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Kunhutty Sahib Vs. Veeramkutty - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKerala High Court
Decided On
Case NumberSecond Appeal No. 148 of 1956 (K)
Judge
Reported inAIR1960Ker264
ActsCode of Criminal Procedure (CrPC) - Sections 253(1)
AppellantKunhutty Sahib
RespondentVeeramkutty
Appellant Advocate K.P. Abhraham, Adv.
Respondent Advocate V.P. Goplan Nambiar, Adv.
DispositionAppeal and cross-objection dismissed
Cases ReferredPunnalal v. Kasturichand
Excerpt:
criminal - prosecutor - section 253 of criminal procedure code, 1898 - award of compensation for malicious prosecution challenged on ground that appellant cannot be termed as prosecutor - prosecution of respondent on account of appellant's complaint to police - appellant comes within term prosecutor and award of compensation on proof of malicious prosecution valid. - - he also denied that, in any event, he has complained without reasonable and probable cause and with malice as alleged by the plaintiff. the plaintiff, according to the defendant, was a terror in the locality and he is only out to harm poor people like the defendant who do not see eye to eye with him in some of the political matters. menon, on seeing the defendant was fully satisfied about the occurrence and he found.....1. this is an appeal by the plaintiff claiming enhanced compensation in a suit filed by him claiming damages as against the defendant for malicious prosecution. the plaintiff, according to the case set up in the plaint, was prosecuted for a charge under section 325 of the indian penal code on the basis of a complaint made by the defendant to the police at chowghat. the second class magistrate at chowghat in c. c, no. 45 of 1953 enquired into the matter and ultimately discharged the accused on 14-7-1952 under section 253(1) of the code of criminal procedure. the said judgment is ext. a2 in these proceedings.2. it was the further case of the plaintiff that the complaint filed by the defendant, namely, ext. a1. on 3-10-1951 was false to the knowledge of the defendant and he has given the.....
Judgment:

1. This is an appeal by the plaintiff claiming enhanced compensation in a suit filed by him claiming damages as against the defendant for malicious prosecution. The plaintiff, according to the case set up in the plaint, was prosecuted for a charge under Section 325 of the Indian Penal Code on the basis of a complaint made by the defendant to the Police at Chowghat. The Second Class Magistrate at Chowghat in C. C, No. 45 of 1953 enquired into the matter and ultimately discharged the accused on 14-7-1952 under Section 253(1) of the Code of Criminal Procedure. The said judgment is Ext. A2 in these proceedings.

2. It was the further case of the plaintiff that the complaint filed by the defendant, namely, Ext. A1. on 3-10-1951 was false to the knowledge of the defendant and he has given the complaint without any reasonable and prohable cause and with malice just to put the plaintiff to disgrace and loss.

3. In consequence of the judgment in his favour of the criminal court evidenced by Ext. A2, the plaintiff called upon the defendant by his notice. Ext. A8, to pay him damages as claimed therein. The defendant by his reply notice Ext. A7 hag affirmed the allegations made by him in his complaint and also the charge which has been found to be false by the criminal court,

4. Therefore, the plaintiff claimed damages in the sum of Rs. 1000 from the defendant for malicious prosecution under three heads of claim: (a) Rs. 200/- for the expenses incurred by him in connection with the proceedings before the criminal court; (b) Rs. 100/-, travelling expenses incurred by him for obtaining documents and other incidental expenses; (c) Rs. 700/- as damages for mental main caused to him and also loss of reputation in consequence of the malicious prosecution launched by the defendant.

5. The suit was defended on the ground that the defendant was not the 'prosecutor' as understood in law. He affirmed, no doubt, the various allegations made by him in his complaint to the Police on 3-10-1951 namely, Ext. A1 as also the charge that he levelled against the plaintiff. The defendant further contended that he was beaten by the Plaintiff and his arm also was fractured, and he sustained grievous hurt. According to the defendant, the allegations made by him in the circumstances, as also the evidence given by him in the criminal court were all true. He also denied that, in any event, he has complained without reasonable and probable cause and with malice as alleged by the plaintiff. This is only an attempt by the plaintiff to extort some money, if possible, from-the defendant and to root out the defendant and his family from the place where he was living.

6. There was also an allegation that the defendant cannot be said to have acted without reasonable and probable cause and what he did was only to lay information to the Police and of was the Police who investigated the matter and ultimately laid the charge as against the plaintiff. He had nothing to do with the actual conduct of the prosecution by the Police. Therefore, he is not liable in law to answer the claim of the plaintiff.

7. On the claim for damages, the defendant also alternatively contended that though the plain-tiff may be a man of property he is utterly devoid of all decency and has no respectability whatsoever. The plaintiff, according to the defendant, was a terror in the locality and he is only out to harm poor people like the defendant who do not see eye to eye with him in some of the political matters.

8. The defendant further averred that the plaintiff sent for him on the night of 20-9-1951 and he was severely beaten by the plaintiff as a result of which lie Sustained serious injuries as also a fracture of his arm. Due to tear of the plaintiff, he did not make any complaint to the Police. But this incident appears to have come to the knowledge of one Dr. K. R. Menon, a member of the Madras Legislative Assembly and who is Dw. 2 in this case. The said Dr. K. B. Menon, on seeing the defendant was fully satisfied about the occurrence and he found fault with the Police foe not taking any action in this matter. It was in consequence of this that the Sub-Inspector of Police of the area met the defendant and questioned him, and later on the defendant went to the Police Station and gave the complaint Ext. A-1 on 3-10.-1951.

9. It is also stated by the defendant that he never did anything at all from 20-9-1951 till 3-10-1951. Even the complaint that was actually filed on 3-10-1951 was really due to the persuasion of Dr. K. B. Menon and others. Even then the Police, after investigation, referred the case. Then again this was taken up by Dr. K. B. Menon in a public meeting held near the locality where the action of the Police was again criticised and it was after this, that the higher officers of the Police Department, namely the Deputy Superintendent of Police, took up the investigation which resulted in the Police filing a charge as against the plaintiff. The defendant again reiterated that the plaintiff was discharged by the Magistrate as per his judgment. Ext. A2 because the Police were not diligent in conducting the prosecution and they were influenced by the plaintiff. He wound up by saying that he has no malice as against the plaintiff, and it is the plaintiff who has been-giving all sorts of trouble to the defendant and this litigation also is only a part of the hostile attitude of the plaintiff towards the defendant. The defendant also ultimately contended that the damages claimed by the plaintiff in any event are very excessive. On these contentions he prayed for a dismissal of the suit.

10. The learned District Munsiff of Chowghat came to the conclusion, that notwithstanding the fact that the complaint Ext. A1 was given by the defendant, only after the intervention of Dr. K. B. Menon, it will not in any manner stand in the way of holding that the defendant is the 'prosecutor'. In this connection, the trial court has adverted to the evidence given by the defendant himself to the effect that if he had anyone to help him earlier. he wanted to file a complaint against the plaintiff and that he filed the complaint Ext. A1 to the Police on Dr. K. B. Menon's advice and that the defendant got the courage to file the complaint as his own.

11. Regarding the actual assault alleged by the defendant in Ext. A1 trial court, after considering the evidence adduced in the case came to the conclusion that the story of the assault made by the defendant as against the plaintiff was false. After considering the previous relationship of the plaintiff and defendant, the trial court ultimately came to the conclusion that in filing the complaint, Ext. A1, the defendant has acted without reasonable and probable cause and that he has also acted with malice in prosecuting the, plaintiff as he did.

12. So far as the question of damages is concerned, the trial court was satisfied from Exts. A5 and A6 that the plaintiff had spent a sum of Rs. 200/- for defending himself in the criminal prosecution, which ultimately resulted in his discharge, as per the order in Ext. A2 and this claim was allowed.

