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  • For the Appellant: N. Subha Reddy, Advocate
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  • Viswanatha Sastri, J.
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  • For the Appellant: N. Subha Reddy, Advocate
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  • Viswanatha Sastri, J.
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Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

The second defendant appealed against a decree awarding damages for malicious prosecution. The factual events as stated in the opinion are:

  • On 5th December, 1948, at about 8 p.m., the second defendant's shed containing a straw (hay) heap was destroyed by fire.
  • At 8 a.m. on 6th December, 1948, the second defendant gave a written report (exhibit B-4) to the village munsif, who forwarded it to the nearest police station.
  • Following police investigation, the plaintiff (Pinninti Chandrayya) and another (Kakumani China Somayya) were charge-sheeted under section 436 of the Penal Code.
  • The magistrate later discharged the accused under section 209(1) of the Criminal Procedure Code.
  • The present civil suit for malicious prosecution followed; the lower appellate court found that the second defendant's report was false to his knowledge, that he supplied suborned witnesses and actively participated in getting the charge-sheet filed against the plaintiff.
  • In the appeal now under consideration, the second defendant challenged the decree awarding damages; the court ultimately dismissed the second appeal with costs and refused leave.

Legal Issues Presented

  1. Whether a person who gives information to the village headman or to the police (but does not present a formal complaint to a magistrate) can be treated as the "prosecutor" for purposes of an action for malicious prosecution.
  2. What factual or conduct-based tests determine when the person giving the first information is to be treated as the prosecutor (i.e., distinction between honestly supplying information and actively setting the law in motion by falsehood or subornation).
  3. Whether there was a lack of reasonable and probable cause for instituting the prosecution in the present case.
  4. Whether the question of reasonable and probable cause is one of law, of fact, or of mixed law and fact (i.e., whether the court should adopt the English split between jury fact-finding and judge legal decision-making, or treat the question as a factual conclusion to be drawn by the trial court).

Arguments of the Parties

Appellant's Arguments

  • The appellant (second defendant), through Sri Ramanarasu, argued that he was not the prosecutor and therefore not liable in damages because he only made a report to the village headman; the police, after their investigation, instituted and conducted the prosecution.
  • He relied on the decision in Narasinga Rao v. Muthayya Pillai (1902) as supporting the proposition that mere lodging of information with a village headman or the police, without presenting a formal complaint to a magistrate, does not make one the prosecutor.
  • He further argued that there was no want of reasonable and probable cause for instituting the prosecution, relying on a line of authority (including a decision attributed to Wadsworth, J.) that treated the question as of mixed law and fact and required a split between fact-finding and legal evaluation.

