Nityananda Mandhata Patnaik vs Binayak Sahu and Another

Rao, J.—The Defendant in a sit for damages for malicious prosecution is the Appellant.

The Defendant is a pleader of the Ganjam Bar and has a standing of over 30 years. He is the owner of a village named Sargunapally within Purusottampur Police Station, and about 15 miles from Berhampur. The Plaintiffs are P.W.D. are P.W.D. contractors owning some lands and other petty businend are residents of Bhabando, a few miles away from Sargunapally. On 14-6-43 at about midnight, it is alleged by the Defendant, some persons from Sargunapally came and informed him that his paddy at Sargunapally was looted away by the Plaintiffs and about 40 others that night. On hearing the same, the Defendant approached one Mr. B.R. Das, the Circle Inspector of Berhampur and ''reported to him about the occurrence and requested him to go and recover paddy. As Mr. B.R. Das had no jurisdiction over the place of occurrence, he declined to interfere without any permission from the Superintendent of Police. The Defendant, accordingly, it is alleged, sent a telegram to the Superintendent of Police at Chatrapur at about 3 A.M. This telegram is not put in evidence. At about 5 A.M. he also sent a report to the Circle Inspector of Aska, under whose jurisdiction the Purusottampur Police Station is, alleging that his grain-pit containing a little over than five cart-loads of paddy and pudugos containing 10 cart-loads of paddy had been looted away from Sargunapally village on the 14th night by the Plaintiffs and others and if the police would take action promptly, the paddy could be seized with the help of reserve police. This report is marked and it may be noted that this report purports to be a report based upon the personal knowledge of the facts contained therein of the Defendant it does not state that, that report was lodged on the information given to him by the persons coming from Sargunapally. Failing to obtain any reply from the Superintendent of Police, the Defendant proceeded to Chatrapur at 10 A.M. and moved the Superintendent of Police to investigate into the matter personally. But the Superintendent of Police declined and sent a police constable along with the Defendant with instructions to Mr. B.R. Das. It is not known whether Mr. B.R. Das pad any ''written authority by the Superintendent of Police to enquire into the case. But there is evidence that immediately afterwards Mr. B.R. Das and the Defendant hurried to the spot through Bhabando, the village of the Plaintiffs and reached sargunapally at about 5 P.M. The police party went in a police bus with armed constables. On arrival at Sargunapally Mr. B.R. Das began investigation and after inspection of the spot, it is alleged, threatened the people of the locality with house search and recovered some paddy from some persons of the locality and prepared a search list. The investigation in village Sargunapally continued till about 9. P.M. which was sent to the Circle Inspector, Aska was received by the Sub-Inspector of Purusottampur Police Station who treated the same as F.I.R. and hurried to the Police Station, drew up a formal F.I.R. and immediately proceeded to the spot. He reached Bhabando at about 6.30 P.M. but did not go into the village and reached sargunapally at about 7 P.M. It is alleged by the Plaintiffs that when Mr. B.R. Das came with the police party along with the Defendant, the second Plaintiff was pointed out by the Defendant to the Circle Inspector near the school at Bhabando ad was taken into custody. The second Plaintiff was then going to Sub-Inspector of Purusottam to pay him hebatta due to him for attending court at Chatrapur as his Witness the previous day. This fact is corroborated and admitted by the evidence of the sub-Inspector as also a receipt granted by him for the amount which is Ext. 4 in the case. After finishing investigation at Sargunapally Mr. B.R. Das and D.W. 2 and the police party proceeded to Bhabando where they seized some paddy produced by two other persons and prepared the search-list Ext. A(3). The Defendant says that he was present till then but returned that night to Berhampur due to Rome urgent, business and came there again the next morning. On the next morning, that is, 16-6-4, they went to a rented house of the Plaintiffs at about midday and wanted to search the house. The second Plaintiff objected and the house was not searched on that day. The Circle Inspector of, Aska came on 17-6-43 and after consulation with D.W. 2 seized the Dholi and the paddy and prepared the search list Ext. A(5). But according to the evidence of the second Plaintiff he- was not present when paddy in the rented house was seized that he was arrested on 16.5.43 when he was going to Purusottampur Police Station to pay the batta money to D.W. 2 and that he was taken into custody ad kept in school for the whole day. The second Plaintiff says that, that night he was kept in the school and on the following day he was formally arrested and taken to the Purusottampur. Police Station where he was kept in police lock up for about 2 days and that thereafter he was put in jail hazat for about a week and on 26-6-43 was released on bail. It is admitted that the first Plaintiff was not found by the police party in the village on 15-6-43. He surrendered, before the S.D.M., Chatrapur on 17-7-43 after which he was remanded to custody for about 3 days and was released on bail on 20-7-43. It is the case of the fist Plaintiff that his son-in-law having been dead, he wanted to get his daughter who is a girl of about 12 years, remarried and for that purpose wanted to get her wear glass bangles again. With that object in view he went along with his daughter and parents to Puri about 3 to 4 days prior to the alleged occurrence and remained therefore about a month and after coming from Puri surrendered before the, S.D.M. From Puri he wrote two postcards one to the second Plaintiff and one to another man on 14th and 15th respectively which are marked in evidence as Exts. 3(b) and 3(c). After the completion of the investigation, the police submitted charge-sheet against about 20 persons including both the Plaintiffs. The Plaintiffs along with other accused persons were tried for the offence of dacoity and the case prolonged for about 2 years ad the Plaintiff as also all the other accused persons were acquitted by the judgment dated 13-6-45 (Ext. 1).

