1. This appeal is by a defendant against whom a suit for damages for malicious prosecution was dismissed by the Court of first instance, but has been decreed on appeal.
2. The Munsif held that there was no prosecution, far less any at the instance of the defendant, that there was reasonable and probable cause on the part of the defendant, and that there, was no malice. The Subordinate Judge has held just the contrary on all these points.
3. The facts, which are more or less undisputed, are the following : There was a theft in the defendant's house on the night of 28th July 1922. He informed the police on the next day about the theft, which was committed by cutting a sindh; gave a detailed list of the articles stolen, together with their value, the aggregate coming up to Rs. 556 and odd; stated that the steel trunks and boxes in which the articles were contained were found in the latter part of the night in the village itself; and also stated that he suspected the plaintiff in connexion with the occurrence. It is not alleged that any of these facts is not true.
4. The police arrested the plaintiff on 29th July 1922 kept him in hajat, and eventually, finding no evidence connecting him with the theft, submitted a final report on which he was discharged by the Magistrate on 12th August 1922.
5. Now, after the decision of the Judicial Committee in the case of Balbhaddar Singh v. Badri Sah A.I.R. 1926 P.C. 46, there can be no dispute that the essentials to be proved by the plaintiff in a suit for damages for malicious prosecution are the following:
(1) That he was prosecuted by the defendant.
(2) That the proceedings complained of terminated in his favour, if from their nature they were capable of so terminating.
(3) That the prosecution was instituted against him without any reasonable and probable cause.
(4) That it was due to a malicious intention of the defendant and not with a mere intention of carrying the law into effect.
6. Essential 1 is composed of two elements which give rise to the following two questions : 1st. - Was there a prosecution? 2nd. - Was such prosecution by the defendant?
7. As regards the second question, the answer to it is furnished by two decisions of the Judicial Committee : one, the case of Balbhaddar Singh v. Badri Sah A.I.R. 1926 P.C. 46, above referred to, and the other the case of Gaya Prasad v. Bhagat Singh  30 All. 525. In the former of these cases, their Lordships have said:
in any country, whore, as is India prosecution is not private, an action for maolicius prosecution in the most literal sense of the word cannot be raised against any private individual. But giving information to the authorities, which naturally leads to prosecution, is just the same thing.
8. In the latter case, their Lordships, in dealing with the question as to who is a prosecutor observed:
The question in all casts 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 is not the criterion : the conduct of the complainant before and after making the charge, must also be taken into consideration Nor is it enough to say, the prosecution was instituted and conducted by the police. That again is a question of fact. Theoretically all prosecutions are conducted in the name and on behalf of the Crown, but in practice this duty is often left in the hands of the person immediately aggrieved by the offence, who fro hac vice represents the Crown. In India, a private person may be allowed to conduct a prosecution under Section 495, Criminal P.C., which provides that 'any Magistrate inquiring into or trying any case may permit the prosecution to be conducted by any person other than an officer of police.... Any person conducting the prosecution may do so personally or by a pleader.' When then this is permitted, it is obviously an element to be taken into consideration in judging who is the prosecutor and what are his means of information and motives. The foundation of the action is malice, and malice, may be shown at any time in the course of the enquiry.
9. In the same case, their Lordships referred to the decision of the Madras High Court in the case of Narasinga Row v. Mutliaya Pillai A.I.R. 1926 P.C. 46 and said:
It will be convenient to refer at once to the decision of the Madras High Court (ubi supra) which the learned Judicial Commissioner appears to have followed with some reluctance. The judgment is in these terms:
The only person who can be sued in an action for malicious prosecution is the person who prosecutes. In this case, though defendant 1 may have instituted criminal proceeding before the police, he certainly did not prosecute the plaintiff. He merely gave information to the police, and the police, after investigation, appear to have thought fit to prosecute the plaintiff. The defendant is not responsible for their act, and no action lies against him for malicious prosecution.
