1. These appeals are brought under the Letters Patent against the decision of Choudhary, J., dated the 24th, January, 1956, affirming the decision of the District Judge of Monghyr, dated the 20th, September, 1959, in Second Appeals Nos. 30 and 31 of 1950. In the suit out of which these appeals arise the plaintiffs claimed damages for malicious prosecution from the defendants. The case of the plaintiffs was that in the early morning of the 22nd June, 1946 a man called Prithvi Singh was found murdered near the Kiul river. The plaintiffs alleged that Ucho Singh, the appellant, informed Chaukidar Bandhu Dusadh about the murder, and the appellant had also told the chaukidar that he had seen plaintiff Nageshwar Singh deal a bhala blow to Prithvi Singh, who died then and there as a result of the bhala blow. The Chaukidar accordingly lodged a first information report at the police station and stated therein all that he had learnt from the appellant. As a result of the information the plaintiff Nageshwar Singh along with the other persons were arrested and put on trial.

2. Ultimately the plaintiffs were acquitted in the Sessions Court on the 28th May, 1947, and the finding of the Sessions Court was that the prosecution case was false. The plaintiffs thereafter instituted the present suit for recovery of damages for malicious prosecution. The suit was contested by the defendants on the ground that Prithvi Singh was actually murdered by the plaintiffs on the 22nd June, 1946, and the case was true. The trial court found upon an examination of the evidence that the murder case was instituted without any reasonable or probable cause and the prosecution launched by the defendants was maliciously false. The trial court gave a decree to the plaintiffs for damages against defendant No. 1 and dismissed the suit against other defendants. Both the plaintiffs and defendant No. 1 appealed to the lower appellate court which affirmed the finding of the trial court that the prosecution was without any reasonable and probable cause and was actuated by malice. The lower appellate court dismissed, the appeal preferred by defendant No. 1 and partly allowed the appeal preferred by the plaintiffs and granted a decree to the plaintiffs to the extent of Rs. 2286/- as damages. The defendant took the matter to the High Court in Second appeals which, have been dismissed by Mr. Justice R.K Choudhary, a learned Judge of the High Court.

3. In support of these appeals the Advocate General put forward the argument that in considering the question of onus of proof the learned Single Judge has committed an error of law. It was submitted that the learned Judge was not right in holding that where the accusation against the plaintiff was in respect of an offence, which the defendant claimed to have seen him commit, and the trial ends in an acquittal on the merits, the presumption is not only that the plaintiff was innocent but also that there was no reasonable or probable cause for the accusation. In our opinion the argument of the learned Advocate-General is well founded and must prevail. In regard to the principle of law with regard to onus of proof Mr. Justice Choudhary has followed the decision of a Division Bench of this High Court in Taharat Karim v. Malik Abdul Khaliq, AIR 1938 Pat 529. The legal position is stated by Dhavle, J. at p. 529 of the report as follows:

“Now, the onus of establishing that the defendants had no reasonable and probable cause of the prosecution undoubtedly lay on the plaintiffs. At the same time, it is not right in cases of this kind to call upon the plaintiff to prove his innocence, for the foundation of the action is only that the proceedings complained of terminated in favour of the plaintiff, if from their nature they were so capable of terminating as was laid down by Lord Dunedin in Balbhaddar Singh v. Badri Sah, ILR 1 Luck 215 : (AIR 1926 PC 46). Where, however, the accusation against the plaintiff was to respect of an offence which the defendant claimed to have seen him commit, and the trial ends in an acquittal on the merits as is the case here, the presumption will be not only that the plaintiff was innocent, but also that there was no reasonable and probable cause for the accusation. When the evidence is read in the light of this presumption, it becomes clear that the learned Subordinate Judge only erred in favour of the defence when dealing with this question of reasonable and probable cause.”

4. In our opinion the view expressed by Dhavle, J. is not consistent with the ratio of the decision of the Judicial Committee in AIR 1926 PC 46. It was pointed out by Viscount Dunedin in that case that in an action for malicious prosecution the plaintiff has to prove (1) that he was prosecuted by the defendant, (2) that the proceedings complained of terminated in favour of the plaintiff if from their nature they were capable of so terminating, (3) that the prosecution was instituted against him without any reasonable and probable cause, and (4) that it was due to a malicious intention of the defendant and not with a mere intention to carry the law into effect.

