Choudhary, J.:— These two second appeals are by defendant 1 & arise out of a suit instituted by the plaintiffs-respondents for damages for malicious prosecution. The facts leading to the institution of the above suit, stated shortly, are these: There was one ??? Singh resident of village Sonepey in ??? sub-division. In the early morning of 22-6-1946, he was found murdered near the Kiul river nearly hall way between Jamui and Sonepey.

2. The appellant told the chaukidar Bandhu ??? who was made defendant 5 in the suit, that he had accompanied Prithvi Singh who was going to Jamui and while they reached the place where the dead body of Prithvi Singh was found, the three plaintiffs along with other persons came ??? and attacked him, and Nageshar, plaintiff 1, gave him a bhala blow as a result of which he died then and there. He clearly stated to the chaukidar that all these things happened in his presence. The chaukidar, accordingly, lodged an information at the police station and stated all that he had heard from the appellant. As a result of this information, the plaintiffs along with other persons were arrested. As there was a direct allegation against the plaintiff ??? regarding the murder of Prithvi Singh, he could not be released on bail. The other accused persons were, however, released on bail after two months of their arrest. Ultimately, the plaintiffs along with other persons were put on trial before the Sessions Judge of Monghyr who acquitted them on 28-5-1947.

3. The plaintiffs thereafter instituted the present suit for recovery of Rs. 4999/15/6 besides interest pendente lite as damages for malicious prosecution. The suit was brought against the appellant and four other persons who were defendants 2 to 5. The defence taken by the defendants in the suit was that Prithvi Singh was actually murdered by the plaintiff on 22-6-1943, and the case was true. It was also contended that the institution of the prosecution was not malicious or without reasonable and probable cause. Their further contention was that, at any rate, the claim for damages was extremely exaggerated.

4. The trial Court accepted the case of the plaintiffs and held that the murder case instituted against them and the other accused persons was maliciously false and without any reasonable and probable cause. It, however, held that defendants 2 to 5 were not found to be liable for any such damages and the appellant alone was liable for the same.

5. It, therefore, held that the plaintiffs were entitled to recover damages from the appellant. On the question of the amount of damages, it held that the plaintiffs were entitled to recover Rs. 300 from him by way of compensation for their mental and physical loss besides half of the costs which were found to have been incurred by them in defending themselves in that criminal case. As a result of these findings the suit of the plaintiffs was decreed in part against the appellant, who preferred an appeal in the lower appellate Court which was numbered as Money Appeal No. 1 of 1949.

6. The plaintiffs also preferred another appeal in that Court against the decree of the trial Court reducing the amount of damages and this appeal was numbered as Money Appeal No. 2 of 1949. Both the appeals were heard together and disposed of by one judgment by the learned District Judge of Monghyr.

7. He agreed with the trial Court with regard to the prosecution being malicious and without any reasonable and probable cause and dismissed the appeal filed by the appellant.

8. So far as the appeal of the plaintiffs was concerned, he increased the amount of damages by Rs. 200 and thus allowed their appeal in part. Defendant 1 has, therefore, preferred these two second appeals in this Court. Second Appeal No. 30 of 1950 arises out of Money Appeal No. 2 of 1949 and Second Appeal No. 31 of 1950 arises out of Money Appeal No. 1 of 1949. Both these appeals have been heard together and are being disposed of by one judgment.

9. I will, first, deal with Second Appeal No. 31 of 1950 which is the main appeal and relates to the question of liability of the appellant for damages. In the present case it appears that the appellant professed to be an eye-witness to the occurrence and caused the criminal proceeding to be instituted against the plaintiffs by making certain statements to the chaukidar on his personal knowledge who, accordingly, lodged an information at the thana entirely based on the statement made by the appellant.

10. Both the Courts below have concurrently found that the story put forward by the prosecution implicating the plaintiffs as being murderers of Prithvi Singh was false to the knowledge of the appellant. On these findings, the question at issue in this appeal is whether the appellant could be liable for damages for malicious prosecution.

11. The law on the subject is well-settled that in an action for malicious prosecution the onus is upon the plaintiff to prove (1) that he was prosecuted by the defendant; (2) that the proceedings complained of terminated in favour of the plaintiff; (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.

12. If any authority is needed in support of this proposition of law, reference may be made to the Privy Council cases, namely, ‘Balbhaddar Singh v. Badri Sah’ 1926 P.C 46 (AIR V 13) (A) and ‘Braja Sunder Deb v. Bamdeb Das’, 1944 PC 1 (AIR V 31) (B). The correctness of this principle of law has not been and could not be challenged by the learned counsel for the respondents. It has been conceded by the learned counsel for the appellant and, as a matter of fact, it has been established beyond any doubt that the proceedings complained of terminated in favour of the plaintiffs.