13. So far as the claim by the plaintiff for a sum of Rs. 100/- for travelling expenditure and expenses incurred for obtaining copies of documents, etc. is concerned, the trial court was of the view that the plaintiff has not placed any material to justify the claim under this head and therefore disallowed this claim.

14. Regarding the claim of Rs. 700/- as damages for mental suffering and loss of reputation the learned District Munsiff was of the view that this amount cannot be considered to be an excessive claim because, even the defendant was prepared to admit that the plaintiff is a fairly rich man of the locality having properties of over Rs. 50,000/- and in this view allowed this claim. Thus it will be seen that the trial court allowed as sum of Rs. 900/- as and for damages in favour of the plaintiff as against his claim for Rs. 1000/-.

15. There was an appeal by the defendant against this decree and judgment of the learned District Munsiff to the Subordinate Judge's Court of Ottapalam. The same contentions taken by both parties in the trial court were again urged before the learned Judge. The learned Judge; found from the evidence adduced in the case that the plaintiff was working for the Congress and that the defendant was an adherent of the Praia Socialist Party and that this is why Dr. K. B. Menon, regional Secretary of the Praja Socialist Party at that time, has taken so much interest on behalf of the defendant and has also given evidence in this case as D. W. 2. He has considered the contention of the defendant that ho cannot be considered to be a 'prosecutor' in the circumstances of the case as he did not give any complaint at all till 3-10-1951 and that the said complaint was given only after Dr. K. B. Menon interfered. The learned Judge has again considered the contention of the defendant that even after the filing of the complaint, the Police referred the case and he took no steps whatsoever in that regard. Again, the matter was taken up by the District Superintendent of Police only when criticisms were made against the conduct of the Police by Dr. K. B. Menon in a public meeting. After considering all these circumstances, the learned Judge agreed with the view of the trial court that, notwithstanding all these circumstances, it is the defendant who was the 'prosecutor' as under stood in law.

16. Again, regarding the actual incident which, according to the defendant, is true, namely, the beating by the plaintiff, the learned Judge agreed completely with the findings of the trial court that the facts mentioned in Ext. A1 are not true and that the defendant also knows that they are not true. Ultimately, the learned Judge came to the conclusion that the incident complained of by the defendant is not true.

17. Regarding the claim for damages, the learned Judge agreed with the trial court regarding the sum of Rs. 200/- awarded under the head of expenses incurred by the plaintiff for defending himself in the criminal prosecution before the Criminal Court. But regarding the sum of Rs. 700/-allowed as damages for mental pain and loss of reputation, the learned Judge was not prepared to agree with the trial court that the plaintiff was entitled to this amount. According to the learned Judge there is evidence in the case to show that the plaintiff is not such a respectable man of the locality as he claims to be. The learned Judge has referred to' the existence of criminal complaints in which the plaintiff has been involved. Therefore, the learned Judge was of the view that in these circumstances, nominal damages of Rs. 50/- for mental pain and agony is sufficient. Therefore, in the end, the learned Judge, while confirming the finding against the defendant on the questions of malicious prosecution and his liability to pay damages, ' awarded only a sum of Rs. 250/- as and for damages as against the decree of the trial court awarding Rs. 900/-.

18. The plaintiff has filed this second appeal claiming enhanced damages and his contention is that the lower appellate court erred in reducing the damages under the head 'mental pain and loss of reputation to Rs. 50/- when the trial court has awarded Rs. 100/- as claimed. According to the appellant-plaintiff, the learned Judge, having agreed with the trial court that the prosecution was malicious should not have interfered with the award of damages decreed by the trial court.

19. Though the defendant has not filed any appeal as such against the decreas of both the courts holding that he is liable in law to the plaintiff for the malicious prosecution, he has filed a memorandum of cross-objections in this appeal. The points taken there, are to the effect that the defendant is not at all liable in law to the plaintiff for any damages whatsoever.

20. As the memorandum of cross-objections filed by the defendant if accepted, will result in the plaintiff not being entitled to any damages at all, the memorandum of cross-objections filed on behalf of the defendant was argued first.

21. On behalf of the defendant-cross-objector, the main point that has been urged before nip by Mr. V. P. Gopalan Nambiar, learned counsel, is to the effect that the defendant cannot certainly be considered to be a 'prosecutor' in view of the circumstances established in this case. According to the learned counsel, the views expressed as against! his client by both the courts are not sustainable in law.

22. The learned counsel's contention is that what defendant did by Ext. A1 was nothing more than laying information before the Police about an occurrence. It was really the Police who investigated the matter and ultimately filed a charge-sheet as against the plaintiff.

23. Learned counsel also relied upon the circumstances that the occurrence was on 29-9-1951 and the defendant did not at all move into this matter till Dr. K. B, Menon interfered. The defendant has given evidence to the effect that except undergoing some treatment with a native physician for the injuries sustained by him, he took no action. himself to file a complaint against the plaintiff. He has also relied upon the evidence of the defendant as D. W. 1 to the effect that he filed the complaint only when Dr. K. B. Menon advised him to do so. Even after giving the complaint, Ext. A1, the defendant did nothing else in this matter and left the whole thing in the hands of the Police. The Police referred the case and even then the defendant did nothing in the matter. Again, there was a public meeting in which Dr. K. B. Menon criticised the conduct of the Police in the investigation of this occurrence, Later on higher officers of the Police Department took up the matter and ultimately a charge-sheet was filed as against the plaintiff.

24. Learned counsel has also relied upon the evidence of the defendant to the effect that he gave no assistance whatsoever to the Police in the matter of getting witnesses or otherwise prosecuting the case. In particular. Mr. Gopalan Nambiar relied upon the evidence of Dr. K. B. Menon as D. W. 2 in this case to the effect that he found the defendant in a pitiable state with a number of in-juries on his body. The witness went to the Sub-Inspector and found fault with him for not taking Suitable action. After this, the Police took up the matter and recorded a complaint Ext. A1 from the defendant. Then later on the Police referred the case, and this witness presided over a meeting where a resolution was passed condemning the action of the Police, and copies of these proceedings were forwarded to the District Superintendent of Police and the Inspector-General of Police and later on the prosecution was launched by the Police. Me has also stressed another answer of this witness to the effect. 'left for himself the defendant would not have preferred the complaint to the Police and it is we who took up the matter''.

25. In the circumstances mentioned above, it is the contention of Mr. Gopalan Nambiar that the defendant cannot be said to be a 'prosecutor' as understood in law and the complaint Ext. A1 in this case cannot be said to be directly and primarily responsible for the prosecution launched in this case. The learned counsel has referred to certain decisions which will be adverted to later. It may also be noted that another minor contention of Mr. Gopalan Nambiar is to the effect that the two courts have not given any finding that the allegations made in Ext. A1 were false to the knowledge of the defendant.

26. I may also state that Mr. Gopalan Nambiar quite fairly, being a second appeal, could not and did not attack the concurrent findings of the two courts recorded against his client that if the defendant is otherwise liable as a prosecutor, he has acted with malice and without reasonable and probable cause in giving the complaint, Ext. A1. Therefore in view of these circumstances. I am absolved from the necessity of considering what will the expressions 'malice' and 'acting without reasonable and probable cause' mean in law.

27. On the other hand, Mr. K. P. Abraham, learned counsel appearing for the plaintiff, has contended that both the courts have recorded findings as against the defendant that he has acted maliciously and without reasonable and probable cause when he gave the complaint, Ext. A1. Ac-cording to the learned counsel, there are findings to the effect that the allegations made by the defendant in Ext. A1 were false to the knowledge of the defendant.

28. On the main attack made by Mr. Gopalan Nambiar that the defendant cannot be considered to be a 'prosecutor' in the circumstances of this case. Mr. K. P. Abraham contended that the allegations made by the defendant in Ext. A1 form the essential basis on which the Police acted and ultimately filed a charge-sheet as against the plaintiff. According to the learned counsel, it is realty out of the false information furnished by the defendant that the prosecution arises in this case. If he has moved the Police by filing a false complaint, the defendant must be held liable for the consequences that follow. It is not really necessary that a complaint should have been made by the defendant to the Magistrate as such.