The opinion does not set out a detailed statement of the respondent's (plaintiff's) oral submissions; the court's account relies primarily on findings of the lower courts and on the appellant's recorded submissions.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Narasinga Rao v. Muthayya Pillai (1902) 12 M.L.J. 389; I.L.R. 26 Mad. 362 Held (as understood by the appellant) that no action lies for damages for malicious prosecution against any person who has not made a formal complaint to a magistrate. The court stated that to the extent this decision lays down that rule it must be held erroneous in view of later Privy Council decisions; the appellant relied on it but the court declined to follow it.
Gaya Prasad v. Bhagat Singh (1908) 18 M.L.J. 394; I.L.R. 30 All. 525 (Privy Council) Explains that mere giving of information to the police, followed by police prosecution without further interference by the informant, ordinarily will not render the informant liable; but if the informant knowingly gives false information, suborns witnesses, or otherwise misleads/influences the police, he may be held the prosecutor — the question is one of fact: "who was the prosecutor?" The court relied on this articulation as the correct test: the conduct of the complainant before and after making the charge must be considered to decide who was the prosecutor.
Balbhaddar Singh v. Badri Sah (1926) 51 M.L.J. 42; I.L.R. 1 Luck. 315 (Privy Council; Lord Dunedin) States that in jurisdictions like India, giving information to the authorities which naturally leads to prosecution can be treated as equivalent to setting the law in motion and may give rise to an action if trouble is caused; but factual circumstances (e.g., ample cause to initiate prosecution) matter. The court used this decision to support the proposition that giving information can, in some circumstances, render a person liable as prosecutor, subject to factual inquiry about the informant's conduct and the existence of cause.
Periya Goundan v. Kuppa Goundan (1919) 37 M.L.J. 234; I.L.R. 42 Mad. 880 Dissented from the Narasinga Rao holding (i.e., critical of the rule that limits liability only to those who complained formally to a magistrate). The court cited this decision as part of the line of authority that rejected the Narasinga Rao rule and supported treating the question as one of the complainant's conduct.
Herliman v. Smith L.R. 1938 A.C. 305 Defines "reasonable and probable cause" as an honest belief in the guilt of the accused founded on reasonable grounds which would lead an ordinary prudent person in the accuser's position to conclude probable guilt. The court adopted this definition in considering whether the prosecution lacked reasonable and probable cause in the present case.
Narayana v. Periakalathi (1939) 2 M.L.J. 296; A.I.R. 1939 Mad. 783 (Wadsworth, J.) Advocated an approach treating reasonable and probable cause as a question requiring a division of functions (fact-finding by the jury and legal determination by the judge), based on English practice. The court stated it could not follow Wadsworth, J.'s approach and declined to adopt the split in the Indian context where the trial court combines fact-finding and legal evaluation.
Mody v. Queen Insurance Co. (1900) 10 M.L.J. 300; I.L.R. 25 Bom. 332 Supports the view that reasonable and probable cause is a conclusion to be drawn from facts (a factual issue). The court relied on this decision among others to hold that whether reasonable and probable cause existed is essentially a factual conclusion for the court to draw.
Vydianalhan v. Krishnaswami (1911) 24 M.L.J. 515; I.L.R. 36 Mad. 375 Affirms that reasonable and probable cause is to be treated as a factual conclusion drawn from the circumstances. The court cited this authority in support of treating the issue as factual and accepted the lower courts' finding of lack of reasonable and probable cause.
Chenna Reddy v. Venkataswamy (1919) 10 L.W. 314 Included among authorities treating reasonable and probable cause as a question of fact/conclusion from facts. The court placed this decision with others to support the factual approach and to reject the mixed law-and-fact split advocated by Wadsworth, J.
Mushtoorappa v. Hanumanthappa (1946) 2 M.L.J. 484; A.I.R. 1947 Mad. 236 Also treats the issue of reasonable and probable cause as a question of fact to be determined by the trial court. The court cited it as part of the binding balance of authority justifying acceptance of the lower courts' factual finding of lack of reasonable and probable cause.

Court's Reasoning and Analysis

The court's reasoning proceeds in two linked strands: (A) analysis of who is to be treated as the "prosecutor" for malicious prosecution purposes when the first information is given to a village headman or to the police; and (B) whether there was reasonable and probable cause for the prosecution.

