1. Appellant sued respondent for damages for malicious prosecution. He got a decree for Rs. 100 in the Munsif's Court. The District Judge set it aside on the ground that the respondent could not be said to have prosecuted appellant, because he only made a report to the village Munsif as a result of which the police after investigation launched and conducted a prosecution for theft against appellant and his father. The authority relied on is the ruling of this Court in Narasinga Rao v. Muthaya Pillai I.L.R. (1902) Mad. 362
2. 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 of the Criminal Procedure Code.2. He may give an information to an officer in charge of a Police Station, who will take action under Chapter XIV of the Criminal Procedure Code.
3. He may (in the cases of all non-bailable and certain other offences) give information to the Headman of his village, who is bound under Section 45 of the Cr.P. 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.
3. 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; and, as the District Judge himself reccgnized the fact that this indirect method of communicating with the Police was resorted to makes no difference to the defendant's liability for damages. The contention is that whenever the prosecution in Court is instituted on a Police report under Section 173 of the Cr.P. Code, the person who furnished the original information to the Police, whether directly or through the village Headman, is not responsible for the act of the Police and cannot be sued for damages for malicious prosecution.
4. This certainly seems to me to be the meaning of the learned Judges in Narasinga Rao v. Muthayya Pillai I.L.R. (1902) Mad. 362, but with all respect. I am unable to agree. If it be conceded that a person is liable for damages in 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 of the Cr. P. Code, why should he not be equally liable where he induces the Police by maliciously false information to send the case to the Magistrate under Section 170 of the Cr. P. 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 to 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 enquiry (Section 202) and he only takes action against the accused person by the issue of process under Section 204 of the Cr. P. 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 the 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. ' Qui facit per 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 Gaya Prasad v. Bhagat Singh I.L.R. (1908) A.H. 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. The whole circumstances of the case must be looked to.
5. It is true that their Lordships in their judgment referred to the judgment of. this Court in Narasinga Rao v. Muthaya Pillai I.L.R. (1902) Mad. 362 and add:
The principle here 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 Lordships it is not of universal application.
6. I cannot understand this as meaning that their Lordships considered the facts of that case and endorsed this Court's decision on them as correct. To do so would, as it seems to me and if I understand this Court's decision aright, run counter to all the rest of their Lordships' judgment. The language suggests to me that they deemed it unnecessary to consider the correctness of the decision in that particular case: Rather they wished to point out that, while it might be correct, it was based on a principle which was not to be universally applied. If, as I presume, they had only the report in the I.L.R. series before them, they may well have been misled. The latter is very incomplete, and contains nothing to suggest that any of the Courts which dealt with the case found the prosecution to be, as a fact, malicious. It recites that the District Munsif found that it was not: but it fails to state (what we have ascertained from the original record) that the Sub-Judge who was the final Judge of fact found ' that prosecution of the plaintiff by the 1st defendant was malicious and without reasonable and probable cause.' 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 succeed simply because the case having been taken upon a Police report (Section 190(1)(b) of the Cr. P. Code) the police, and not defendant, must be regarded as prosecutor.
7. From such a prosecution which is clearly contrary to the view expressed in their Lordships judgment I must respectfully dissent.
8. It is not inappropriate in this connection to draw attention to the view taken by this Court as to the applicability of Section 211, I.P.C. to cases such as the present one. The matter is fully discussed by a Full Bench in The Sessions Judge of Tinnevelly Division v. Swan Chetty I.L.R. (1909) Mad. 258 and according to the opinion of the majority the action of the defendant in this case provided the information given by him to the village headman was maliciously false would render him liable to prosecution for an offence under Section 211, I.P.C. It would be a curious anamoly if an action for damages against him could not be sustained on the same facts.
9. I would set aside the decree of the District fudge, and direct him to restore the appeal to file and dispose of it in the light of the above remarks. Costs in this Court to be costs in the cause.