5. The view expressed by the Division Bench of this High Court in AIR 1938 Pat 529 is also not consistent with the decision of the Judicial Committee in Pestonji Muncherji Mody v. Queen Insurance Co., ILR 25 Bom 332 (PC). In that case the court of first instance had dismissed the suit holding that the plaintiff had not proved either the existence of malice or the absence of reasonable and probable cause. The plaintiff appealed and the appellate court dismissed the appeal on the same ground. On appeal to the Privy Council it was held by their Lordships that both as regards malice and the absence of reasonable and probable cause the plaintiff had failed to discharge the burden of proof which lay upon him. At p. 335 of the report Lord Macnaghten observed as follows:

“Mr. Mody was acquitted of the charge made against him. It must, therefore, be taken that he was innocent. But that circumstance of itself goes very little way towards entitling him to a verdict or the issue raised in the present action. In order to succeed he must prove that the respondents acted maliciously, that is from some indirect motive, and that there was no reasonable or probable cause for their action”.

6. The same view of law has been reiterated in a later decision of the Judicial Committee in Mohamad Amin v. Jogendra Kumar, AIR 1947 PC 108. At page 112 of the report it was pointed out by Sir John Beaumont that in an action for malicious prosecution the plaintiffs must prove that the proceedings instituted against him were malicious, without reasonable and probable cause, and that they terminated in his favour and that he has suffered damage. The principle has been clearly put by the Court of Appeal in the leading English case in Abrath v. North Eastern Rly. Co., (1883) 11 QBD 440. It was pointed out by the court of Appeal that it was not enough for the plaintiff to show, in order to support the claim that he had made, that he was innocent of the charge upon which he was tried, he has further to show that the prosecution was instituted against him by the defendants without any reasonable or probable cause and with a malicious intention in the mind of the defendants. It was further observed in the case that the burden of proving each one of the points mentioned above lay upon the plaintiff and, speaking generally, if the plaintiff merely proved that he was innocent and gave no evidence or circumstances under which the prosecution was instituted he was bound to fail.

7. It appears that in that case a medical man was prosecuted by the railway Company on certain information having been given to the Directors of the Company which prima facie showed a conspiracy between the medical man and the person who got damages for bodily injuries sustained by the defendants' railway. One of the questions which was put to the jury in that case was if the defendants had taken reasonable care to inform themselves of the true state of the case. Cave, J. in summing up to the jury had told them that it was for the plaintiff to prove that the railway Company did not take reasonable care to inform themselves. The question argued in the Court of Appeal was whether the direction to the jury was erroneous in law. The Court of Appeal held that the direction to the jury was not erroneous, that the burden of proving each of the three major points which arose in the case for malicious prosecution lay on the plaintiff and that if in order to show the absence of reasonable and probable cause there were minor questions which it was necessary to determine, the burden of proving each one of these minor questions lay upon the plaintiff, just as much as the burden of proving the whole case lies on the plaintiff. At page 449 of the report Brett, M.R has stated the legal position as follows:

“In order to establish the plaintiff's claim, I have said that he must make out three propositions; and if he fails in making out any one of them, he fails in proving what is necessary to support his claim. It is admitted that the burden of proof of the whole lies upon the plaintiff, and that the burden of the proof of each of the major divisions lies upon him: but it is said that if in any one of those three propositions a minor proposition is raised which must be proved in order to support the proposition in question then the burden of proof is not upon the plaintiff. Now it seems to me that whenever a claim or defence consists of several necessary parts, he on whom the burden of proof of the whole rests has also on him the burden of proof of each of those necessary parts. The burden of proof lies on the plaintiff to show (sic) that there was an absence of reasonable and, probable cause, if in order to show the absence of reasonable and probable cause there are minor questions which it is necessary to determine, it seems to me that the burden of proving each of those minor questions lies upon the plaintiff, just as much as the burden of proving the whole does. In order to show (sic) that there was an absence of reasonable and probable cause for instituting the prosecution for conspiracy, I cannot doubt that the plaintiff was bound to give some evidence of the circumstances under which the prosecution was instituted, and I wholly differ from the suggestion that it is sufficient for the plaintiff to show that he was innocent of conspiracy and that in the end there was no substantial ground for charging him with conspiracy. If the plaintiff merely proved that and gave no evidence of the circumstances under which the prosecution was instituted, it seems that the plaintiff would fail; and a judge could not be asked, without some evidence of the circumstances under which the prosecution was instituted, to say that there was an absence of reasonable and probable cause. The evidence, which is to determine the question whether there w?s reasonable and probable cause, must consist of the existing facts on the circumstances under which the prosecution was instituted.”

