HOWARD C.J.—Saravanamuttu v. Kanagasabai.357
1942Present: Howard C.J. and Keuneman J.
SARA VANAMUTTU v. KANAGASABAI.
302—D. C. Jaffna, 14,017.
Malicious prosecution—Criminal law set in motion by defendant—Proof offormulation of charge or solicitation, request or incitement of proceedingsnecessary.
In an action for malicious prosecution in order to establish that thedefendant set the criminal law in motion against the plaintiff there mustbe 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 wayof solicitation, request or incitement of proceedings.
^^PPEAL from a judgment of the District Judge of Jaffna.
N. Nadarajah, K.C. (with him C. Suntheralingam), for the defendant,appellant.
H. W. Thambiah for the plaintiff, respondent.
Cur. odt vult.
March 17, 1942. Howard C.J.—
This is an appeal from a judgment of the Additional District Judge ofJaffna, giving judgment for the plaintiff in an action claiming damagesfor malicious prosecution for the sum of Rs. 350 with costs. The plaintiffalleged that the defendant on or about September 17, 1938, falsely, malicious-ly and without reasonable and probable cause set the law in motionand 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 allegedoffences of causing hurt with a knife to the defendant and robbing himof his cash Rs. 56.34. The Police Magistrate after trial acquitted theplaintiff on November 23, 1938. It was established in evidence that, onSeptember 17, 1938, one Nallathamby brought information about astabbing incident to V. Chelliah, the Police Vidane of Kokkuvil. Thelatter then proceeded to the house of the defendant. After recordingthe defendant’s statement and observing that his shirt and verti wereboth torn and bloodstained, the Police Vidane was taken by the defendantto the house of a woman called Mangiyakaraisu, where her statementwas taken. The Police Vidane, the defendant and a man called Maha-devan then went to the Police Station. Subsequently, the Police prose-cuted the plaintiff, alleging that offences had been committed undersections 315 and 367 of the Penal Code. The ‘ Police Vidane in givingevidence 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 know-ledge or not. The only question that arises is whether the learned Judgewas right in holding that the defendant put the criminal law in motionagainst the plaintiff. In Chitty et al. v. Peries1 I had occasion to consider
• 41 N. L. B. 145.358
HOWARD C.J.—Sarcivanamuttu v. Kanagasabai.
the ingredients necessary to support an action for malicious arrest. Inmy 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 mustshow (1) that his arrest on a criminal charge was instigated, authorisedor effected by the defendant, (2) that the defendant acted maliciouslyand (3) that the defendant acted without reasonable and probablecause. ”
I also stated that cases related to actions for malicious prosecutionprovide useful analogies with regard to the law that should be appliedin that case. I then proceeded to consider whether the arrest of theplaintiff had been instigated, authorised or effected by the defendants.
I stated that, inasmuch as the 3rd defendant had made a criminal chargeagainst the plaintiff, he must be held to have instigated the later’s arrest.It was not merely as the result of information furnished by the 3rddefendant to the Police that the arrest of the plaintiff was effected. Ialso held that the other defendants were liable; as they were parties to themaking of the charge against the plaintiff.
Applying the principle formulated by me in Chitty et al.v. Peries (supra)can it be said in this case that the defendant made a charge and henceinstigated the prosecution of the plaintiff ? In Appuhamy v. Appuhamy 'it was held by de Sampayo J. that the actio injuriarum may be broughtagainst any one who with the necessary intent puts the law in motion.He. was satisfied on the evidence that it was the defendants who inducedthe Headman and the Police to act. In Kotalawala v. Perera3 thedefendant who was a Police Vidane merely gave some information whenquestioned by the Muhandiram and the Inspector of Police and he did noteither direcc or request the prosecution of the plaintiff or anyone else.It was held that the defendant did not cause the plaintiff to be prosecutedand the action therefore failed. The defendant was for a similar reasonheld not to be liable in the case of Wijegunatileke v. Joni Appu ’ wherethe defendant at a preliminary inquiry by the Police under Chapter XIIof the Criminal Procedure Code made a false statement implicating theplaintiff in an affray. Schneider A.J., in his judgment in this case,referred to the provisions of Chapter XII of the Criminal ProcedureCode and stated that they impose upon every person examined in thecourse of proceedings under that Chapter the duty to answer all questionsrelating to the case which may be put to him by a Police Officer. Thedefendant was. therefore, under a legal duty to disclose what he knew.He did not give any information or make any statement to the Policevoluntarily.
In Moss j. Wilson' it was held by Wood-Renton J. that in an actionfor malicious prosecution the plaintiff must prove* that a charge wasmade to a Judicial Officer or in other words that the defendant shouldhave set trie criminal law in motion. In Markar v■ Adumay Sarango",the defendant gave certain information to ah Inspector of Police
121 N. L. if. 43ti.". * 22 X. L. R. 231.
– 39 N. L. R. U.<:1 S X. L. R. 36S
* V. S. C. Circular 230.
The King v. Ponnasamy.
in consequence of which and of other information obtained by his owninquiries the Inspector prosecuted plaintiff before a Justice of thePeace. As it did not appear that the defendant solicited the Inspectorto prosecute, it was held by Burnside C.J. and Clarence J. that anaction would not lie. Again in N. P. S. Perera v. D. H. Kctalawala ‘it was held by Moseley J. and Fernando A.J. that, where the evidencedisclosed that the defendant merely gave some information to theauthorities in consequence of which the Police Officer after due investi-gation prosecuted the plaintiff, as “the defendant did not either direct orrequest the prosecution of the plaintiff, an action for malicious prosecutiondid not lie against the defendant.
The cases that I have cited establish as a clear principle of law thatthere must be something more than a mere giving of information to thePolice or other authority who institutes a prosecution. There must bethe formulation of a charge or something in the way of solicitation,request or incitement of proceedings. Has it been established thatthere was such action on the part of the defendant in this case ? In myopinion the defendant has done more than merely supply informationin response to inquiries made by a Police Officer. He has supplied thenames of witnesses and requested the Police Vidane to give evidence.It is also a fair inference from the evidence that the latter came to thehouse of the defendant to make inquiries at his request through Nalla-thamby. On arrival at the defendant’s house the Police Vidane wasshown blood-stained garments and then taken to the house of anotherwitness. After this the defendant accompanied the Police Vidane tothe Police Station. The defendant must be held to have induced thePolice to take action. In these circumstances the appeal is dismissed withcosts.
SARAVANAMUTTU v. KANAGASABAI