Learned counsel has also contended that the fact that the defendant did not take any steps till 3-10-1951, nor the circumstance that he actually filed the complaint Ext. A1 on that date under the advice of Dr. K. B. Menon and that the matter was ultimately taken up by the District Superintendent of Police who ordered investigation, which resulted in the charge-sheet, will not avail the defendant so long as the prosecution which was launched by the Police was really based upon the allegations made in the complaint, Ext. A1, Even in these circumstances, a party moving the Police by giving information which is false to his knowledge must bear the consequences of his act.

29. The learned counsel Mr. Abraham also contended that in any event, there is the direct admission of the defendant in his own evidence as D. W. 1 to the effect :

'I filed the complaint to the Police on Dr. K. B. Menon's advice and I got the courage to file the complaint as my own'.

Learned counsel has also relied upon the statement of the defendant as P. W. 1:

'If I had anyone to help I wanted to file a complaint against P. W. 1'.

All these answers, according to the learned counsel, will clearly show that the defendant takes full responsibility for the filing of the complaint Ext, A1 and for the allegations made therein. The fact that Dr. K. B. Menon goes into the box and tells the court as D. W. 2:

'Left for himself, the defendant would not have preferred the complaint to the Police and it is we who took up the matter'

is of absolutely no avail because the defendant is prepared to admit and has in fact admitted that he takes the responsibility for the complaint Ext. A1. The learned counsel has also invited my attention to certain principles laid down in the decisions which will show that the defendant is the 'prosecutor' as understood in law.

30. From what is stated above, it will be seen that the main point that arises for decision before me is as to whether the defendant can be said to be the prosecutor in the circumstances of this case.

31. Before I go into the question of law raised by the learned counsel, it is desirable at this stage to state the substance of the allegations contained in Ext. A1. Ext. A1 which is recorded as a first information report states that it is given by the defendant at the Chowghat Police Station at about 8 A. M. on 3-10-51. Four persons are mentioned as the accused and their addresses also are given and the first accused mentioned therein is the present plaintiff. It is stated that on 24-9-1951 Thursday after 9 P. M., one Syed. son of Kathiru came to the defendant's house and told him that the plaintiff wants him to go over to his house. The defendant, along with his brother accompanied the said Syed to the house of the plaintiff. When he went into the house, the plaintiff saying, 'Are you not the man who caused the M. S. P. to beat me', bead the defendant on his left hand with a big wooden stick and broke hip bone. Then be was also beaten on the right side also. Muhammunni who is stated to be the second accused, Syed who is stuted to be the third accused and Munhumiyan who is stated to be the 4th accused, all of them heat the defendant. At that time the defendant's brother was manhandled by one Krishnankutty and Kunhamad.

Then he was thrown clown and Muhammuni, the third accused threatened to kill him. At that time the defendant's brother bawled out that no harm should be done to the defendant. On hearing this all the accused turned their attention to the defendant's brother. Availing of that opportunity, the defendant ran away from the place and he is expressing his grievances in this manner in this complaint. It will he seen from the substance of the complaint extracted above that the defendant has made very serious allegations against the plaintiff based upon his personal knowledge and he directly implicates the plaintiff along with certain others for the serious injuries stated to have been sustained by him at that time.

32. The law on the subject of malicious prosecution, and as deducible from the principles laid down in several decisions and as to which there is no controversy, is well settled and that is this: In an action for malicious prosecution, the onus is upon the plaintiff to prove (1) that he was prosecuted by the defendant; (2) that the proceedings complained of terminated in favour of the plaintiff, if from their very nature they were capable of so terminating; (3) that the prosecution was instituted against him without any reasonable and probable cause; and (4) that it was due to a malicious intention of the defendant and not with a mere intention to carry the law into effect. (See (1) Balbhaddar v. Badri Sah, AIR 1926 PC 46 at p. 49; (2) Ucho Singh v. Nagcshar Prasad, AIR 1956 Pat 285 at 287 (Choudhary J.); (3) C. Ambalam v. S. Jagannatha (Ramaswami J.), AIR 1959 Mad 89 at 94).

In this case there is no dispute that Ext. A2, judgment of the criminal court, clearly shows that the criminal prosecution ended in favour of the plaintiff. There is also the finding of the two courts that the prosecution was instituted against the plaintiff without any reasonable and probable cause. There is also the further finding that the prosecution was due to a malicious intention of the defendant and not with a mere intention to carry the law into effect. Therefore, ingredients Nos. 2 to 4 are established in this case. The question then is whether the plaintiff has established the first essential condition also, namely that he was prosecuted by the defendant. It is really on this point that there is controversy in this appeal.

33. Before I take up the decisions cited by Mr. Copalan Nambiar, learned counsel for the defendant-cross-objector on the one hand, and by Mr. K. P. Abraham, learned counsel for the plaintiff on the other, it is desirable to refer to an early decision of the Madras High Court, as also two decisions of their Lordships of the Privy Council, because those decisions are referred in the decisions cited by the learned counsel. The earliest decision is the decision of the Madras High Court in Narasinga Row v. Muthaya Pillui, ILR 26 Mad 362 which is a decision of Boddam and Bhashyam Ayyangar JJ.

In that case, the plaintiff sued for damages for malicious prosecution. The defendant appears to have given information to the Police that the plaintiff, had illegally broken open the door of his house with intent to attach his properties for arrears of kist. The Police investigated the matter and finally charge-sheeted the plaintiff before the Second Class Magistrate, Palamcottah. The Magistrate tried the accused and dismissed the complaint. On the basis of this order in his favour the plaintiff sued for damages for malicious prosecution.

34. The question that arose in that case is as to whether the first defendant there could be considered to he the 'prosecutor' of the criminal case. The trial court held that the first defendant had not himself made the charge before the Magistrate but had only laid it before the Police and that the Police filed the charge after investigation. The trial court also recorded findings to the effect that the defendant could not be stated to have acted without reasonable and probable cause and maliciously. In this view the plaintiff's suit was dismissed. But on appeal the Subordinate Judge reversed the decree of the trial court and granted the plaintiff a decree as against the first defendant.

35. In the second appeal filed by the first defendant in the High Court, the learned Judges reversed the decree of the lower appellate court and restored that of the trial court, in these words:

'The only person who can be sued in an action for malicious prosecution is the person who prosecutes. In this case, though the first defendant 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 first defendant is not responsible for their act and no action lies against him for malicious prosecution.'

36. Prima facie this judgment will lend support to an argument that unless a person files a regular complaint before a Magistrate, he could not be said to be a 'prosecutor' even though he may have filed a complaint before the Police who after investigation filed a charge-sheet before a Magistrate. No doubt, Mr. Gopalan Nambiar at one stage of' his arguments attempted to rely upon this reasoning of the learned Judges of the Madras High Court that in this case his client could not be said to be the prosecutor as he did not file a complaint before the Magistrate. But in fairness to Mr. Gopalan Nambiar it must be stated that he did not pursue this line of argument on the basis of this decision of the Madras High Court in view of the later decisions of the Madras High Court and also of the Privy Council which will be referred to immediately.

37. It may be stated that the decision of the Madras High Court referred to above was rendered in 1903. In 1908, the Privy Council had to consider the question as to in what circumstances a party can bo said to be a 'prosecutor' in a malicious prosecution. That again arose when their Lordships rendered the decision in Gaya Prasad v. Bhagat Singh, ILR 30 All 525 (P. C.). In that case the plaintiff brought an action claiming damages for malicious prosecution. The trial court held 'that in the criminal proceedings which resulted in the acquittal of the plaintiff, the two defendants have concocted and produced false evidence to connect the plaintiff charged with the crime.