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. In India the police have special powers in regard to the investigation of criminal charges, and it depends very much on the result of their investigation whether or not further proceedings are taken against the person accused. If, therefore, a complainant docs not go beyond giving what he believes to be correct information to the police, and the police without further interference on his part (except giving such honest assistance as they may require), think fit to prosecute, it would oa improper to make him responsible in damages for the failure of the prosecution. But if the charge is false to the knowledge of the Complainant; if he misleads the police by bringing suborned witnesses to support it; if he influences 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 has not, technically, been conducted by him.
10. No pronouncement can be more plain. In the present case, assuming for a moment that there was a moment that there was a 'prosecution' within the meaning of 'malicious prosecution,' as the expression is used in connexion with suits of this nature, it is impossible to hold that the defendant was liable for damages, for there is not an iota of evidence to suggest that he ever went beyond giving a true information of the occurrence and also a true statement of the fact that he suspected the plaintiff.
11. What I have said above is sufficient to dispose of the appeal and the suit, but as other important matters have been argued I propose to deal with them. I proceed in the first place to consider the first of the aforesaid two questions, namely, was there a prosecution? The answer to this question is not quite so plain, as there is some conflict, more apparent than real, in the authorities bearing on it. There are two decisions of this Court which stand out firm and clear and they lay down, following on Yates v. Queen  14 Q.B.D. 648 that a prosecution is not commenced before a person is summoned to answer a complaint : De Rozario v. Gulab Chand Anundjee  37 Ca. 358; Golap Jan v. Bholanath Khettry  38 Cal. 880. Both these cases, however, are cases in which complaints were made to a Magistrate and the Magistrate had ordered the police to enquire and report, a procedure under which there neither was, nor could be any arrest by the police. This element of distinction is important and will be referred to again, but it does not affect the meaning of the word 'prosecution' as it is understood in connexion with a suit for malicious prosecution. In the earlier of the aforesaid two cases : Clarke v. Postan  6 Cur. & P. 423 and the decision of the Bombay High Court in Ahmedbhai v. Framji Edulji Bamboat  28 Bom. 226, which proceeded on it and held that a prosecution commences when a complaint is made, were held as not having laid down good law. In a subsequent decision of this Court : Bishun Pershad Narain Singh v. Phulman Singh  19 C.W.N. 935, a contrary, view was propounded as to when the prosecution commences, and it was said that a prosecution commences as soon as the complaint is made to the Magistrate in respective of the result of the prosecution or of the stage at which it may fall through, and that when no action at all has been taken against the plaintiff upon such a complaint the action would fail, not because there was no prosecution commenced, but because there was no damage done to the plaintiff. What, however, is pertinent here is that in that decision also it was said that a prosecution exists when a criminal charge is made before a judicial officer or, tribunal. In the case of Growdy v. lieilly  17 C.W.N. 554, it was said that the enforcement of the criminal law through Courts of justice concerning a matter which will subject the accused to prosecution without regard to the technical form in which the charge has been preferred and, irrespective of the grade of the criminal offence, is a sufficient proceeding upon which an action for malicious prosecution may be based. The Madras High Court has also held that a prosecution did not commence when a Magistrate issued only a notice and not a summons to the accused on receiving a complaint of defamation and subsequently dismissed it after hearing cause for both the parties : K. Sheik Meeran Sahib v. C. Ratnavelu Mudali  37 Mad. 181. In the decision of the Judicial Committee in the case of Balbhaddar Singh v. Badri Sah  38 Cal. 880, to which I have already referred, there is sufficient to indicate that proceedings before the police are proceedings anterior to 'prosecution,' because their Lordships have said:
Information to the authorities which naturally leads to prosecutions,' and 'so far as the police ware concerned there was ample cause for the initiation of prosecution proceedings.
