(1) The sole question that is submitted for consideration in this appeal is whether the respondent-plaintiff gets a cause of action for a suit to claim damages for malicious prosecution against the appellants who filed a complaint for theft before the Sub-Inspector and the latter took no further action on the ground that it was false.
(2)The facts as found by the District Judge in R.A. No. 41 of 1960 are that the appellants filed a complaint on 10-12-1959 before the Sub-Inspector of Police at the Police Station at Napaklu alleging that the plaintiff had committed theft of cardomom and fish-traps on 1-12-1959. On receipt of this complaint, the Sub-Inspector of Police recorded the statement of defendant No. 1(who is the son of defendant No. 2), went to the house of the plaintiff where he recorded his statement and took a search of his house. He then made a note on the complaint that it was false and ordered it to be filed. The plaintiff then instituted O.S. 364/1959 in the Court of the Munsiff at Mercara claiming Rs. 500 as damages for false and malicious prosecution. The learned trial Judge dismissed the suit holding that there was no evidence to establish that as a result of the complaint against him, the Police had searched his house or that he had suffered any damage. In the appeal by the plaintiff, the learned District Judge concluded 'that the complaint was a false one, that it was made without reasonable and probable cause and it must have been actuated by malice because of the ill-feelings between the parties.' In view of this finding, he awarded Rs. 200 as reasonable damages to the plaintiff 'taking into account the status of the parties, the existence of ill-feelings between them and the defendants' own conduct in the case'.
Mr. G.P. Shivaprakash the learned advocate appearing for the appellant has submitted that the plaintiff had no cause of action for his suit for malicious prosecution as the mere institution of a complaint before the police does not amount to prosecution for an offence. He further submitted that in order to entitle an aggrieved party to sue for malicious prosecution he must show that some person or authority clothed with judicial power was moved for action and that as a result of that action, which has been found to be false and suspicious, the plaintiff had proved to have suffered some damage. In support of this argument, he has relied upon the following passage from the judgment of the Judicial Committee of the Privy Council in Mohammed Amin v. Jogendra Kumar AIR 1947 P C108:
'To found an action for damages for malicious prosecution based upon Criminal proceedings the test is not whether the Criminal proceedings have reached a stage at which they may be correctly described as a prosecution; the test is whether such proceedings have reached a stage at which damage to the plaintiff results. Their Lordships are not prepared to go as far as some of the Courts in India in saying that the mere presentation of a false complaint which first seeks to set the Criminal law in motion will per se found an action for damages for malicious prosecution.
(3) In Dattatraya Pandurang v Hari Keshav AIR 1949 Bom 100, the defendant lodged a first information to the Police of a theft in their shop expressing their suspicions against the plaintiff who was their employee in the shop. The police investigated into that offence, arrested the accused and finally discharged him as no evidence was forthcoming to show that the employee-plaintiff had committed the alleged theft. After his discharge the plaintiff instituted the suit for damages for malicious prosecution. It was held that the facts did not warrant a finding that there was a prosecution of the plaintiff by the defendant. In arriving at this decision the Court referred to the following passage from an earlier judgment of that Court in Dhanjishaw Rattanji v. Bombay Municipality, AIR 1945 Bom. 320:
'To prosecute is to set the law in motion and the law is only set in motion by an appeal to some person clothed with judicial authority in regard to the matter in question. The defendant must be the person who set the law in motion against the plaintiff.............................'
Similar views have been expressed by this Court in Pandurang v. Dhondiba, 1963(1) Mys LJ 292. The learned Advocate for the appellant has drawn my attention to the following passage from the judgment of Mr. Justice Kalagate:
'Then what is the real meaning to be given to the word 'prosecution'? It must be remembered that the institution of a legal proceeding by the defendant against the plaintiff maliciously and without reasonable and probable cause is actionable in tort on proof of damage either to his reputation or to his property.......
In Clerk and Lindsell on Tort, 7th Edition, at page 637, there will be found the following passage:
'To prosecute is to set the law in motion and the law is only set in motion by an appeal to some person clothed with judicial authority in regard to the matter in question'. In Halsbury's Laws of England Vol.19, page 670, the word 'prosecution' is thus defined: 'A prosecution exists where a Criminal charge is made before a judicial officer to Tribunal'.'
These decisions clearly establish that the mere filing of a complaint before the police, where such complaint is ordered to be filed in that office only and no judicial authority is set in motion as a consequence of such complaint, does not amount to prosecution. Reference may also be made to the decision cited by the learned advocate for the appellant, of the Madras High Court in S.T. Sahib v. Hasan Ghani Sahib, : AIR1957Mad646 .
(4) Mr. Shivashankar Bhat appearing for the respondent submitted that on receipt of the complaint, the Sub-Inspector of Police had taken action by way of recording statement of the accused-plaintiff, and by taking a search of the house. According to the learned Advocate, such action is virtually prosecution of that person for the offence complained of. The decisions which he has relied upon in support of his argument do not lend support to the view propounded by him. I have already quoted from the decision of the Bombay High Court in AIR 1945 Bom 320 where the meaning of the word 'prosecution' has been explained with reference to the decisions of the British Courts. I may also point out that it has been clearly laid down in this decision also that the
'gist of an action for malicious prosecution is that the defendant sets the Magistrate in motion.'
There is nothing in the judgment which sustains the argument that the institution of a complaint with the Police by itself can form the foundation for an action claiming damages for malicious prosecution.
(5) The learned advocate, however, contended that the institution of a Criminal complaint with false allegations amounts to defamation in law and that the plaintiff could support his action on that ground. Pursuing this argument further, he has drawn my attention to the following passage from 'Winfield on Tort, 7th Edition, page 583':
'Slander Actionable per se:
The exceptional cases in which slander is actionable without proof of special damage are: 1. Imputation of a Criminal offence punishable with imprisonment, but this does not include an offence for which imprisonment may be inflicted on non--payment of a fine which has been imposed.........'
It is unnecessary in this case to pronounce an opinion whether institution of a Criminal complaint in all cases amounts to defamation. But in the present case it would not be equitable to just to permit the plaintiff to have his claim considered as one based on defamation for filling a false complaint. It was argued that the plaintiff's reputation had suffered on account of the police officer going to his house, recording his statement and making a search of his building for property alleged to have been stolen by him. It is quite possible that the reputation of a person might be affected by such action of the police. But the question for my consideration is whether a new plea to that effect could be allowed to be raised in second appeal. The question raised is not one of pure law but of mixed question of facts and law. I do not think that there would be any jurisdiction for permitting the plaintiff to have his claim considered on the alternative ground of an action in slander.
(6) The learned advocate further argued that the question now raised by the appellant's advocate as to the tenability of the suit on the ground now urged had not been raised in the Courts below. That appears to be so from the judgments of the two Courts. It is however obvious that the question submitted for decision in this case is one of law on the facts found by the first Court of appeal and it is open to the appellant to raise such a question even in second appeal.
(7) For the reasons aforesaid, I allow the appeal and dismiss the suit of the plaintiff. In view of the fact that the appellant succeeds on a point raised for the first time in this Court. I direct raised for the first time in this Court. I direct the parties to bear their costs through out.
(8) Appeal allowed