1. This is an action for malicious prosecution. This defendant, it appears, gave information to the police, upon which the plaintiff was arrested and brought before the Magistrate and subsequently acquitted. The case comes before us on second appeal, and we must take the findings of the Judge in the Court below as binding upon us. That Court has decided against the appellant and decreed a very small amount of damages. The appellant appeals: and he says that the action would not lie, that he was not the prosecutor, but that the police were the prosecutors. Now, what are the findings of the Court below There are findings of malice, findings of want of reasonable and probable cause for the institution of the criminal case. The Judge also finds, 'The defendant did not only lodge the complaint before the police, but did virtually fabricate false evidence to procure the plaintiff's conviction. The defendant did actually appoint a mukhtear to prosecute the plaintiff. The mukhtearnamah shows for what object the mukhtear was appointed. It was clearly stated in it that the mukhtear was to 'prosecute,' and the evidence is that the mukhtear did actually cross-examine the defence-witnesses before the Magistrate: and, as stated before the Magistrate, treated the defendant as the virtual prosecutor.' I think upon these findings it is clear that the defendant was the real and virtual prosecutor. The case is identical with the case of Bhul Chand Patro v. Palun Bas(1903) 12 C.W.N. 818 and in the judgment in that case some English authorities are referred to, which support the view of the present lower Appellate Court. I might almost avail myself of the language of Chief Justice Cockburn in the case of Fitz-John v. Mackinder (1861) 9 C.B.N.S. 533, where he says, 'I can only say that in my opinion it would be a lamentable reproach to our law if a claim for redress for so grievous a wrong could be defeated by legal difficulties of a purely technical character.' I think in this case it would be lamentable if, taking the facts as found, it were held that the plaintiff had no redress.
2. The appeals, therefore, fail and must be dismissed with costs.
3. I agree.