1. One of the problems of the law relating to malicious prosecution is as to who is a prosecutor and this question falls for decision in the second appeal which has been argued at some length as the precedents are many but not uniform. The plaintiff was the 1st accused in c. C. No. 409 of 1957 which stemmed from a charge - sheet laid by the sub inspector of police, Kalpakamcheri, Against three persons, The other two being the close relations of the plaintiff. The offences disclosed by the facts set out in the charge sheet were criminal trespass and mischief, The dirty imputation being that the three accused persons entered the compound of one marakkar and threw stones and night - soil into the house where the wife and daughter of marakkar were sleeping. A large number of witnesses, Including the investigating officer and the complainant, Were examined. Charges were framed. One defence witness also was examined and ultimately the accused were acquitted. Ext a2 is the judgment in the criminal case. It may be mentioned even here that the occurrence is alleged to have taken place late in the night on 151957 and pw. 1 in the criminal case (marakkar), The master of the house, Reported the occurrence to the village headman who, In turn, Transmitted a yadasth to that effect to the kalpakamchery police station the same day. A crime was registered and investigation conducted by the sub - inspector of police. He inspected the scene of offence, Seized some stones, Made out a mahazar attested by the 3rd defendant and another and at the close of the investigation laid a charge - sheet before the court. The accused, Including the plaintiff, Denied the offence and, As stated earlier, The court found them not guilty. Thereupon, A notice was sent (ext. A3) by the plaintiff demanding damages for malicious prosecution from the defendants who were the first informant, His wife and the 3rd defendant who is the appellant before me. This was followed by the present suit which has been decreed by both the courts against the 3rd defendant who has come up in this second appeal challenging both on errors of law and of fact, The correctness and propriety of the judgments of the courts below.

2.

"malicious prosecution has been defined as a prosecution that begins in malice, Without probable cause to believe it can succeed, And which finally ends in failure."

(1959 klt. 1081). The cause of action requires the plaintiff to prove

(a) that the defendant prosecuted him; and

(b) that the prosecution ended in the plaintiff's favour;

(c) that the prosecution lacked reasonable and probable cause; and

(d) that the defendant acted maliciously.

in a sense, Malicious prosecution is a misnomer because the adjective 'malicious' is not quite appropriate to this tort and that is why in the re - statement of the law it is more correctly described as wrongful prosecution (of criminal proceedings). There has been some controversy as to whether malice has been made out in the present case and so it is as well that i mention that the word 'malice' is customarily used in two senses, The one, Factual; and the other, Artificial and legal. In the first sense it means, In plain language, Ill - will or a desire to do harm and, In the second, It merely means some motive other than a desire to bring to justice a person whom the accusor believes to be guilty.

3. The courts below have, And i think rightly, Dwelt at some length on the plea of the 3rd defendant that he is not the prosecutor whatever other help he might have done for the successful progress of the prosecution.

4. In the present case, The role of the 3rd defendant was that of a witness and one has to be very wary in making a witness liable for malicious prosecution even if his evidence is malicious and false, Because there are higher principles involved in the administration of justice than the injury to the private individual which must be remembered before exposing a witness to such a suit. Otherwise, Th2 normal channels of truthful testimony will dry up and the administration of criminal justice suffer. "the action for malicious prosecution is dominated by the problem of maintaining a suitable adjustment between two social interests: the desire to safeguard the individual from being harassed by unjustifiable litigation and the policy of encouraging citizens to aid in the enforcement of the law". (fleming, The law of torts, P. 618). The same social interests persuaded the house of lords to immunise barristers against actions for negligence by their clients. (1969 a. C. (vol. 1) 191). "is it in the public interest that barristers and advocates should be protected against such actions? like so many questions which rise the public interest, A decision one way will cause hardships to individuals while a decision the other way will involve disadvantage to the public interests. On the other hand, If the existing rule of immunity continues, There will be cases, Rare though they may be, Where a client who has suffered loss through the negligence of his counsel will be deprived of a remedy. So the issue appears to me to be whether the abolition of the rule would probably be attended by such disadvantage to the public interest as to make its retention clearly justifiable. "

lord morris of borth - y - gest in the same decision observed:

"no action lies in respect of evidence given by witnesses in the course of judicial proceedings; however false or malicious it may be, Though naturally everyone is bound by the criminal law if perjury can be proved, A criminal prosecution may result. The immunity from civil suit is founded upon reasons of public policy and the protection which the law affords to witnesses is not given as a benefit for them but is given for a higher interest, That is, That of the advancement of public justice."

in the same speech, The following passage from the judgment of mathew j. In munster v. Lamb was quoted with approval.

