Kan Singh, J.
1. This is a defendant's appeal arising out of a suit for damagesfor malicious prosecution and is directed against the judgment and decree of the learned Additional District Judge, Ganganagar dated 30-8-1969 awarding Rupees 2,600/- to the plaintiff.
2. On 21-8-1965 Hazur Singh defendant lodged a first information report at police station Sadar, Ganganagar against the plaintiff-respondent Jangsingh and three others to the effect that when he along with one Bala Singh and Ganga Singh were passing through, the Murabba of one Jogender Singh the four persons who were lying in ambush attacked them. Jang Singh plaintiff is said to be carrying a twelve bore gun belonging to accused Sarjeet Singh. Jangroop Singh is said to have an unlicensed pistol. Kaka Singh is said to be armed with a 'Gandasi' and Sarieet Singh was having a lathi. Kaka Singh challenged them. He snatched the 'Chaddar' from the shoulder of Bala Singh in which Rs. 265/- were tied. Bala Sinah was carrying the money for the purchase of cloth from Gangangar. Sarjeet Singh instigated the other accused to fire at the first informant and others. The first informant and his companions took to their heels, but then Jagroop Singh fired his pistol at them, but none of them was hit. Ganga Singh ran towards village Hakmabad and the was chased by accused Jang Singh, but Hazur Singh could not say what fate Ganga Singh had met. Hazur Singh was ac-companied by Bala Singh. On this report the police registered a case against the four accused for offences under Sections 392/397 read with Section 34, Indian Penal Code and commenced the investigations. After the investigations, two accused Jang Singh and Jagroop Singh werechallaned by the police in the Court of Munsif Magistrate, Ganganagar. The learned Munsif Magistrate committed the accused persons in the case and they came to be tried by the Additional Sessions Judge. Ganganagar. The learned Additional Sessions Judge acquitted both the accused on 29-3-1966.
3. Jang Singh then filed the present suit against Hazur Singh in the Court of Senior Civil Judge. Ganganagar for damages to the tune of Rs. 10,900/-allegina that, his prosecution was malicious. The plaintiff averred that the do-fondant Hazur Singh had a malice against him as Jang Singh had appeared as a witness against the defendant Hazur Singh in a criminal case No. 42 of 1964 State v. Hazur Singh and others under Sections 323, 324, 326 and 392. Indian Penal Code in the Court of Munsif Magistrate, Ganganagar, The plaintiff claimed Rupees 5,000/- as damages for the loss of reputation, Rs. 5,000/- as damages for the mental worry suffered by him and Rs. 900/-as special damages on account of the expenditure incurred in defending himself.
4. The suit was contested by the defendant. He denied that he bore any malice towards the plaintiff or that there was any previous enmity between the parties for that matter. He denied that the case reported by him to the police was false. He asserted that the facts mentioned by him in his report were true, As regards the failure of the criminal case against the plaintiff, the defendant submitted that as the parties had made a compromise outside the Court the witnesses did not depose against the plaintiff truly and it was for that, reason that the case resulted in acquittal.
5. The learned Additional District Judge framed the following issues:--
'(1) Whether the report dated 21-8-1965 lodged with the police by the defendant was without any reasonable and probable cause and the defendant had lodged this report due to enmity and had taken personal interest in the prosecution of the case?
(2) Whether due to the criminal case the plaintiff lost his reputation and was lowered in the eyes of the members of his community?
(3) Whether the plaintiff is entitled to get from the defendant Rs. 5,000/- as damages for loss of reputation etc.. Rs. 5,000/- as damages for the mental worry etc.. suffered by him, and Rupees 900/- as special damages, together with the costs of the suit?
(4) Whether the suit is bad for non-joinder of necessary parties?
(5) What will be the relief?'
6. Jang Singh examined himself as P. W. 1 and produced two witnesses P. W. 2 Jagroop Singh, who was the co-accused in the criminal case, and P. W. 3 Shri Chimanlalt Advocate. Both Jang Singh and Jagroop Singh stated how they were surprised by the party of the plaintiff and others and attacked. Shri Chimanlal stated that the two accused in the criminal case had engaged him and one Shri Mani Ram jointly paid Rs. 500/- as their fees for both the Courts. The plaintiff produced certified copies of certain order sheets and judgment in the criminal case as also certified copies of some statements.
