KUNHAHAMMED HAJI Vs. KUNHEEN

JUDGEMENT

(1.) ONE of the problems of the law relating to malicious prosecution is as to who is a prosecutor and this question falls for decision in the second appeal which has been argued at some length as the precedents are many but not uniform. The plaintiff was the 1st accused in C. C. No. 409 of 1957 which stemmed from a charge-sheet laid by the Sub Inspector of Police, kalpakamcheri, against three persons, the other two being the close relations of the plaintiff. The offences disclosed by the facts set out in the charge sheet were criminal trespass and mischief, the dirty imputation being that the three accused persons entered the compound of one Marakkar and threw stones and night-soil into the house where the wife and daughter of Marakkar were sleeping. A large number of witnesses, including the investigating officer and the complainant, were examined. Charges were framed. ONE defence witness also was examined and ultimately the accused were acquitted. Ext A2 is the judgment in the criminal case. It may be mentioned even here that the occurrence is alleged to have taken place late in the night on 151957 and pw. 1 in the criminal case (Marakkar), the master of the house, reported the occurrence to the village headman who, in turn, transmitted a yadasth to that effect to the Kalpakamchery police Station the same day. A crime was registered and investigation conducted by the Sub-Inspector of Police. He inspected the scene of offence, seized some stones, made out a mahazar attested by the 3rd defendant and another and at the close of the investigation laid a charge-sheet before the court. The accused, including the plaintiff, denied the offence and, as stated earlier, the court found them not guilty. Thereupon, a notice was sent (Ext. A3) by the plaintiff demanding damages for malicious prosecution from the defendants who were the first informant, his wife and the 3rd defendant who is the appellant before me. This was followed by the present suit which has been decreed by both the courts against the 3rd defendant who has come up in this second appeal challenging both on errors of law and of fact, the correctness and propriety of the judgments of the courts below.

(2.) "malicious prosecution has been defined as a prosecution that begins in malice, without probable cause to believe it can succeed, and which finally ends in failure. " (1959 KLT. 1081 ). The cause of action requires the plaintiff to prove (a) that the defendant prosecuted him; and (b) that the prosecution ended in the plaintiff's favour; (c) that the prosecution lacked reasonable and probable cause; and (d) that the defendant acted maliciously. In a sense, malicious prosecution is a misnomer because the adjective 'malicious' is not quite appropriate to this tort and that is why in the Re-statement of the law it is more correctly described as wrongful prosecution (of criminal proceedings ). There has been some controversy as to whether malice has been made out in the present case and so it is as well that i mention that the word 'malice' is customarily used in two senses, the one, factual; and the other, artificial and legal. In the first sense it means, in plain language, ill-will or a desire to do harm and, in the second, it merely means Some motive other than a desire to bring to justice a person whom the accusor believes to be guilty.

(3.) WHAT are the facts here? The 3rd defendant is not the first informant. He is only a witness. It is obvious from what I have already said that a witness as such cannot be sued for malicious prosecution even assuming he has given perjured testimony induced by malice (See 12 Law Weekly 170, I. L. R. 25 Born. 230 and the rather extreme case reported in A. I. R. 1937 sind 44 ). "the mere fact, however, that a witness is bound over with another (the real prosecutor) to prosecute and give evidence will not. . . prosecution". (Halsbury's Laws of England Vol. 25 para 685 ). If qua witness he is not liable, has the 3rd defendant done much more, so as to make him a real prosecutor? Decisions are legion laying down the test as to who is the prosecutor. In the present case, there was a prosecution but the charge-sheet was laid by the police. Even then, the law of torts visualises a private prosecutor operating behind a public prosecution. Any one who is an active instrument even if not formally the sponsor can be a prosecutor; for, they also serve who only prod sub rosa. If the defendant's conduct before and during the trial is such as to lead to the conclusion that he has invented and instigated the prosecution, he will be liable as prosecutor. The court can and will unmask him and see through his real role. The Privy Council has observed long ago (AIR. 1926 PC. 46): "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 indiviudal. But giving information to the authorities which naturally leads to the prosecution is just the same thing. And if that is done and trouble caused, an action will lie they (plaintiffs) must show that Badrisah invented the whole story as far as it implicated the appellants, and tutored Raghunath and Feja to say it. That is a very heavy onus of proof, and unless they sustain it, the appellants must fail. " Earlier, their Lordships of the Judicial Committee formulated the question: "have the appellants proved that Badri Sah invented and instigated the whole proceedings for prosecution?" In a ruling reported in AIR 1938 Patna 147 the Privy council decision was relied upon and Fazl Ali J. as he then was, observed that there should be evidence to prove that the defendants had invented and instigated the criminal case against the appellants His. Lordship pointed out the flaw in that case in not examining the investigating officer in the civil suit and continued: "thus there is do proof on the record either of the actual statements made by the defendants before the police or of the fact that it was as a result of the statement made by them that the police submitted a charge-sheet in the case. " Later, the learned judges pointed out, with reference to the facts of that case and these have relevancy to the situation in the present case: 'we do not however know in what order these witnesses were examined before the police, what specific statements were made by them and which of the plaintiffs were named by which of the defendants and whether the police had, apart from their statements, other materials which would have been sufficient to induce them to submit a charge-sheet or not. There is certainly nothing in the judgment of the lower appellate court to show that had it not been for the statements made by the defendants before the police, the police would not have instituted any proceedings against the plaintiff. " A Division Bench of the Madras High Court in AIR 1932 mad. 53 held that though technically it is the State that is the prosecutor in a criminal case, not only is the individual who effectively sets the law in motion liable but also every other person whose role, with reference to the charge or the trial, shows that the part played 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 element to be considered. It is the whole conduct of the party that must be taken into consideration " The Restatement of the Law (Vol. III, Pages 385 & 391) enlightens us with this observation: 'it is not necessary to liability under the rules stated in this Section that the defendant personally or through an agent should have made the formal charge upon which the proceedings were instituted. It is enough that he induced a third person to make such a charge. He cannot, however, be held liable for procuring the institution of criminal proceedings merely because his actions caused a third person to make a formal charge. Thus, one who merely encourages or advises a third person to bring proceedings which the third person already has in contemplation, does not thereby procure the institution of such proceedings. If, however, he urges the bringing of proceedings or insists that they be brought by a third person who previously has no intention of doing so, a finding that he procures the institution of the proceedings subsequently brought by the third person may be justified. " "in order that there may be liability under the rule stated in this Section, the person who has initiated the proceedings must take an active part in their prosecution after learning that there is no probable cause for believing the accused guilty. It is not enough that he appears as a witness against the accused either under subpoena or voluntarily and thereby aids in the prosecution of the charge which he knows to be groundless. His share in continuing the prosecution must be active, as by insisting upon or urging further prosecution. ' Judging by the above principles, could we say that the defendant was primarily responsible for the prosecution of the plaintiff and that he was taking active part in the investigation and/or prosecution so as to hold that he had procured the prosecution?