Chitty Et Al. V. Peries
1940 Present: Howard C. J. and de Kretser J.

CHITTY et. al. v. PERIES.
360-D. C. Colombo, 8,390.
Malicious arrest-Action for damages-Instigation of arrest-Statement to Police-No privilege-Police Information Book-Statement admissible to impeach plaintiffs credit-Evidence Ordinance, s. 155 (c) (Cap. 11), Criminal Procedure Code, s. 122 (3) (Cap. 16).

Where, in an action to recover damages for malicious arrest, it was established that the 3rd defendant made a definite criminal charge against the plaintiff to the Police and as a result of the complaint made by the 3rd defendant, supported by the other defendants, the plaintiff was arrested,-
Held, that the defendants must be held to have instigated the plaintiff's arrest.
The statement which was made by the plaintiff and the defendants to the Police on the day of arrest and which was entered in the Police Information Book cannot be excluded on the ground of privilege.
In civil proceedings it is open to the defendants to impeach the credit of the plaintiff by proving under section 155 (c) of the Evidence Ordi­nance former statements made by her to the Police.
Wijegoonetileke v. Jonis Appu (22 N. L. R. 231) and Kotalawala v. Perera (39 N. L. R. 10) distinguished.
THIS was an action brought by the plaintiff to recover damages from the defendants for having caused the Police to arrest the plaintiff on a false charge of theft and criminal breach of trust. It would appear that a complaint was made to Police Sergeant No. 1628 Fernando by the third defendant against the plaintiff. The charge was one of criminal breach of trust of two pairs of ear-studs and a saree. As a result of this complaint, the Police Sergeant visited the house of the four defendants and recorded their statements. Thereafter the Police Sergeant decided to arrest the plaintiff.
J. E. M. Obeysekere (with him S. Nadesan and N. Kumarasingham), for the defendants, appellants.-Before this action can succeed it must be shown that the defendants, acting jointly, caused the criminal law to be put in motion, Kotalawala v. Perera [1 (1930) 39 N. L. R. 10.]. There is no evidence that the defendants acted jointly. The evidence is that the third defendant gave certain information, which he had no reason to disbelieve, to the Police. Before an action for the recovery of damages for wrongful arrest can succeed it must be shown that the arrest was instigated, authorized or effected by the defendants (3 Nathan 1695). Counsel also referred to Wijegoonetileke v. Jonis Appu [ 2 (1920) 22 N. L. R. 231.].
The first and second defendants only made statements to the Police when the matter was under investigation under Chapter 12 of the Criminal Procedure Code. The case of Wijegoonetileke v. Jonis Appu is clear authority for the proposition that statements made in the course of such an investigation are not actionable. There is no evidence that
the fourth defendant had any share or part in the arrest of the plaintiff. In any event, the suggestion of malice on the part of the first, second, and third defendants is negatived by the fact that they asked that the plaintiff be released as soon as they came to know that she had been arrested There is no evidence that the third defendant should have known or knew that the complaint he made was false.

The District Judge is clearly wrong in refusing the production of extracts from the Information Book containing the statements made by the witnesses in the course of the investigation under Chapter 12 of the Criminal Procedure Code. Such statements are relevant under section 155 of the Evidence Ordinance for the purpose of impeaching the credit of the witnesses concerned. They can be excluded only if there is a positive rule of law forbidding their reception in evidence. Section 122 (3) of the Criminal Procedure Code expressly provides for the use of these statements to prove that a witness made a different statement at a different time.
The plea of privilege cannot possibly succeed. These statements do not come under section 123 of the Evidence Ordinance and no Public Officer attended before the Court to say that by the disclosure of these statements the public interests would suffer within the meaning of section 124 of the Evidence Ordinance. Counsel referred to 13 Hailsham, p. 727 in this connection.
This evidence having been wrongly rejected there ought at least to be a fresh trial. The damages awarded are excessive.
L. A. Rajapakse (with him F. A. Tisseverasinghe and H. W. Thambiah), for the plaintiff, respondent.-This is an action for malicious criminal arrest. It is different from an action for malicious prosecution, or the English action of false imprisonment.
It is based on the actio injuriarum. See Appuhamy v. Appuhamy [1 21 N. L. R. 436.] and its requisites are (1) that the defendants had instigated or authorized the arrest, (2) malice, and (3) want of reasonable and probable cause (Nathan Law of Torts, p. 205). Malice may be implied, i.e., inferred from the circumstances of the case (4 Maasdorp, pp. 122-123. Kotalawala v. Perera (supra) was an action for malicious prosecution and the court held that the defendant was not liable because he did not prosecute the plaintiff.
In Wijegoonetileke v. Jonis Appu (supra) it was held that the defendant had neither instigated nor authorized the arrest because he had merely reluctantly answered questions put to him by a Police Officer in the course of an investigation into a complaint made by another.
There is sufficient evidence in this case to justify the finding of fact of the trial judge that the first and second defendants authorized the third defendant to make the false complaint and that they corroborated the third defendant's statement when questioned by the police.
It is true that a former inconsistent statement of the plaintiff is relevant under section 155 (3) of the Evidence Ordinance, but it must be proved by admissible evidence. The defendants could have called the Police .Officer to prove the former statement. They did not do this, but wanted to put in extracts from the Information Book. That is
inadmissible being secondary evidence. The information Book contains a record made by a Police Officer in the course of an inquiry and it is not even signed by the person making the statement. See section 122 (1) of the Criminal Procedure Code. Section 91 of the Evidence Ordinance does not avail the defendants. Even if the Judge was wrong in his ruling on the question of privilege, as no prejudice has been caused to the defendants by such ruling the judgment should not be reversed in appeal. See section 167 of the Evidence Ordinance and section 36 of the Courts Ordinance.
Cur. adv. vult
January 17, 1940.