RAM KISHORE PRASAD Vs. RAMESHWAR MAHTON

JUDGEMENT

(1.) IN the suit out of which this appeal arises the plaintiffs alleged that they were falsely prosecuted by the defendants in a murder case and claimed damages to the extent of Rs. 2000/-for malicious prosecution. Both the courts have dismissed, the suit. The finding of the lower appellate court is that the defendants made statements to the police on 28-12-1951, in the course of police investigation of the murder case. But the lower appellate court dismissed the suit on the ground that there was no prosecution of the plaintiffs by the defendants and the statements of the defendants merely showed that they suspected that the plaintiffs had committed a criminal offence and not that the defendants charged the plaintiffs with having committed a criminal offence.

(2.) IN support of this appeal the main argument by learned Counsel on behalf of the appellants is that there was a prosecution by the defendants and the plaintiffs were entitled to get damages for the tort of malicious prosecution. It appears that on the 7th December, 1951, the police investigation started on the report of a constable who recovered the dead body of Musammat Balkeshia from a well in suspicious circumstances. On the 9th December, 1951, the defendants were examined by the police but they did not make any incriminating statement against the plaintiffs. On the 28th December, 1951, the police again examined the defendants. On that day the defendants said that they saw "a dead body" being carried away by Sanichar and that Ishwari and Rambriksh were in the company of Sanichar. Rambriksh had a garansa in his hand and Ishwari had torchlight. On the 31st December, 1951, the plaintiffs were arrested by the police. On the 7th February, 1952, the final report was submitted by the police, and on the 13th February, 1952, the plaintiffs were discharged from jail custody. There is no evidence in the case on behalf of the plaintiffs to show that apart from making the statements the defendants took any active part in the police investigation. On behalf of the appellants reliance was placed on the decision of the Pirvy Council in Gaya Prasad v. Bhagat Singh, ILR 30 All 525 where it was laid down that, even in a case where a prosecution is instituted and conducted by the police, a private person may be liable for malicious prosecution. But it was pointed out by the Privy Council in the course of its judgment that the question as to who is the prosecutor is a question of fact which depends upon the facts and circumstances of each particular case. The answer to the question as to who is the prosecutor depends upon various factors. The mere setting the law in motion is not the criterion and the conduct of the complainant before and after making the charge must be taken into consideration. IN the Privy Council case there was evidence to indicate that the defendants had concocted and fabricated false evidence to get the plaintiff charged with rioting. The defendants had produced false witnesses in the police investigation and had taken the principal part in the conduct of the case before the police and in the magistrate's court. They had also instructed Counsel who had appeared for the prosecution at the trial that the plaintiff had joined the riot and they did all they could to obtain the conviction of the plaintiff. IN these circumstances it was held by the Privy Council that they were the real prosecutors though their names did not appear on the face of the proceedings except as witnesses. IN the present case the material facts are different. There is nothing in the evidence to show that apart from making statements to the police on the 28th December, 1951, the defendants took an active part in the investigation before the police. We, therefore, hold that in the circumstances of this case the defendants cannot be said to be "prosecutors" and the lower appellate court has rightly held that the defendants are not liable to pay damages to the plaintiffs for the tort of malicious prosecution. We accordingly hold that there is no merit in this second appeal which is accordingly dismissed with costs.