In this view the trial court gave the plaintiff therein a decree for damages. But on appeal, the judicial Commissioner of Oudh on the authority of the decision of the Madras High Court in ILR 26 Mad 362 dismissed the suit holding that 'If the Police or Magistracy decided to act on information given by a private individual without a formal complaint or application for process, the Crown: becomes the 'prosecutor' and not the individual'.

38. Their Lordships of the Privy Council considered this aspect of the matter and after referring to the observations of the Madras High Court in, ILR 26 Mad 362 which I have already extracted earlier, in this judgment, observe at 533 as follows:

'The principle laid down is sound enough if properly understood, and its application to the particular case was no doubt justified; but in the opinion of their Lordhips, it is not of universal application. 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 misleads 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 the Magistrate -- it would be equally improper to allow him to escape liability, because the prosecution has not, technically, been conducted by him. 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 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 hac vice represents the Crown.'

Then after considering the other circumstances and the evidence in the case, their Lordships observe at page 535:

'The charge was a false one to the knowledge of the respondents, and they must abide the consequences of their misconduct.'

Finally, their Lordships again observed at page 536:

'In the opinion of their Lordships, it would be a scandal if the remedy provided by this form of action were not available to innocent persons aggrieved by such unfounded charges... ... . ...'

In this view their Lordships reversed the decree and judgment of the Judicial Commissioner and restored that of the trial court awarding damages to the plaintiff.

39. It will be seen from the principles laid down by their Lordships of the Privy Council in the decision quoted above, that the Privy Council does not accept the broad proposition laid down in ILR 26 Mad 362 that a person will be a 'prosecutor' only if he moves a Magistrate by filing a complaint. The decision also is to the effect that notwithstanding the fact that a person has not figured as a complainant before a Magistrate, he can nevertheless be a prosecutor if the circumstances mentioned in the judgment of their Lordships are present. It may be stated that in the particular case before their Lordships, the respondent in the ap-peal had not really figuered as a complainant before a Magistrate but had only given some information to the Police and it was also in evidence before their Lordships that they took an active part in the conduct of the prosecution itself.

Even in those circumstances, their Lordships' decision is to the effect that a party is a prosecutor notwithstanding the fact that he gave only same information to the Police on the basis of which the Police laid a charge-sheet against the person mentioned by the informant.

It is also clear that their Lordships are of the view that 'if the charge is false to the knowledge of the complainant' he will certainly be liable for the consequences of this false complaint and it will be no defence for such a person to merely say that the actual prosecution was instituted and ton-ducted by the Police. No doubt, in the case of a person who merely gives some information to the Police on the basis of which the Police starts investigation and ultimately lay a charge against the persons, who according to them, may be involved in a particular occurrence, it cannot be stated that such a person who merely laid information to the Police, without anything more can be considered to be a prosecutor unless he misleads the Police by bringing suborned witnesses to support it and influences the Police to assist him in sending an innocent man for trial before the Magistrate. That, in proper cases, courts must consider even such a person as a prosecutor and make him liable for damages for malicious prosecution is emphasised by their Lordships in the following observations at p. 536:

'In the opinion of their Lordships, it would be a scandal if the remedy provided by this form of action were not available to innocent persons aggrieved by such unfounded charges.'

That the Privy Council should not be understood as having given support to the reasoning of the learned Judges in ILR 26 Mad 362 is made clear by a later Division Bench of the Madras High Court reported in Periya Goundan v. Kuppa Goundan ILR 42 Mad 880: (AIR 1919 Mad 229(2)). This decision was rendered in 1919. In that case the defendant had made a complaint to a Village Munsiff against the plaint charging that the plaintiff and his father have committed theft of a buffalo belonging to the defendant. As a result of this complaint, the Police investigated the matter and instituted and conducted the prosecution against the plaintiff and his father in the court of the Divisional Magistrate. The Magistrate acquitted the plaintiff and the latter instituted that suit for recovery of damages for malicious prosecution.

The defendant pleaded that he did not conduct the prosecution as he never instituted nor conducted the charge before the Magistrate and that it was really the Police, who had after investigation instituted the criminal proceedings against the plaintiff and, therefore, the defendant was not either in law or on fact the 'prosecutor' so as to be made liable in damages, In particular, the defendant relied upon the decision of the Madras High Court in ILR 26 Mad 362 referred to earlier.

The trial court held that the defendant was the 'prosecutor' and awarded damages in favour of the plaintiff. But on appeal, the learned District Judge differed from the trial court and held that the defendant was not the 'prosecutor' in that case. The plaintiff went in second appeal to the High Court. Before the learned Judges, again the decision in ILR 26 Mad 362 was strongly pressed by the defendants to defeat the appeal filed by the plaintiff. The learned Judges, Ayling and Napier TJ., speaking through Ayling J., observed at p. 882: (of ILR Mad): (at pp. 229-30 of AIR) as follows:

'Any person desirous of setting the criminal law in motion against another in respect of an act amounting to a cognizable offence can do so in three ways:

(1) He can present a complaint to a Magistrate having jurisdiction who will thereupon take action under Chapter XVII, Criminal Procedure Code.

(2) He may give information to an officer in charge of a Police Station who will take action under Chapter XIV, Criminal Procedure Code.

(3) He may (in the case of all non-bailable certain other offences) give information to the headman of his village who is bound under Section 45, Criminal Procedure Code, to forthwith communicate the information to the nearest magistrate and to the officer in charge of the nearest police station. It then becomes the duty of the police officer to investigate the case as laid down in Chapter XIV.

Method 3 in fact only differs from method 2 in that the village headman being the officer presumably most accessible to the person giving information is made the channel of communication to the police officer. It was the method adopted in the present case;......'.

The learned Judges noted the contention advanced before them to the effect that whenever prosecution in court is instituted on a police report under Section 173, Criminal Procedure Code, the person furnishing the original information to the Police, whether directly or through the village headman, is not responsible for the act of the Police and cannot he sued for damages (or malicious prosecution. After noting this contention, the learned Judges observe at p. 882 of ILR Mad: (at p. 230 of AIR) as follows:

'This certainly seems to me to be the meaning of the learned Judges in ILR 26 Mad 862, but with all respect I am unable to agree. If it be conceded that a person is liable for damages to respect of a prosecution on the ground that it was instituted on maliciously false information communicated by him to the Court in the shape of a complaint under Section 200, Criminal Procedure Code, why should he not be equally liable where ho induced the Police by maliciously false information to send the case to the Magistrate under Section 170, Criminal Procedure Code? No doubt, it is the duty of the police to hold an investigation as laid down in Chapter XIV before sending the case to the Magistrate, with a view to verifying as far as possible the truth of the information furnished by them.

But a similar duty is cast on the Magistrate receiving a complaint; he must examine the complainant on oath (Section 200) and if not satisfied of the truth of the complaint he may hold or direct a preliminary inquiry (Section 202) and he only takes action against the accused person by the issue of process under Section 204. Criminal procedure Code, if he is of opinion that there is sufficient ground for proceeding. The fact that some officer, whether Policeman or Magistrate, has to form an opinion on the apparent truth of the informant's information before the prosecution proceeds is no more reason in the one case than in the other for exonerating tile informant from liability for what follows. It is in each case his false information out of which the prosecution arises and it makes no difference whether the person led astray in the first instance is the police officer or the magistrate. The police, or as the form usually runs, the, King-Emperor, may be the nominal prosecutor; but the person primarily responsible for the prosecution is the person who furnished the false information on which the Police act. 'Oui facit pey alium facit) per se'. The true Principles on which responsibility for the prosecution should be fixed are laid down by their Lordships of the Privy Council in ILR 30 All 525. They are at pains to make it clear that it is not enough to say (as the learned District Judge has in effect said here) that the prosecution was instituted and conducted by the police'. Again, at p. 884 (of ILR Mad): (at p. 231 of AIR) the learned Judges observe;

'With all respect I do not think their Lordships realised that the Bench of this Court had in effect held that even if the information to the police was maliciously false the plaintiff's suit for damages could not proceed simply because the case having been taken up on a police report (Section 190(1)(h), Criminal Procedure Code), the Police and not the defendant must be regarded as prosecutor.