A. Who is the "prosecutor"?

  1. The court examined earlier decisions, particularly the Privy Council's decisions in Gaya Prasad v. Bhagat Singh and Balbhaddar Singh v. Badri Sah, to extract the correct test. It rejected a rigid rule (as it attributed to Narasinga Rao) that liability attaches only to persons who made a formal complaint to a magistrate.
  2. Relying on the Privy Council formulation, the court emphasized that the inquiry must focus on the whole circumstances and the complainant's conduct before and after making the first information. The mere setting of the law in motion by lodging an honest narration does not automatically make the informant the prosecutor.
  3. The court articulated the operative rules drawn from these authorities:
    • If a person truthfully narrates facts in a first information report or to a village headman and leaves investigation to the police, without active participation thereafter, the police (not that person) are the prosecutor.
    • If, however, the person knowingly furnishes untrue information, misleads the police, suborns witnesses or otherwise actively participates to influence the police or the institution of prosecution, he will be treated as the prosecutor.
  4. Applying this test to the facts: the court examined exhibit B-4 (the first information in writing) and the investigatory steps. The sub-inspector's investigation revealed that one witness named in B-4 disclaimed knowledge; the second defendant then told the police that the reference in B-4 was a mistake and indicated a different person, produced witnesses (including his farm servants), and those witnesses supplied statements impugning the plaintiff's character. The lower appellate court found that the report was false to the second defendant's knowledge, that he supplied suborned witnesses, and that he took active part in getting the charge-sheet filed.
  5. The court accepted the lower appellate court's findings of fact on these points and concluded that, on the whole circumstances, the appellant must be held to have been the prosecutor within the meaning of the Privy Council decisions.

B. Reasonable and Probable Cause

  1. The appellant contended there was reasonable and probable cause and invoked authorities (including Wadsworth, J.) arguing for a mixed question of law and fact requiring a division of functions akin to the English jury/judge split.
  2. The court considered the definition of "reasonable and probable cause" quoted from Herliman v. Smith: an honest belief in the accused's guilt founded on reasonable grounds such that an ordinary prudent person in the accuser's position would conclude probable guilt.
  3. The court surveyed binding authorities (Mody, Vydianalhan, Chenna Reddy, Mushtoorappa) and concluded that the issue of reasonable and probable cause is essentially one of fact — a conclusion to be drawn from the facts and circumstances of the case — rather than requiring a separate jury/judge split in the Indian context.
  4. Given acceptance of the lower courts' factual findings (that the report was false to the appellant's knowledge, that witnesses were suborned, and that the appellant actively participated), the court accepted the finding of lack of reasonable and probable cause for instituting the prosecution.

Holding and Implications

Holding: The second appeal fails. The appeal is dismissed with costs; leave is refused.

Implications:

  • The decree awarding damages for malicious prosecution (against the appellant/second defendant) stands as the appeal has been dismissed.
  • The court's decision applies the Privy Council tests: an informant who knowingly furnishes false information, suborns witnesses, or actively participates in initiating prosecution may be treated as the prosecutor and held liable in an action for malicious prosecution; by contrast, a person who honestly narrates facts and leaves inquiry to the police is ordinarily not the prosecutor.
  • The court treated the question of reasonable and probable cause as a factual conclusion to be drawn from the circumstances and accepted the lower courts' factual findings that reasonable and probable cause was lacking in this case.
  • The opinion does not purport to establish any broader novel precedent beyond applying existing authorities; its immediate effect is to affirm the liability and damages awarded against the second defendant in this case.
Show full summary ...

    Kommalapati Venkatadri v. Pinninti Chandrayya .

    (1) The second defendant appeals against the decree awarding damages for malicious prosecution. The facts are these : the and defendant's shed containing a straw heap was destroyed by fire at about 8 p. M. On 5th december, 1948. At 8 a. M. On 6th december, 1948, the and defendant gave a report to the village - munsif about the occurrence and the latter forwarded it to the nearest police - station. There was an investigation by the police as a result of which the plaintiff, pinninti chandrayya and another kakumani china somayya were charge - sheeted for an offence under section 436, penal code. The accused were discharged by the magistrate under section 209 (1) , criminal procedure code. The present suit was the sequel.

