DATTATRAYA PANDURANG DATAR Vs. HARI KESHAV GOKHALE

JUDGEMENT

(1.) THIS is a suit filed by the plaintiff against the defendants to recover Rs. 7,300 as and by way of damages for malicious prosecution. The plaintiff was employed by the defendants on or about June 6,1945, at their jewellery shop as a part-time employee attending the shop only in the mornings. That was a temporary employment presumably on probation and the employment was confirmed on or about June 13, 1945, It appears that on or about June 16, 1945, some gold ornaments which had been entrusted by the customers to the defendants were missing and the plaintiff was amongst other employees questioned by the proprietor of the defendants, one Gharpure. Gharpure attended the shop and inquired of the plaintiff as well as the other employees what they knew about the theft of the ornaments and the plaintiff protested his innocence in the matter of the charge. On the night of June 16, 1945, one Anant Sakharam Joshi, a clerk of the defendants, gave the first information to the police and stated therein that all the other employees of the defendants were old and trustworthy but that the plaintiff was a recent employee of the defendants and that by certain actions of his which were observed in the shop the suspicion fell on the plaintiff that he might be the criminal. That fact was freely and frankly stated by Joshi in the first information which he gave to the police on the night of June 16, 1945. THIS was a cognizable offence and the police entered into investigation of the offence under Chapter V of the Bombay City Police Act. The police-officer in accordance with the provisions of Section 60 of the Act appears to have had reason to suspect the commission of the offence and proceeded to carry on the investigation in the matter of the offence. He was not entitled to keep the plaintiff in custody for more than 24 hours and therefore on June 18, 1945, he made an application to the Presidency Magistrate, 8th Court, Girgaum, for a remand of the plaintiff in custody, which remand was granted up to July 2,1945. The same story was repeated on July 2 and 9, 1945, the ultimate order for remand being up to July 16, 1945. Even up to July 16, 1945, the police were not in a position to do anything against the plaintiff, there being no evidence forthcoming to show that he had committed the offence, and therefore on July 16, 1945, the police made an application for discharge and cancellation of the bail bond of the plaintiff before the same Magistrate, which was granted. The bail bond was cancelled and the plaintiff was discharged. THIS is what happened in the matter of this first information given by Joshi, the clerk of the defendants, and the investigation by the police in the matter of the offence alleged to have been committed by the plaintiff.

(2.) THESE are the circumstances which have been alleged by the plaintiff as giving him a cause of action for malicious prosecution against the defendants, and it is on these circumstances that the plaint has been based. After recounting in paragraphs 3, 4, 5, 6 and 7 the facts with regard to the conduct of the defendants in the matter of this charge the plainiff proceeds to say that as a result of the charge made by the defendants against him and his consequent detention in jail, he lost his service with the Phoenix Mills, Ltd. , Bombay, and also lost the benefit of the provident fund to which he was contributing. He says: As a result of the said wrongful and malicious action of the defendants he suffered very greatly in body, mind and his reputation in addition to the loss of his employment and the benefit of the provident fund. He states his cause of action in paragraph 10 of the plaint: The plaintiff states that the complaint made by the defendants to the said police authorities -against the plaintiff in connection with the said patli besides being false in its particulars as regards the articles actually missing from the said shop was actuated by malice and entirely baseless without any cause whatever much less a reasonable and probable cause. He further proceeds to state: The plaintiff further states that as a result of the application for remand made by the said police authorities to the said Presidency Magistrate, the said learned Magistrate took cognizance of the offence alleged against the plaintiff as aforestated and that the said learned Magistrate later on discharged the plaintiff in the circumstances hereinabove described.

(3.) IN support of his contention counsel for the defendants relied upon Ahmedbhai v. Framji Edulji (1903) I. L. R. 28 Bom. 226 : S. C. 5 Bom. L. R. 940 and the observations of Chandavarkar J. at p. 234, viz. : . . . the authorities referred to by the Subordinate Judge in his judgment show that a prosecution commences when a complaint is made Imperatrix v. hakshman Sakharam (1877) I. L. R. 2 Bom. 481, 487 and that it is not necessary, in order to maintain an action for malicious prosecution, that the charge was acted upon by the Magistrate. It is enough if the charge was made to the Magistrate with a view of inducing him to entertain it. (Addison on Torts, 5th ed. , p. 200 ). It was therefore argued that in this case there was no commencement of the prosecution because the only thing which was done by the defendants was to give the first information to the police and what was done by the police by way of the application for remand before the Magistrate was not a step towards the prosecution of the plaintiff taken by the defendants themselves but was a step taken by the police in the course of their investigation into the offence. Counsel for the defendants also relied upon a passage from my judgment in Dhanjishaw Karani v. Bombay Municipality (1944) 47 Bom. L. R. 304 (p. 812): 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 set the law in motion against the plaintiff. It is not necessary, however, that he should be a party to the proceedings. IN the ease 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. INstigating a prosecution is, however, to be distinguished from the act of merely giving information on the strength of which a prosecution is commenced by some one in the exercise of his own discretion. The gist of the action for malicious prosecution is that the defendant sets the Magistrate in motion. The distinction according to the submission of the counsel for the defendants was between instigating a prosecution by the party himself and giving of information to the police on the strength of which the prosecution was commenced by the police, if at all it was so done, in the exercise of their own discretion, because it has been laid down in Section 60 of the Bombay City Police Act that the officer in charge must have reason to suspect the commission of an offence which he is empowered to investigate, and only if he has reason to suspect the commission of that offence he would forthwith proceed to investigate the facts and circumstances of the case and to take such measures as may be necessary for the discovery and arrest of the offender. IN this case, therefore, it was argued that the defendants merely laid the information before the police-officer and beyond stating that they suspected the plaintiff' did nothing more. It was the police-officer before whom the information was laid that having regard to the circumstances of the case came to the conclusion that he had reason to suspect the commission of the offence which he was empowered to investigate and therefore proceeded to investigate the facts and circumstances of the case end to take such measures as may be necessary for the discovery and arrest of the offender. The arrest of the plaintiff and also the applications for remand of the plaintiff into police custody which were made from time to time were made by the police-officer in the course of the investigation and the defendants had nothing to do with the same.