1. This appeal arises out of a suit for damages for malicious prosecution.
2. The question in the present case is, whether the defendant 'was directly responsible for any charge at all being made against the plaintiff:' Gaya Prasad v. Bhagat Singh 10 Bom. L.R. 1080. Persons who have made the original report of the alleged crime knowing it to be false, have been made by the Privy Council to 'abide the consequences of their misconduct' notwithstanding that the prosecution was not technically conducted by them,' but by the Police.
3. The facts in Gaya Prasad v. Bhagat Singh 12 C.W.N. 1017 : 10 Bom. L.R. 1080 : 8 C.L.J. 337 : 35 I.A. 189. were that the Sub-Inspector instituted the charge at the instigation of the defendants and not of his own motion (page 533) and the defendants had concocted and produced false evidence to get the plaintiff charged with the crime (page 532).
3. The instigation to prosecute apparently consisted in making the original report upon which the prosecution was ultimately based, and in giving a list of the persons containing the plaintiff's name and saying that the chief cause of the riot was the plaintiff. In the conduct of the case the defendants took the principal part both before the Police and in the Magistrate's Court and instructed the prosecution Counsel that the plaintiff joined the riot, which the Magistrate found had never taken place; moreover on the day of the alleged riot the plaintiff was ill at Lucknow.
4. The Privy Council mention two alternative cases, in one of which they say it would be improper to make the defendant responsible in damages for failure of the prosecution, and in the other, that it would the equally improper to allow him to escape (pages 533-534). The present defendant does not come under either of these categories. For on the allegations, which have not been investigated so far but which we must for the present purposes assume to be true, (1) he certainly went beyond giving what he believed to be correct information; but on the other hand, (2) it has been found that he did not bring suborned witnesses to support the charge, nor did he influence the Police or any one else to assist him in sending an innocent man for trial.
5. It does not follow that when a person does not come within the terms of the second alternative, he must necessarily succeed in a suit against him for malicious prosecution any more than it follows that if he fails to satisfy the first alternative, the suit must necessarily be decreed. For as already stated, the ultimate question as laid down by the Privy Council, is whether the defendant was directly responsible for the charge being brought against the plaintiff. In this connection it is necessary to refer to two matters: (1) A person may be directly-responsible for the proceedings, not with-standing that he may not have originally contemplated prosecution as the result of his acts or statements, and have been required by the Court to prosecute the plaintiff: Fitzjohn v. Mackinder 9 C.B.505 : 30 L.J. C.P 257, per Blackburn, J., and notwithstanding that the proceedings may be of such a special character as to require the intervention of the Political Officers of the Government with which the defendant may not have any direct connection, much less any control, over it: Cf. Musa Yakub v. Mani Lal 7 Bom. L.R. 20, (where extradition proceedings were held to be part of the cause of action in a suit for malicious prosecution). The safeguard for the defendant in such cases is that probably he would succeed in proving that he had no malice: Fitzjohn v. Mackinder 30 L.J. C.P 257 : 4 L.T. 149 : 127 R.R. 746, the recognizance would then furnish an answer', in the words of Littledale, J., for this reason only, that in such a case the plaintiff could not prove that the defendant was actuated by a malicious motive in making his charge before the Magistrate.' Dubois v. Keats 11 A. & E. 329 : 52 R.R. 361 On the other hand, it is clear that the mere giving of false evidence does not make the perjured witness liable to civil action: Revis v. Smith (1856) 18 C.B. 126: 4 W.R. 506: 139 E.R. 1314, Henderson v Broomhead (1859) 4 H. & N. 569 Such an action would be not for malicious prosecution, but for damages for defamation: Dubois v. Keats 11 A. & E. 329, and it does not lie because the occasion is absolutely privileged: the reason being that 'if this action could be maintained, it would tend very much to discourage witnesses from giving evidence by fear of infinite vexation': Henderson v. Broomhead (1859) 4 H. & N. 569 : 5 Jur. 1175, of. also Allen v. Flood (1898) A.C. 1, (per Lords Herschell and Davey).
6. The Subordinate Judge was, therefore, clearly wrong in considering that inasmuch as the defendant gave information in the first instance not to an officer of the law', but to a Forest Officer, the suit cannot lie. If the defendant causes or procures the plaintiff to be prosecuted, he is liable notwithstanding the intervention of some other person as the direct or technical prosecutor: it can make no difference whether the other person is or is not an officer of the law.
7. The District Judge, however, after holding that the defendant did not come within the second of the two catesraries mentioned By the Privy Council, also finds that the defendant was unwilling to complain against the plaintiff, that he made his statement to the Joint Magistrate more or less under compulsion, that the plaintiff was probably already suspected by his official superior, and that the Government resolved to prosecute the plaintiff without any further interference on the part of the defendant beyond the statement made by him to the plaintiff's official superior.
8. The argument for the appellant is that on these facts on the authority of Fitzjohn v. Mackinder 30 L.J. C.P 257, the defendant ought to be held liable. It is unnecessary to decide whether the defendant would have been liable if the prosecution had been caused (even though not intentionally) by the defendant's statement to the plaintiff's official superior; and if his had been the only substantial evidence for the prosecution or if the main part of the other evidence had been procured or suborned by him. In such a case it may be, we do not decide, that the defendant is responsible for the prosecution, though it has been conducted in the name of some other person and even though the Court or some other person has directed that the plaintiff should be prosecuted. Nor can it be considered in the present case whether the statement made by the defendant to the plaintiff's official superior would have made him liable to a suit for defamation; the present suit is not so framed, and the issues in a suit for defamation would have been entirely different, though it may be as pointed out by Lords Herschell and Davey in Allen v. Flood (1898) A.C. 1 : 62 J.P. 595 that on principle the two classes of suit are connected.
9. It is thus clear that the present suit can be supported (if at all) only on the contention that the statement in question shows that it was the defendant who set the law in motion against the plaintiff. The District Judge's findings clearly negative this view; and when the circumstances are considered in the light of the authorities to which we have referred, there is no doubt that the result at which he arrived was perfectly correct.
10. The appeal is, therefore, dismissed with costs.