Kommalapati Venkatadri vs Pinninti Chandrayya

Viswanatha Sastri, J.—Defendant 2 appeals against the decree awarding damages for malicious prosecution. The facts are these:

Defendant 2''s shed containing a straw heap was destroyed by fire at about 8 P. M. on 5-12-1948. At 8 A. M, on 6-12-1948 defendant 2 gave a report to the village-Munsif about the occurrence and the latter forwarded it to the nearest police-station. There was an investigation by the police as a result of which the plaintiff, Pinninti Chendrayya and another Kakumani China Somayya were charge-sheeted for an offence under S. 436, I. P. C. The accused were discharged by the Magistrate under S. 209 (1), Criminal P. C. The present suit was the sequel.

It was argued by Sri Ramanarasu for defendant 2, here appellant that he was in no sense the prosecutor and was not liable in damages be cause he only made a report to the village headman as a result of which the police, after investigation, launched and conducted a prosecution for an offence under S. 436, I. P. C., against the plaintiff and another person.

Reliance was placed on the decision of the Madras High Court in - ''Narasingarao v. Muthayya Pillai'', 26 Mad 362 (A), as explained by the Judicial Committee in - ''Gaya Prasad v. Bhagatisingh'', 30 All 525 (PC) (B). If the decision in 26 Mad 362 (A)'', is to be accepted as good law, it certainly supports the appellant''s contention. In my opinion, however, in so far as the decision lays down that no action would lie for damages for malicious prosecution against any person who has not made a formal complaint for process to a Magistrate, it must be held to be erroneous in view of the latter pronouncement of the Judicial Committee. In 30 All 525 (B)'', the Privy Council observed at pp. 533 and 534 of the Report as follows:

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 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 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.

In a later case decided by the Judicial Committee in - ''Balbhaddar Singh v. Badri Sah'', 1926 PC 46 (51) (AIR V 13) (C), Lord Dunedin observed:

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 it must be kept in view that so far as the police were concerned, there was ample cause for the initiation of prosecution proceedings.

I have considered the effect of the two decisions of the Judicial Committee referred to above as well as the other decisions cited at the Bar. Instead of discussing these other cases individually, I may state the gist of the case-law. A person setting the criminal law in motion may either present a complaint to a Magistrate or give information to a police-officer or in the case of a non-bailable offence, give information to the village headman who is bound by law to communicate that information to the nearest police officer.

In each of these cases, it is out of the information given by the person making the complaint or giving the first information that the prosecution arises. Where a person in his first information lodged with the village headman or with the police, does no more than truly relate the story of the loss or destruction of his property leaving it to the police to make the investigation, without further instructions or active participation on his part in the investigation and the police arrests and lays a charge-sheet against the person suspected, it is the police and not the person who lodged the first information that is the prosecutor.

In other words, if a person furnishes what he honestly believes to be a correct narration of facts land circumstances from which the police or Magistrate may or may not infer that the person suspected has committed a crime, he does not set the law in motion and is not a prosecutor. If, however, the story told to the police is untrue to the knowledge of the person lodging the first information or if he misleads the police in their investigation by bringing in false witnesses, then he would be liable as a prosecutor.

If in his first information to the police, or complaint to a Magistrate, a person positively asserts that another person has committed the offence and the latter is arrested and on inquiry by the Magistrate, is discharged, the person lodging the information or the complaint must be held to have started the prosecution.

If ail that is furnished in a first information report or a complaint is that, on the facts and circumstances truly stated therein, there is an honest suspicion against a person, it cannot be said that the person lodging the first information or making the complaint initiated the prosecution, for, all that he has done is to give a mere narration of facts and circumstances from which the police or Magistrate may or may not infer that the person suspected has commuted a crime. The decision in 26 Mad 362 (A)'', so strongly relied on by the appellant has been dissented from in - ''Periya Goundan v. Kuppa Goundan'', 1919 Mad 229 (2) (AIR V 6) (D) and in my opinion, rightly.

In Ex. B-4, the statement in writing given by defendant 2 to the village-munsif about the occurrence was as follows:

When there are hay-ricks in the shed in our field on the Southern side of the village, it is usual and mamool for our paid-servants, (1) Vellanki Venkateswarulu and (2) Kavuni Kotayya to take their bed during night time.