    (2) It was argued by sri ramanarasu for the and defendant, here appellant, that he was in no sense the prosecutor and was not liable in damages because he only made a report to the village headman as a result of which the police, after investigation, launched and conducted a prosecution for an offence under section 436, penal code, against the plaintiff and another person. Reliance was placed on the decision of the madras high court in narasinga rao v. Muthayya filial, (1902) 12 m. L. J. 389 : i. L. R. 36 mad. 362. As explained by the judicial committee in gaya prasad v. Bhagat singh, (1908) 18 m. L. J. 394 ; l. R. 351. A. :8g :i. L. R. 30 all. 525 (p. C.). If the decision in narasinga rao v. Muthajya pillai is to be accepted as good law, it certainly supports the appellant's contention. In my opinion, however, in so far as the decision lays down that no action would lie for damages for malicious prosecution against any person who has not made a formal complaint for process to a magistrate, it must be held to be erroneous in view of the latter pronouncements of the judicial committee. In gaya prasad v. Bhagat singh the privy council observed at pages 533 and 534 of the report as follows :

    "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. The question in all cases of this kind must be - who was the prosecutor (?) - and the answer must depend upon the whole circumstances of the case. The mere setting of the law in motion is not the criterion ; the conduct of the complainant before and after making the charge must also be taken into consideration. Nor is it enough to say. The prosecution was instituted and conducted by the police. That, again is a question of fact."

    (3) In a later case decided by the judicial committee in balbhaddar singh v. Badri sah, (1926) 51 m. L. J. 42: i. L. R. 1 luck, 315 at 227 and 228 (p. C.). Lord dunedin observed :

    "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. But it must be kept in view that so far as the police were concerned there was ample cause for the initiation of prosecution proceedings."

    (4) I have considered the effect of the two decisions of the judicial committee referred to above as well as the other decisions cited at the bar. Instead of discussing these other cases individually, i may state the gist of the case - law. A person setting the criminal law in motion may either present a complaint to a magistrate or give information to a police - officer or in the case of a non - bailable offence, give information to the village - headman who is bound by law to communicate that information to the nearest police - officer. In each of these cases, it is out of the information given by the person making the complaint or giving the first information that the prosecution arises. Where a person in his first information lodged with the village - headman or with the police, does no more than truly relate the story of the loss or destruction of his property leaving it to the police to make the investigation, without further instructions or active participation on his part in the investigation and the police arrests and lays a charge - sheet against the person suspected, it is the police and not the person who lodged the first information that is the prosecutor. In other words, if a person furnishes what he honestly believes to be a correct narration of facts and circumstances from which the police or magistrate may or may not infer that the person suspected has committed a crime, he does not set the law in motion and is not a prosecutor. If, however, the story told to the police is untrue to the knowledge of the person lodging the first information or if he misleads the police in their investigation by bringing in false witnesses, then he would be liable as a prosecutor.

    (5) If in his first information to the police or complaint to a magistrate a person positively asserts that another person has committed the offence and the latter is arrested and on inquiry by the magistrate is discharged, the person lodging the information or the complaint must be held to have started the prosecution. If all that is furnished in a first information report or a complaint is that, on the facts and circumstances truly stated therein, there is an honest suspicion against a person, it cannot i be said that the person lodging the first information or making the complaint initiated the prosecution, for, all that he has done is to give a mere narration of facts and circumstances from which the police or magistrate may or may not infer that the person suspected has committed a crime. The decision in narasinga rao v. Muthayya pillai, (1902) 12 m. L. J, 389: i,l. R, 26 mad, 362. So strongly relied on by the appellant has been dissented from in periya goundan v. Kuppa goundan, (1919) 37 m. L. J, 234: i. L. R, 42 mad 880 and in my opinion, rightly.

    (6) In exhibit b - 4, the statement in writing given by the and defendant to the village - munsif about the occurrence was as follows :

    "when there are hay - ricks in the shed in our field on the southern side of the village, it is usual and marnool for our paid - servants, (i) vellanki venkateswarlu and (2) kavuni kotayya to take their bed during night time. On 5th december, 1948, the aforesaid persons, after taking their meals, went to take their bed in the shed. They said that at the time they went there were names of fire on the south - west corner of the shed, that in the said light kakumani china somayya and pinninti china subbayya's son chandrayya were running, that though we pursued to some distance (we) could not catch, that, therefore, we raising hue and cry carne to the shed to put off, that in the meanwhile natalapati peda basavayya's son bhushayya, while going to take bed in his shed came on seeing the flames, that the said bhusayya said that he saw in the light of the battery light kakumani china somayya and pinninti china subbayya's son chandrayya while running, that we dragged out one cart alone."

