Chitty v. Peries.
1940Present: 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 toPolice—No privilege—Police Information Book—Statement admissibleto impeach plaintiff’s 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 wasestablished that the 3rd defendant made a definite criminal charge againstthe plaintiff to the Police and as a result of the complaint made by the3rd defendant, supported by the other defendants, the plaintiff wasarrested,—
Held, that the defendants must be held to have instigated the plaintiff’sarrest.
The statement which was made by the plaintiff and the defendantsto the Police on the day of arrest and which was entered in the PoliceInformation Book cannot be excluded on the ground of privilege.
In civil proceedings it is open to the defendants to impeach the creditof the plaintiff by proving under section 155 (c) of the Evidence Ordi-nance former statements made by her to the Police.
Wijegoonetileke v. Jonis Appu (22 N. L. R. 231) and Kotalaioala v.Perera (39 N. L. R. 10) distinguished.
HIS was an action brought by the plaintiff to recover damagesfrom the defendants for having caused the Police to arrest the
plaintiff on a false charge of theft and criminal breach of trust. Itwould appear that a complaint was made to Police Sergeant No. 1628Fernando by the third defendant against the plaintiff. The charge wasone 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 thefour defendants and recorded their statements. Thereafter the PoliceSergeant 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 beshown that the defendants, acting jointly, caused the criminal law to beput in motion, Kotalawala v. Perera There is no evidence that thedefendants acted jointly. The evidence is that the third defendant gavecertain information, which he had no reason to disbelieve, to the Police.Before an action for the recovery of damages for wrongful arrest cansucceed it must be shown that the arrest was instigated, authorized oreffected by the defendants (3 Nathan 1695). Counsel also referred toWijegoonetileke v. Jonis Appu'.
The first and second defendants only made statements to the Policewhen the matter was under investigation under Chapter 12 of the CriminalProcedure Code. The case of Wijegoonetileke v. Jonis Appu isclear authority for the proposition that statements made in the courseof such an investigation are not actionable. There is no evidence that
* (1920) 22 N. L. R. 231.
1 (1936) 39 X. L. R. 10.
Chitty v. Peries.
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 theplaintiff be released as soon as they came to know that she had beenarrested. There is no evidence that the third defendant should haveknown or knew that the complaint he made was false.
The District Judge is clearly wrong in refusing the production ofextracts from the Information Book containing the statements made bythe witnesses in the course of the investigation under Chapter 12 of theCriminal Procedure Code. Such statements are relevant under section155 of the Evidence Ordinance for the purpose of impeaching the creditof the witnesses concerned. They can be excluded only if there is apositive rule of law forbidding their reception in evidence. Section 122 (3)of the Criminal Procedure Code expressly provides for the use of thesestatements to prove that a witness made a different statement at adifferent time.
The plea of privilege cannot possibly succeed. These statements donot come under section 123 of the Evidence Ordinance and no PublicOfficer attended before the Court to say that by the disclosure of thesestatements the public interests would suffer within the meaning of section124 of the Evidence Ordinance. Counsel referred to 13 Hailsham, p. 727in this connection.
This evidence having been wrongly rejected there ought at least to bea fresh trial. The damages awarded are excessive.
A. Rajapakse (with him F. A. Tisseverasinghe and H. W. Thambiah),for the plaintiff, respondent.—This is an action for malicious criminalarrest. It is different from an action for malicious prosecution, or theEnglish action of false imprisonment.
It is based on the actio injuriarum. See Appuhamy v. Appuhamy1and its requisites are (1) that the defendants had instigated or authorizedthe arrest, (2) malice, and (3) want of reasonable and probable cause(Nathan Law of Torts, p. 205). Malice may be implied, i.e., inferred fromthe circumstances of the case (4 Maasdorp, pp. 122—123. Kotalawalav. Perera (supra) was an action for malicious prosecution and the courtheld that the defendant was not liable because he did not prosecute theplaintiff.
In Wifegoometileke v. Jonis Appu (supra) it was held that the defendanthad neither instigated nor authorized the arrest because he had merelyreluctantly answered questions put to him by a Police Officer in thecourse of an investigation into a complaint made by another.