7. The defendant examined himself as D. W. 1 and produced D. W. 2 Gang Singh. D. W. 3 Kartar Singh, D. W. 4 Bachan Sinsh. D. W. 5 another Hazur Singh. D. W. 6 Girdhari Singh, Station House Officer end D. W. 7 Danta Ram. The first three witnesses were regarding the alleged occurrence that is said to have taken place in the Murabba of Jogender Singh. D. W. 4 Bachan Singh, D. W. 5 another Hazur Singh and D. W. 7 Danta Ram were about the so-called compromise between the parties in consequence of which the prosecution witnesses in the criminal case did not state the truth. D. W. 6 Girdhari Singh stated that on receipt of the first information report Ex. 4 he investigated the case and then put up a challan against the plaint tiff and Jagroop Singh.
8. The learned Additional District Judge noticed the requirements for a suit for malicious prosecution and then observed that though the initial burden to prove all the elements was on the plaintiff, very slight evidence would be needed to shift the burden to prove reasonable and probable cause for the prosecution on to the defendant where the plaintiff comes forward with a positive case that he was not involved in the incident. Learned Judge referred to Dhan Raj v. Hira Chand, (1963 Rai LW 316). Pende-kanti Subbarayudu v. Bysani Venkatana-rasayya, (AIR 1968 Andh Pra 61). Srini-vasa Thathachariyar v. Thiru Venkate-chariar (AIR 1932 Mad 6011 and Panna-lal v. Shri Krishna, (AIR 1955 Madh Bha 124). On discussing the evidence produced by the parties the learned Judge felt that:
'I am of the opinion that the defendant has hopelessly failed in establishing the fact that the occurrence as reported by him to the police had in fact taken place and that the report lodged by him with the police was true to the best of his knowledge and belief'.
9. As regards the malice the learned Judge held that the same has been established as the plaintiff had appeared against the defendant in the criminal case. The learned Judge found that the evidence regarding the so-called compromise in the criminal case was wholly untrustworthy. In the result, heheld that the plaintiff had been prosecuted maliciously and there was no reason-able and probable cause for the same. The learned Judge awarded Rs. 2,000/-as general damages. As for the special damages the learned Judge held that the amount of Rs. 500/- be allowed to the plaintiff as the fee of the counsel. Rs. 100/- were allowed on account of travelling and diet expenses. In the result, the learned Judge awarded a decree of Rs. 2,600/- in favour of the plaintiff.
10. In assailing the judgment of the learned Additional District Judge, learned counsel for the appellant contends: (1) that the defendant cannot be said to be the prosecutor as he had only made a report with, the police and is thereafter not shown to have taken any part in the investigation with the result that it is the police who should be taken to have launched the prosecution against the appellant; (2) that the plaintiff has failed to prove that there was want of reasonable and probable cause for the prosecution; (3) general damages awarded to the plaintiff were on the high side. Learned counsel invites attention to the averments in the plaint and submits that no damages had been claimed by the plaintiff for the so-called loss of reputation and vet that has been put in the issue and taken into consideration while assessing the damages.
11. Re: 1. Learned counsel placed reliance on Dattatraya Pandurang v Hari Keshav, AIR 1949 Bom 100; Radhu v. Dhadi. AIR 1953 Orissa 56; Pannalal v. Shrikrishna, AIR 1955 Madh Bha 124 ; Badduri Chandra Reddy v. Rami Reddy, AIR 1955 Andh Pra 218; Krishnarao v. Radha Kishan. AIR 1956 Nag 264 and T. V. Lakshmojirao v. Venkatappaiah, AIR 1966 Andh Pra 292. Learned counsel also referred to Kedarnath v. Brahmanand. AIR 1959 Rai 37 and has tried to distinguish that case. He arsued that the view taken by the learned Single Judge in the Rajasthan case does not fully accord with the view taken by the Privy Council on which reliance has been placed. There is vet a very recent case of a Division Bench of the Allahabad High Court reported as Ganga Din v Krishna Dutt. AIR 1972 All 420.
