In a malicious prosecution suit, the plaintiff must prove that the defendant was the real prosecutor and that the defendant took an active part in the prosecution, beyond merely lodging information with the police.

JUDGMENT :- This is a plaintiffs Second Appeal arising out of a suit for malicious prosecution against the reversing judgment of Sri J.K. Biswas, Civil Judge, Keonjhar State, in Civil Appeal No.15 of 1947.

2. The plaintiff brought the suit for recovery of Rs.300/- as damages for malicious prosecution for having been prosecuted under Rule 81(4) of the Defence of India Rules on the information given by the defendant to the effect that the plaintiff was purchasing and selling rice in black-market without license and that on 17-2-46 the plaintiff had stored 17 maunds 4 seers of rice for sale in contravention of the Foodgrains Control Order, 1944 as adopted by this State. The police investigated matter and brought a charge-sheet. The prosecution ended in acquittal by the judgment of the Sub-divisional Magistrate (Ex.2).

3. The plaintiffs allegations were that the prosecution was malicious without any reasonable and reliable cause and the information given by the defendant was absolutely false.

4. The defence was that the occurrence was true, that the plaintiff really sold 40 maunds of rice on 15th and 16th February 1946, to the Agents of Companies at Ghasipura and again when he was attempting to transport 10 bags of rice on the night of 16-2-46 he informed the police to visit the spot and seize the rice.

5. The trial Court granted a decree in favour of the plaintiff on the findings that the information given by the defendant to the police was absolutely false and without any slightest reasonable and probable cause and thus actuated by malice.

6. The lower appellate Court finding that the defendant acted on good faith when he informed the police about the storage of 10 bags of rice in the plaintiffs house which the police found and seized at the spot (plaintiffs place). Considering the circumstances of the case, he came to the finding that the defendant had left the matter to the investigation of the police and took no unduly active part against plaintiffs prosecution by the State after giving information and getting the rice seized by the police. According to the lower appellate Court, therefore, the defendant was not the prosecutor. He relied upon a decision of the Madras High Court, reported in - Narasingha Row v. Muthaya Pillai, 26 Mad 362.

7. It will be necessary to discuss the position of law as to who is to be deemed to be the prosecutor in such criminal proceedings in India to be liable for damages in a suit for malicious prosecution. The above decision - Veerian Chettiar v. Ponnusawmi Chettiar, 36 Mad 362 was placed before their Lordships of the Privy Council in the case of - Gaya Prasad v. Bhagat Singh, 30 All 525 (PC).

The principle laid down in - Narasingha Row v. Muthaya Pillai, 26 Mad 362 was well clarified and explained by their Lordships of the Privy Council, who after quoting the pertinent portions of the Madras case, observed :

"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.

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But if the charge is false to the knowledge of the complainant; if he misleads the police by bringing suborned witness to support it; if he influences the police to assist him in sending an innocent man for trial before the Magistrate -it 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 of fact."

The whole question is made clear in these few sentences. The real question is to determine who is the real