    (7) The person referred to as chandryya in exhibit b - 4 is the plaintiff. Natalapati peda basavayya's son bhusayya referred to in exhibit b - 4 was the owner of the land adjoining the field where the shed stood. The sub - inspector of police who made the investigation examined natalapati bhusayya who, however, disclaimed all knowledge of occurrence. Thereupon, the 2nd defendant explained to the police that the reference in the first information to natalapati bhusayya was a mistake and another person gadde bhusayya who has no land near the scene of the alleged offence but who happened to pass by through that locality was the person intended. Gadde bhusayya, the and defendant, his farm - servants and other witnesses produced by the and defendant were examined by the sub - jnspector of police. Though there were no complaints in the police - station against the plaintiff, the sub - inspector of police was informed by witnesses produced by the and defendant during the course of the investigation that the plaintiff was a person of bad character. The sub - inspector arrested the plaintiff on 16th december, 1948, a charge - sheet was laid, an inquiry followed, and the accused discharged by the magistrate under section 209, criminal procedure code.

    (8) The lower appellate court summed up its view of the evidence in these terms :

    "the plaintiff has succeeded in showing in this case that the report, exhibit b - 4, given by the and defendant to the village - munsif was false to his knowledge and in order to support this false report, he supplied witnesses to the police, who were clearly suborned by him and further he took active part in getting the charge - sheet filed against the plaintiff."

    (9) On this finding, which i accept, the appellant should be held to have been the prosecutor within the meaning of the decisions of the privy council. It was next argued for the appellant that there was no want of reasonable and probable cause for instituting the prosecution. It was urged that this question was one of mixed law and fact on the strength of the decision of wadsworth, j. , who based his opinion on a decision of the house of lords and a decision of the calcutta high court. In england, the jury has to find what the facts were, as known to or believed by the defendant, and then the judge must decide whether the facts found established lack of reasonable and probable cause. In india, where civil cases are tried by courts which combine in themselves the functions of a judge and jury, there is no need for splitting the functions as in england where the jury were not supposed to be conversant with the legal principles applicable to the case. What is reasonable and probable cause has been defined by the house of lords in herliman v. Smith, l. R. 1938 a. C. 305, 316. As :

    "an honest belief in the guilt of the accused based upon a full conviction founded upon reasonable grounds of the existence of a state of circumstances, which, assuming them to be true, would reasonably lead any ordinary prudent and cautions man placed in the position of the accuser to the conclusion that the person charged was probably guilty of the crime imputed."

    (10) The balance of authority binding upon me is to the effect that the issue as to reasonable and probable cause is one of fact in the ordinary sense that it is a conclusion to be drawn from the facts and circumstances of the case. See mody v. Queen insurance co. , (1900) 10 m. L. J. 300: i. L. R. 25 bom. 332 (p. C.) vydianalhan v. Krishnaswami, (1911) 24 m. L. J. 515: i. L. R. 36 mad, 375. Chenna reddy v. Venkataswamy, (1919) 10 l. W. 314. And mushtoorappa v. Hanumanthappa, (1946) 2 m. L. J. 484: a. Lr. 1947 mad. 236. In the face of these decisions, i am unable to follow the decision of wadsworth, j. , in narayana v. Periakalathi, (1939) 2 m. L. J. 296 : a. I. R. 1939 mad. 783, i accept the finding of the courts below as regards the lack of reasonable and probable cause for the prosecution in the present case. The result is that the second appeal fails and is dismissed with costs. Leave refused. Appeal dismissed. Leave refused.

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    Comments

    Kommalapati Venkatadri v. Pinninti Chandrayya .
    (Aug 24, 1955)