The dictionary meaning of the word 'prosecute' inter alia, is: 'to bring before a court' 'to carry on a legal prosecution' vide Chambers' Twentieth Century Dictionary, revised edition. The question here is whether it was the defendant who had prosecuted the plaintiff. In Gaya Prasad v. Bhagat Singh. (1908) 5 All LJ 665, their Lordships of the Privy Council observed:
'In India the Police had special powers in regard to the investigation of criminal charges, and it depended verymuch on the result of their investigation whether or not further proceedings were taken against the person accused. It therefore, a complainant did not so beyond giving what he believed to be correct information to the Police and the Police, without further interference on his part (except giving such honest assistance as they might require), thought fit to prosecute, it would be improper to make him responsible in damages for the failure to the prosecution. But if the charge was false to the knowledge of the complainant, if he misled the Police by bringing suborned witnesses to support it, if he influenced 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 had 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 mere setting of the law in motion was not the criterion) the conduct of the complainant before and after making the charge, must also be taken into consideration. Nor was it enough to say the prosecution was in-stituted and conducted by the Police'.
The question came to be examined once again in Balbhaddar Singh v. Budri, ((AIR 1926 PC 46), wherein their Lordships observed as follows:--
'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'.
12. In Dattatrava Pandurang Datar v. Hari Keshav. AIR 1949 Bom 100 the defendant had lodged a first information report to the police about a theft at his shop and laid his suspicions against the plaintiff in the case, his servant. On this report the police registered a case and started the investigation. The plaintiff was arrested and he was also remanded by a Magistrate in police custody. Thereafter the police reported that no evidence was forthcoming against the plaintiff and accordingly the police moved for the cancellation of the bail bond and the discharge of the accused which was done. Thereafter the plaintiff sued the defendant for damages for malicious prosecution. The learned Judge observed that it was an essential sine qua non ofan action for malicious prosecution that the plaintiff was prosecuted by the defendant. The learned Judge went on tosay that the defendant did not prosecute the plaintiff as he had done nothing more beyond laving the information with the police and it was the police that afterbeing satisfied that there was reason to suspect the commission of the offence that it proceeded to investigate the facts and circumstances of the case and obtained the remand of the accused. The learned Judge referred to the Privy Council case AIR 1926 PC 46, besides a few other cases and then held that the defendant did not prosecute the plaintiff as he did nothing more than merely laving the information before the police and it was the police who after the investigations prayed for the discharge of the accused.
13. In Radhu v. Dhadi. AIR 1953 Orissa 56, the learned Judge observed:
'The real question is to determine who is the real prosecutor. 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 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. If the defendant had left the matter to the investigation of the police and took no unduly active part against plaintiff's prosecution by the state after giving information and getting rice seized by the police the defendant is not the prosecutor'
Balbhaddar Singh's case, AIR 1926 PC 46 was relied on by the learned Judge.
14. The same thing has been said In AIR 1955 Madh Bha 124. The learned Judge observed:
'The fact that a private person, who merely makes a statement or complaint to the police giving out information which he believes to be correct, would not make him 'the prosecutor'. To become prosecutor he must be actively instrumental in putting the criminal law in motion. Where there is no evidence of the conduct of the private person before and after he made the statement or complaint to the police, to show that he was directly responsible for the charge being made, had taken principal part in the conduct of the case and had done all he could do to secure the conviction of the plaintiff in a suit for malicious prosecution, it cannot be said that he was the prosecutor so as to sustain an action against him for malicious prosecution'.
Again it was Balbhaddar Singh's case that was relied.
15. To the same effect are the observations in AIR 1955 Andh Pra 218; AIR 1956 Nag 264 and AIR 1966 Andh Pra 292 and I need not refer to the observations therein which are again based on Balbhaddar Singh's case or Gaya Prasad Tewari's case, (1908) 5 All LJ 665 (PC).
