JUDGMENT
Dixit, J.
1. These two appeals arise out of a suit for damages for malicious prosecution filed by Pannalal, Gopal Singh, Prithwi Singh, Madho Singh and Uddham Singh against Shrikrishna, Buddha-ram and Satyanarain. The plaintiffs alleged that on 14-1-1950 Mangalia, the father of Shrikrishna, Buddharam and Satyanarain made a report to tile police that a dacoity had been committed at his house and that after the report when the investigation was taken up by the police, Shrikrishna, Buddharam and Satyanarain made statements to the police implicating the plaintiffs in the alleged dacoity.
The plaintiffs further stated that as a sequel to the report made by Mangalia and the statements to the police by the defendants they were prosecuted for an offence Under Section 395, I, P. C, in the Court of Additional District Magistrate, Shivpuri and ultimately acquitted; that no dacoity was even committed at the house of Mangalia and that in giving information to the police that the plaintiffs had committed the dacoity, the defendants acted with our reasonable and probable cause and with a malicious intention.
The defendants admitted that Mangalia made a report to the police and that the plaintiffs were acquitted of the offence Under Section 395, I, P..C. They denied having given any information to the police that the plaintiffs were amongst the dacoits and said that the prosecution was not malicious nor without reasonable and probable cause. The plaintiffs claimed Rs. 500/- as damages.
2. The Civil Judge, Second Class of Kolaras who tried the suit held that the defendants instituted a false case against the plaintiffs and that there was no reasonable and probable cause for the prosecution and that the defendants had acted maliciously. He accordingly passed a decree in favour of trie plaintiffs for Rs. 274-2-0 and costs of the suit.
The plaintiffs and the defendants, both, then appealed to the Civil Judge First Class, Shivpuri. The defendants’ appeal was for the dismissal of the plaintiffs’ suit and the plaintiffs’ appeal was for decreeing their claim to the full amount of Rs. 500/-claimed by them as damages. The learned Civil Judge modified the decree of the trial Court by giving to the plaintiffs Rs. 320/- as damages. Both the plaintiffs and the defendants have now appealed to this Court.
3. Having heard learned Counsel for the parties, I have reached the conclusion that the plaintiffs’ suit must be dismissed on the short ground that they have failed to prove that they were prosecuted by the defendants. The learned Civil Judge has held on the authority of ‘Gaya Prasad v. Bhagat Singh’, 30 All 525 (PC) (A), that though Mangalia lodged the report with the police, yet inasmuch as Buddharam admittedly implicated the plaintiffs in the dacoity in his statement to the police, the defendants were the prosecutors. Before me learned Counsel for the plaintiffs also relied upon ’30 All 525 (PC) (A)’, and on the case of ‘Bal-bhaddar Singh v. Badri Sah’ AIR 1926 PC 46 (B) to support his contention that as the prosecution was on the basis of a statement made by Buddharam to the police implicating the plaintiffs, the defendants could be sued for damages for malicious prosecution,
4. Before dealing with the part alleged to have been taken by the defendants in prosecuting the plaintiffs, it is necessary to examine the decisions of the Privy Council in 30 All 525 (PC) (A) and AIR 1926 PC 46 (B). There can be no doubt that in an action for malicious prosecution, the plaintiff must first prove that he was prosecuted by the defendant. In other words, the first important question in all cases of this kind is “who is the prosecutor?” The Privy Council cases referred to above do not lay down a general proposition that even if an individual has not made a formal complaint against any person to the police, he would become the prosecutor if he has made a statement to the police implicating the person. In ‘Gaya Prasad v. Bhagat Singh (A)’, the Privy Council considered a decision of the Madras High Court in ‘Nara-singa Row v. Muthaya Pillai’, 26 Mad 362 (C), where it was observed:
The only person who can be sued in an action for malicious prosecution is the person who prosecutes. In this case, though the first defendant may have instituted criminal proceedings before the police, he certainly did not prosecute the plaintiff. He merely gave information to the police, and the police, after investigation, appear to have thought fit to prosecute the plaintiff. The defendant is not responsible for this act, and no action lies against him for malicious prosecution.
5. Commenting on these observations of the Madras High Court, their Lordships of the Privy Council said:
The principle here laid down is sound enough if properly understood, and its application to the particular case was no doubt justified; but in the opinion of their Lordships, it is not of universal application. In India, the police have special powers in regard to the investigation of criminal charges, and it depends very much on the result of their investigation whether or not further proceedings are taken against the person accused. 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 magistrateit 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 oi fact. Theoretically all prosecutions are con- ducted in the name and on behalf of the Crown, but in practice this duty is often left in the hands of the person immediately aggrieved by the offence who pro has vice represent the Crown. In India, a private person may be allowed to conduct a prosecution Under Section 495, Criminal P. C, which provides that “any magistrate inquiring into or trying any case may permit the prosecution to be conducted by any person other than an officer of police…any person conducting the prosecution may do so personally or by a pleader.” When this is permitted, it is obviously an element to be taken into consideration in judging who is the prosecutor and what are his means of information and motives.