The Plaintiffs instituted the suit for damages for malicious prosecution on 18-5-46. They alleged that they were respectable persons owning ,properties and doing business that the Defendant was not pulling on well with his tenants and had several litigations with them that he had no paddy at Sargunapally in the year 1942 that the Defendant prosecuted them and personally helped the police during the investigation and trial and procured witnesses for the purpose that the prosecution was malicious and without reasonable and probable cause that the first Plaintiff was absent at Puri and the second Plaintiff at Chtrapur on the day of occurrence and that the entire prosecution case was false and claimed damages of Rs. 500/-.

The Defendant in his written statement alleged that the Plaintiffs bore a grudge against him previous to the occurrence that his paddy was actually removed from his grain-pit and pudugos in Sargunapally that his report to the police was based on the information received which he bonafide believed to be true and that the prosecution was not malicious and that he did not act without reasonable and probable cause.

The learned Subordinate Judge held that the Plaintiffs were prosecuted by the Defendant that he had paddy at Sargunapally that the prosecution was launched without reasonable and probable cause and maliciously and granted the Plaintiffs a decree for Rs. 1300/- as damages.

In appeal, the learned Counsel for the Defendant-Appellant contended, firstly that the Defendant was not the prosecutor, that it is not true that the Plaintiffs were absent from the village on the day of occurrence that the prosecution was not malicious and that the Defendant had reasonable and probable cause to implicate the Plaintiffs as he received information from the village on the night of 14-6-43 that the Plaintiffs along with others looted his paddy which he believed to be true.

In support of his first contention that the Defendant was not the prosecutor, Mr. Das contends that he simply gave the report to the police and according to the evidence of the police witnesses in the case the police after an investigation and enquiry by themselves lodged the charge-sheet and was not guided by the report of the Defendant which was based according to them on hearsay. He also submits that the prosecution having been instituted by the police after an independent enquiry and investigation by them the Defendant cannot be said to be the prosecutor. In support of his contention he relies on the decisions reported-Narasinga Row v. Muthaya Pillai ILR Mad. 362 Gaya Prasad v. Bhagat Singh ILR 30 All. 525 (P.C.) . Nagendra Nath Ray Vs. Basanta Das Bairagya, ; Balbhaddar Singh and Anr. v. Badri Sah and Anr. AIR 1926 P.C. 46 AIR 1944 1 (Privy Council) Radhu Naik v. Dhadi Sahu ILR 1952 Cutt. 633.

In the case of Narasinga Row v. Muthaya Pillai ILR 26 Mad. 362 it was held that if a person gives information to the police and may have instituted criminal proceeding before the police, he cannot be said to have prosecuted the Plaintiff and tat he merely .gave information to the police and that if the police, after .investigation, appear to have thought fit to prosecute the Plaintiff, he could not be responsible for their act and no action lies against him for malicious prosecution. This decision directly supports the contention of Mr. Das. But subsequent decisions of various High Courts and those of the Judicial Committee of the Privy Council negative such a absolute and unqualified proposition. More over their Lordships have not at all discussed the matter and given any reason for arriving at that conclusion.

