John Wallis, C.J.
1. This is an appeal from the judgment of the learned City Civil Judge dismissing a suit brought by the plaintiff against Messrs. Spencer & Co., and Mr. Bovill, the Manager of Messrs. Spencer & Co., for damages for malicious prosecution of the plaintiff, on a charge of stealing certain articles which Messrs, Spencer & Co., kept not for purposes of sale but for distribution among possible customers and which they also were in the habit of distributing to some extent among their own subordinates.
2. The facts which gave rise to this case were, that two burgalaries were committed on Messrs. Spencer & Co.'s premises and the Police were advised of the facts. The Police came to Messrs. Spencer & Co., and proposed to arrest the plaintiff and another on suspicion. They were arrested and search warrants were granted and their premises were searched. Mr. Bovill had nothing to do with this so far. When the premises of the plaintiff and the other man were searched certain articles were found. In the plaintiff's premises a very large number of these advertisement articles were found. The Police produced these articles before Mr. Bovill and, I think, the City Civil Judge finds in the presence of the plaintiff. But it is not very material. Having regard to Mr. Bovill's recognition that a great number were advertisement articles which came from Messrs. Spencer & Co. and having regard to the quantities--there were 18 little mirrors--, he came to the conclusion that they could not have been acquired by the plaintiff from Messrs. Spencer & Co. in the ordinary course as presents, but that they must have been taken without permission, which amounted to theft. Therefore, he expressed his opinion that the articles must have been stolen. He subsequently wrote to the Commissioner of Police, a letter, Exhibit C, in which he says, 'with reference to the articles placed before us by the Police this morning we have to say that the greater portion of the advertisement articles recovered from the house of Rajagopala Naicker were undoubtedly stolen from our premises. Some of the other articles are such as we have in stock and sell, but they bear no distinguishing marks.... Please take any action you think advisable in these cases.' These proceedings were in no way initiated by Messrs. Spencer & Co, and Mr. Bovill. It was the Police that brought these things discovered on the premises of the plaintiff to them and all they did was to express what was clearly their honest opinion that these goods were stolen goods and they left it to the Police to take any action they thought advisable. They took no part in the conduct of the prosecution except that they appeared as witnesses in answer to summonses. In these circumstances, it appears to me quite unarguable to say that they prosecuted. I think the case is altogether distinguishable from the Privy Council case in Gaya Prasad v. Bhagat Singh 35 I.A. 189 in which the defendant was the real instigator of the whole proceedings and, practically, took an active part in the prosecution. Similarly, it is unnecessary to consider the case in Feria Gounden v. Kuppa Gounden 52 Ind. Cas. 782 which has been referred to. In that case the proceedings were undoubtedly started by the defendant who informed the Village Magistrate whose duty it was to report that the accused had been guilty of a particular offense and, therefore, he initiated the proceedings. Here, neither Messrs. Spencer & Co. nor Mr. Bovill did anything of that kind but they merely expressed their honest opinion and left it to the Police to take any action they chose, This conclusion is also supported by a very recent judgment of Lord Beading, L.C.J., on facts almost exactly similar, which has not yet been reported. This ground is sufficient for the disposal of the appeal. I am not, however, to be understood to be differing from the other findings both as to reasonable and probable cause and absence of malice.
3. The appeal fails and is dismissed with costs.
4. I entirely agree.