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. This view of the Privy Council was duly noticed by this court in Radhu v. Dhadi, reported in AIR 1953 Orissa 56, and this Court held that: "The real question is to determine who is the real prosecutor. The mere giving of information, even though it was false, to the police cannot give cause of action to the plaintiff in a suit for malicious prosecution if the defendant is not proved to be the real prosecutor by establishing that he was taking active part in the prosecution, and that he was primarily and directly responsible for the prosecution. If the defendant had left the matter to the investigation of the police and took no unduly active part against plaintiffs prosecution by the State after giving information and getting rice seized by the police the defendant is not the prosecutor. When the plaintiff has failed to prove that the defendant was primarily and directly responsible for the prosecution, the other question of reasonable and probable cause of malice etc. need not be considered and the plaintiffs suit must fail on this ground alone."
IN THE HIGH COURT OF ORISSA
Decided On: 23.10.1952
Appellants: Radhu Naik
Vs.
Respondent: Dhadi Sahu
Vs.
Respondent: Dhadi Sahu
Hon'ble Judges/Coram:
Mohapatra , J.
Citation:AIR 1953 Ori 56
1. This is a plaintiffs Second Appeal arising out of a suit for malicious prosecution against the reversing judgment of Sri J. K. Biswas, Civil Judge, Keonjhar State, in Civil Appeal No. 15 of 1947.
2. The plaintiff brought the suit for recovery of Rs. 300/- as damages for malicious prosecution for having been prosecuted under Rule 81(4) of the Defence of India Rules on the information given by the defendant to the effect that the plaintiff was purchasing and selling rice in black-market without license and that on 17-2-46 the plaintiff had stored 17 maunds 4 seers of rice for sale in contravention of the Foodgrains Control Order, 1944 as adopted by this State. The police investigated matter and brought a charge-sheet. The prosecution ended in acquittal by the judgment of the Sub-divisional Magistrate (Ex. 2).
3. The plaintiff's allegations were that the prosecution was malicious without any reasonable and reliable cause and the information given by the defendant was absolutely false.
4. The defence was that the occurrence was true, that the plaintiff really sold 40 maunds of rice on 15th and 16th February 1946, to the Agents of Companies at Ghasipura and again when he was attempting to transport 10 bags of rice on the night of 16-2-46 he informed the police to visit the spot and seize the rice.
5. The trial Court granted a decree in favour of the plaintiff on the findings that the information given by the defendant to the police was absolutely false and without any slightest reasonable and probable cause and thus actuated by malice.
6. The lower appellate Court finding that the defendant acted on good faith when be informed the police about the storage of 10 bags of rice in the plaintiff's house which the police found and seized at the spot (plaintiff (sic) place). Considering the circumstances of the case, he came to the finding that the defendant had left the matter to the investigation of the police and took no unduly active part against plaintiff's prosecution by the State after giving information and getting the rice seized by the police. According to the lower appellate, Court, therefore, the defendant was not the prosecutor. He relied upon" a decision of the Madras High Court, reported in -- 'Narasingha Row v. Muthaya Pillai', 26 Mad 362.
7. It will be necessary to discuss the position of law as to who is to be deemed to be the prosecutor in such criminal proceedings in India to be liable for damages in a suit for malicious prosecution. The above decision -- 'Veerian Chettiar v. Ponnusawmi Chettiar', 36 Mad 362 was placed before their Lordships of the Privy Council in the case of --'Gaya Prasad v. Bhagat Singh', 30 All 525 (P.C.).
The principle laid down in -- 'Narasingha Row v. Muthaya Pillai', 26 Mad 362 was well clarified and explained by their Lordships of the Privy Council, who after quoting the pertinent portions of the Madras case, observed:
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.X X XBut if the charge is false to the knowledge of the complainant; if he misleads the police by bringing suborned witness 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. 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 mere setting of the law in motion is not the criterion; the conduct of the complainant be fore 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 against is a question of fact.
The whole question is made clear in these few sentences. The real question is to determine who is the real prosecutor, and for that, as their Lordships observed, the whole circumstances of the case have got to be taken into consideration. The conduct of the complainant before and after making the charge is really very pertinent. The matter again came up before their Lordships of the Privy Council in the case of -- 'Balbhaddar Singh v. Budri Sah', 7 PL. T. 591 (P.C.) The plaintiffs in the suit for malicious prosecution were appellants.
Their Lordships observed:
The question is 'Have the appellants proved that Badri Sah invented and instigated the whole proceedings for prosecution. XXX But it must be kept in view, so far as the police were concerned, there was ample cause for the initiation of prosecution proceedings. There were the clear narratives of two people, Raghunath and Teja, concurrent in all necessary particulars. The appellants is must, therefore, go the whole way. There is no halfway point of rest. They must show that Badri Sah invented the whole story as far as it implicated the appellants, (sic)and. tutored Raghunath and Teja to say it. That is a very heavy onus of proof, and unless they sustain it the appellants must fail.
