045-NLR-NLR-V-16-DIONIS-v.-SILVA.pdf
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Present: Pereira J. and Ennis J.
DIONIS v. SILVA.
352—D. G. Galle, 11,212.
Malicious prosecution—Aotio de injuria—Burden of proof that the plain-tiff was innocent—Nature of evidence required to prove innocence.
On a complaint made by the defendant against the plaintiff theMagistrate refused to issue summons. The plaintiff brought thepresent action against the defendant claiming damages for mali-cious prosecution.
Held, that there was no prosecution inasmuch as the Magis-trate refused summons. Where a Magistrate, refuses summons*having gone through the preliminaries required by the Code, the *proceeding must not be regarded as a prosecution. To constitutea prosecution the accused should be before the Court.
Held further, that since there was no prosecution and a conse-quent acquittal or discharge of the accused, the Police Courtproceedings are not of much avail to the plaintiff to establish hisinnocence. He must do so aliunde.
T
HE facts are set out in the judgment of the learned DistrictJudge (L. W. C. Schrader, Esq.): — *
This is an action for malicious prosecution. The first defendantlodged a criminal charge against the plaintiff for having cut him. Tomaintain the action the charge must have been false in fact, and* sodetermined by the proper Criminal Court before which it came. TheCourt in this case did not even entertain the charge. It cannot be .said that it adjudicated that it was false.
2. The onus in an action of this sort is on the plaintiff to prove thathe was innocent (9 N. L. R. 276). He has not done so. The evidenceof the vaccinator does not cover the whole of the row, in fact hewitnessed only the beginning of it. Williamhamy, who gave evidencein the GansabhaWa case, did not wait even till the arrival of thevacoinator. And Pinhamy, who has given evidence in this case, is notmentioned before in Salman’s case. No reliance can therefore be puton his evidence, nor would it prove that plaintiff was not there. Hesays he saw a crowd. For that case it is not likely he took in every-body and could say plaintiff was not present.
As a general rule, if a false charge is presented in the PoliceCourt against a second party, which the Police Magistrate does notentertain, it can hardly be said that the accused party has any causeof complaint. He might possibly charge his accused with defamation,'nit from the false prosecution he obviously has suffered no wrong.
Tn regard to the police inquiry, all that occurred was thatpla was detained at the police station in custody that day . pendinginquix. That was an actionable wrong, if in point of fact he hasproved charge mailciously false. Now, Salman’s evidence is veryunsatisfaci y. He Bays that he became unconscious and cannot say
1919.
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'whether the plaintiff came or not, and he oould not say how the quarrelended. That is too much for the Court to believe, and it makes itimpossible to hold that plaintiff never was there.
6. Case dismissed with costs.
The plaintiff appealed.
E. W. Jayewardene, for the plaintiff, appellant.—The plaintiffwas arrested by the station house officer and detained in thepolice station. Subsequently he was charged in the Police Courtand acquitted. Proof of the mere presence of the plaintiff on thescene did not justify the suspicion on the part of the defendantthat plaintiff caused the hurt. Malice may be. inferred from thecircumstances.
If an acquittal is proved, the onus of proving that plaintiff causedthe hurt is shifted on to the defendant (de Villiers de injuriie 208).[Pereira J.—The fact that plaintiff is acquitted does not throwon the defendant the onus of justifying the prosecution. Plaintiffmust still prove his innocence {Corea v. Pierie 1).] That is so, butthe acquittal gives rise to a very strong presumption of innocence.
A. St. V. Jayewardene, for the defendant, respondent.—It is forthe plaintiff to prove his innocence. He has not done so. Mereproof of acquittal is not sufficient. There was no prosecution of theplaintiff, as there was no issue of summons, and as plaintiff didnot appear in Court; The mere lodging of a complaint is not aprosecution (Gopal Khan Jan v. Bholanath Khettry *), There isno evidence of malice in this case.
E. W. Jayewardene, in reply.—The giving of false information issufficient to maintain an action for injuria. It may be that plainTtiff was not present in Court, or that there was a refusal to issuesummons; still in substance the proceedings amounted to a prose-cution. On this point English law is applicable to India, and notto Ceylon. In Ceylon it is not necessary to prove the technicalprosecution. Qopal Khan Jan v. Bholanath Khettry would not applyhere. In India a prosecution would not give a cause of action,here it would.
Cur. adv. vult.
February 21, 1913. Pereira J.—.
The first issue in this ease is, “ Did the plaintiff cause hurt to thefirst' defendant with a knife?” If this is to be considered to be anaction for damages for malicious prosecution, the burden on thisissue would rest comparatively lightly on the plaintiff; That is tosay, a strong presumption would arise in his favour on his producingthe order of the Criminal Court discharging him, and on his makingoath himself that he did not cause hind;. The plaintiff gave evidenceon oath, and also produced the order in his favour made in thei (1906) 9 N. L. R. 276.* /. L. R. 38 Cal. 880.
■ Dionit c.Silva
1943.
PbrbxbaJ.
Dionis o.Stl*e
( )criminal case. The defendant thereupon gave evidence himself,and on a consideration of all the evidence led the District Judge was.of opinion that its weight was on the side of the defendant. Inother words, he held that the plaintiff had failed to prove that hehad not caused hurt to the defendant. I have read the evidence,and I am not prepared to say that the District Judge arrived at awrong conclusion. It has been contended by counsel for therespondent that the proceeding in the Police Court instituted by thedefendant cannot be regarded as a prosecution; and in view of theauthority that he has cited, namely, Gopal Khan Jan v. BholanathKhettry,11 am inclined to think that there was really no prosecutionof the plaintiff. From that case it is clear that where a PoliceMagistrate refuses summons, having gone through the preliminariesrequired by the Code, the proceeding is not to be regarded as aprosecution. In fact, to constitute a prosecution the accused shouldbe before the Court. Under our Criminal Procedure Code it is opento a Magistrate to refuse summons in a case after examination ofthe plaintiff and such other witnesses as he may produce. Thatappears to be what happened in the present case, and thereforethe proceeding in the Police Court can hardly be termed a prosecu-tion. In that view the evidence led by the plaintiff to prove hisinnocence, even taking no account of the evidence for the defence,could hardly be said to be sufficient to discharge the burden on him.
I would dismiss the appeal with costs.
. Ennis J.—
I am entirely of the same opinion. This is not an action formalicious prosecution, but an action for damages for injury causedby proceedings before prosecution.
In these circumstances, I consider that the amount of evidencerequired to prove that the plaintiff was innocent would be greaterthan in a case of malicious prosecution, in which case the acquittal• or discharge, which was the result of that prosecution, could be reliedon. In this case plaintiff has not produced evidence which couldjustify a Court in holding that he was innocent.
I would therefore make the same order.
peal dismissed.
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' I. L. H. 38 Cal. 880.