16. In Ganga Din v. Krishna Dutt, AIR 1972 All 420, the learned Judgesmade a survey of the Privy Council oases and text books and observed :
'It will appear from a survey of the case law and the text-books that where the plaintiff is prosecuted by the Police on the report of the defendant which is false to his knowledge and is acquitted, the defendant will be liable to pay damages for malicious prosecution, if there was malice and no reasonable or probable cause.'
17. The answer to the question as to whether the defendant was the prosecutor of the plaintiff by his making a report to the police will depend upon the whole circumstances of the case. If the informant did not give beyond giving what he believed to be correct information to the police and thereafter he had not taken part in the investigation by producing false witnesses or by making a request to them to prosecute the accused then that may not make the informant a prosecutor. But if on the other hand, a charge was false to the knowledge of the informant and he had produced some false witnesses to sustain that charge or has influenced the police in having sent an innocent man for trial then it would be improper for him to escape liability because the prosecution had not technically been conducted by him. As pointed out by their Lordships in Balbhaddar Singh's case, AIR 1926 PC 46 giving information to the authorities which inter alia leads to prosecution is the same thing as initiating the prosecution, though in India in the most literal sense of the word a private individual cannot, be said to be the prosecutor when the prosecution is commenced through the agency of the State as a result of police investigations.
In this light I may now deal with the case reported in AIR 1959 Raj 37. In that case the criminal proceedings were started on the report of the defendant. The defendant alleged that in his absence the plaintiffs along with a few others had broken open the lock of the shop in the tenancy of the defendant and had taken away certain movable property without his consent which had been locked up inside the shop by the defendant. The plaintiff's case was that he has never broken open the lock of the defendant but that although he had occupied the shop as a tenant of Thakur Kalyanii of which the parties were pujaries yet he had vacated it on the insistence of the plaintiffs and had taken out his movables from the shop and put them in a kothari of the temple. The plaintiff was convicted by the trial court and sentenced to imprisonment, but he was acquitted in appeal. Thereafter a suit for damages was filed. The learned Judge referred to Balbhaddar Singh's case and a few other cases and observed;--
'Where criminal proceedings were started against the plaintiffs on the report of the defendant, it cannot be said that no action for malicious prosecution lay against the defendant on the ground that the defendant was not the prosecutor of the plaintiffs.'
The observations of the learned Judge mean that merely because the criminal proceedings were started on the report of the defendant it cannot be said that no malicious prosecution could lie against the defendant on the ground that the defendant was not the prosecutor of the plaintiff. As observed by their Lordships of the Privy Council the question as to who was the prosecutor has to be answered upon the whole circumstances of the case. The mere setting of the law in motion was not the criteria and the conduct of the informant before and after making the charge must also be taken into consideration, nor was it enough to say that the prosecution was instituted or conducted by the police. Therefore, from a review of the several cases, by and large, it can be said that the following circumstances will make a first informant a prosecutor for the purposes of a suit for damages for malicious prosecution :
(1) That the report was lodged by him was false to his knowledge;
(2) That the informant after the lodging of the first information report had brought false witnesses in support of his report;
(3) He had influenced the police in sending up an innocent person for trial before the Magistrate;
(4) The information was such that naturally led the police to launch the prosecution.
The enumeration cannot be exhaustive and for reaching the correct conclusion in a given case the whole circumstances of the case have to be taken into consideration.
The circumstance that the first information report lodged by the plaintiff was false to his knowledge will not only establish that he was the prosecutor, but will at the same time be establishing want of reasonable and probable cause for his lodging the first information report against the defendant.
18. Now, in the present case the first information report Ex. 4 on record is a detailed one and purports to be based on the direct knowledge of the defendant. The last paragraph of the report runs like this:
fygktk nj[kkLr gktk is'kdjds vtZ gS fd eqyfteku dks fxjrkj fd;k tkdj eqyfteku dks mud Qy dh ltk fnykbZtkos lk;l lqcgr gj fdLe is'k djsxk A rkjh[k 21&8&65
On this report the Station House Officer registered the case under Sections 392/397 read with Section 34. Indian Penal Code against all the accused including the plaintiff. It is to be noticed that the accused were arrested. One of the witnesses namely. Bala Singh was already with the plaintiff and the other witness Ganga Singh had been named by him in the first information report. In such a case, therefore, it is idle to contend that the defendant was not the prosecutor of the plaintiff. The learned Additional District Judge was therefore right in holding that the defendant had prosecuted the plaintiff.
