Decided on December 20,1955


Cited Judgements :-



Satyanarayana Raju, J. - (1.)THIS is an appeal from the Judgment of our learned brother Chandra Reddy J.. The present appellants filed a suit O. S. No. 43 of 1949 on the file of the Subordinate Judge's Court Narasaraopet, against defendants 1 to 3 for recovery of a sum of Rs. 5, 250/ by way of damages for malicious prosecution. The Subordinate Judge's court dismissed the suit as against the 1st defendant and gave a decree for Rs. 3,250/-against defendants 2 and 3. Defendants 2 and 3 thereupon filed A. S. No. 702 of 1950 on the file of the High Court of Madras, By a judgment dated the 27th of August, 1954, the appeal was allowed by Chandra Reddy J. with the result that the entire claim of the plaintiffs against all the defendants stood negatived. On the 9th of October 1948, the 1st defendant's wife died. According to the plaintiffs she died a natural death while according to the defendants she met her death as a result of homicidal violence. Defendants 2 and 3 had informed the 1st defendant that they had seen the plaintiffs coming out of the back-yard of the 1st defendant at or about the time Ramamma, the 1st defendant's wife, met her death. The 1st defendant duly made a complaint to the police which they investigated. They eventually laid a charge-sheet against all the plaintiffs for an offence punishable under Sec. 302 of the India Penal Code, As accused in the criminal case, the plaintiffs pleaded that Ramamma died a natural death as a result of the fracture of the skull sustained by her on account of a fall on a cuddapah slab while she was carrying grain to the granary. The plaintiffs were acquitted on the 19th of January 1949 by the Sessions Judge, Guntur in S. G. No. 55 of 1948. They brought an action on the 18th of April 1949 alleging inter alia that defendants 2 and 3 had conspired with the 1st defendant and foisted a false case of murder on them and gave evidence in support thereof both before the police and before the courts and took a leading part in the conduct of the case throughout and that they did all this with the intention of feeding their private spite against them. All the defendants denied liability. Defendants 2 and 3 averred that the statements made by them regarding the death of the wife of the 1st defendant were not made without reasonable and probable cause or with any malicious intent. The trial Judge found that defendants 2 and 3 were responsible for the prosecution of the plaintiffs and that they were actuated by malice but so far as the 1st defendant was concerned, he had reasonable cause for giving a report to the village munsif and that he was not actuated by malice. On appeal, Chandra Reddy, J. held that if a person does nothing beyond giving information to the police which he considers to be true, an action for damages for malicious prosecution is not maintainable against him, and that if, on the other hand, besides setting the law in motion he takes an active part in the conduct of the prosecution, he will be regarded as the real prosecutor although the actual prosecution is by the police and renders himself liable for damages. Applying the said principle, he held that defendants 2 and 3 could not be made liable for damages for malicious prosecution'. Mr. Kotayya, learned Counsel for the plaintiffs-appellants argued that defendants 2 and 3 were the real persons behind the prosecution as they had colluded together and made the 1st defendant file a complaint before the police, that they had not only given information leading to the filing of the complaint but that, subsequently they gave evidence which they knew to be false, both before the police and the criminal courts and that therefore the decree granted by the Subordinate Judge in their favour should be restored. In an action for malicious prosecution the plaintiff must show first that he was prosecuted by the defendant, that is to say, the law was set in motion against him on a criminal charge; secondly, that the prosecution was determined in his favour; thirdly that it was without reasonable and probable cause; fourthly, that it was malicious. The onus of proving every one of these is on the plaintiff. At this stage it will be convenient to refer to the decisions which have 'been cited at the Bar. The earliest of the cases is Narasinga Rao v. Muthaya Pillai. The relevant portion of 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 the first defendant may have instituted criminal proceedings 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." Dealing with this decision their Lordships of the Privy Council made the following pertinent observations in Goya Prasad v. Bhagat Singh. '"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 does 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 be 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 to assist him in sending an innoncent 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". Their Lordships proceeded to propound the test thus: "The question in all