There is sufficient evidence in this case to justify the finding of fact ofthe trial judge that the first and second defendants authorized the thirddefendant to make the false complaint and that they corroborated thethird defendant’s statement when questioned by the police.
It is true that a former inconsistent statement of the plaintiff isrelevant under section 155 (3) of the Evidence Ordinance, but it mustbe proved by admissible evidence. The defendants could have called thePolice Officer to prove the former statement. They did not do this,but wanted to put in extracts from the Information Book. That is
' 21 N. L. R. 436.
HOWARD C.J.—Chitty v. Peries.
inadmissible being secondary evidence. The information Book containsa record made by a Police Officer in the course of an inquiry and it is noteven signed by the person making the statement. See section 122 (1)of the Criminal Procedure Code. Section 91 of the Evidence Ordinancedoes not avail the defendants. Even if the Judge was wrong in his rulingon the question of privilege, as no prejudice has been caused to thedefendants by such ruling the judgment should not be reversed in appeal.See section 167 of the Evidence Ordinance and section 36 of the CourtsOrdinance.
Cur. adv. vult.
January 17, 1940. Howard C.J.—
The plaintiff-respondent in her plaint alleged that on or about April 14,1938, the defendants wrongfully, maliciously and without reasonableor probable cause caused the Police of Colombo to arrest her on a chargeof alleged theft or criminal breach of trust and misappropriation andthereby caused her much pain of body and mind and loss of reputationand honour amounting to damages which for the purposes of this actionshe restricted to Rs. 1,000.
The first issue framed at the trial was, “ did the defendants on April 14,1938, falsely and maliciously without reasonable or probable cause,cause the arrest of the plaintiff ? ” This issue was answered by thelearned District Judge in the affirmative. The facts with regard to thearrest of the plaintiff so far as relevant to this appeal are as follows : —On April 14 a complaint was made to Police Sergeant No. 1628 P. J.Fernando by the third defendant against the plaintiff. The charge wasone of criminal breach of trust of two pairs of ear-studs and a saree.As the result of this complaint .Sergeant Fernando visited the house of thefour defendants and recorded the statements of all four defendants.The police then visited the plaintiff’s house at Armour street and whilstrecording her statement she ran away. She was overtaken by theSergeant, placed in a car and taken to Kotahena Police Station about4 p.ri. where, after being searched by a female officer, she was locked upuntil release on bail about 9 p.m. the same day.
The law with regard to actions for malicious arrest has been laid downin (Nathan, 1906 Edition, paragraph 1650 on page 1695), as follows:“ In an action for malicious criminal arrest, then, the plaintiff mustshow (1) that his arrest on a criminal charge was instigated, authorized oreffected by the defendant, (2) that the defendant acted maliciously, and(3) that the defendant acted without reasonable and probable cause ”.The cases of V/ijegoonetileke v. Jonis Appu 1 and Kotalawala v. Perera1were cited by Counsel in support of the argument that no action would lieagainst the appellants in the circumstances of this case. Althoughthose cases related to actions for malicious prosecution and not formalicious arrest I am of opinion that they provide useful analogies withregard to the law that should be applied in this case.
So far as the application of the principle laid down by Nathan in thepassage I have cited is concerned the learned District Judge has heldthat the arrest of the plaintiff was the direct result of the false complaintmade by the third defendant and supported by the other defendants.
1 22 N. L. R. 231.* 39 N. L. R. 10.
148HOWARD C.J.—Chitty v. Penes.
