Ramaswami, J.:— The question for determination in this appeal is whether upon the facts found the appellant is liable in law to pay damages for malicious prosecution.
2. The plaintiffs brought the suit alleging that on 13th April, 1945 defendant No. 5 lodged first information report before the Sub-inspector of Hunterganj thana alleging that on the previous night a dacoity was committed in his house and a suit case containing ornaments and cash was looted. The defendant asserted that he identified the plaintiffs among the dacoits at the time the offence was being committed. The police commenced investigation of the case. On 14th April, 1945 the house of the plaintiffs was searched but nothing incriminating was found. The plaintiffs were arrested by the police who applied for remand before the Magistrate. The plaintiffs were remanded by the Magistrate and kept in imprisonment for 39 days. Plaintiffs declared that the appellant had lodged false information maliciously and without reasonable and probable cause. The main ground of defence was that defendant No. 5 lodged true information at the police station and that he honestly believed that the plaintiffs had taken part in the dacioty upon a consideration of the evidence the Munsif held that the defendant had lodged false information at the thana, that there was no reasonable and probable cause and that the appellant was actuated by malice. The Munsif accordingly granted a decree for damages to the extent of Rs. 500 in favour of the plaintiffs. The decree has been affirmed by the Additional Subordinate Judge of Ranchi in appeal. The main question in the appeal is whether upon the facts found there was a ‘prosecution’ of the respondents, upon which an action for malicious prosecution could be based.
3. It is necessary in this context to refer to the relevant provisions of the Section 154 of the Cr PC states:
“Every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station shall be reduced to writing by him or under his direction, and be read over to the informant.”
4. Section 157 provides:
“If from information received or otherwise an officer in charge of a police station has reason to suspect the commission of an offence which he is empowered under S. 156, to investigate, he shall forthwith send a report of the same to a Magistrate empowered to take cognizance of such offence upon a police report.”
5. Section 167(1) enacts:
“Whenever any person is arrested and detained in custody and it appears that the investigation cannot be completed within the period of twenty-four hours fixed by S. 61, and there are grounds for believing that the accusation or information is well founded, the officer in charge of the police station …… shall forthwith transmit to the nearest Magistrate a copy of the entries in the diary …… and shall at the same time forward the accused to such Magistrate.”
6. Section 167(2) provides:
“The Magistrate to whom an accused person is forwarded …… from time to time authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole.”
7. If after the period of 15 days prescribed by this section the police wish to detain the accused in custody they can only proceed by forwarding the accused under S. 170, to a Magistrate empowered to take cognizance of a case. The Magistrate may thereafter under S. 344 remand the accused to custody if there are reasonable grounds for doing so. Section 344 provides that
“If, from the absence of a witness, or any other reasonable cause, it becomes necessary or advisable to postpone the commencement of, or adjourn any inquiry or trial, the Court may, if it thinks fit, by order in writing …… postpone or adjourn the same on such terms as it thinks fit, for such time as it considers reasonable, and may by a warrant remand the accused if in custody: provided that no Magistrate shall remand an accused person to custody under this section for a term exceeding fifteen days at a time.”
8. The argument addressed on behalf of the appellant is that arrest or house search during police investigation of a case did not constitute ‘prosecution’ of the plaintiffs upon which an action in tort could be founded. Counsel pointed out that the Code of Criminal Procedure is divided into several parts, of which Part V deals with information to the police and their powers to investigate and Part VI deals with proceedings in prosecution, since Ss. 154, 167 and 170 are placed in V part it was argued that proceedings under these sections cannot be deemed a prosecution, upon which an action in tort can be based. It was contended that unless the Magistrate takes cognizance of the offence under Section 190 of the Cr PC no action could be brought for malicious prosecution. In my opinion the argument proceeds upon a misconception. The foundation of the action in tort lies in abuse of the process of the Court by wrongfully setting the law in motion and it is designed to discourage the perversion of the machinery of justice for all improper purpose. In order to succeed, the plaintiff must prove that the proceedings were malicious, without reasonable and probable cause, that they terminated in his favour and that he had suffered damage. The word ‘prosecution’ in the title of the action is not used in the technical sense which it bears in Criminal Law. For the action lies for the malicious prosecution of certain classes of civil proceedings, for instance, falsely and maliciously presenting a petition in bankruptcy or a petition to wind up a company (Qartz Hill Consolidated Gold Mining Co. v. Eyre’, (1883) 11 QBD 674). An application to a Magistrate to take cognizance under Section 107 of the Cr PC would also amount to a prosecution upon which an action could be brought (‘C.H Crowdy v. O'Reilly’, 17 Cal WN 554 and ‘Bishun Pergesh v. Fulman Singh’, 20 Cal LJ 518). To found an action for malicious prosecution the test is therefore not whether the criminal proceedings have reached a stage at which the Magistrate could take cognizance. The test is whether the defendant was actively instrumental in putting the criminal law into force in other words — whether the defendant maliciously set the law in motion through a constituted authority without regard to the technical form in which the charge has been preferred.