From such proposition which is clearly contrary to the views expressed in the rest of their Lordships' judgment I must respectfully dissent'.

Therefore, the learned Judges dissented from the very broad view expressed in the earlier decision in ILR 26 Mad. 362 and also explained! the scope of the decision of the Privy Council in ILR 30 All 525. Ultimately the learned Judges reversed the decree of the District Judge and decreed the suit of the plaintiff holding that the defendant, who had filed the complaint before the Village Munsiff, on the basis of which a prosecution was launched and conducted by the Police, was the 'prosecutor' liable in law for damages.

This decision, if I may say so with respect, lays down the position correctly that a person who files a complaint before the police containing allegations false to his knowledge and as a result of which a prosecution, launched by the police, will nevertheless be the 'prosecutor' in the eye of the law as it is in such case his false information out of which the prosecution arises.

40. I may also state that this decision in ILR 42 Mad 880: (AIR 1919 Mad 229 (2)) has been approved by another Division Bench judgment of', the Madras High Court in the decision reported in Shanmuga Udayar v. Kandasami Asari, 12 Mad LW 170: (AIR 1920 Mad 789). In that case Sada-siva Aiyar and Spencer JJ. approved of the decision in ILR 42 Mad 880: (AIR 1919 Mad 229(2)) and declined to accept the broad principles laid down in the earlier decision in ILR 26 Mad 362. It is seen in that case that though the High Court accepted the view of both the courts that them was reasonable and probable cause for the defendant in moving the Police, still the learned Judges did not accept the other Dart of the judgment of the two Courts to the effect that the defendant, who had supplied information to the police on the basis of which prosecution was launched, was not the 'prosecutor' as he had not figured before the Magistrate as a complainant.

This view of the subordinate courts was basedupon the earlier decision of the Madras High Courtin ILR 26 Mad 362. Sadasiva Aiyar and Spencer JJ.expressly dissented from that earlier Madras decision and hold following the later Division Benchruling in ILR 42 Mad 880: (AIR 1919 Mad 229(2)),that the person who has furnished information tothe police on the basis of which prosecution waslaunched is liable as 'prosecutor'. But on the factsof that case, the learned Judges held that thedefendant had reasonable and probable cause forgiving the complaint and, therefore, absolved himfrom liability for damages.

41. There is one other decision of the Privy Council given in 1926 and that is the one which is reported as AIR 1926 PC 46. In that case the respondent before the Privy Council Was prosecuted by the appellants for malicious prosecution. According to the appellants, the respondent had tutored two persons to give confession implicating the appellants in a murder case, i. e., the appellants charged the respondent as having invented and instigated the whole proceedings for prosecution. Therefore, it will be seen that the respondent had not actually given any complaint at all to the Police or to the Magistrate in that case. Their Lordships observe at p. 51 as follows:

'Have the appellants proved that Badri Sah invented and instigated the whole proceeding;; for prosecution? Of course there is nothing in the point which seems to have been taken in the courts below but which was not urged before their Lordships, that here de facto the 'appellants were not prosecuted by the respondent. 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.'

Though an objection appears to have been taken in the subordinate courts on behalf of the respondent therein that he cannot be a 'prosecutor' because he did not file complaint before the police or the magistrate, it appears that this contention was not pressed before their Lordships of the Privy Council. Though this objection was not raised before their Lordships, their Lordships deal with that aspect in the above observations. Therefore, it follows that giving information to the authorities which naturally leads to the prosecution, is just the same thing and if that is done and trouble is caused, an action will lie. Therefore, their Lordships of the Privy Council reiterate the same views expressed by the Privy Council in the earlier decision reported in ILR 30 All 525.

42. I have referred to these decisions because they will have a great bearing in appreciating the decisions relied upon by the learned counsel on both sides.

43. Mr. Gopalan Nambiar, learned counsel appearing for the cross objector, has contended that the prosecution in this case launched by the Police cannot be stated to be directly and primarily due to complaint filed by the complainant in this case. The learned counsel has relied upon certain decisions as supporting his contentions.

44. The first decision relied upon by Mr. Gopalan Nambiar is the decision of Mr. Justice Fazl Ali in Narain Pande v. Gaya Rai, AIR 1938 Pat 147. In that case the plaintiffs instituted a suit for malicious prosecution against the defendants for having invented and instigated certain criminal proceedings which ultimately ended in favour of the plaintiffs. It is stated by the learned Judge at p. 149:

'In my oninion the learned Subordinate Judge in deciding this case overlooked the true significance and meaning of, these observations and did not apply his mind to the fact that there is in the present case a total absence of evidence to show that the statements made by the defendants before the police were directly and primarily responsible for the prosecution of the plaintiffs'.

According to Mr. Gopalan Nambiar this decision is authority for the position that unless the statements made by a person to the notice were directly and primarily responsible for the prosecution launched by the police, a party cannot be made liable as a 'prosecutor'. But I am not able to accept this contention of Mr. Gopalan Nambiar. that this decision supports, him in any manner. It will be seen, as mentioned earlier, that in the first information report, the names of the dacoits were not given at all. But the police, after investigation, filed a charge-sheet against certain persons. It will be seen that there was absolutely no evidence placed before the court in the suit filed for damages on the ground of malicious prosecution as to the nature of the statements made by the defendants in the action and as to whether they had really implicated the plaintiffs as persons responsible for the dacoity. This is clear from the following observations of the learned Judge:

'The obvious flaw in the plaintiffs' case is that they have neither tendered in evidence the deposition of the defendants nor have they examined the investigating officer. Thus there is no proof on the record either of the actual statement made by the defendants before the police or of the tact that it was as a result of the statement made by them that the police submitted a charge-sheet in the case'.

Therefore it is very clear that there was absolutely no evidence placed before the court that it was as a result of the statements made by the defendants that the police filed a charge-sheet in that case. Again, this aspect is emphasised by the learned Judge at p. 148 of the reports :

'There is certainly nothing in the judgment of the lower appellate court to show that had it not been for the statements made by the defendants before the police, the police would not have instituted any proceedings against, the plaintiff.'

These extracts quoted, from the judgment of the learned Judge clearly show, that the plaintiffs in that case were not able to satisfy the court about their allegations that the prosecution launched by the police was really on the basis of the statements, if any, given by the defendants therein and the plaintiffs also failed to satisfy the court that the defendants were directly and primarily responsible for the prosecution of the plaintiffs. But in the case before me, the facts are entirely different. The defendant has categorically mentioned the name of the plaintiff along with certain others as being the, person who caused the grievous hurt.

All these matters are clearly mentioned in Ext. A1, the complaint, and a reading of Ext A1 will clearly show that these matters are clearly within the knowledge of the defendant when he made the complaint. The fact that at one stage the Police were somewhat indifferent to taking further action on the basis of Ext. A1 will not at all assist the defendant in his contentions that he is not a 'prosecutor'. Therefore, this decision of the Patna High. Court will not assist Mr. Gopalan Nambiar in Ms-contention.

45. The next decision relied upon by Mr. Gopalan Nambiar is the decision of Justice Bhaga--wati in Dattatraya Pandurang v. Hari Keshav AIR 1949 Bom 100. In that case a clerk of the defendants' firm had given information to the Police about the loss of certain jewellery from the premises of the defendants' shop and it was also stated that the plaintiff who was a new employee in the defendants' firm was suspected. The police investigated the matter and launched a prosecution against the plaintiff which ultimately ended in favour of the plaintiff. Therefore, the plaintiff instituted the action--for damages for malicious prosecution.