19. Re : 2. In Dhanraj v. Hirachand, 1963 Rai LW 316. Modi, J. had to deal with the question of burden of proof in such cases. The learned District Judge had observed in that case that the burden on the plaintiff was heavy to establish that his prosecution was false and that it was made without any reasonable or probable cause. In pointing out that the observation of the learned District Judge was erroneous Modi. J., observed as follows :--
'The judgment of the learned Judge seems to me to be affected by one further error, and that is that according to him a 'heavy' burden lay on the plaintiff to establish that 'his prosecution was false and that it was made without any reasonable and probable cause. It is true that the initial burden did and would lie in a case for damages for malicious prosecution on the plaintiff; but for that reason I am not prepared to accept, nor has any authority been cited before me to induce me to hold, that this burden is 'particularly' heavy on him. In fact it has been laid down by a learned single Judge of this Court in Kedar-nath v. Brahmanand. (19581 Rai LW 434 = (AIR 1959 Raj 37) that there are many cases where the plaintiff's case is negative, and then very slight evidence on the part of the plaintiff may be sufficient to shift the onus on to the defendant, and that in such a case after the plaintiff has denied on oath his participation in a particular crime, it is for the defendant to prove by positive evidence that the plaintiff had committed the act complained of. It seems to me that this would be so where the prosecution was based on facts which must have been within the knowledge of the prosecutor. If the learned Judge's appreciation of the entire evidence in this case was coloured by the statement or rather misstatement of law contained in his judgment, to which I have referred above, then I must point out that this was a wrongapproach to the whole case and that cannot be sustained as correct.'
The observations of Modi J are in line with (1958 Raj LW 434) = (AIR1959 Rai 37). By and large the question turned on the appreciation of the evidence as a whole whether the plaintiff had been successful in proving that there was want of reasonable and probable cause for the prosecution.
Whether the burden is heavy or slight are imprecise expressions. Even otherwise a burden shifts from one party to the other in a civil case at different stages and, therefore, much will not turn on the question as to who carries the initial burden. In any case the finding of the evidence adduced in the criminal case could not be relevant for the purposes of a suit for damages. In an un-reported case S. B. Civil First Appeal No. 48 of 1969, Sumermal v. Bhanwar-lal, decided by me on 3-10-1972 (Rai), having made a reference to a number of cases, I observed as follows :--
'Reference to the above cases discloses that it has been accepted on all hands that the burden of proving absence of reasonable and probable cause is undoubtedly on the plaintiff. There has been variation in emphasis as to when the burden of proof will be shifted to the other side, when the allegations about the plaintiff being involved in the crime are based on the direct knowledge of the defendant and the plaintiff's case is of the negative type that he never participated in the criminal act. aS already noticed, in some cases it has been held that slight evidence would be sufficient to shift the burden on to the defendant and in others there has been emphasis that nonetheless it will be for the plaintiff to prove his negative case even if his case is that he was not there present at, the time of the incident or that no such incident had taken place. The safe rule, to my mind, is not to involve one-self in making a general statement as to cover all cases, but to hold that it will depend on the facts and circumstances of each case as to how much evidence would be sufficient to shift the burden which initially lies on the plaintiff to the other side and that is the rule applicable by and large to all civil cases and in my humble view suits for malicious prosecution should be no exception. In civil cases the burden of proof does shift from one party to the other at different stages depending on the nature of the evidence both oral as well as documentary and no hard and fast rule could be laid down in such matters. If the plaintiff succeeds in proving that the case was false, then I should think the mere statement of the plaintiff would be quite sufficient to shift the burden of proof to the defendant that there was absence of reasonable or probable cause, but then there must be proof that the case was false.'
I adhere to the above observations.
