It is in this context that a criminal charge founded on a personal knowledge of the accuser is distinguished from one based on information received by him. In the first case by proof of plaintiff's innocence a presumption of want of reasonable and probable cause will arise. In the second case, innocence per se will raise no presumption of want of reasonable and probable cause. In the case of (1883) 11 QBD 440 (cited above) Bowen, L. J. himself noticed this distinction and observed :
'Something has been said about innocence being proof, prima facie, of want of reasonable and probable cause. I do not think it is. When mere innocence wears that aspect, it is because the fact of innocence involves with it other circumstances which show that there was the want of reasonable and probable cause; as, for example, when he is telling against the man whom he is prosecuting, is false or true. In such a case, if the accused is innocent, it follows that the prosecutor must be telling a falsehood, and there must be want of reasonable and probable cause. Or if the circumstances proved are such that the prosecutor must know whether the accused is guilty or innocent, if he exercises reasonable and proper care. Except in case of that kind, it never is true that mere innocence is proof of want of reasonable and probable cause. It must be innocence accompanied by such circumstances as raise the presumption that there was a want of reasonable and probable cause.'
22. No definite rule can be laid down for the exercise of the Judge's determination; but the defendant will be deemed to have had reasonab'e and probable cause for a prosecution where (a) he took reasonable care to inform himself of the true facts; (b) he honestly, a'though erroneously believed in his information, and (c) that information if true, would have afforded a prima facie case for the prosecution complained of.
23. On the above premises, I agree with my learned brother that the question referred to this Bench must be answered in the negative.