Haturusinghe V. Kudaduraya

1954 Present: Sansoni J. and Fernando A.J.

W. HATURUSINGHE, Appellant, and G. W. KUDADURAYA,
Respondent

S. C. 433-D. C. Kandy, M. R. 2,833

Malicious prosecution-Prosecution by Police-Acquittal-Liability in tort of person, who gave first information of alleged offence-Criminal Procedure Code, ss. 121, 122-" Reasonable and probable cause ".

Where the Police institute a prosecution in consequence of information given to them by a person under section 121 of the Criminal Procedure Code and the accused is acquitted at the trial, the first information given to the Police (as distinct from a statement made tinder section 122 of the Criminal Procedure Code after the commencement of the Police inquiry) is sufficient to found an action for malicious prosecution if it actually contains a clear allegation that the plaintiff committed an offence, or, in. other words, if it formulates a charge against the plaintiff. In such a case, the informant cannot he permitted to plead that the Police should not have acted upon his allegation.

In an action for malicious prosecution the plaintiff has the burden of proving a negative, i.e., that the defendant acted without reasonable and probable cause. In determining whether the burden has been discharged, regard should be had . to all the circumstances in which the defendant acted.

APPEAL from a judgment of the District Court, Kandy.

Colvin R. de Silva, with T. W. Rajaratnam, for the defendant appellant.

H.W. Jayewardene, Q.C., with D. R. P. Goonetilleke, for the plaintiff respondent.

Cur. adv. vult.

September 21, 1954. FERNANDO A.J.-

This is the fifth case instituted in Court in consequence of a trivial incident which occurred in 1947, and one must hope, though vainly perhaps, that it is the last of the series.

The plaintiff in this action was in 1947 charged with robbery of a leather purse in proceedings instituted by one Sergeant Perera of the Galagedera Police under S. 148 (1) (b) of the Criminal Procedure Code and was acquitted. The prosecution was instituted in consequence of a statement or complaint made to the Police by the defendant in the following terms :- " This morning about 6.30 a.m. I was going to Kandy with some documents regarding two civil cases fixed for 22.8.49 and to pay some surveyors fees to Mr. Murray of Kandy. I carried Rs. 200 in my leather purse. All were in 13 ten rupee notes and four five rupee notes which bear no marks of identification and as I was going along the road, at Niyangoda, near the cemetery I met Kudaduraya who got on the road from the cemetery. When I saw him he had no club in his hand and then he pulled out a ' kitul' club from his waist and hit me twice but I avoided the blows by getting onto a side. I caught hold of his club and we both struggled and at the struggle the right hand sleeve of my coat was torn, and we both fell into the culvert when he, Kudaduraya, pulled out my leather purse with cash from the right inner pocket. I raised cries, when Kotuwegedera Kirihamy and another man named Ranhamy came there on the road and caught Kudaduraya. One Ranasinghe and another man Naide also came there and separated us. My pencil also was fallen down and Ranasinghe picked it up but Kudaduraya took it away. I then went and informed the V. H. I sustained a bruise on the left knee as a result of falling down. My inner coat pocket was torn ".

The plaintiff now sues the defendant in an action for malicious prosecution and the learned District Judge has entered judgment in favour of the plaintiff for Rs. 750. Counsel for the defendant in appeal has raised several questions of law, including one of some general importance in regard to actions for malicious prosecution.

The essentials in an action for malicious prosecution under English law or Roman Dutch Law are substantially similar. Winfield (Law of Tort, 4th Ed., p. 611) states that the plaintiff must prove (1) that the defen

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