8. The law was similarly stated by Bowen, L.J at page 457 as follows:

“Now in an action for malicious prosecution the plaintiff has the burden throughout of establishing that the circumstances of the prosecution were such that a judge can see no reasonable or probable cause for instituting it. In one sense that is the assertion of a negative, and we have been pressed with the proposition that when a negative is to be made out the onus of proof shifts. That be not so. It the assertion of a negative is an essential part or the plaintiff's case the proof of the assertion still rests upon the plff. The terms ‘negative’ and affirmative are after all relative and not absolute. In dealing with a question of negligence, that term may be considered either as negative or affirmative according to the definition adopted in measuring the duty which is neglected. Wherever a person asserts affirmatively as part of his case that a certain state of facts is present or is absent, or that a particular thing is insufficient for a particular purpose, that is an averment which be is bound to prove positively. It has been said that an exception exists in those cases where the facts lie peculiarly within the knowledge of the opposite party. The Counsel for the plaintiff have not gone the length of contending that in all those cases the onus shifts, and that the person within whose knowledge the truth peculiarly lies is bound to prove or disprove the matter in dispute. I think a proposition of that kind cannot be maintained, and that the exceptions supposed to be found amongst cases relating to the game laws may be explained on special grounds.”

9. In the present case, therefore, we see no reason why the application of the principle with regard to the burden of proof should be affected by the mere fact that the defendant had purported to be an eye witness of the murder committed by the plaintiff. The presence of this circumstance in an action for malicious prosecution cannot make any legal difference to the application of the principle of onus of proof which is now well established by a catena of authorities of the highest courts both in Indian and English law. The fact that the defendant purported to be an eye witness of the occurrence of murder is no doubt a factual circumstance which should be taken into account in deciding whether the plaintiff has discharged the burden of proof. But legally speaking the burden of proof is never shifted from the plaintiff to the defendant, even in such a case. In our opinion the view of law laid down by Dhavle and Agarwala, JJ. in Taharat Karim v. Malik Abdul Khaliq, AIR 1938 Pat 529 cannot be held to be authoritative in view of the decisions of the Judicial Committee to which reference has already been made. The view that we have expressed with regard to onus of proof in a case of this description is also supported by a decision of a Division Bench of this High Court in Jaldhari Bharthi v. Jagdish Prasad, Second Appeal No. 837 of 1948, decided on the 12th January, 1951.

10. Applying this principle to the present case we are of opinion that the plaintiff has discharged the burden of proof which lay upon him to show that prosecution was instituted without reasonable and probable cause and that it was due to a malicious intention of the defendant and not with a mere intention to carry, the law into effect. On a perusal of the judgment of the lower appellate court we find that it applied the correct principle of law, and after examining the evidence given by the parties in this case came to the conclusion that the prosecution was without reasonable or probable cause and that it was actuated by malice on the part of the defendant. In the first place the lower appellate court has referred to the circumstance that the plaintiff Nageshwar Singh was not in the village on the date of the occurrence. In the second place it referred to the circumstance that the statement, of the defendant that Singheshwar Prasad was also present on the scene of the occurrence and that he was injured was a false statement. It has also been found that there was long standing enmity between Nageshwar Singh and the family of the appellant. The lower appellate court has also disbelieved the case of the appellant that Ucho Singh was acting in the company of Prithvi Singh. Upon an examination of the evidence the lower appellate court has held that the plaintiff has proved that defendant was actuated by malice. In our opinion the finding of the lower appellate court on this point is a finding of fact supported by proper evidence and it is not vitiated by any misdirection of law. We, therefore, hold that the decision of the lower appellate court is correct and there is no merit in this appeal preferred under the Letters Patent. We accordingly dismiss this appeal under the Letters Patent, but there will be no order as to costs.

IF/M/K.S.B

11. Appeal dismissed.