KUNJ BEHARI Vs. RAM SINGH

JUDGEMENT

(1.) This appeal is by the third defendant in a suit for malicious prosecution which was decreed against him and the first defendant who is now the fourth respondent, for recovery of Rs. 2000/- as damages. The only point raised before me in this appeal is that the appellant Kunj Behari was not the prosecutor inasmuch as he did not file the complaint but was only a witness. The complaint was filed by Jhangat, the first defen dant who has not appealed in this Court. No one has appeared in this Court for Jhangat inspite of due service of the notice of appeal on him. Learned counsel for the appellant has no objection to the decree for recovery of Rs. 2000/- with costs being confirmed against Jhangat. His only com plaint is, as stated above, that he was a mere witness and could not be said to be the prosecutor so as to be liable in damages for malicious prosecu tion. The two Courts below have found that the appellant was the real person behind the prosecution and that, therefore, he was also the prosecutor. This is going a little bit too far. So far as a witness is concerned, it has been held in Templeton v. Laurie and others India Decisions 25 Bom. 231, Indar Bahadur Singh and others v. v. Sukhdeo Praiad and others A. I. R. 1933 Oudh. 94, and Kamal Din v. Mir Abdulla and others A. I. R. 1917 Lahore, 272 that no civil action for damages lies against a witness for giving false evidence and the fact that the evidence is given in pursuance of a conspiracy to obtain the conviction of an accused person does not make any difference. The result is that even if there was prior concern and conspiracy between Jhangat and the appellant Kunj Behari, that would not make Kunj Behari liable for damages in respect of the prosecution initiated by Jhangat if it is found that the prosecution was malicious. It is the responsibility of the person who puts the machinery of prosecution into motion to see to it that there is reasonable and probable cause for the complaint which he is making, and not to do so out of malice, that is, to say for any oblique motive other than the object of bringing an offender to book. Mr. Iqbal Ahmad placed before me a passage from Winfield on Tort (Sixth Edition) page 749 and another from Corpus Juris Secundum page 967 and 970, as quoted in Pt. Ganga Prasad Tewari v. Sardar Bhagat Singh 1917 A. W. R. 364 at 365, paragraph 8 column 2. These passages are to the following effect: Winfield on Tort (VI Edn.) p. 74 " (1) But where the story told is known by the teller to be false the Judicial Committee have held in an Indian appeal that the teller is liable. The peculiar frequency of such lying charges in India was a special ground for this decision, but its general reasonableness adds to its persuasive authority here," (54) Corpus Juris Secundum 967;- "in order to charge a person with responsibility for the initiating of proceedings by a public official, it must, therefore, appear that his desire to have the proceedings initiated expressed by direction, request, or pressure of any kind was the determining factor in the offidal's decision to commence the prosecution or that the information furnished by him upon which the official acted was known to be false. " 970:- ". . . . . . . . . . . . If the statement of facts is false and malicious, defendant will not be relieved from liability in an action for malicious prosecution by reason of the fact that the prosecuting attorney instituting the proceedings was mistaken in belief that the facts stated warranted a prosecution. " Ganga Prasad's case was concerned with the liability of a person who lodges a first information report, as the prosecutor in a suit for damages for malicious prosecution. It was held that where the plaintiff is prosecuted on the report lodged by the defendant which is false to his knowledge and is acquitted, the defendant will be liable to pay damages for malicious prosecu tion, if there was malice and want of any probable cause. The above deci sion does not advance the respondents' case any further against Kunj Behari. Mr. Iqbal Ahmad relied on paragraph 56 at page 29 of Vol. I of the third Edition of Halsbury's Laws of England, wherein the old form of action for conspiracy is described and defined. That has nothing to do with the present case. Mr, Iqbal Ahmad, then referred paragraph 569 of Vol. 10 of the third Edition of Halsbury's Laws of England. That too describes and defines the criminal offence of conspiracy. We are not concerned with that either. He next relied on conspiracy as a tort, as described in paragraphs 221,222 and 223 of Vol. 37 of the third Edition of Halsbury's Laws of England. The present suit was, however, not a suit for damages for con spiracy, it was a suit for damages for malicious prosecution. The question was not whether Kunj Behari had in league with the others conspired against the plaintiffs, such as to render him liable for damages to the plaintiffs for conspiracy. The question was whether he could be said to be one of the prosecutors so as to render him liable to pay damages for malicious prosecu tion. Mr. Iqbal Ahamd read paragraph 1 of the plaint in this context. That does not lay any foundation for any claim for damages for the tort of con spiracy. It clearly tries to make out a case of malicious prosecution and with regard to Kunj Behari and others, it is said therein that although the first defendant Jhangat had filed the complaint in his name but had been done in consultation and in league with other defendants who were the real prosecu tors. That question has been answered above on the basis of the decisions cited by the appellant, in his favour and against the plaintiff respondents. Moreover, this is not a cause here the plaintiffs may have got nothing for the wrong done to them. Their full measure of damages have been decreed against Jhangat, the first defendant, and that decree stands. There was no further or separate decree against Kunj Behari. He was merely one of the two judgment-debtors and setting aside the decree against him does not reduce the amount of the decree or capacity of the plaintiff respondents to recover it from the first defendant, Jhangat. In the result, the appeal succeeds and is allowed. The decree against the appellant Kunj Behari who was defendant No. 5, is set aside, but it stands unaltered and in full force against Jhangat the defendant No. 1 who is the proformant respondent No. 4 in the appeal in this Court. Parties shall bear their own costs. .