The main allegation in the plaint was to the effect that the defendants had given information to the police suspecting the plaintiff and, therefore, the police charge-sheeted the plaintiff find as such the defendants were liable for damages. The defence was that the plaintiff was not prosecuted by them and that they had only given information to the police and it was after investigation that the police' had charge-sheeted the plaintiff. The learned Judge considers the decisions on the point and then observes at page 103:

'If the defendant does not go beyond what he believes to be correct information to the police and the police without interference on his part think tit to prosecute, it would certainly be improper to make him liable for damages for the prosecution, and in the case, before having regard to the averments in the plaint, the plaintiff has averred nothing more than this'.

These are the observations which are relied upon by Mr. Gopalan Nambiar to the effect that the defendant in this case, who is only in the position of giving information to the police, cannot be held liable. Even here, I cannot accept this interpretation sought to be placed by the learned counsel on this judgment. The learned Judge after discussing the effect of the Privy Council rulings referred to earlier, states at page 103:

'These averments do not bring the case of the plaintiff against the defendants into the latter category which their Lordships discussed, namely, that the charge was false to the knowledge of the plaintiff ...........'

Therefore, the specific finding of the learned Judge was that the information given by the defendants in that action cannot be said to have been false to their knowledge. The learned Judge further found in that judgment that the defendants therein did nothing more than merely laying information before the police and that it was really the police after investigation and after having reason to suspect the commission of the offence proceeded to investigate the facts and took the necessary steps for obtaining orders of remand etc. which they were bound to do in law. Therefore, the learned Judge further held in these circumstances that the plaintiff was not prosecuted by the defendants. This decision will also not assist Mr. Gopalan Nambiar, because the learned Judge was not prepared to accept the contention of the plaintiff in that case that the information given by the defendants to the police suspecting the plaintiff was false to the knowledge of the defendants.

46. The next decision relied upon by Mr. Gopalan Nambiar is the decision of the Orissa High. Court reported in Radhu V. Dhadi, AIR 1953 Orissa 56 a decision of Mohapatra, J. In that case, the Police started investigation on the basis of a report received from the defendant that the plaintiff was purchasing and selling rice in black market without a licence. The prosecution ended in the acquittal of the plaintiff and in consequence the plaintiff filed a suit against the defendant claiming damages for malicious prosecution. The trial court gave a decree in favour of the plaintiff. But the appellate court took the view that the defendant could not be considered to be the prosecutor as he had left the matter-to the investigation of the police and took no further active part for the plaintiff's prosecution by the State. The lower appellate court in that case had come to this conclusion on the basis of the decision of the Madras High Court in ILR 26 Mad. 362. Against this decision, the plaintiff had filed the second appeal before the Orissa High Court. The learned Judge Mohapatra J. considered the two decisions of the Privy Council already referred to by me, namely, ILR 30 All 525 (P. G.) and AIR 1926 P. C. 46. According to the learned Judge, here lodging of information before the Police or as in the present case getting the properties seized by the Police is not enough to be the real prosecutor in the case'. The learned Judge also noted that the defendant in that case had merely given information to the Police and the Police thought fit to prosecute the plaintiff after investigating the matter. These observations are relied upon by Mr. Gopalan Nambiar as again supporting his contention that a person who merely gives information to the police even though a person's name is mentioned in the complaint will not make that informant a 'prosecutor'. The learned counsel also relied upon the following observations of the learned Judge at p. 57:

'But in my opinion, as a perusal of the decisions, quoted above, the mere giving of information, even though it was false, to the police cannot give cause of action to the plaintiff in a suit for malicious prosecution if he (the defendant) is not proved to be the real prosecutor by establishing that he was taking active part in the prosecution, and that he was primarily and directly responsible for the prosecution'.

In my opinion, with great respect to the learned Judge, the observation quoted above is rather too large a proposition. The view of the learned Judge 'that mere giving of information to the police, even though it was false, will not make the complainant answerable in a claim for malicious prosecution is rather too broadly expressed and they are also, if I may say so again with respect, opposed to the principles laid down by the Madras decisions cited above as also the decisions of the Privy Council referred to already. The Privy Council has expressed itself in ILR 30 All 525 that if the charge is false to the knowledge of the complainant, the latter will have to bear the consequences.

Again, the Privy Council in the decision in AIR 1926 P. C. 46 has observed that giving information to the authorities which naturally leads to prosecution is the same thing and if that is done, and it trouble is caused an action will He. In my opinion, these observations of the learned Judge of the Orissa High Court will have to be confined to the particular facts of that case. The learned Judge was satisfied, as was Mr. Justice Fazl Ali in the decision, reported in AIR 1938 Pat 147, that the plaintiff in that case has failed to prove that the defendant was primarily and directly responsible for the prosecution. Further, the learned Judge was also satisfied that there was absolutely no material on record before the court in that case as to the nature of the information furnished by the defendant as will be clear from the following observation at page 57:

'The police did not mind to take a record of the information given by the defendant and further the plaintiff did not chose to examine the A. S. I. to whom the information was given to establish that, in fact, it was primarily and directly in consequence of the information given by the defendant that the present prosecution was started and also the appellate court has found that the police, after thorough Investigation of the matter, started prosecution'.

Therefore, it is clear that there were no material available before the learned Judge for bringing the defendant therein as a 'prosecutor' within the principles laid down by the decisions of the Privy Council.

47. The last decision relied unon by Mr. Gopalan Nambiar is the decision of Mr. Justice Chandra Reddi of the Andhra Pradesh High Court reported in Chandra Reddy v. Rami Reddy, (1954) 2 Mad L. J. (Andhra) 189: ((S) AIR 1955 Andhra 218). In that case, in connection with the death of the wife of the first defendant, under suspicious circumstances, defendants 2 and 3 had informed the first defendant that at about the time of the death of the lady they had seen the plaintiffs corning out of the backyard of the first defendant's house. On the basis of this information the first defendant had filed a complaint to the Police to the effect that his wife died as a result of violence and that defendants 2 and 3 had informed him that the plaintiffs were seen coming out of his house at about the time of the death of his wife. On this complaint investigation was started by the police and plaintiffs, five in number, were charged for an offence under Section 302 I. P. C. The Criminal case ended in the acquittal of all the plaintiffs.

As a result of this acquittal, the plaintiffs filed the suit against defendants 1 to 3 for malicious prosecution. The first defendant contended that he had only given a complaint on the basis of information furnished by defendants 2 and 3 and that he has acted bona fide in giving the complaint mentioning the names of the plaintiffs. Defendants 2 and 3 contended that they were not in any way responsible for prosecuting the case and that they had reasonable and probable cause for giving the information about the plaintiffs to the first defendant and in doing so they had acted without malice.

48. The trial court dismissed the suit as against the first defendant but awarded damages as against defendants 2 and 3. The view of the trial court appears to be that the first defendant merely communicated his suspicion about the plaintiffs in his complaint to the police and this itself was on the basis of the information given to him by defendants 2 and 3. But so far as defendants 2 and 3 are concerned, the trial court was of the opinion that they had acted maliciously and without reasonable and probable cause and so they were liable for damages. Defendants 2 and 3 had filed an appeal against the decree for damages awarded as against them.

49. I have mentioned the facts of this case in some detail, because they will have a bearing in appreciating the contentions of Mr. Gopalan Nam biar, based upon some observations contained in the judgment of the Andhra Pradesh High Court.

50. It will be seen that the point that arose for decision before Mr. Justice Chandra Reddy was as to whether defendants 2 and 3, who had only conveyed some information to the first defendant, on the basis of which the first defendant filed a complaint, could be considered to have prosecuted the criminal case against the plaintiff. This aspect of the matter, is quite necessary because the observations of the learned Judge relied upon by Mr. Gopalan Nambiar have to be really understood as having been made in the context of the appeal before the learned Judge.