"ft may be inconvenient to individuals that advocates should be at liberty to abuse their privilege of free speech. But it would be a far greater inconvenience to suitors if

advocates were embarrassed or enfeebled in endeavouring to perform their duty by the fear of subsequent litigation. "

fry l. J., In an old case (1883 - h q. B. D. 588, C. A.), Had observed about the immunity from action enjoyed by judges and witnesses:

"the rule of law exists, Not because the conduct of those persons ought not of itself to be actionable, But because if their conduct was actionable, Actions would be brought against judges and witnesses in cases in which they had not spoken with malice, In which they had not spoken with falsehood. It is not a desire to prevent actions from being brought in cases where they ought to be maintained that has led to the adoption of the present rule of law; but it is the fear that if the rule were otherwise, Numerous actions would be/brought against persons who were merely discharging their duty. It must always be borne in mind that it is not intended to protect malicious and untruthful persons, But. To protect persons acting bona fide, Who under a different rule would be liable. To the vexation of defending actions."

it is thus obvious that sometimes, Even at the expense of individual injury, Considerations of public policy may forbid action for damages where otherwise negligent or malicious conduct may be proved. A trial upon a trial would raise speculations upon speculations and as far as possible the end of a criminal case should not give rise to a set of civil cases against the complainant and witnesses because, Otherwise, Informants will not be forthcoming to set the criminal law in motion and witnesses will not fearlessly testify to what they know to be the truth. In a country like india, Where the private sector, If i may use that phrase in this context, Has not been altogether excluded from public prosecutions of criminal offences and where the private individual may inform the village headman or the local policeman for the latter to take action and bring the culprit to book it would be a retrograde step to subject such persons to the jeopardy of a subsequent suit for damages, And a fortiori witnesses who depose in such cases. Indeed, The police and other public officials charged with the duty of enforcing criminal law, Would be seriously handicapped if the private informant can be scared away by the possibility of a future civil action consequent on the criminal case ending in favour favour of the accused. In this context, It must be remembered that quite often the first informant may not have control over the course of the prosecution, The witnesses to be examined, The matters to be elicited and the documents to be produced. It must also be remembered that so long as the philosophy of our criminal law is that it is better that hundred guilty

persons should escape than one innocent suffer a principle which lets down the community to minimise marginal risks to the innocent individual and requires closer examination today lest too many guilty men get out of the grip of the law and demoralise public confidence in public justice it is possible that even true cases may terminate in favour of the accused and if in every such case a civil suit for damages is to follow, Few men will come forward to inform the authorities about the crimes committed, Facing the risk and the wrath and the cost of a subsequent litigation. I have said all this only to emphasise that the court has vigilantly to scrutinise whether the requirements of the law that only the real prosecutor, Not every one who has lent a helping hand in the project or and supported it at some stage can be used and even he, Only if the prosecution has been launched with an oblique motive and without reasonable and probable cause, Have been clearly made out. Either is insufficient without the other.

5. What are the facts here? the 3rd defendant is not the first informant. He is only a witness. It is obvious from what i have already said that a witness as such cannot be sued for malicious prosecution even assuming he has given perjured testimony induced by malice (see 12 law weekly 170, I. L. R. 25 born. 230 and the rather extreme case reported in a. I. R. 1937 sind 44).

"the mere fact, However, That a witness is bound over with another (the real prosecutor) to prosecute and give evidence will not. Prosecution"

. (halsbury's laws of england vol. 25 para 685). If qua witness he is not liable, Has the 3rd defendant done much more, So as to make him a real prosecutor? decisions are legion laying down the test as to who is the prosecutor. In the present case, There was a prosecution but the charge - sheet was laid by the police. Even then, The law of torts visualises a private prosecutor operating behind a public prosecution. Any one who is an active instrument even if not formally the sponsor can be a prosecutor; for, They also serve who only prod sub rosa. If the defendant's conduct before and during the trial is such as to lead to the conclusion that he has invented and instigated the prosecution, He will be liable as prosecutor. The court can and will unmask him and see through his real role. The privy council has observed long ago (air. 1926 pc. 46) :

