1936  Present: Moseley J. and Fernando A.J.

KOTALAWALA  v. PERERA.

140-D. C. Colombo, 1,965.

Malicious Prosecution-Information given by defendant-No request or direction to prosecute-Liability of informant-Actio injuriarum in Roman-Dutch law.

An action for malicious prosecution will not lie in a case where the prosecution has been instituted by a public officer, unless it is shown that the defendant in addition to giving information either requested or directed the prosecution.

Uduma Lebbe Marikar v. Mudmay Sarango (5 S. C. C. 230) followed; Wijagoonetilleke v. Joni Appu (22 N. L. R. 231) referred to.

This was an action to recover damages for malicious prosecution.

The plaintiff was charged and acquitted in the Police Court of Gampaha for aiding and abetting one Nadorisa in forging a cattle voucher.  The defendant, the Police Vidane in whose presence Nadorisa signed the voucher, subsequently informed his superiors as well as the Police that Nadorisa impersonated a third party. Inquiries were held, both by the Mudaliar and the Police, before a prosecution was launched. The defendant was a material witness at both inquiries

The learned District Judge gave judgment .  for the plaintiff.

H.V. Perera [with him Dodwell Goonewardena], for defendant, appellant -The Police Vidane was acting on a privileged occasion. He was acting in his official capacity. He merely set the law in motion . The used their discretion before prosecuting. In Uduma Lebbe Marikar v. Mudmay Sarango [1 5 S. C. C. 230.] where plaintiff brought an action against defendant had without reasonable and probable causes, caused and procured the Inspector of Police to prefer a charge of theft against plaintiff, it was held that the prosecution was brought by the Inspector of Police and not by the defendant.

The protection given on a privileged occasion continues till the end of the proceedings (Watson v. Jones [2 (1905) A. C. 480.].  "The privilege which protects a witness from an action of slander in respect of his evidence in the box, also protects him against the consequence of statements made to the client and solicitor in preparing the proof for trial".

Inquires made under Chapter XII. of the Criminal Procedure Code are made on a privileged occasion, and an action for damages does not lie for false statements made.  (Wijagoonetilleke v. Joni Appu  [3 22 N. L. R. 231.] ).

Nanthan;s Common Law of South Africa, vol. III., p. 1643, says the defendant must have set the criminal law in motion, that is, he must have voluntarily instituted criminal proceedings.

N. E. Weerasooria  (with him N. Nadarajah and Wickremanayake), for plaintiff, respondent-The Police Vidane was acting as an eye-witness and not in his official capacity.  It was on his complaint that both the Police and the Mudaliyar took action.

If the Police Vidane had not complained of impersonation there would have been no action.

The defendant set the criminal law in motion voluntarily when he complained to the Police.  He was using the Police as a medium to have the plaintiff prosecuted.  Therefore the defendant was not acting on a privileged occasion and liable in damages.

In Selvathurai v. Somasunderam [4 31 N. L. R. 296.]

  it was held that a mere honest belief on the part of the defendant in certain facts, which afford no basis for a criminal charge, coupled with the laying of a charge, cannot be regarded as reasonable and probable cause for making the charge".

This case was decided entirely on a finding of fact.  Your Lordship's Court should not disturb that finding.  It is the practice of the Appeal Court not to reverse pure findings of fact (King v. Guneratne  [5 37 N. L. R. 167.] ).

Cur. adv. vult.

September 30, 1936. FERNANDO A. J.-

The plaintiff alleged in his plaint that the defendant caused a charge to be preferred against the plaintiff in P. C. Gampaha, No. 29,580, the charge being that the plaintiff aided