In the case of Gaya Prasad v. Bhagat Singh ILR All. 25 (F.B.) the Judicial Committee of the Privy Council categorically laid down that, it is not a principle of universal application that if the police or Magistrate act on information given by a private individual without a formal complaint or application for process the Crown and not the individual becomes the prosecutor, and they distinguished the-case in ILR Mad 362. They observed,

The answer to the question who is the ''prosecutor'' must depend upon the whole circumstances of the case. The mere setting 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 is again a question of fact. Theoretically 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 pro hac vice represents the Crown.

In this case the Judicial Committee also laid down that where the Defendants, though their names did not appear on the face of the proceedings, except as witnesses, were directly responsible for a charge of rioting being made against the Plaintiff, had produced false witnesses to support the charge at the investigation by the police had taken the principal part in the conduct of the case before the police and in the Magistrate''s Court had instructed the counsel who appeared for the prosecution at the trial that the Plaintiff had joined the riot and had done all they could to procure the conviction of the Plaintiff, who was acquitted, being found not to have been present at the rioting, they were rightly found liable for damages in a suit for malicious prosecution". This decision, in my opinion, does not in any way support the Contention advanced by the learned council for the Appellant and does not accept the principle laid down in Narasinga Row v. Muthayn Pillai ILR Mad. 362 as correct law.

In the case of Nagendra Nath Ray Vs. Basanta Das Bairagya, which is a decision of a Single Judge, it was laid down that "if 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 is also laid down in this case that "if the charge is false to the knowledge of the complainant if he misleads the police by bringing suborned witnessess 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". This decision does not lay down any general principle but the liability or otherwise of the Defendant according to this decision to be determined by the facts of each case. In this case, as I will show later, on there is evidence that the Defendant took some part in the conduct of the prosecution and on that finding this decision does not support the Appellant.

In the case of Balbhadar Singh and Anr. v. Badri Sah and Anr., their Lordships laid down that "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 they also stated in unqualified terms that "giving information to the authorities which naturally leads to prosecution and trouble is caused an action will lie against the person giving the information".

In the case of AIR 1944 46 (Privy Council) the Judicial Committee of the Privy Council held that "A person who was noted in the charge-sheet in a criminal prosecution as an accused person not sent up for trial and was in fact never so sent up cannot be said to have been prosecuted and therefore has no cause of action to maintain an action for damages for malicious prosecution". In this case under appeal the Plaintiffs were named not only in the report made by the Defendant but also in the charge-sheet and were tried for the offence complained against. This decision therefore does not help the Defendant.

In the case of Radhu Naik v. Dhadi Sahu ILR 1952 Cutt. 633 which is a decision of a Single Judge, it was held that "For a determination of the question as to who is the real ''prosecutor'', the whole circumstances of the case has got to be taken into consideration.'' The conduct of the complainant before and after making of the charge is really very pertinent. By taking into consideration the conduct of the informant before and after making of 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 make a person the real prosecutor in the case...." "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 is not proved to be the real prosecutor by establishing that he was taking an active part in the prosecution, and that he was primarily and directly responsible for the prosecution". With all respect to the learned Judge I am not able to accept this general and categorical statement of the law as a correct proposition. In my opinion, if the Defendant gives information of the commission of a cognizable offence and names-the accused in that report in consequence of which the police after investigation files a charge-sheet against the person complained against, I think, on the authority of the pronouncement of he Judicial Committee noted above, it can be said that the Defendant is the prosecutor.

I am fortified in this view not only by the decisions of the Judicial Committee reported in Kundan Lal-Ram Chander Vs. Lachmi Narain and Another, , but also by the following decisions cited by the learned Counsel for the Respondents.

In the case of Ram Kishun Prasad Vs. Ram Narain Prasad, , a decision of a Single Judge, it was held by Justice Wort,-

So far as India is concerned, a person can be said to have prosecuted if information is given to the police directed against the person who is ultimately prosecuted as a result of the investigation and the decision of the police.

