P V SRIRAMULU NAIDU Vs. KOLANDAIVELU MUDALI

JUDGEMENT

(1.) The plaintiff impounded the defendant s cattle. Thereupon the latter complained under Section 20 of the Cattle Trespass Act. But the plaintiff was acquitted. The present suit is for damages for malicious prosecution on the ground that the defendant instituted proceedings falsely and maliciously. Both the Courts below have held that such a suit would not lie. Hence this second appeal.

(2.) It is not with reference to criminal proceedings alone that a suit for malicious prosecution lies. An action will lie for the institution of bankruptcy proceedings, for filing an ungrounded petition to wind up a corporation, for procuring the arrest of a. person even for a civil debt and for instituting proceedings to declare a person a lunatic. (See Whitworth v. Hall 2 B. & Ad 695, The Quartz Hill Gold Mining Company v. Byre (1883) 11 Q.B.D. 674, Metropolitan Bank v. Pooley (1886) L.R. 10 A.C. 210 and Lockenour v. Sides 57 Ind. 360). But neither would an action of this nature lie for all criminal prosecutions. A man may be prosecuted for driving a motor car without lights, for laying down a drain in an improper manner &c. If the prosecution fails in such cases, the prosecutor will not be held liable for malicious prosecution.

(3.) Lord Davey explained in Allen v. Flood (1898) A.C. 1 at 172, on what basis, an action for malicious prosecution rests : "In my opinion the some-what anomalous action for malicious prosecution is based on the same principle (referring to defamation). From motives of public policy the law gives protection to persons prosecuting, even where there is no reasonable or probable cause for the prosecution. But if the person abuses his privilege for the indulgence of his personal spite, he loses the protection and is liable to an action, not for the malice, but for the wrong done in subjecting another to the annoyance, expense and possible loss of reputation of a causeless prosecution." This is also the view of Lord Herschell (see page 125). Sir F. Pollock in his book on Torts says that this is the true foundation of the action. According to these authorities, the gist of the action is not the prosecution, but the aspersion on character or reputation which the prosecution involves.