"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 indiviudal. But giving information to the authorities which naturally leads to the prosecution is just the same thing. And if that is done and trouble caused, An action will lie they (plaintiffs) must show that badrisah invented the whole story as far as it

implicated the appellants, And tutored raghunath and feja to say it. That is a very heavy onus of proof, And unless they sustain it, The appellants must fail. "

earlier, Their lordships of the judicial committee formulated the question:

"have the appellants proved that badri sah invented and instigated the whole proceedings for prosecution?"

in a ruling reported in air 1938 patna 147 the privy council decision was relied upon and fazl ali j. As he then was, Observed that there should be evidence to prove that the defendants had invented and instigated the criminal case against the appellants his. Lordship pointed out the flaw in that case in not examining the investigating officer in the civil suit and continued:

"thus there is do proof on the record either of the actual statements made by the defendants before the police or of the fact that it was as a result of the statement made by them that the police submitted a charge - sheet in the case."

later, The learned judges pointed out, With reference to the facts of that case and these have relevancy to the situation in the present case:

'we do not however know in what order these witnesses were examined before the police, What specific statements were made by them and which of the plaintiffs were named by which of the defendants and whether the police had, Apart from their statements, Other materials which would have been sufficient to induce them to submit a charge - sheet or not. There is certainly nothing in the judgment of the lower appellate court to show that had it not been for the statements made by the defendants before the police, The police would not have instituted any proceedings against the plaintiff. "

a division bench of the madras high court in air 1932 mad. 53 held that though technically it is the state that is the prosecutor in a criminal case, Not only is the individual who effectively sets the law in motion liable but also every other person whose role, With reference to the charge or the trial, Shows that the part played by him points him out as one responsible for the prosecution.

"that a particular person figured as a witness in the criminal case is not the criterion but may be an element to be considered. It is the whole conduct of the party that must be taken into consideration"

the restatement of the law (vol. Iii, Pages 385 & 391) enlightens us with this observation:

'it is not necessary to liability under the rules stated in this section that the defendant personally or through an agent should have made the formal charge upon which the proceedings were instituted. It is enough that he induced a third person to make such a charge. He cannot, However, Be held liable for procuring the institution of criminal proceedings merely because his actions caused a third person to make a formal charge. Thus, One who merely encourages or advises a third person to bring proceedings which the third person already has in contemplation, Does not thereby procure the institution of such proceedings. If, However, He urges the bringing of proceedings or insists that they be brought by a third person who previously has no intention of doing so, A finding that he procures the institution of the proceedings subsequently brought by the third person may be justified. "

"in order that there may be liability under the rule stated in this section, The person who has initiated the proceedings must take an active part in their prosecution after learning that there is no probable cause for believing the accused guilty. It is not enough that he appears as a witness against the accused either under subpoena or voluntarily and thereby aids in the prosecution of the charge which he knows to be groundless. His share in continuing the prosecution must be active, As by insisting upon or urging further prosecution. '

judging by the above principles, Could we say that the defendant was primarily responsible for the prosecution of the plaintiff and that he was taking active part in the investigation and/or prosecution so as to hold that he had procured the prosecution?

6. Here, The first information did not name the plaintiff and the 3rd defendant did give out his name when he was questioned by the police. It must be recognised that the defendant was not the first informant and that he did not figure as the initiator of the proceeding either before the police or in court. For all outward purposes, He merely told the police, When questioned, What he claimed to have known about the occurrence and repeated the story on oath in court. It is important to remember that mere malice is not sufficient to make a defendant liable in damages; there must be the co - existence of the other requisites of the law, Even though a malevolent disposition may be an evidential circumstance. The courts below came to the conclusion that the defendant was the prosecutor and the facts relied upon to found this conclusion may have to be scrutinised, There is some evidence of enmity between the appellant (3rd defendant) and the plaintiff, But enmity does not take us far by itself. Again, There is evidence to show that the 3rd defendant was an attestor to the mahazar prepared the next day after the occurrence, But there is nothing to suggest that he came on his own with a view to mislead the police. It could as well be that the police sent for him for questioning and then asked him to attest the mahazar prepared at the house of the 1st defendant in regard to seizure made in his presence. Any citizen is bound to do so, If required. It is not, Therefore, Possible to build any guilty inference on the shifting sands of neutral circumstances. The only other circumstances relied upon by the learned subordinate judge is that he gave exaggerated evidence in the court. That is not enough, In the absence of evidence of active interest and overt acts of instigation. But from these fragile factors a conclusion has been readily if 1 may add, Hastily - drawn that the 3rd defendant is the real prosecutor because he has proximity with the 1st defendant and hostility to the plaintiff.