13. It has not been contended before me that the appellant was not the prosecutor of the plaintiffs. As a matter of fact, on the findings of the Courts below, it is clear beyond any doubt that the appellant professed to have made a statement on his personal knowledge and as being an eye-witness to the occurrence implicating the plaintiffs in the murder case. It, therefore, must be held to have been established that the plaintiffs were prosecuted by the appellant.

14. Mr. Mahabir Prasad appearing for the appellant has, however, contended that apart from the appellant there were other persons who also professed to be eye-witnesses to the occurrence and made statements implicating the plaintiffs in the murder case. As such, he has argued that the plaintiffs were prosecuted not by the appellant alone but by several persons including the appellant. His contention is that if the prosecution was not instituted by the appellant alone, he could not be liable for damages for malicious prosecution.

15. No authority has been cited in support of this contention, and I am unable to agree with it. No doubt, other witnesses were also examined in the case to support the case put forward by the appellant, but it was really he who gave information to the chaukidar and he, therefore, must be held to be the prosecutor of the plaintiffs. The first two ingredients have, therefore, been established in this case.

16. With regard to the findings of the Courts below on the last two ingredients, namely, the institution of the criminal proceeding being without any reasonable and probable cause and the prosecution being malicious, Mr. Mahabir Prasad has contended that they are vitiated by reason of the fact that the Courts below have wrongly thrown the onus on the appellant to establish that there was justification for him for initiating the criminal proceeding and that there was no malice.

17. The argument put forward is that as in a suit for damages for malicious prosecution the onus to establish these two ingredients is on the plaintiffs, the Courts below were wrong in law in decreeing the suit because of the failure of the appellant to establish that the prosecution was justified and bona fide. The argument as a pure proposition of law, is no doubt valid but, in my opinion, it has no application to the facts of the present case.

18. The question of onus was raised before the learned District Judge and from his judgment it clearly appears that he accepted the contention of the appellant that the burden of proof for establishing the absence of reasonable and probable cause for the bringing of the case lay on the plaintiffs.

19. The learned District Judge, however, made a distinction between a case where, as in the present case, the prosecution was started by the defendant on his personal knowledge and as being an eye-witness to the occurrence and a case where the defendant initiates the proceeding on information or on inference from certain circumstances, and he held that in the latter class of cases the person who starts the proceeding may have honestly started it and may have reasonable and probable cause to do so even though the accusation night have been found to be false.

20. But where the defendant initiates the proceeding alleging that he has seen the occurrence with his own eyes and then the accusation is found to be false, it cannot be argued that he had reasonable and probable cause to initiate the proceeding. Thereafter he applied the principles so enunciated by him to the facts of the case and held that the onus that lay on the plaintiffs was considerably discharged by the termination of the criminal proceeding in their favour in spite of the appellant's allegation that he saw the plaintiffs committing murder with his own eyes.

21. The learned District Judge, however, did not decide the case on the failure of a party to discharge the onus and came to his findings on the questions at issue on consideration of the evidence adduced by the parties and the circumstances of the case as will appear from the following passage in his judgment:

“As the matter now stands before us, it is really unnecessary to decide the case on onus only. Both parties have adduced evidence about the circumstances and the happenings at that time and it is possible to decide on the evidence alone.”

22. After examining the evidence, he came to a definite conclusion, as already observed, that the accusation against the plaintiffs was false to the knowledge of the appellant, and having held so, he came to the conclusion that the prosecution was without any reasonable and probable cause. On evidence he also held that there was severe enmity between the parties and their supporters, and, therefore, he came to the conclusion that the prosecution was maliciously false.

23. Mr. Mahabir Prasad has taken serious objection to this finding. He has contended that though the falsity of accusation may be a ground for holding that the appellant had not any reasonable and provable cause for initiating the proceeding, yet it could not necessarily lead to the conclusion that the prosecution was malicious. His contention is that the falsity of accusation and absence of justification are not enough to give a decree for damages for malicious prosecution and unless malice is proved, the suit cannot be decreed.

24. On the facts of this case the two questions, namely, the question about the absence of reasonable and probable cause and the question of the prosecution being malicious are interwoven, and I will deal with both these points together.

