Saravanamuttu V. Kanagasabai

1942 Present: Howard C.J. and Keuneman J.

SARAVANAMUTTU v. KANAGASABAI.

302-D. C. Jaffna, 14,017.

Malicious prosecution-Criminal law set in motion by defendant -Proof of formulation of charge or solicitation, request or incitement of proceedings necessary.

In an action for malicious prosecution in order to establish that the defendant set the criminal law in motion against the plaintiff there must be something more than the mere giving of information to the Police or other authority, who instituted the prosecution.

There must be the formulation of a charge or something in the way of solicitation, request or incitement of proceedings.

APPEAL from a judgment of the District Judge of Jaffna.

N. Nadarajah, KC. (with him C. Suntheralingam), for the appellant. defendant,

H. W. Thambiah for the plaintiff, respondent.

Cur. adv. vult.

March 17, 1942. HOWARD C.J.

This is an appeal from a judgment of the Additional District Judge of Jaffna, giving judgment for the plaintiff in an action claiming damages for malicious prosecution for the sum of Rs. 350 with costs. Tree plaintiff alleged that the defendant on or about September 17, 1938, falsely, Maliciously and without reasonable and probable cause set the law in motion and caused the  plaintiff to be prosecuted in case No. 3,635, P. C. Jaffna, under sections 315 and 367 of the Penal Code, for the alleged offences of causing hurt with a knife to the defendant and robbing him of his cash Rs. 56.34. The Police Magistrate after trial acquitted the plaintiff on November 23, 1938. It was established in evidence that, on September 17, 1938, one Nallathamby brought information about a stabbing incident to V. Chelliah, the Police Vidane of Kokkuvil. The latter then proceeded to the house of the defendant. After recording the defendant's statement and observing that his shirt and verti were both torn and bloodstained, the Police Vidane was taken by the defendant to the house of a woman called Mangiyakaraisu, where her statement was taken. The Police Vidane, the defendant ,and a man called' Mahadevan then went to the Police Station. Subsequently, the Police prosecuted the plaintiff, alleging that offences had been committed under sections 315 and 367 of the Penal Code. The Police Vidane in giving evidence states that, in addition to requesting him' to give evidence, the defendant also gave the names of Sinnadurai and Kandiah as witnesses. He was unable to say if Nallathamby went with the defendant's knowledge or not. The only question that arises is whether the learned Judge was right in holding that the defendant put the criminal law in motion against tile plaintiff. In Chitty et aI. v. Peries 1[41 N. L. R. 145.] I had occasion to consider

the ingredients necessary to support an action for malicious arrest. In my judgment in that case I cited the following passage from Nathan (1906 ed.) paragraph 1650 on page 1695

"In an action for malicious criminal arrest then the plaintiff must show (1) that his arrest on a criminal charge was instigated, authorized or effected by the defendant, (2) that the defendant acted maliciously and (3) that the defendant acted without reasonable and 'probable cause."

I also stated that cases related to actions for malicious prosecution provide useful analogies with regard to the law that should be applied in that case. I then proceeded to consider whether the arrest of the plaintiff had been instigated, authorised or effected by the defendants. I stated that, inasmuch as the 3rd defendant had made a criminal charge against the plaintiff, he must be held to have instigated the later arrest. It was not merely as the result of information furnished by the 3rd defendant to the Police that the arrest of the plaintiff was effected. I also held that the other defendants were liable; as they were parties to the making of the charge against the plaintiff.

Applying the principle formul

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