In Dhanjishaw Rattanji Karani v. Bombay Municipality and Ors. AIR 1945 Bom 220 Justice Bhagwati held,-

To prosecute is to set the law in motion, and the law is only set in motion by an appeal to some person clothed with Judicial authority in regard to the matter in question. The Defendant must be the person who sets the law in motion against the Plaintiff. It is not necessary however that he should be a party to the proceedings. In the case of malicious prosecution by way of indictment in the name of the King, the person liable is the prosecutor to whose instigation the proceedings are due.

In the case of Madan Mohan Singh Vs. Bhirgunath Singh and Others, a Division Bench of the Patna High Court held

The foundation of the action for malicious prosecution 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.... The word prosecution in, the title of the action is not used in the technical sense which it bears in Criminal Law. For, the action lies for the malicious prosecution of certain classes of civil proceedings, for instance, falsely and maliciously presenting a petition in bankruptcy or a petition to wind up a company.

To find an action for malicious prosecution the test is therefore not whether the criminal proceedings have reached a stage at which the Magistrate could take cognizance. 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.

This decision of their Lordships of the Patna High Court in the above Case is based upon a decision of the Judicial Committee of the Privy Council reported in Mohamed Amin v. Jogendra Kumar Banerjee and Ors. AIR 1947 P.C. 108. In the above case before the Judicial Committee the question which was considered was at what stage the criminal proceedings instituted falsely and maliciously before a Magistrate under the provisions of the Indian Code of Criminal Procedure lay the foundation of a suit for damages for malicious prosecution.

Their Lordships of the Judicial Committee discussed and reviewed all the decisions of the Indian High Courts and as there was a conflict of opinion on this question, they have laid down the law regarding this aspect and observed as follows

The action for damages for malicious prosecution is part of the common law of England, administered by the High Court of Calcutta under the Letters Patent. The foundation of the action 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.

On a review of these authorities and on the evidence it the case to the effect that the Defendant made the report which shows that it was based upon his personal knowledge, followed the police and was present during a portion of the investigation, pointed out the second Plaintiff upon which he was taken into custody attended the criminal court during the trial of the cas and on one or to days even conducted the prosecution, there is no doubt in my opinion that the Defendant is the prosecutor in this case. It is also in evidence that even before the submission of the charge-sheet that the Defendant described himself as a complainant and filed a petition Ext. 1(i) before the trying court claiming the seized paddy as his own and seeking permission for the delivery of the same to him. The learned Subordinate Judge has given various instances showing the participation of the Defendant in the prosecution of the case.

The next contention of the Appellant is that the learned Subordinate Judge erred in holding that the Plaintiffs were absent from the village on the day of occurrence. He contends that the learned Subordinate Judge ought not to have relied upon the oral evidence adduced by the Plaintiffs and that the two postcards filed by them cannot be accepted as they were filed at a very late stage in the case at the time when they were examined u/s 542 of the Code of Criminal Procedure.

The evidence on both sides relating to the absence or otherwise of the first Plaintiff at Puri and the second Plaintiff at Chatrapur is elaborately discussed by the learned Subordinate Judge and he came to the conclusion that the first Plaintiff was absent at Puri and the second Plaintiff at Chatrapur on the day of occurrence. The evidence of the first Plaintiff P.W. 5, of P.W. 4 who is an employee in the Radhakanta Muth at Puri, of P.W. 5 who received the letter Ext. 3(b) from the first Plaintiff from Puri and of P.W. 6, the Karanam of Gondola, coupled with the two postcards referred to above, in the absence of any convincing evidence to the contrary by the Defendant, leads me to the conclusion that on the day of occurrence the first Plaintiff was absent at Puri. With regard to the absence of the second Plaintiff at Chatrapur, the evidence of P.Ws. 1 and 2 as also the second Plaintiff P.W. 7 coupled with the admission of the Circle Inspector. D.W. 5 leads me to the conclusion that he was absent at Chatrapur. For the very cogent reasons given by the learned Subordinate Judge I am inclined to accept his finding that Plaintiffs 1 and 2 were absent from the village on the day of occurrence. The learned Counsel for the Appellant referred to various improbabilities in the evidence on this point, but was not able to show any strong circumstance why that evidence should not be accepted.

