1. The rulings of this Court in Venkatrav Shrinivas v. Bapu Rambaksh Printed Judgments for 1875, p. 40 and Bankat Hargovind v. Narayan Vaman Devbhankar I.L.R., 11 Bom., 370 show that an officer of Government who prosecutes for an injury personal to himself is not generally acting in his official capacity as prosecutor. If any particular class of interests is placed specifically under his tutelage, with a direction to guard them by the appropriate legal proceedings, suits instituted in the fulfillment of the duty thus assigned to the functionary are of course instituted in his official capacity. A similar remark applies to criminal proceedings. A prosecution by a functionary is official when in carrying it on he is discharging a duty expressly or impliedly assigned to him by law. If the duty of prosecuting in any particular case is not assigned to an officer as such, the consent or the order of his superior will not make the act an official one, which in its nature is not so, as lying outside his official functions. Such an order may, however, be most important on the question of malice, i. e., a conscious violation of the law to the prejudice of the plaintiff (Broom’s Legal Maxims, p. 311). It may also be important on the question of reasonable cause, and it is to be borne in mind that a plaintiff suing for malicious prosecution has to establish that the defendant had no reasonable cause for the steps taken by him against the plaintiff.
2. In the present case it seems that the prosecution complained of was instituted under the order of the defendant’s superior; but that, however important, is not conclusive, as two officers of different rank might conspire to injure an innocent person. In such a case each would be responsible for the wrong. It is not likely that such a case would frequently arise, but when it does, no one could say that the conspiracy was an act in the discharge of a public duty. Nor could individual malice be so protected under the English system of law. The allegation of an official justification must be made out by the individual sued as a private person, and it must amount to more than a mere pretext or colour, as good faith is required in the discharge of all public functions that affect the persons or possessions of subjects of the Crown.
3. For these reasons, we must hold that the defendant, sued as a private person for an alleged wrong to the plaintiff, was rightly sued in the Court of the Subordinate Judge. If the plaintiff has failed to make out the essential points of his case, the District Judge should decide accordingly; but we must reverse his order for giving back the plaint, and direct him to dispose of the appeal on its merits. Costs of this appeal to abide the event.