25. The law on the questions at issue as laid down in Halsbury's Laws of England is to the following effect: The onus, to prove malice and absence of reasonable and probable cause, is undoubtedly on plaintiff, and innocence of the plaintiff or his acquittal is not enough to entitle him to a decree for damages for malicious prosecution. He must show that the defendant acted maliciously and without reasonable and probable cause.

26. But the burden of proof is not stationary. When the plaintiff has given such evidence as, if not answered, will entitle him to a verdict, the burden of proof is shifted to the defendant. Reasonable cause has been said to be such as would operate on the mind of a discreet man, and probable cause such as would operate on the mind of a reasonable man. It must also be such as would operate on the mind of the defendant, otherwise there is no reasonable cause for him.

27. It follows that, at least when the accused was in fact innocent, belief in his guilt is essential to the existence of reasonable and probable cause, and that such belief must at the date of the prosecution be based on grounds which, or some of which, are reasonable, and arrived at after due inquiry.

28. Want of reasonable and probable cause does not of itself render a prosecutor liable; but if, in such a case, malice is also proved, an action lies, not indeed for the malice, but for the annoyance, expense, and disgrace of the groundless prosecution vide, Halsbury's Laws of England, 2nd Edn. Vol. 22, — Hailsham Edition, paras. 16, 19, 26 and 27).

29. Mr. Mahabir Prasad, however, has placed reliance in support of his contention on the cases of ‘Pestonji Muncherji Mody v. The Queen Insurance Co.’. 25 Bom. 332 (PC) (C) : 1926 PC 46 (AIR V 13) (A); ‘1944 PC 1 (AIR V 31) (B); and on an unreported decision of this Court in Jaldhari Bharthi v. Jagdish Parsad, Second Appeal No. 837 of 1948, D/- 12-1-1951 (Pat) (D).

30. In the first case, namely, 25 Bom 332 (PC) (C), it was held that the circumstance that the plaintiff was innocent of itself goes very little way towards entitling him to a decree for damages for malicious prosecution and that 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 the action of the defendant.

31. That was a case where the defendant, the Queen Insurance Company, by its Secretary, Mr. Symington, initiated a proceeding against the plaintiff on information which he believed to be true and about which he was satisfied on making inquiries and the finding of the Courts below, with which their Lordships of the Privy Council agreed, was that he acted in good faith. On consideration of the evidence, their Lordships also agreed with the Courts below that there was no evidence either to prove malice or to prove enmity.

32. In those circumstances their Lordships concurred with the Courts below that the plaintiff failed to establish malice and absence of reasonable and probable cause. In 1926 PC 46 (AIR V 13) (A) on the findings their Lordships of the Judicial Committee felt that the whole truth in the case was impossible to find and that there was not sufficient certainty in this doubtful matter to find that the appellants have discharged the heavy onus laid upon them.

33. In those circumstances their Lordships concurred with the decision of the Judicial Commissioners and dismissed the suit of the plaintiffs. In 1944 PC 1 (AIR V 31) (B) it was held as follows: Malice has been said to mean any wrong or indirect motive, but a prosecution is not malicious merely because it is inspired by anger.

34. However wrong headed a prosecutor may be, if he honestly thinks that the accused has been guilty of a criminal offence he cannot be the Initiator of a malicious prosecution. But malice alone is not enough; there must also be shown to be absence of reasonable and probable cause. If the respondents honestly believed a criminal offence to have been committed and had reasonable cause for so doing, they are not liable in this action, and even though they were malicious they still would not be liable if they had reasonable cause for believing in the appellants' guilt.

35. That was again a case where the proceeding against the plaintiffs was initiated by the defendants on certain circumstances on which they could have well believed about the truth of the accusation made by them against the appellants. In the case of Second Appeal No. 837 of 1948 D/- 12-1-1951 (Pat) (D) referred to above, the lower appellate Court had wrongly thrown the burden of proof upon the defendants about the question of malice and want of reasonable and probable cause and consequently a Bench of this Court held that the finding on those two issues were vitiated by this error of law.

36. It was also found by this Court that there was no evidence to support the findings of the lower appellate Court that there was malice on the part of the defendants and that there was want of probable and reasonable cause. The judgment of the criminal case acquitting the plaintiffs was not placed on the record, and from the judgment of this Court it does not appear as to on what basis the defendants had prosecuted the plaintiffs in the criminal Court.

37. From the judgments of the Courts below, however, it appears that in that case the prosecution against the plaintiffs was not initiated on the personal knowledge of the prosecutor. Thus all the cases referred to above are cases in which proceedings which ultimately resulted in acquittal were initiated not on the personal knowledge of the prosecutors but on their information and belief.