9. Upon the facts found I have come to the conclusion that the appellant actively instigated the prosecution of the plaintiffs. The appellant had lodged information at the thana wherein he asserted that he identified all the’ plaintiffs as having taken part in the dacoity in his house. As a result of the information, the police searched the house of the plaintiffs and placed them under arrest. The plaintiffs were subsequently produced before the Magistrate and an order of remand was taken. In the result, the plaintiffs suffered imprisonment for thirtynine days and their reputation was also damaged. It is immaterial that the defendant made no formal charge before the Magistrate or that the proceeding did not reach the stage at which the Magistrate could take formal cognizance. When a person formally makes a charge of a cognizable offence to a police officer he in effect asks the police to investigate the charge, arrest the accused and send him for trial before a Magistrate. If is manifest upon the facts of this case that the appellant had instigated the prosecution of the respondents and is therefore liable to pay damages in tort.
10. This opinion is supported by the decision of the Judicial Committee ‘Gaya Prasad v. Bhagat Singh’, 30 All 525 in which the defendants were responsible for a charge of rioting being made against the plaintiff and had produced false witnesses to support the charge at the investigation by the police and had taken the principal part in the conduct of the case before the police and in the Court of the Magistrate. It was argued before the Judicial Committee that no one but a person who had made a formal complaint or an application for process to a Court could be sued for malicious prosecution. The argument was rejected by the Judicial Committee and it was held that the action for malicious prosecution was well-founded.
11. At page 533 Sir Andrew Scoble states:
“In India the police have special powers in regard to the investigation of criminal charges and it depends very much on the result of their investigation whether or not further proceedings are taken against the person accused. If, therefore, a complainant does not go beyond giving what he believes to be correct information to the police, and the police without further interference on his part (except giving such honest assistance as they may require), think fit to prosecute, it would be improper to make him responsible in damages for the failure of the prosecution. But if the charge is false to the knowledge of the complainant; if he misleads the police by bringing suborned witnesses to support it if he influences the police to assist him in sending an innocent man for trial before the Magistrate — it would be equally improper to allow him to escape liability because the prosecution has not, technically, been conducted by him.”
12. The same principle has been applied in a later case ‘Balbhaddar Singh v. Badri Sah’, 30 Cal WN 856 in which the Judicial Committee observed that in a country like India where prosecution is not private, giving information to the police which leads to prosecution, amounts to prosecution for the purpose of a suit for damages for malicious prosecution. At page 872 of the Report Lord Dunedin states:
“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 individual. But giving information to the authorities which naturally leads to prosecution is just the same thing. And if that is done and trouble caused, an action will lie.”
13. Learned counsel for the appellant relied upon ‘Nagendra Nath Roy v. Basanta Das Bairagya’, 57 Cal 25 and ‘Dattatraya Pandurang v. Hari Keshav, 50 Bom LR 622. But these cases do not assist the appellant. In ‘57 Cal 25’ the High Court found that there was no iota of evidence to suggest that the defendant ever went beyond giving a true information of the occurrence and also a true statement of the fact that he suspected the plaintiff. In ‘50 Bom LR 622’ also the learned Judge held that there was no averment that the charge was false to the knowledge of the defendant or that the latter influenced the police in sending an innocent man before a Magistrate. The material facts of the present case are widely different and the principle laid down by the Judicial Committee in ‘Gaya Prasad's case’ (30 All 525) is directly applicable.
14. The next branch of argument on behalf of the appellant is that the plaintiffs suffered imprisonment on account of a ministerial act and an action for damage on account of malicious prosecution is not competent. But the submission is not correct. The plaintiffs suffered imprisonment for 39 days before the Magistrate ordered remand under Section 170 or Section 344 of the Cr PC. There is no doubt that in remanding the accused, the Magistrate acted in a judicial capacity and exercised judicial discretion. The distinction between a judicial act and a ministerial act is important. In the forme, the party appeals to the discretion of a judge or Magistrate, which is thus interposed and the steps taken result immediately from the exercise of that discretion and not from the act of the party. In case of the latter, the party employes the machinery of the law at his own risk and is directly responsible for the consequences. In ‘Austin v. Dowling, (1870) LR 5 C.P 534 Willes, J. observed:
“How long did the state of false imprisonment last? So long of course as the plaintiff remained in the custody of a ministerial officer of the law whose duty it, was to detain him until he could be brought before a judicial officer. Until he was so brought before the judicial officer there was no malicious prosecution. The distinction between false imprisonment and malicious prosecution is well illustrated by the case where, parties being before a Magistrate, one makes a charge against another, whereupon a Magistrate orders the person charged to be taken into custody and detained until the matter can be investigated. The party making the charge is not liable to an action for false imprisonment, because he does not set a ministerial officer in motion, but a judicial officer. The opinion and judgment of a judicial officer are interposed between the charge and the imprisonment.”
15. Upon the facts found in this case I am of opinion that the action for malicious prosecution is well-founded and that the decision of the lower appellate Court is right. I would accordingly dismiss this appeal with costs.
16. Sarjoo Prosad, J.:— I entirely agree.
K.S
17. Appeal dismissed.