20. P. W. 1 Jang Singh and P. W. 2 Jagroop Singh, who was the co-accused in the criminal case with Jang Singh, are the only witnesses on the side of the plaintiff. Defendant Hazur Singh D. W. 2 Gang Singh. D. W. 3 Kartar Singh are the witnesses on the other side regarding the incident. The learned Additional District Judge has observed that the plaintiff's evidence was sufficient to discharge the onus and therefore, the burden of proving the truth of the defendant's version shifted on to him. This is what the learned Judge has said about the value of the defendant's evidence:--
'Although the defendant Hazur Singh has tried to prove the occurrence by his own statement, as well as by producing two more witnesses Gang Singh, D. W. 2 and Kartar Singh, D. W. 3. but from their statements also the serious offences as complained of are not at all proved. From the statement of the defendant it is crystal clear that the plaintiff neither attempted to commit his murder nor did he rob Bala Singh of his chaddar and the money. The defendant has accused Jagroop. Singh of having fired the pistol towards him. but the bullet did not hit him. Jagroop Singh is not a party to this case nor he has claimed any damages from the defendant, although he too had been acquitted along with the plaintiff in the criminal case. There is also no evidence on the record that any empty cartridges were seized by the police from the spot. Kartar Singh, D. W. 3. who is the real brother of the defendant has also not stated anything against the plaintiff and he 'had only seen the plaintiff running behind Gang Singh on the 'Pagdandi' leading to Hakamabad. From the statement of Gang Singh. D. W. 2. also, it does not appear that the plaintiff did any overt act towards the commission of the offence under Section 307, I. P. C. He has only stated that the plaintiff had run after him. and he had fired a gun shot and the plaintiff went back after coming near the canal. He has not at all stated that, the plaintiff Jang Singh had tried to commit his murder, and in order to meet that end he had fired the shot from his gun towards him from behind. Under all these circumstances. I am of the opinion that the defendant has hopelessly failed in establishing the fact that the occurrence as reported by him to the police had in fact taken place and that the report lodged by him with the police was true to the best of his knowledge and belief.'
21. Having perused the statements of the defendant's witnesses, I am unable to share the view taken by the learned Additional District Judge. The fact that one of the accused namely the defendant did not rob Bala Singh of his 'Chaddar' or that the plaintiff did not at-tempt to commit the murder of the defendant or that no empty cartridges were seized from the spot are not circumstances which would necessarily establish the falsify of the report lodged by the defendant. It is true, the plaintiff was not alleged to have fired, but it was Jagroop Singh who is alleged to have fired with his pistol. When the allegations were against four persons and the action was a concerted one it was not necessary that any particular person out of them alone should have fired. It is true, the defendant was not fired at, nor was the plaintiff alleged to have robbed Bala Singh of his 'Chaddar', but the defendant was not carrying the 'Chaddar' and it was only his companion who was having the 'Chaddar'. Further only one shot was fired and the empty cartridge would normally remain in the barrel unless it is purposely dropped at the site for reloading the firearm. Having read the plaintiff's evidence as also that of the defendant one cannot come to a firm conclusion that the report lodged by the defendant was necessarily a false one. It cannot, therefore, be said that the plaintiff has succeeded in proving want of reasonable and probable cause for the defendant in lodging the report against him. I am, therefore, of the view that the plaintiff has not been successful in proving his case.
22. Re : 3. The amount of Rs. 100/-that has been assessed as the amount spent for travelling and diet expenses is alright. However. Rs. 500/- were paid to the Advocates for the two accused and it is not the plaintiff's case that the co-accused had not contributed towards the fee. Therefore, under this head only Rs. 250/- should have been allowed to the plaintiff. As regards the award of general damages to the extent of Rupees 2,000/- it lay within the discretion of the trial Judge. It is true, the plaintiff had not said in so many words as to what he had suffered but as there was & clear cut issue the defendant very well understood the case he had to meet. As such I am not inclined to disturb the finding of the learned trial Judge regarding the award of general damages.
However, as I have come to the conclusion that the plaintiff has not been successful in proving his case, he is not entitled to recover any damages.
23. In the result, therefore, I allow this appeal set aside the judgment and decree of the learned Additional District Judge Ganganagar and hereby dismiss the suit with costs. As the appeal has not been contested by anyone, the appellant shall get only the court-fees paid for the memo of appeal.