6. The above passage makes it clear that the mere fact that an individual gave information to the police against certain persons is by itself not sufficient to make him the prosecutor. It is necessary to prove by the evidence of the conduct of the person giving the information that he took an active part in getting certain persons charged with an offence. The defendants’ names in Gaya Prasad’s case did not appear on the face of the proceedings, except as witnesses. The evidence on which the Privy Council found them liable for damages consisted in the facts that they had produced false witnesses to support the charge at the investigation by the police; they had taken principal part in the conduct of the case before the police and in the Magistrate’s Court; they had instructed counsel who appeared for the prosecution at the trial that the plaintiff “had joined the riot”; and they had done all they could, to produce the conviction of the plaintiff.
The principle, then, that emerges from the Priv) Council case is this. The fact that a private person, who merely makes a statement or complaint to the police giving out information, which he believes to be correct, would not make him “the prosecutor” To become prosecutor, he must be actively instrumental in putting the criminal law in motion. Where there is no evidence of the conduct of the private person before and after he made the statement of complaint to the police, to show that he was directly responsible for the charge being made, had taken principal part in the conduct of the case and had done all he could do to secure the conviction of the plaintiff in a suit for malicious prosecution, it cannot be said that he was the prosecutor so as to sustain an action against him for malicious prosecution.
7. The other Privy Council case reported in AIR 1926 PC 46 (B) does not lay down any different proposition. That was a case in which one Badri Sah acting on the statements made to him by two persons, Raghunath and Teja, gave information to the police that Balbhaddar Singh had murdered Sheo Bux. Raghunath and Teja stated that they had also participated in the crime and made confessions before the Magistrate implicating Balbhaddar Singh, Balbhaddar Singh was prosecuted and discharged. He then sued Badri Sah for damages for malicious prosecution, making the averment that Badri Sah had tutored Raghunath and Teja to say, what they did in their confession.
In connection with the question, whether Badri Sah was the prosecutor, their Lordships of the Privy Council said that the real question is whether Balbhaddar Singh had proved that Ba’dri Sah invented and instigated the whole proceedings for prosecution, It was found by the Privy Council that Balbhaddar Singh had not been able to discharge the heavy onus which lay on him of proving that Badri Sah invented the whole story and tutored Raghunath and Teja to say it. The observation of the Privy Council in “Balbhaddar Singh’s case (B)’ that
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 loads to prosecution is just the same thing. And if that is done and trouble caused an action will lie.
cannot, therefore, be read as meaning that the mere giving of information to the police is by itself sufficient to make the informer a prosecutor.
8. In the instant case barring the fact that Buddharam made a statement to the police dis-Josing the participation of the plaintiffs in the dleged dacoity, there is no evidence to show that Buddharam and the other defendants instigated the prosecution. The statement of Buddharam is that a dacoity was committed at his house and thereafter when he was in hospital, the investigating officer came to interrogate him and he told the investigating officer that the plaintiffs were participants in the crime. There is no evidence of the conduct of Buddharam or any of the other defendants before or after Buddharam gave this information.
The plaintiffs led no evidence whatsoever to show that the police acted solely on the statement made by Buddharam and did not make any independent investigation, that the defendants produced false witnesses to support the charge during police investigation or that the defendants instructed the person in charge of the prosecution that the plaintiffs had committed dacoity or that the defendants did all they could do to secure the conviction of the plaintiffs. The plaintiffs did not tender in evidence the investigating officer or the person who conducted the prosecution against the plaintiffs or any of the witnesses who gave evidence at the trial against the plaintiffs to show that the defendants instigated the prosecution, produced false evidence and tutored the witnesses.
The trial Judge has said that from the decision in the criminal case against the plaintiffs, it is plain that the defendants instituted the criminal case against the plaintiffs and also produced evidence. This conclusion is altogether erroneous. The judgment in the criminal case acquitting the plaintiff is conclusive only for the purpose of showing that the prosecution terminated in favour of the plaintiffs. I fail to understand how the trial Court drew the inference from that decision that the prosecution was conducted and the evidence was produced by the defendants, when as is clear from the decision that the prosecution was launched by the police. In the absence of any such evidence of the type stated above, and on the sole fact that Buddharam made a statement to the police implicating the plaintiffs, it cannot be held that the defendants were the prosecutors. It is noteworthy that there is not even an iota of evidence to show as to what Shri-krishna and Satyanarain did. As the plaintiffs have failed to establish the fact that they were prosecuted by the defendants, their suit for damages for malicious prosecution against the defendants must be dismissed.
9. In view of what I have said above, it is not necessary for me to consider whether the plaintiffs have been able to establish the other element necessary in a suit for malicious prosecution.
10. In the result the decisions of the Courts below are set aside and the plaintiffs’ suit is dismissed with costs throughout.