On 5-12-1948, the aforesaid persons alter taking their meals, went to take their bed in the shed. They said that at the time they went there were flames of fire on the South-west corner of the shed, that in the said light Kakumani China Somayya and Pinninti China Subbayya''s son Chandrayya were running, that therefore, we raising hue and cry came to the shed to put off. that in the meanwhile Natalapati Peda Basavayya''s son Bhushayya, while going to take bed in his shed, came on seeing the flames, that the said Bhushayya said that he saw in the light of the battery light Kakumani China Somayya and Pinninti China Subbayya''s son Chandrayya. while running, that we dragged out one cart alone.

The person referred to as Chandrayya in Ex. B-4 is the plaintiff. Nathalapati Peda Basavayya''s son Bhushayya referred to in Ex. B-4 was the owner of the land adjoining the field where the shed stood. The Sub-Inspector of Police who made the investigation examined Natalapathi Bhushayya who, however, disclaimed all knowledge of occurrence. Thereupon, defendant 2 explained to the police that the reference in the first information to Natalapathi Bhushayya was a mistake and another person Gadde Bhushavya who has no land near the scene of the alleged offence but who happened to pass by through that locality was the person intended.

Gadde Bhushayya, defendant 2 his farm-servants and other witnesses produced by defendant 2 were examined by the Sub-Inspector of Police. Though there were no complaints in the police station against the plaintiff the Sub-Inspector or police was informed by witnesses produced by defendant 2 during the course of the investigation that the plaintiff was a person of bad character. The Sub-Inspector arrested the plaintiff on 16-12-1948, a charge-sheet was laid, an inquiry followed, and the accused discharged by the Magistrate under S. 209, Criminal P. C.

The lower Appellate Court summed up its view of the evidence in these terms:

The plaintiff has succeeded in showing in this case that the report, Ex. B-4, given by defendant 2 to the village-munsif was false to his knowledge and in order to support this false report, he supplied witnesses to the police, who were clearly suborned by him and further he took active pare in setting the charge-sheet filed against the plaintiff.

On this finding, which I accept, the Appellant should be held to have been the prosecutor within the meaning of the decisions of the Privy Council.

It was next argued for the appellant that there was no want of reasonable and probable cause for instituting the prosecution. It was urged that this question was one of mixed law and fact on the strength, of the decision of Wadsworth J., who based his opinion on a decision of the House or Lords and a decision of the Calcutta High Court In England, the jury has to find what the facts were, as known to or believed by the defendant, and then the judge must decide whether the facts found established lack of reasonable and probable cause.

In India, where civil cases are tried by courts which combine in themselves the functions of a judge and jury, there is no need for splitting the functions as in England where the jury were not supposed to be conversant with the legal principles applicable to the case. What is reasonable and probable cause has been defined by the House of Lords in - ''Herniman v. Smith'', 1938 AC 305 (316) (E) as:

an honest belief in the guilt of the accused based upon a full conviction founded upon reasonable grounds of the existence of a state of circumstances, which, assuming them to be true, would reasonably lead any ordinary prudent and cautious man placed in the position of the accuser to the conclusion that the person charged was probably guilty of the crime imputed.

The balance of authority binding upon me is to the effect that the issue as to reasonable and probable cause is one of fact in the ordinary sense that it is a conclusion to be drawn from the facts and circumstances of the case. See - Mody v. Queen Insurance Co.'', 25 Bom 332 (F): -''Vaidenadier v. Krishnaswami''. 36 Mad 375 (G); - Kasireddi Chenna Reddi v. Venkataswami''. 1920 Mad 252 (AIR V 7) (H); and - ''Mushtoorappa v. Hanumanthappa'', 1947 Mad 236 (AIR V 34) (I).

In the face of these decision I am unable to follow the decision of Wadsworth J., in - Narayana v. Periakalathi'', 1939 Mad 783 (AIR V 261 (J). I accept the finding of the courts below as regards the lack of reasonable and probable cause for the prosecution in the present case.

The result is that the Second Appeal falls and is dismissed with costs. Leave refused.