12. It should be observed that the accused in that case had surrendered on warrants having bean issued by the Magistrate and the police had neither sent them up nor arrested them. There is also enough in the decision of the Judicial Committee in the case of Gaya Prasad v. Bhagat Singh  30 All. 525 to indicate that police proceedings are distinct from a 'prosecution' for the purpose of a suit for malicious prosecution. If the present suit is to be regarded as a suit for damages for malicious prosecution, I am clearly of opinion that, on the plaint itself, it was liable to be thrown out, as there was no prosecution of the plaintiff at all.
13. But it is not possible to dispose of the suit on the above ground, because a suit for malicious prosecution is not a statutory suit and if the facts alleged-disclose a cause of action, notwithstanding that the suit has been named or described as such, that cause must be tried. As Sir Lawrence Jenkins, C.J., pointed out, in Golap Jan v. Bholanath Khettry  38 Cal. 880:
There are certain, wrongs akin to malicious prosecution which entitle the person aggrieved to sue, as for instance, malicious abuse of the process of the Court, malicious arrest, malicious search and malicious execution.
14. These kindled suits are sometimes treated as being suits for malicious prosecution and this is the origin of the dictum that is to be found in many of the decisions:
That the maintainability of a suit for malicious prosecution does not depend on there having been a prosecution in the sense in which that term is und in the Criminal Procedure Code.
15. The dictum is perfectly correct sol long as it is meant to apply to these kindred suits.
16. Numerous instances of such kindred suits will be found in the reports, based on different kinds of causes of action. Of these suits, there is one particular class, in connexion with which it has been held that they are maintainable, namely, where proceedings for sanction to remove the bar to the institution of a prosecution were instituted by the defendant : e.g., Narendra Nath De v. Jyotish Chandra Pal A.I.R. 1922 Cal. 145 and Rabindra Nath Das v. Jogendra Chandra Deb : AIR1928Cal691 . The question whether this class of cases really discloses a sufficient cause of action to found a claim is a matter of considerable doubt, but the question how far these decisions are defensible on principle need not be discussed here.
17. Then, there are two classes of causes of action, which are of a kindred character and which, in this country, are sometimes confounded with causes of action for suits for malicious prosecution. One is 'malicious arrest,' but the foundation of action for malicious arrest is that the party has obtained an order of authority from a Judge to make an arrest, by knowingly imposing some false statement upon the Judge or by stating certain facts as being true within his knowledge when he knew nothing about them, or as being true to his belief when he had no reasonable or probable cause for his belief : Daniels v, Feilding  16 M. & W. 204; Walley v. M'Connel  13 Q.B. 903 and Clissold v. Cratchley  2 K.B. 244. The present suit does not come within the category of malicious arrest. If, by any chance, it could be treated as one of an analogous character, it would be met by the defence which the facts on the face of them establish that the suit it not sustainable, when the defendant has placed all the facts before the officer having the discretionary power to order the arrest and that officer, with full knowledge of the facts has exercised his discretion and ordered the arrest : Lock v. Ashton  12 Q.B. 871; Thakdi Hajji v. Badrudin Saib  29 Mad. 208.
18. Anoter class of such causes of action is 'false imprisonment.' In 'false imprisonment,' the personal liberty of the plaintiff may have been wrongfully restrained by a private individual or by setting a ministerial officer in motion while in 'malicious prosecution,' it is the judicial officer who is set in motion and the opinion and judgment of a judicial officer are interposed between the charge and the imprisonment. The distinction is illustrated by Willes, J., in the case of Austin v. Bowling  5 C.P. 534 and in such cases as Lock Ashton  12 Q.B. 871 and Elsee v. Smith  1 D. & R. 97. If the present suit is treased as a suit for damages for 'false imprisonment,' it being said that the defendant got the plaintiff arrested by the police, then the question would arise as to whether there was reasonable and probable cause. So far as this question is concerned, there is a difference as to onus between a suit for malicious prosecution and a suit for false imprisonment. Any interference with a man's personal liberty is prima facie wrongful and, therefore, has to be justified; but anyone is prima facie entitled to set a Court of justice in motion. As Alderson B pointed out in Panton v. Williams  2 Q.B. 169, 'Imprisoning is prima facie a tort, prosecuting is not so in itself.' This is why, in an action for malicious prosecution, the plaintiff must allege and prove affirmatively the non-existence of reasonable and probable cause : Abrath v. North Eastern Railway Co.  11 A.C. 247, while in an action for false imprisonment it is for the defendant to prove affirmatively the existence of reasonable and probable cause : Hicks v. Faulkner  8 Q.B.D. 167; Hailes v. Marks  7 H. & N. 56.