The net contention argued by Mr. G.C. Das is that the prosecution was not actuated by malice. He contends that the Plaintiffs failed to prove that the prosecution was actuated by malus animus and that there is no proof of any ill-will on the part of the Defendant so as to show that the prosecution was launched on any improper motive.

In the case of Taharat Karim and Another Vs. Malik Abdul Khaliq and Others, , it has been observed that malice does not necessarily connote personal spite or ill-will but only means an indirect or improper motive rather than a desire to vindicate the law.

In the case of Darsan Pande Vs. Ghaghu Pande and Others, , it has been laid down as follows-

A mere absence of reasonable and probable cause does not justify, as a matter of law, the conclusion that the prosecution was malicious, though it is quite conceivable that the evidence which is sufficient to prove absence of reasonable and probable cause may also establish malice.

As observed by their Lordships of the Judicial Committee in AIR 1944 1 (Privy Council) , the two questions are in most cases interwoven and there may be circumstances to show that there was not merely want of reasonable and probable cause but also malice of the kind required in an action for malicious prosecution.

There is ample evidence in this case that the Plaintiffs and the Defendant were at loggerheads. The Defendant admits in his evidence that ever since the purchase of the village by him there were troubles between himself and the tenants and in some litigations against the tenants, the Plaintiffs were implicated as parties. "A reading of the Defendant''s evidence will clearly convince one that there was serious effort on the part of the Defendant to show that the Plaintiffs bore grudge against him and the Plaintiffs'' evidence is to the effect that the Defendant bore grudge against them. Enemity and strained relationship between the Plaintiffs and the Defendant are such that the Defendant had gone to the extent of describing the Plaintiffs as his enemies in the criminal case as well as in his evidence before the Subordinate Judge, I have, therefore, no hesitation to conclude that in launching prosecution the Defendant was actuated by malice.

Coming to the last but the most important point in the case which was argued strenuously by both the sides as to whether the prosecution was launched without any reasonable and probable cause, the learned Subordinate Judge discussed very elaborately both the evidence and the law on the subject and came to the conclusion that the Defendant had no reasonable and probable cause to launch the prosecution and he based his conclusion on the ground that the Plaintiffs having established their absence on the day of occurrence, the burden shifted to the Defendant to show by clear evidence that he had reasonable and probable cause. Mr. Das contended that in a suit for damages for malicious prosecution the onus of proving want of reasonable and probable cause is solely on Plaintiff and that the learned Subordinate Judge is wrong in holding- that burden shifts to the Defendant. I cannot accept this contention. Having found that the Plaintiffs were absent on the day of occurrence and taking into consideration the report Ext. 2(a) which reads as if the allegations therein were based upon personal knowledge of the Defendant, one may come to the conclusion that there is no reasonable and probable cause on the part of the Defendant to make a report against the Plaintiffs who are found to be absent from the village.

In the case of AIR 1947 116 (Oudh) , it was held

In an action for malicious prosecution the initial burden of proving absence of reasonable and probable cause and existence of malice on the part of Defendant in launching the prosecution against the Plaintiff rests on the Plaintiff. The burden may shift during the trial. The amount and nature of evidence required to discharge the initial burden depends upon the facts and circumstances of each case. If a man acts on his own knowledge then the fact that the complaint was a false one will raise a presumption that there was absence of reasonable and probable cause and that malice existed unless it is shown that his memory was defective or that there was some valid ground for misapprehension.