The learned Judge had no occasion to consider the liability or otherwise of the first defendant who had given the complaint in that case, as the suit had been dismissed against the first defendant and there does not appear to have been any appeal contesting the decree of the trial court so far as the first defendant was concerned. The learned Judge considers the two decisions of the Privy Council and also the three Division Bench decisions of the Madras High Court already dealt with by me earlier in this Judgment. The learned counsel Mr. Gopalan Nambiar 'placed reliance on the following observations of the learned Judge at pages 191 and 192 (of Mad LJ) : (at p. 220 of AIR) :

'The test propounded in that case is that mere filing of a complaint does not amount to malicious prosecution and something more must be done to indicate that the defendants were the real prosecutors'.

This observation is with reference to the decision of the Privy Council in ILR 30 All 525. Again reliance is placed on the observations at page 192 : (of Mad LJ) ; (at p. 220 of AIR).

'It may be taken that it is now well-established, that, if a person does nothing beyond giving information to the police which he considers to be true, an action for damages for malicious prosecution is not maintainable against him. If, on the other hand, besides setting the law in motion he takes an active part in the conduct of the prosecution he will be regarded as the real prosecutor although the actual prosecution is by the police and renders himself liable for damages.'

Again reference was made to the observations at the same page to the effect:

'It is too much to extend the principle in. ILR 42 Mad 880 : (AIR 1919 Mad 229 (2)) to a person who has furnished some information to the complainant because he cannot be regarded as having set the law in motion.'

51. These observations, in my opinion, cannot again assist Mr. Gopalan Nambiar because as I stated earlier, the learned Judge was not dealing with the liability of the first defendant who had himself given the complaint but with the liability or otherwise of defendants 2 and 3 who had only given some information on the basis of which the first defendant filed the complaint and that is made clear by the learned Judge's observation that 'it is too much to extend the principle laid down in ILR 42 Mad 880 : (AIR 1919 Mad 229 (2)) to a person who has furnished some information to the complainant because he cannot be regarded as having set the law in motion'. The learned Judge has held earlier that these defendants 2 and 3, in the learned Judge's opinion, are not the persons who set the law in motion. But even in cases where a person gives information to the police, that he will be liable, if the information was false to his knowledge is made clear by the learned Judge in these words at page 192 :

'The reasons why a person who gives information to the police notwithstanding that he is not the actual prosecutor is said to be responsible for the malicious prosecution is that his information, to the authorities which naturally leads to prosecution is just the same as the prosecution. The complainant is regarded as the person who has set the law in motion'.

Then after referring to the decision in ILR 42Mad 880 : (AIR 1919 Mad 229 (2)) the learnedJudge again observes at the same page:'It is thus seen that the basis of liability is theinformation to the police in the one case and thecomplaint to the Magistrate in the other. Responsibility is fastened upon the complainant because itSs his complaint that is responsible for the startingof prosecution against the plaintiff and the startingpoint of the proceedings against him. This rule isstated in almost all the cases'.

Therefore, the learned Judge, if I may say so with respect, has reiterated the position established by the decisions, which the learned Judge has considered and that is to the effect that if a person files a complaint false to his knowledge and on the basis of that complaint, prosecution is started by the Police, the complainant will be answerable as a prosecutor for damages.

52. These are the decisions rolled upon by Mr. Gopalan Nambiar and in my view these decisions will not assist the learned counsel in his contention that the defendant is not to be considered a prosecutor in law.

53. Now I will consider the decisions relied upon by Mr. K. P. Abraham, learned counsel appearing for the plaintiff-respondent in the cross-objections. I may state even at the outset that he has relied upon some of the passages in the decisions cited by Mr. Gopalan Nambiar to show that if a party files a complaint, with allegations false to his knowledge and action is taken by the police to prosecute a third party, the complainant will be the prosecutor. Even in dealing with these cases cited by Mr. Gopalan Nambiar, I have indicated those. passages also as laying down the principles applicable to such cases.

54. After the principles kid down by the Privy Council ate considered by me rather elaborately, it may not really be necessary to go through the same grounds over again. The first decision cited by Mr. Abraham is the decision of the Patna High Court reported in AIR 1956 Pat 285. In that case the defendant had informed the Chaukdhar of a particular village that he had accompanied the deceased person the previous day and that when both of them were so going the plaintiffs in the action, along with others attacked him and also the deceased. The first plaintiff gave a blow to the deceased as a result of which the latter died. He also stated to the Chaukdhar that all these matters happened in his presence. On the basis of this information, the Chaukdhar lodged in turn information before, the police, who started investigation regarding the death of the other person spoken to by the defendant.

The plaintiffs were arrested and ultimately put up for trial before the Sessions Court, which acquitted the plaintiffs. The plaintiffs instituted the suit claiming damages from the defendant for malicious prosecution. The trial court was of the view that the murder case instituted against the plaintiffs and others was maliciously false and also without any reasonable and probable cause. Some of the other defendants, who had been joined in the action were held not to have any part in that prosecution. On this view the trial court awarded a decree for damages in favour of the plaintiffs. There was an appeal by the defendant which was dismissed by the lower appellate court. Against that, the first defendant filed a second appeal before the Patna High Court. The learned Judge, Choudhary J., considered the principles laid down by the Privy Council in AIR 1926 P. C. 46. The learned Judge observes at page; 287:

'It has not been contended before me that the appellant was not the prosecutor of the plaintiffs. As a matter of fact, on the findings of the Courts below, it is clear beyond any doubt that the appellant professed to have made a statement on his personal knowledge and as being an eye-witness to the occurrence implicating the plaintiffs in the murder case. It therefore, must be held to have been established that the plaintiffs were prosecuted by the appellant.'

The learned Judge winds up the discussion to his judgment at p. 290 as follows :

'In the present case, as already observed, the finding of the courts of fact is that the accusation against the plaintiffs, made by the appellant, was false to his knowledge. The courts below have also come to a finding, as already observed, that there Was enmity between the parties and their supporters. On the authorities referred to above, therefore, it is abuntantly clear that the prosecution of the plaintiffs was malicious as well as without any reasonable and probable cause.'

Therefore, the decision of the Patna High Court is to this effect namely that a complainant, who lodges information to a public officer on the basis of his personal knowledge, and on the basis of which the subsequent proceedings are taken for prosecuting that party, will be the 'prosecutor' and will also be liable in damages for the malicious prosecution if ultimately it is found that the allegations contained in his complaint were false to his knowledge.

55. The next decision relied upon by Mr. K. P. Abraham is the decision of the Andhra Pradesh High Court of Mr. Justice Viswanatha Sastri reported in Venkatadri v. Chandrayya. AIR 1956 Andhra 174. In that case the defendant lodged as complaint before a Village Munsiff that the hayricks belonging to him had been burned down and that two of his servants who used to go for watch have given information to the effect that the plaintiff was one of those who was running away from the scene after the fire was noticed. He had specifically mentioned in the plaint the name of the plaintiff. This was investigated by the police and ultimately, in the prosecution, the plaintiff was discharged by the criminal court. That resulted in the plaintiff filing the suit claiming damages for malicious prosecution.

56. The contention that was raised before the learned Judge was to the effect that the defendant who was the appellant before the court, could not be considered to be a prosecutor because he only made a report to the village headman as a result of which, the police investigated the matter, launched and conducted the prosecution for an offence under Section 436 of the Indian Penal Code. The defendant's counsel there placed reliance on the decision of the Madras High Court in ILR 26 Mad 362. The learned Judge was prepared to proceed on the basis that if the said decision was good law, it supports the contentions of the defendant's counsel. But according to the learned Judges the said decision cannot be considered to be good law in view of the decision of the Judicial Committee in ILR 30 All 525. Then extracts are quoted by the learned Judges from the decisions of the Privy Council already referred to by him and then, observes at page 175 as follows :

'I have considered the effect of the two decisions of the Judicial Committee referred to above as well as the other decisions cited at the Bar. Instead of discussing these other cases individually, I may state the gist of the case-law. A 'person setting the criminal law in motion may either present a complaint to a Magistrate or give information to a police officer or in the case of a non-bailable offence, give information to the village headman who is bound by law to communicate that information to the nearest police officer.