It is contended by Counsel that there is not a shred of evidence on therecord that any of the defendants either requested or directed the policeto arrest the plaintiff and in the absence of such evidence the defendantscannot be held liable in damages. The learned Judge distinguished thecase from that of Wijegoonetileke v. Jonis Appu in which the statementto the police by the defendant on which the action for malicious prosecu-tion was based was made in answer to an inquiry by the police underthe Provisions of Chapter XII. of the Criminal Procedure Code. I donot think that there is any doubt on the evidence that the arrest of theplaintiff was the direct result of the complaint made by the third,defendant and that the learned Judge was right in distinguishing thecase from that of Wijegoonetileke v. Jonis Appu. Similarly this case canbe distinguished from that of Kotalawala v. Perera. In the latter casethe judgment of Fernando J. makes it clear that the defendant merelygave some information when questioned by the Muhandiram and by theInspector of Police and that he did not either direct or request' theprosecution of the plaintiff or anyone else. In the present case thethird defendant made a definite charge against the plaintiff to the police.It was not merely as the result of information furnished by the thirddefendant to the police that the arrest of the plaintiff was effected.By making a criminal charge against her, the third defendant must beheld to have instigated her arrest and hence so far as he is concernedthe first condition formulated by Nathan as necessary for the maintenanceof an action for malicious arrest has been satisfied.
I am also of opinion that the learned District Judge has come to aproper conclusion in holding on the evidence that the first and seconddefendants were parties to the making of the charge against the plaintiff.The defendants are all related to each other and live in the same house.They were represented at the trial by the same Counsel. The complaintwas made by the third defendant with regard to articles borrowed fromthe first and second defendants. In his evidence the third defendantstates that the first defendant asked him to see about it, on whichhe went to the Police Station and made a complaint. He further statesthat his complaint was substantiated by the first and second defendants.Sergeant Fernando also states that on the statements of the first, second,and fourth defendants he decided to arrest the plaintiff. The thirddefendant states moreover that he wrote on behalf of the first and seconddefendants asking that the charge be withdrawn. The first defendantadmits that it was on something she told the third defendant that hewent to the police. The second defendant failed to give evidencerebutting the suggestion that he was a party to the making of the charge.In my opinion there is an overwhelming inference to be deduced fromthe evidence that the first and second defendants were parties to themaking of this charge. In view of the nebulous character of the evidence,particularly that of Sergeant Fernando, aganist the fourth defendant,I am of opinion that the case against him has not been established andshould be dismissed.
In addition to proving that her arrest on a criminal charge wasinstigated, authorized or effected by the three defendants, the plaintiffin order to succeed in this action must also prove that they acted (i)
HOWARD C.J.—Chitty v. Peries.
maliciously and (2) without reasonable and probable'cause. The learnedJudge after a review of the evidence has held that the charge was a falseone in the making of which the defendants were actuated by an impropermotive and was made without reasonable and probable cause. There-fore in the view of the Judge the other ingredients necessary for thesuccessful institution of an action for malicious arrest are present. Onpage 1687 Nathan expresses the opinion that malice need not be express,but may be inferred from the circumstances. A defendant will beregarded as having acted maliciously if he has acted negligently orwithout the care which a person might reasonably be expected to exerciseor without such definite information as would justify him in making acriminal charge. Whether the defendants made a false charge againstthe plaintiff and were actuated by improper motives are questions offact, the answers to which must depend to a large extent on the mannerin which the witnesses tendered their evidence. As pointed out by theJudge there was a conflict of evidence. After carefully considering thisevidence he has come to the conclusion that the cause put forwardby the defendants was a false one. It is not for this Court to disturbthe trial Judge’s finding of fact unless it is unsupported by the evidence.I am of opinion that the finding of the Judge derives ample supportfrom the evidence and that malice may not only be implied but has beenproved to be express.
With regard to the second issue there is no dispute. This issue ismaterial only as to the amount of damages.