In my opinion, therefore, the absence of the Plaintiffs from the village on'' the day of occurrences coupled with Ext. 2(a) which purports to be based upon personal knowledge is sufficient to shift the burden of proof to the Defendant to prove that he had reasonable and probable cause. Had the matter rested there and the case was confined to the evidence adduced before the close of the trial, one could be inclined to come to the conclusion on the evidence in the case before the trial closed that the Defendant had no reasonable and probable cause. The circumstances in the case-his running to the Circle Inspector of Berhampur who had no jurisdiction to investigate the case, his approaching the Superintendent of Police, his non-examination of the persons who, he alleged, had come and given him the information, may lead one to the conclusion that the prosecution was without any reasonable and probable cause. But unfortunately for the Plaintiffs in this case after the beginning of the arguments, the Defendant''s Advocate seems to have relied upon Ext. E which was let into evidence of 1-3-49 when the Sub-Inspector of Police was under examination, to contend that the Defendant had information on the 14th night from Gurubaria, Bauria and Kusia Naik when the Defendant during the course of argument filed Ext. 8 series perhaps to contradict the statement in Ext. E. There was much argument on the admissibility or otherwise of these documents but they were admitted in evidence and marked as Exts. 8 to 8(g). At the time of writing the judgment no doubt the learned subordinate Judge held that they were not admissible in evidence. Ext. 8 (a) is the deposition of Kusia Naik in the criminal Court. Mr. G.C. Das the learned Counsel for the Appellant relies upon this document wherein Kusia Naik stated, "On Monday Masanto day 11 months ago, I, Budhia and others were sleeping at P.W. 1''s paddy pit. At dead of night- Budhia shouted when we got up and saw Ananto Sahu, Binayak Sahu...dug the pit, filled paddy in bags and loaded them in carts. We then immediately left for Berhampur and reported the matter to P. W. 1 and contends that this evidence clearly established that the Defendant had information about the commission of dacoity by the Plaintiffs and strongly corroborates the evidence of D.Ws. 7,9 and 10 who spoke about the information given to the Defendant on the night of occurrence. Mr. C.V. Suryanarayana, the learned Counsel for the Respondent contended that Ext. 8 series having been let into evidence only for the purpose of contradicting the statements in Ext. E. cannot be relied upon for any other purpose especially in view of the fact that those documents according to the judgment of the learned Subordinate Judge were held to be inadmissible in evidence. But he concedes to the contention that they being Plaintiffs documents which are on the record can be relied upon by the other side and that by consent of both sides this evidence can be let in civil cases, though they might not be strictly admissible in evidence.

In the case of Jainab Bibi Saheba v. Hyderally Sahib and 3 Ors. ILR Mad 609 (F.B.) which is a decision of the Full Bench of the Madras High Court, his Lordship Sir John wallis, the Chief Justice after quoting the following passage from Daniel''s Chancery Practice, Chapter XII, Section 2(1) page 525 "Evidence taken in another Court may be read in a cause on production of a copy of the pleadings in the two suits are between the same parties or their privies, and the issue is the same, and such depositions are admissible in evidence in the former cause", observed-

Such orders are only made in cases similar to those specified in Section 33, but if the Court could make such depositions admissible even without the consent of parties, the case for admitting them by consent is even stronger.... The admission by consent of evidence taken in other Cases raising the same issues is of daily occurrence in England, and must now be taken to be the settled practice which is the law of the Court. If there is not much direct authority on the point, that would appear to be because it has never been seriously questioned.

Ext 8(a) clearly shows that the Defendant received information on the night of the occurrence from Kusia Naik and others about the commission of the dacoity in which the Plaintiffs are alleged to have taken part. There is also the evidence on the side of the Defendant in the depositions of D.Ws. 7, 9 and 10 that on the day of occurrence some people came to the house of the Defendant at dead of night and reported this. D.W. 10 in his evidence also says that Kusia Naik was one, of the informants. Kusia Naik is the only person who was consistent in his evidence in the criminal court and before the police. The learned Counsel for the Respondents contends that the evidence of Kusia Naik in Ext. 8(a) and the evidence of D.W. 10 could not be accepted as true. He pointed out various inconsistencies in the evidence of Kusia Naik and contended that D.W. 10 is an interested witness. But we are convinced with the statement of Kusia Naik that he along with others went and informed the Defendant on the day of occurrence about the Plaintiffs and others committing dacoity and taking away his paddy and the evidence of D.Ws. 7, 9 and 10 are true as far as the receipt of information by the Defendant is concerned. The Defendant actually received the information as deposed to by Kusia Naik on the night of 14-6-43 and there is already an impression in the mind of the Defendant that the Plaintiffs were in league with the tenants and were causing harassment to him on the strength of these. The Plaintiffs also in paragraph 2 of the plaint stated, "The Defendant purchased some property about 7 or 8 years back near the Plaintiffs village and did not pull on well with his tenants and tried various means to oust them from their holdings and homestead lands. There was some litigation between him and his tenants. In the course of his attempt to oust his tenants he engaged rowdies and caused several false reports and cases against his tenants to be filed by his men. In these attempts the Defendant tried to implicate several neighbouring land-owners including the first Plaintiff as and when proper opportunity arose." I a therefore, of opinion that the Defendant had reasonable and probable cause to believe that the Plaintiffs committed the offence and to send the report Ext. 2 (a) to the police implicating them as accused in the case.