In each of these cases, it is out of the information given by the person making the complaint or giving the first information that the prosecution arises. Where a person in his first information lodged with the village headman or with the Police does no more than truly relate the story of the loss or destruction of his property leaving it to the Police to make the investigation, without further instructions or active participation on his part in the investigation, and the Police arrests and lays a charge against the person suspected, it is the Police and' not the person who lodged the first information that is the prosecutor.

In other words, if a person furnishes what he honestly believes to be a correct narration of facts and circumstances from which the police or magistrate may or may not infer that the person suspected has committed a crime, he does not set the law in motion and is not a prosecutor. If, however, the story told to the police is untrue to the knowledge of the person lodging the first information or if he misleads the police in their investigation by bringing in false witnesses, then he would be liable as a prosecutor.

If in his first information to the police, or complaint to the Magistrate, a person positively asserts that another person hag committed the offence and the latter is arrested and on inquiry by the Magistrate, is discharged, the person lodging the information or the complaint must be held to have started the prosecution.

If all that is furnished in a first information report or a complaint is that, on the facts and circumstances truly stated therein, there is an honest suspicion against a person, it cannot be said that the person lodging the first information or making the complaint initiated the prosecution, for all that he has done is to give a mere narration of facts and circumstances from which the police or Magistrate may or may not infer that the person suspected has committed the crime. The decision in ILR 26 Mad 362 so strongly relied on by the appellant has been dissented from in AIR 1919 Mad 229 (2), and in my opinion, rightly.'

I have quoted in extenso the relevant portion of the judgment of the learned Judge because in my opinion, that lays down, if I may say so with respect, the principles deducible from the decisions of the Privy Council. I am in respectful agreement with every one of the principles laid down by the learned Judge in his judgment. Then the learned Judge discusses the complaint actually made by the defendant and ultimately came to the conclusion that the defendant was the prosecutor and that he was rightly held liable by the lower courts for damages.

57. The last set of decisions relied upon by Mr. Abraham are the two decisions of Mr. Justice) Ramaswami of the Madras High Court -- one reported in S.T. Sahib v. Hasan Ghani, AIR 1957 Mad 646 and the other in AIR 1959 Mad 89. The learned Judge, if I may so with great respect, has very exhaustively considered all the case law relating to malicious prosecution and has also laid down the tests to find out who exactly is to be considered as the 'prosecutor' in a particular case. In his decision reported in AIR 1957 Mad 646. the learned Judge observes at p. 653:

'A prosecutor has been described as a man actively instrumental in putting the law in force. A person would be a prosecutor where he files the complaint himself or has it filed through the instrumentality of an agent or a counsel. A private person, at whose instance and report the prosecution is launched by the Police, is a prosecutor within the meaning of the present context.'

No doubt, the learned Judge says in accordance with the decision of the Privy Council that if the defendant merely gives an account of his honest suspicion of the plaintiff to the Police, such an informant cannot be considered to be a prosecutor. The learned Judge also recognises the fact that there is a sharp distinction between giving information and making a complaint upon which a prosecution is based.

58. Again in his decision in AIR 1959 Mad 89, the learned Judge observes at p. 95 after a reference to the relevant authorities as follows;

'The term 'prosecution' has received a special connotation in suits for malicious prosecution and is practically the same in India, England and Australia, The settled law in India is that the defendant is liable as prosecutor if he filed a complaint himself or through his agent or advocate or if the prosecution was by the police or the State at his instance and on his information.'

The learned Judge also observes at the same page:

'If the complainant does not give beyond what he believes to be correct information to the police and if the police without further interference on his part (except giving such honest assistance as they may require) thinks fit to prosecute, it would be improper to make him responsible for damages for the failure of the prosecution.'

Then the learned Judge makes a very significant observation at p. 95 to the following effect

'But if the charge is false to the knowledge of the complainant, if he misleads the police by bringing suborned witnesses to support it, and if he influences the police to support him in sending as innocent man for trial before a Magistrate, it would, be equally improper to allow him to escape liability because the prosecution has not technically been conducted by him.'

Again, I am in respectful agreement with these principles laid down by Mr. Justice Ramaswami as following from the leading decisions on the point

59. Therefore, in this case it is not possible for me to accept the contention of Mr. Gopalan Nambiar that his client cannot be considered to be a 'prosecutor'. He is the person who has filed the complaint Ext. A-1 and in that complaint he has categorically spoken from his personal knowledge about the grievous hurt being caused to him by the plaintiff and others. He has also admitted in his evidence that he was prepared to file a complaint if there was anybody to help him and on Dr. K. B. Menon's advice he got courage to file the complaint, Ext. A-1, as his own. The fact that at one stage the police were not inclined to continue the investigation or that further investigation was taken no only because there were complaints about the conduct of the police will not in any way take the defendant out of the connotation of a 'prosecutor' as understood in law so long as his information, which has been found to be false to his knowledge, is the basis for the investigation being conducted and prosecution launched by the Police. Therefore, the defendant is liable as a 'prosecutor' in this action by the plaintiff.

60. Mr. Gopalan Nambiar contended that there has been no specific finding by both the Courts that the allegations made by his client in Ext. A-1 were false to his knowledge. I cannot accept this contention because both the Courts have considered the evidence and come to the conclusion that the allegations made by the plaintiff are not true. These findings, in my opinion, amount to the allegations being false to the knowledge of the defendant. I accept the findings of both the Courts that the allegations made by the defendant in Ext. A-1 were false to his knowledge, that he is the 'prosecutor' and that he acted without reasonable; and probable cause and maliciously in giving the complaint, Ext. A-1.

61. Therefore, the memorandum of cross-objections fails and is dismissed.

62. Coming now to the main appeal itself, Mr. Abraham contended that the lower appellate Court erred in reducing the damages on the head of mental pain and loss of reputation. Though, no doubt, there are decisions to the effect that when malice is found on the part of the defendant, the Courts have got jurisdiction to award even exemplary damages in such cases. In my opinion, the order passed by the lower appellate Court does not require any interference at my hands. Those decisions which, lay down the proposition that I have mentioned earlier are the decisions of Mr. Justice Chandra-sckhara Aiyar in Punnalal v. Kasturichand, AIR 1946 Mad 147 and the decision of Mr. Justice Ramaswami in AIR 1957 Mad 646. Both the learned Judges have considered the law on this point and 1 am in respectful agreement with the views expressed by the learned Judges. But the question is whether I should interfere with the redaction in damages effected by the lower appellate Court, No doubt, if a legal principle involved has not been properly applied by the lowey appellate Court, in reducing the amount of damages, it is open to this Court, sitting in second appeal, to interfere and enhance the damages. But I am not satisfied that there has been in this case any legal principle not being properly applied. In fact, the trial Court Bas merely awarded the claim for damages under this head without any detailed consideration, whereas the learned Judge has considered the evidence and come to the conclusion that the plaintiff himself is not such a respectable and influential man of the locality and that he is a person who is also involved in some criminal case or other and both the plaintiff and defendant are very enimical. These are the grounds given by the learned Judge for reducing the claim for damages under the heading 'mental pain and loss of reputation'. This will really be a case where both the plaintiff and the defendant are actuated by malicious motives. In my opinion, the lower appellate Court was justified in awarding only nominal damages of Rs. 50/- under this head I see no reason to interfere with the decision arrived at by that Court.

63. In the result, both the second appeal and the memorandum of cross-objections are dismissed with costs. No leave.


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