There is, however, one further matter requiring consideration. Theappellants contend that they have been materially prejudiced by theorder of the learned Judge during the trial that information given to thepolice by the defendants and the plaintiff on the day of her arrestcould not be admitted in evidence on the ground that such informationwas privileged. The appellants contend that such evidence is materialto test the veracity of witnesses and the statement of the plaintiff madeto the police on the day of her arrest would contradict the case set up byher in support of her claim. The facts with regard to this ruling as theyappear from the record of the proceedings are as follows : Whilst theplaintiff was tendering her evidence a representative of the Superintendentof Police, Crimes, in reply to an inquiry by the Judge stated that he wasclaiming privilege for the Information Book. No order was made bythe Judge at this stage. At the close of the plaintiff’s evidence, Counselfor the defence pressed his request for the production of the plaintiff’sstatement recorded in the Information Book. On the following dayCrown Counsel appeared on behalf of the Attorney-General and objectedto the production of the Information Book entry on the ground that it isprivileged and that the law refuses inspection except in accordance withsection 122 (3) of the Criminal Procedure Code. The learned Judge heldthat this evidence was inadmissible on the ground of privilege. In myopinion there has been considerable confusion of thought both in themind of the Judge and Counsel appearing for the parties in dealing withthis matter. Privilege can be claimed in respect of official communi-cations under section 124 of the Evidence Ordinance. In order tosustain such a claim it is necessary that there should be some evidence
HOWARD C.J.—Chittv v. Pcries.
that the public officer who is being compelled to disclose the communi-cation considers that the public interests would suffer by the disclosure.There was no such evidence in this case. Nor is it conceivable that apublic officer could in respect of this particular evidence go into the. witness-box and tender such evidence. For obvious reasons the claimof privilege could not be sustained under sections 123 and 125 ofthe Evidence Ordinance. In my opinion, therefore, the decision of thelearned Judge in excluding this evidence on the ground of privilegewas wrong.
In addition to the contention that the entry in the Information Bookwas inadmissible on the ground of privilege, it was also sought toexclude it as a statement made under section 122 of the CriminalProcedure Code. It was argued that such a statement was admissibleonly in the circumstances mentioned in section 122 (3) and in aCriminal Court. It may be argued, and Sohoni’s commentary onthe corresponding provision of the Indian Criminal Procedure Codeis authority for this proposition, that this section applies only towitnesses in criminal proceedings and not to persons in the positionof the plaintiff who was accused of committing a crime. If the sectiondid not apply to the plaintiff it was, in my opinion, open to the defendantsin civil proceedings under section 155 (c) of the Evidence Ordinance toimpeach her credit by proving former statements made by her to thepolice. If on the other hand the section does apply to the plaintiff as aperson examined by a Police Officer under sub-section (1), there is in myopinion nothing in sub-section (3) to exclude a statement made by her insuch circumstances from being given in evidence under the provisions ofsection 155 (c) of the Evidence Ordinance. I am, therefore, of opinionthat the entry of the plaintiff’s statement in the Information Book wasnot rendered inadmissible on either of the grounds put forward by CrownCounsel- In view of the fact that Counsel for the plaintiff and notCounsel for the defendants pleaded for the admission of the first com-plaint in evidence and that the verdict was in favour of the plaintiff, thequestion of its rejection by the Judge does not arise.
Although the Information Book entry was improperly excluded asevidence in the case, I am of opinion that this in itself is hot a sufficientreason for setting aside the verdict of the learned Judge or in the alter-native sending the case back for retrial. Objection was taken to theproduction of the Information Book and such objection was upheld bythe Judge. Counsel for the defendants was, however, in possession of acopy of the statement made by the plaintiff to the Police Officer and wasin a position to cross-examine her on its contents. Moreover he couldhave called such Police Officer as a witness and asked him in the witness-box what the plaintiff had told him. In this connection I would referto Sohoni’s commentary on section 162 of the Indian Criminal ProcedureCode. This section corresponds with section 122 (3) of the Ceylon Code.Defendants’ Counsel did not adopt such procedure which is not, in myopinion, precluded by the provisions of section 91 of the EvidenceOrdinance. In these circumstances I do not think that it can now becontended that the defendants have been prejudiced by the exclusion inevidence of the entry in the Information Book.
SOERTSZ J.—The King v. Fernando.
The question of the amount of damages being excessive was not seriouslycontested by Counsel for the defendants. In these circumstances Iconsider that this amount should stand.
Except as regards the fourth defendant the judgment and order of thelearned District Judge is therefore confirmed and the appeal is dismissedwith costs.
The case against fourth defendant is dismissed with costs both in thisCourt and the Court below.de Kretser J.—I agree.
CHETTY et al. v. PERIES