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1908 Supreme(SC) 16
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
LORD ROBERTSON, LORD ATKINSON, LORD COLLINS, SIR ANDREW SCOBLE, AND SIR ARTHUR WILSON.
PANDIT GAYA PARSHAD TEWARI - Appellant
Versus
SARDAR BHAGAT SINGH - Respondents
On appeal from the Court of the Judicial Commissioner of Oudh.
Decided On : June. 17; July 31. 1908.
Solicitors for appellants : Sanderson, Adkin, Lee & Eddis.
A person who instigates a criminal prosecution by providing false information or misleading the police can be held liable for malicious prosecution, even if they did not formally institute the proceedings, as the identity of the "prosecutor" depends on the overall conduct and circumstances.
Headnote:(A) Criminal Procedure Code, 1898 - Sections 4, 156, 190, 495; Penal Code - Section 147 - Malicious Prosecution - Liability of a person who does not formally institute proceedings - If a complainant provides false information to the police, misleads them by bringing suborned witnesses, or influences the police to send an innocent person for trial, they cannot escape liability simply because the prosecution was technically conducted by the police - The determination of who the "prosecutor" is depends on the whole circumstances of the case, including the conduct of the complainant before and after making the charge.
(B) Malice - The foundation of an action for malicious prosecution is malice, which may be demonstrated at any stage of the inquiry, including the subsequent conduct of the prosecution after its initiation.
Facts of the case:
A dispute over ownership of alluvial land between two estates led to a charge of rioting against a manager of one estate. The charge was based on information provided to the police by officials of the opposing estate. The magistrate eventually dismissed the case, finding that no riot had occurred and that the charges were concocted. The plaintiff sued the officials for malicious prosecution. The lower appellate court had dismissed the suit on the ground that the officials had not formally instituted the prosecution, as they were mere witnesses and the police had conducted the prosecution.
Findings of Court:
The court found that the defendants were directly responsible for the charge being made against the plaintiff by providing a list of accused persons to the police and falsely claiming the plaintiff was the chief cause of the riot. The charge was false to the knowledge of the defendants, and they took the principal part in conducting the case both before the police and in the magistrates court.
Issues: Whether a person who does not formally make a complaint or application for process to a court, but instigates the police to initiate a prosecution based on false information, can be held liable for damages for malicious prosecution.
Ratio Decidendi: The court held that the mere formal institution of proceedings is not the sole criterion for identifying the prosecutor. While a person giving honest information to the police is not liable if the police decide to prosecute, a person who knowingly provides false charges or misleads the police to ensure an innocent person is tried is the actual prosecutor in law. The conduct of the complainant throughout the process must be considered to determine liability.
Result: Appeal allowed; decree of the Judicial Commissioner set aside and that of the Subordinate Judge confirmed.
Appeal from a decree of the Court of the Judicial Commissioner (December 14, 1905) reversing a decree of the Subordinate Judge of Bahraich (July 31, 1905).
The question decided was whether on the facts found, which are detailed in the judgment of their Lordships, the respondents are liable in law to an action for damages for malicious prosecution.
To an action so brought the respondents filed a written statement resisting the claim on the following grounds —
Paragraph 11. Defendants did not institute any criminal prosecution, and were mere witnesses for the prosecution.
Paragraph 12. Defendants as witnesses were justified in making the statements they did in the Criminal Court, and no suit can legally be brought against them.
Paragraph 13. The prosecution was not malicious and with-out reasonable and probable cause, nor did it arise from any illegitimate motive.
Law. Rep. 35 Ind. App. 189 ( 1907- 1908) Pandit Gaya Parshad Tewari V. Sardar Bhagat Singh
86
The Subordinate Judge decided that although the names of the respondents did not appear on the face of the criminal proceedings, yet in fact they were the prosecutors; that they had "concocted and fabricated false evidence to get the appellant charged with rioting "; that there was no reasonable and probable cause for the prosecution ; and that the respondents had acted maliciously. He accordingly made a decree in favour of the appellant, awarding him the sum of Rs.6082.8 as damages, and the costs of the suit.
The Court of the Judicial Commissioner reversed this decree and dismissed the suit. On the authority of the cases of Narasinga Row v. Muthaya Pillai (1) and Dudhnath Kandu v. Mathura Prasad (2), the judge with hesitancy decided that no one but a person who has made a formal complaint or application for process to a Court can be sued for damages for malicious prosecution. On the merits he said " I am disposed to believe that the sub-inspector did institute a charge under s. 147 at the instigation of Bhagat Singh and not of his own motion ; that the charge was found false by the magistrate who tried the case; and that the evidence on the record produced by the appellants is not such as to incline me to believe it to have been proved. The evidence of Bhagat Singh was anything but straight-forward." He accordingly dismissed the suit, but without costs.
De Gruyther, K.C., and Kyffin, for the appellant, contended that the Appellate Court was wrong in holding that an action for malicious prosecution will not lie against a person who has not instituted it and has not himself made a formal application for criminal process to a Court. The authorities relied upon, namely, Dudhnath Kandu v. Mathura Prasad (( 1902) I. L. R. 24 Allah.317.) and Narasinga Row v. Muthaya Pillai (( 1902) I. L. R. 26 Madr. 362), decided, no doubt, that no one but the actual prosecutor was liable, but they did not dispose of the question of fact as to who is the actual prosecutor in a manner applicable to all cases. That question, it was submitted, must depend upon what had been done by the defendants, whether they were the prime movers in and originators of the prosecution without whose action in the matter no prosecution would have been instituted. The First Court found that the defendants were the chief cause of the prosecution, that they had fabricated false evidence in support of it; and although their names did not appear on the face of the proceedings they gave false information to the police, instigated the charge, and took an active part in conducting it. Reference was made to FitzJohn v. Mackinder ((1801) 9 C. B. (N.S.) 505.), and to the Criminal Procedure Code (V. of 1898)—s. 147, as to disputes likely to cause a breach of the peace; s. 4, as to the definition of cognizable offence; s. 156, as to investigation by the police officer of a cognizable offence; Sched. IL, offence under s. 147 of the Penal Code; s. 190et seg. as to the conditions requisite for initiation of the proceeding