7. The investigating officer, Who would have been able to throw light on what anxiety the appellant showed during the investigation, What role he played in assisting the investigation, And what degree of involvement he had in the proceedings so that one could come to the conclusion that, Notwithstanding his innocuous presence in court as a witness, He had invented and instigated the proceedings for the prosecution, Has not been examined, Nor does it follow from the fact of an acquittal that the prosecution was malicious or wrongful in the sense required by the law of torts. It is unfortunate that the courts below have not approached the question objectively nor discussed the specific evidence wherefrom the verdict that the 3rd defendant was the real prosecutor could be rendered. There is a reference to ramzan and some indignation at such a foul story having been set up on the eve of ramzan. "it is a very important occasion for the muslim (ramzan eve). Would anybody with any sense of proportion stoop to such a mean act on such an auspicious day? i do not think. The complaint appears to be the product of some malicious imagination of defendants 1 to 3", States the munsif in his judgment. Such sheer surmises and violent words may not lead to a correct judicial result. The 3rd defendant has not informed the police about the plaintiff; for, There is no evidence to that effect. All that is seen is that when the police questioned him he gave out the name of the plaintiff also. Did he instigate the police against the plaintiff? there is no evidence. Was he the first to implicate the plaintiff at all? there is no evidence. Did he do anything to link up the plaintiff with the story of throwing of night soil into the house of the 1st defendant? there is no evidence. Did he suborn witnessess? there is no evidence. Did he at least inspire the 1st defendant to name the plaintiff in the first information? no. And this at least he would have done had he 'invented and in tigated the proceedings for the prosecution'. In these circumstances, It is difficult to hold that the appellant can be castigated as the real prosecutor animating the criminal case. It was held in air. 1953. Orissa 56 that "mere lodging of information before the police or getting the properties seized by the police is not enough to be the real prosecutor in the case". Again; in air. 1938 patna 147 it was observed, Negativing the theory that the defendants were the prosecutors:

"there is certainly nothing in the judgment of the lower appellate court to show that had it not been for the statements made by the defendants before the police, The police would not have instituted any proceeding against the plaintiff."

after all, The circumstances of the case also do not necessarily lead to the inference that even what the witnesses (appellant) said in court was brazen falsehood. He spoke about throwing of stones, But not of throwing of night soil. The occurrence took place late in the night and he only said that he saw, As he was hurrying to the place a stone throw and the accused running away that way. Nothing more. Here we cannot rule out the possibility of mistaken identity even though in the criminal court an acquittal might have been rightly rendered. The absence of reasonable and probable cause has to be made out by the plaintiff. The observations of the division bench in 1959 klt. 1081 are apposite:

"the words 'reasonable' and 'probable' appear to be synonymous. "the conjunction of these adjectives" says winfield:

"is a heritage from the redundancies in which the old pleaders delighted, And although it has been said that seasonable cause is such as would operate on the mind of a reasonable man, This does not help us much, For ft is difficult to picture a reasonable man who is not discreet."

(tort, 6th edn. Page 753). As stated by salmond:

"the burden of proving absence of reasonable and probable cause is on the plaintiff, Who thus undertakes the notoriously difficult task of proving a negative."

(torts. 12th edn - page 691).

and here, After all the 3rd defendant entered the stage as a mere witness, May be being an enemy of the plaintiff was disbelieved. Even if his evidence were exaggerated or false, An action for malicious prosecution is not a substitute for a prosecution for perjury. I am afraid that by indulging in facile speculations and adopting an excited approach the courts below have stumbled into a wrong judgment. I hold that the 3rd defendant has not been proved to be a prosecutor and cannot be held liable in damages for malicious prosecution. The appeal is allowed. I must say that the plaintiff had good ground to mistake the 3rd defendant to be behind the 1st defendant in the projector the prosecution, I am not inclined, In the circumstances of the case, To think the suit was brought, Vindictively and do not regard it right to allow costs to the appellant whose evidence in the criminal case and the suit do not bear the stamp of straight forwardness.