cases of this kind must be who was the prosecutor and the answer must depend upon the whole circumstances of the case." The same view was taken by the Privy Council in a later case in Balabhaddar Singh v. Badri Sah . In Periya Goundan v. Kuppa Goundan ' a Division Bench of the Madras High Court dissented from Narasinga Rao v. Muthaya Pillai ' and held that suit for damages for malicious prosecution is maintainable, by a person who was prosecuted by the police and acquitted, against another who had made the report containing maliciously false information against the former to a village munsif, as the result of which the police after investigation launched and conducted the prosecution, even though the informant was not the prosecutor in the criminal case. In Venkatappayya v. Ramakrishnamma '. Venkatasubbarao and Pakenham Walsh JJ. stated the principle thus: "...........................though technically it is the Crown that is the prosecutor in a criminal case, not only is the individual who sets the law in motion liable but also every other person whose conduct, with reference to the charge or the trial, shows that the part taken by him points him out as one responsible for the prosecution. That a particular person figured as a witness in the criminal case is not the criterion, but may be an clement to be considered. It is the whole conduct of the party that must be taken into consideration and the question must be determined as a question of fact in each case." In Madan Mohan Singh v. Bhirgunath Singh a Division Bench of the Patna High Court consisting of Ramaswami and Sarjoo Prasacl JJ. summarised the principle in the following terms : "The foundation of the action for malicious proseoution lies in abuse of the process of the court by wrongfully setting the law in motion and it is designed to discourage the perversion of the machinery of justice for an improper purpose. In order to succeed, the plaintiff must prove that the proceedings were malicious, without reasonable and probable cause, that they terminated in his favour and that he had suffered damage......To found an action for malicious prosecution the test is whether the defendant was actively instrumental in putting the criminal law into force, in other words, whether the defendant maliciously set the law in motion through a constituted authority without regard to the technical form in which the charge has been preferred." Mr. Kotayya, the learned Counsel for the appellants, relied upon two English decisions : Farley v. Danks - and Fitzjohn v. Mackinder ". In Jarley v. Danks s it was held that a defendant who has misled a tribunal by dishonest evidence and thereby caused it to act to the prejudice of the plaintiff is liable even though he may not have purported to be the prosecutor. An examination of the above cited decisions leads to the conclusion that the proper and correct test is to find out whether the defendant was the real prosecutor. A person may in fact be responsible for the prosecution without himself lodging the complaint. He may have given information to the complainant which is false to his knowledge as part of a design to prosecute an innocent person with a view to satisfy his private spite. Therefore, the question in all cases must be who was the prosecutor and the answer must depend upon the whole circumstances of the case. The decision in Venkatappayya v. Ramakrishnamma * says no more than this that where the part taken by a person points him out as responsible for the prosecution, he is liable in an action for damages for malicious procecution. The test propounded by the learned Judges is in consonance with the principles laid down by the Privy Council in Gaya Prasad v. Bhagat Singh ' and Balabhaddar Singh v. Badri Sah f>. In the light of the above test, can it be said that defendants 2 and 3 were the real prosecutors? The appellants rested their case on the plea that defendants 2 and 3 conspired with the 1st defendant and launched the prosecution. That case had not been substantiated in the trial court and it was not persisted in the appellate Court. It is true that beyond filing a written statement defendants 2 and 3 adduced no evidence on their behalf nor did they examine themselves in the suit. We have here the following facts: There was previous enmity belween defendants 2 and 3 and the plaintiffs. They have given information to the complainant. They also gave evidence before the police and before the criminal courts. These facts by themselves are not sufficient to establish the liability of defendants 2 and 3. There must also be proof that they did all this as part of a design to implicate the plaintiffs on a false criminal charge. That, the plaintiffs have not succeeded in proving, and on the evidence adduced in the case it is not possible to reach the conclusion that they were the real pro|ecutors. On this conclusion it follows that the appeal must fail. It is therefore dismissed with costs. T. A. B. Appeal dismissed.

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