19. As regards reasonable and probable cause, the conclusions of the two Courts below are contrary to each other. The existence of reasonable and probable cause is a question for the Judge and not for the jury : Panton v. Williams  2 Q.B. 169 : Lister v. Parryman  4 H.L. 521; Hailes v. Marks  7 H. & N. 56, which was a case of false imprisonment. The cases bear out what Salmond says in his Law of Torts, 7th Ean. pp. 620, 621:
This rule, however, is subject to the qualification that preliminary questions of fact on which this ultimate issue depends are for the jury. That is to say, the jury must find what the facts of the case were, as known to or believed by the defendant, and then the Judge decider whether these facts constituted reasonable and probable cause, viz., whether the defendant showed reasonable care and judgment in believing and acting as he did.
20. In India also, the balance of authorities is in favour of the view that the question is a mixed one of law and fact and the inference deducible from proved facts may be examined by this Court on second appeal. Bishun Singh v. Wyatt  16 C.W.N. 540; Shama Bibee v. Chairman of Baranagore Municipality  12 C.L.J. 410; Harish Chunder Neogy v. Nishi Kanta Banerjee  28 Cal. 591.
21. We cannot, therefore, content ourselves with accepting as final the conclusion of the Subordinate Judge on this question, but must examine whether it is correct as a matter of inference.
22. Now, the findings of the Court below may be summarized thus : The plaintiff is a servant earning Rs. 7 a month. He has been working in the house of the neighbour of the defendant, a fact which is important on the question of probability and opportunity. About 14 years ago, he was once imprisoned for 6 months on a conviction for theft. Thereafter, about 10 years ago, he stole some money by opening a trunk in a press by breaking open a trunk and had soon after to disgorge the amount. He has the reputation of a 'dagi' in the village. Quite recently, there was an inquiry preliminary to the starting of a case under Section 110, Criminal P.C., against him along with other persons. The plaintiff's name, according to the police witness, is probably in the list of suspects at the thana, and he had before now been suspected in connexion with other thefts in the village. The fact that he is not regarded by the police as an active criminal is more or less beside the question, so far as the defendant is concerned.
23. In the enquiry relating to the prospective proceedings under Section 110 Criminal P.C., the defendant had taken a prominent part and had actually deposed against him. In view :of all these facts, it is exceedingly difficult to hold that there was want of reasonable and probable cause on the part of the defendant in suspecting the (plaintiff and mentioning about this suspicion in the information of the occurrence that he lodged with the police. The plaintiff certainly was a person who might reasonably be considered by the defendant, as having been concerned in the theft, bearing as the plaintiff did or might be supposed to have done a grudge against the defendant for his activities in connexion with the projected proceeding under Section 110, Criminal P.C., and, in view of the antecedents of the plaintiff, a suspicion of this character in the defendant's mind cannot be condemned as being unjustified or improbable. I am of opinion that the conclusion at which the Subordinate Judge has arrived, as regards reasonable and probable cause, does not take into account all the facts and circumstances of the case and was somewhat hastily drawn and that the Munsiff's inference on the point is correct.
24. I am accordingly of opinion that, upon all conceivable points of view, this appeal should succeed. It is therefore, ordered that the decree of the Subordinate Judge should be reversed and that of the Munsiff restored with costs in all the Courts.