Their Lordships ultimately found that the plaintiffs in the suit for malicious prosecution failed to discharge the onus. From these two decisions, therefore, it is apparent that by taking into consideration the conduct of the informant before and after making the charge and the circumstances of the case it has got to be determined as a matter of fact that the informant was really taking active part in prosecuting the accused. Mere lodging of information before the police, or, as in the present case, getting the properties seized by the police is not enough to be the real prosecutor in the case. The learned lower appellate Court finds it as a matter of fact.
Defendant's part in the prosecution ceased with the lodging of this information and with the pointing out of the seized 10 bags of rice at the plaintiff's house as they were being transported from the carts. The prosecution started against the plaintiff was principally the result of the investigation as the police scrutinised the defendant's complaint and found sufficient evidence to proceed in the matter to prosecute the plaintiff.
He further finds
In the circumstances when the defendant had left the matter to the investigation of the police and took no unduly active part against the plaintiff for his prosecution by the State, he is not liable for damages.
He merely gave information and the police, after taking up investigation, appears to have thought fit to prosecute the plaintiff. The lower appellate Court has come to these findings after a fair discussion of the evidence and circumstances appearing in the case. The lower appellate Court having found it as a matter of fact and that after a fair discussion of the matter that the defendant was not the real prosecutor in not having taken unduly active part and his task having finished after lodging information and getting the proper-ties seized, there is no point for interference in this Second Appeal.
I will also refer to another decision of the Patna High Court, reported in -- 'Narain Pande v. Gaya Rai', MANU/BH/0142/1937. Mr. Justice Fazl Ali (as he then was), after dis cussing the principle laid down in the Privy Council decision reported in 7 PLT 591 , observes:
In my opinion the learned Subordinate Judge in deciding this case overlooked the true significance and meaning of these observations & did not apply his mind to the fact that there is in the present case a total absence of evidence to show that the statements made by the defendants before the police were directly and primarily responsible for the prosecution of the plaintiffs. As this was one of the principal points in this action, the plaintiffs' suit is bound to fail on this ground alone, and it is not necessary to discuss the question of malice or want of reasonable and probable cause.
In my opinion, the above observations apply to the facts of the present case. The police did not mind to take a record of the information given by the defendant and further the plaintiff did not choose to examine the A. S. I. to whom the information was given to establish that, in fact, it was primarily and directly in consequence of the information given by the defendant that the present prosecution was started and also the appellate Court has found that the police after thorough investigation of the matter, started prosecution. So, in my opinion, as was observed by Fazl Ali J. (as he then was), in the case reported in MANU/BH/0142/1937, when it is found, that the plaintiff has failed to prove that the defendant was primarily and directly responsible for the prosecution, the other question of reasonable and probable cause, of malice & etc., need not be considered & the plaintiff's suit must fail on this ground alone.
8. Mr. Rao, appearing on behalf of the plaintiff-appellant, contends that mere giving false information before the police is sufficient for the purpose of giving cause of action in a suit for malicious prosecution even though the defendant had not taken any other part after lodging information. For that he relies upon the finding of the trial Court that the information lodged by the defendant was false. The lower appellate Court, however, has found that the defendant gave the information in good faith and in fact 10 bags of rice were admittedly found in the plaintiff possession on 17-2-46. This is no doubt an unsatisfactory finding of the lower appellate Court inasmuch as he has not discussed thoroughly all the circumstances which had led the trial Court to come to a different finding. But in my opinion, on a perusal of the decisions, quoted above, the mere giving of information, even though it was false, to the police cannot give cause of action to the plaintiff in a suit for malicious prosecution if he (the defendant) is not proved to be the real prosecutor by establishing that he was taking active part in the prosecution, and that he was primarily and directly responsible for the prosecution,
9. Mr. Rao relies very much on the observations in the case reported in -- Bal-bhadar Singh v. Budri Sah', 7 PLT 591 , (P.C.), referred to above;
In any country where, as in India, prosecution is not private, an action for malicious prosecution in the most literal sense of the word could not be raised against any private individual. But giving information to the authorities which naturally leads to prosecution is just the same thing. And if that is done and trouble caused an action will lie.
But we must not lose sight of the other passages in the judgment in order to understand what is the principle laid down in the case. Just a few lines earlier, their Lordships formulated the point thus:
Have the' appellants proved that Badri Sah invested and instigated the whole proceedings for prosecution?
And just after the lines relied upon by Mr. Rao, their Lordships made further observations, which I had quoted earlier and should quote again:
"But it must be kept in view that, so far as the police were concerned, there was ample cause for the initiation of prosecution proceedings. There were the clear narratives of two people, Raghunath and Teja, concurrent in all necessary particulars. The appellants must, therefore, go the whole way. There is no halfway point of rest. They must show that Badri Sah invented the whole story as far as it implicated the appellants, and tutored Raghunath and Teja to say it. That is a very heavy onus of proof, and unless they sustain it the appellants must fail."
Therefore, the plaintiffs had further to prove that the defendants tutored Raghunath and Teja. These observations clearly indicate that mere giving an information even though false is not enough. The defendant must have taken an active part in the further proceedings of the prosecution. Moreover in view of the fact that actually 10 bags of rice were seized from the custody of the plaintiff on the date, it cannot be said that the whole story was invented.
10. In conclusion, therefore, the appeal fails and is dismissed with costs.
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