38. The cases in which the accusations have been, found to be false to the knowledge of the prosecutors stand, in my opinion, on a different footing. In those cases, it is not available to the prosecutors to say that there was no want of reasonable and probable cause. The evidence that can prove in such cases the absence of reasonable and probable cause may also in certain circumstances prove the malicious intention of the prosecutors inasmuch as in these circumstances the determination of both the questions are interwoven.

39. In the Privy Council case of 1944 PC 1 (AIR V 31) (B) referred to above their Lordships of the Judicial Committee clearly observed that the two questions are, in most cases, interwoven, and there may be circumstances which show that there was not merely the want of a reasonable and probable cause but also malice of the kind required in an action for malicious prosecution.

40. Mr. Ugra Singh appearing for the plaintiffs-respondents has contended that the accusation against the plaintiffs having been found to be false to the knowledge of the appellant, he could not escape the liability in an action for damages for malicious prosecution. In support of his contention he has Placed reliance on the cases of Gaya Prasad v. Bhagat Singh, 30 All 525 (PC) (E); Taharat Karim v. Malik Abdul Khaliq, 1938 Pat 529 (AIR V 25) (P); Darsan Pande v. Ghaghu Pande, 1948 Pat 167 (AIR V 35) (G); Sah Chaturbhuj v. Sah Maun Ram, 1936 All 537 (AIR V 23) (H) and Nitya Nanda Mandhata v. Binayak Sahu 1955 Orissa 129 ((S) AIR V 42) (I).

41. These cases, in my opinion, have direct bearing to the facts of the present case. In the case of 30 All 525 (PC) (E) a charge of unlawful assembly was made against the plaintiff as the instance of the defendants and it was found that the charge was a false one to the knowledge of the defendants. Their Lordships held that they must abide the consequences of their misconduct, and that it would be a scandal if the remedy provided by this form of action were not available to innocent persons aggrieved by such unfounded charges. In the course of the judgment their Lordships quoted with approval the observation made by Cockburn, C.J, in Pitzjohn v. Mackinder, (1861) 9 CB (NS) 505 (J) which is to the following effect:

“A prosecution, though in the outset not malicious, as having been undertaken at the dictation of a Judge or a Magistrate, or if spontaneously undertaken, from having been commenced under bona fide belief in the guilt of the accused, may nevertheless become malicious in any of the stages through which it has to pass, if the prosecutor, having acquired positive knowledge of the innocence of the accused, per severes malo animo in the prosecution, with the intention of procuring per nefas a conviction of the accused”.

42. In 1938 Pat 529 (AIR V 25) (X) which was a first appeal, a Bench of this Court, on consideration of the evidence, held that the accusation brought against the plaintiff was false & without any reasonable & probable cause, and it also held that there was ill-feeling between the parties and that malice was clearly established.

43. In those circumstances it was held in that case that, though the onus of establishing that the defendants had no reasonable and probable cause for the prosecution lay on the plaintiff, yet at the same time it was not right in cases of that kind to call upon the plaintiff to prove his innocence and 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 will be not only that the plaintiff was innocent, but also that there was no reasonable and probable cause for the accusation.

44. The correctness of this decision was doubted in the case of Second Appeal No. 837 of 1948 (Pat) (D) referred to above. Ramaswami, J., who gave the judgment in that case, Rai, J. agreeing with him, observed that the statement of law made by Dhavle, J., in 1938 Pat 529 (AIR V 25) (F) was inconsistent with the ratio of the decision in 1026 PC 46 (AIR V 13) (A) and could not be reconciled with the judgment of Lord Macnaghten in 25 Bom 332 (PC) (C). These two cases, as already observed, were not cases in which the initiation of criminal proceedings was based on the personal knowledge of the prosecutors which ultimately were found to be false.

45. The case of 30 All 525 (PC) (E) referred to above does not appear to have been brought to the notice of their Lordships. Be that as it may, one Division Bench of this Court cannot pronounce on the correctness of the decision of another Division Bench of this Court. The case reported in 1938 Pat 529 (AIR V 25) (F) was considered by Das, J. (as he then was) in 1948 Pat 167 (AIR V 35) (G).