In the case of Hicks v. Foulknel (1881) 8 Q.B.D. 167, it is stated as follows

The question of reasonable and probable cause depends in all cases not upon the actual existence but upon the reasonable bonafide belief in the existence of such a state of things as would amount to a justification of the course pursued in making the accusation complained of no matter whether this belief arises out of the recollection and memory of the accuser or out of information furnished to him by another. It is not essential in any case that facts should be established proper and fit and admissible as evidence to be submitted to the jury upon an issue as to the actual guilt of the accused. The distinction between facts to establish actual guilt and those required to establish a bonafide belief in guilt should never be lost sight of in considering such cases as that I am now discussing. Many facts admissible to prove the latter would be wholly inadmissible to prove the former.

It cannot of course be bid down as an abstract proposition that an accuser is justified in acting either upon the credited statement of an informant or upon his own memory. The question must always arise according to circumstances whether it was reasonable to trust either the one or the other. A person who acts upon the information of another trusts the veracity, the memory and the accuracy of that other in each of which he may be completely deceived. His informant''s veracity may be questionable, his memory fallacious and his accuracy unreliable. Yet it does not follow that it was unreasonable to believe in his information if he never had cause to doubt him. In like manner a mart may be deceived by his own memory, yet it does not follow that it was unreasonable to trust it, if he never before knew it be to defective.

In the case of Herniman v. Smith (1936) All. ELR 1377, it was held that the mind of the prosecutor at the time when he initiated the prosecution is an important factor in determining the existence of reasonable and probable cause. This decision was affirmed by the House of Lords in (1938) IndAp E.L.R. 1. and Lord Atkin observed-

It is not required of any prosecutor that he must have tested every possible relevant fact before he takes action. His duty is not to ascertain whether there is a defence, but to ascertain whether there is reasonable and probable cause for a prosecution.

Lord Atkin accepted the statement of the law as stated by Hawking J. in the case of Hicks v. Foulkenel (1881) 8 Q.B.D. 167.

Consequently on the authority of these decisions, it can be inferred that after receiving information from the village the Defendant reasonably believed that there was a case against the Plaintiffs to be reported against and consequently made the report. The learned Subordinate Judge had also found after discussion of the entire evidence on the matter that the Defendant had paddy in Sargunapally village as alleged by him. If the Defendant had paddy about the time of occurrence at Sargunapatly after he had an impression in his mind that the Plaintiffs were having something to do with the tenants in giving him trouble about the payment of rents as evidenced by certain litigations between the parties and when in the dead of night he received information from the persons of the village that they witnessed the Plaintiffs and others looting away his paddy, it is but just to come to the conclusion that at the time he gave the information to the police and initiated the prosecution, he had reasonable and probable cause to launch the prosecution.

I am also to state that though in an action for damages for malicious prosecution the burden on all the issues is on the Plaintiffs their evidence is practically confined to prove their alibi. No evidence was let in by them as to absence of paddy or want of information to the Defendant.

Though I am of opinion that the Defendant was the prosecutor, that there are circumstances to whom that he might have been actuated by malice in launching this prosecution and though the Plaintiffs have proved that they were absent at Puri and Chatrapore on the day of occurrences I am obliged to hold on the strength of Ext. 8 series coupled with the evidence of the Defendant D.W. 4 and that of D.Ws. 7, 9 and 10 and the law on the subject that there is reasonable and probable cause for the Defendant to launch the prosecution. In view of this finding that the Defendant had reasonable and probable cause to initiate the proceedings, the decree and judgment of the learned Subordinate Judge are to be set aside and the Plaintiffs'' suit should be dismissed. In the result, the appeal is allowed, but under the circumstances of the case without costs.

Narasimham, J.

I agree.