46. His Lordship, referring to the observation made by Bowen L.J in Abrath v. North Eastern Rly. Co., (1883) 11 Q.B.D 440 (K), that there might be special circumstances which along with the fact of innocence, established by the acquittal in criminal proceeding, might show that there was the want of reasonable and probable cause, observed as follows:

“I think that it is these observations which their Lordships had in mind when they said in 19 Pat LT 889 : 1938 Pat 529 (AIR V 25) (F), that where the accusation against the plaintiff was in respect of an offence which the defendant claimed to have been committed and the trial ended in acquittal on the merits, the presumption would be not only that the plaintiff was innocent but also that there was no reasonable and probable cause for the accusation…………

47. The decision in 1938 Pat 529 (AIR V 25) (F) had these exceptional circumstances in view when laying down the principle that a presumption may arise in certain cases as to want of reasonable and probable cause from the innocence of the plaintiff. In my opinion, the decision in 1938 Pat 529 (AIR V 25) (F) is correct, if I may so With respect, and does not go against the general principle that the plaintiff must prove in an action for malicious prosecution that the prosecution was instituted against him without any reasonable and probable cause; the onus is undoubtedly on the plaintiff, but may be discharged by showing that the fact of innocence in a particular case involves with it other circumstances which show that there was the absence of reasonable and probable cause.”

48. I may note here that in the case of 1948 Pat 167 (AIR V 35) (G) also the criminal case started against the plaintiffs by the defendant-appellant was found to be false to his knowledge. His Lordship, therefore held that the appellant must have known that the story which he was telling against the man whom he was prosecuting was false and that it followed, therefore, that there was a want of reasonable and probable cause.

49. On the question of malice, it was contended in that case that the learned Subordinate Judge should have found malice independent and irrespective of his finding as to the absence of a reasonable and probable cause. On the facts of that case this contention was not accepted by his Lordship. Dealing with that question his Lordship referred to the case reported in Brown v. Hawkes, (1891) 2 Q.B 718 (Z), where Cave, J. (as he then was), had observed as follows:—

“Of course, there may be such plain want of reasonable and probable cause that the jury may come to the conclusion that the prosecutor could not honestly have believed in the charge he made, and in that case want of reasonable and probable cause is evidence of malice.”

50. In 1933 All 537 (AIR V 23) (H), a Bench of the Allahabad High Court held that the falsity of the statement by the defendants itself would go to show the want of reasonable and probable cause and would further establish malice on the part of the prosecutors and that the question of reasonable and probable cause would arise in those cases where the truth or falsity of the charge depended on the information which the prosecutor might have received from other persons.

51. Recently, a Bench of the Orissa High Court in 1955 Orissa 129 ((S) AIR V 42) (I), after reviewing all the authorities on the point, has taken the same view. It was held in that case that a mere absence of reasonable and probable cause does not justify, as a matter of law, the conclusion that the prosecution was malicious, though it is quite conceivable that the evidence which is sufficient to prove absence of reasonable and probable cause may also establish malice.

52. It was further held that in an action for malicious prosecution the initial burden of proving absence of reasonable and probable cause and existence of malice on the part of defendant in launching the prosecution against the plaintiff rests on the plaintiff, but that burden may shift during the trial.

53. The amount and nature of evidence required to discharge the initial burden depends upon the facts and circumstances of each case. If a man acts on his own knowledge, then the fact that the complaint was a false one will raise a presumption that there was absence of reasonable and probable cause and that malice existed unless it is shown that his memory was defective or that there was some valid ground for this apprehension.

54. In the present case, as already observed, the finding of the Courts of fact is that the accusation against the plaintiffs made by the appellant was false to his knowledge. The Courts below have also come to a finding, as already observed, that there was enmity between the parties and their supporters. On the authorities referred to above, therefore, it is abundantly clear that the prosecution of the plaintiffs was malicious as well as without any reasonable and probable cause. The appellant was, therefore, rightly held to be liable for damages for malicious prosecution, and this appeal, therefore, must fail.

55. Coming to the other appeal, namely Second Appeal No. 30 of 1950, which relates to the amount of damages, it may only be mentioned that, apart from making a mere reference to this appeal, no argument has been advanced by learned counsel for the appellant as regards its merits;

56. The Court of appeal below, after considering the status of the plaintiffs and the circumstances of the case, has come to the conclusion that a sum of Rs. 500/- was the proper amount which should have been awarded to the plaintiffs by way of damages. Nothing has been placed before me to take a different view of the matter. This appeal, therefore, also has to fail. In the result, both the appeals fail and are dismissed with costs. There shall, however, be only one set of hearing fee and that in Second Appeal No. 31 of 1950, which is the main appeal.

K.S.B

57. Appeals dismissed.