KEUNEMAN J.—Hendrick Appuhamy and Matto Singho.
1943Present: Keuneman and Jayetileke JJ.
HENDRICK APPUHAMY, Appellant, and MATTO SINGHO,
267—D. C. Colombo, 12,588.
Malicious prosecution—Information given to the Police by defendant—Prosecu-tion of plaintiff by Police after investigation—No request by defendant tothe Police to prosecute—Liability of defendant.
Where defendant gave certain information to the Police and thePolice having made investigation into the information prosecutedthe plaintiff, and where there was no evidence as to the natureof the information given, or as to any other act on the- part of thedefendant apart from the fact that he gave information,—
Held, that the defendant was not liable in damages for maliciousprosecution. Saravanamuttu v. Kanagasabai (43 N. L. R. 357) followed.
^^PPEAL from a judgment of the District Judge of Colombo.
H. V. Perera, K.C. (with him Kingsley Herat), for defendant,appellant.
L. A. Rajapakse (with him J. M. Jayemanne), for plaintiff, respondent.
Cur. adv. vult.
September 17, 1943. Keuneman j!—
This is an action for malicious prosecution. -The prosecution wasinstituted by the Police. In the plaint it was alleged that the defendant
1 (1937) 2 O. L. J. 222.
2 44 N. L. R. 476.
460KEUNEMAN J.—Hendrick Appuhamy and Matto Sin-gKo.
wrongfully, falsely and maliciously made a complaint to the Police, andthat as a result of the complaint the plaintiff was prosecuted by thePolice. In his answer, the defendant, after a general denial of the'allegations in the plaint, admitted that he gave certain information tothe Police, which he denied was wrongful, false, or malicious, and addedthat the Police, having made investigation into the information so givenprosecuted the plaintiff. The principal issues with which we areconcerned are issues 1 and 2, namely :
“ (1) Did the defendant on May 21, 1939, make a complaint againstthe plaintiff to the Aturugiriya Police ?
(2) As a result of the said complaint was the plaintiff prosecuted by theAturugiriya Police in M. C. Colombo, Case No. 38,931, on a— charge of having committed criminal intimidation and com-mitted to stand his trial before the District Court of Colomboin D. C. 186 Criminal ?
The learned District Judge held that it had to be proved, inter alia.that in addition to making a complaint or giving information to thePolice, the defendant either requested or directed the prosecution of theplaintiff. The District Judge held that there was sufficient evidence of •this in the admission in the answer, and gave judgment against thedefendant..
In appeal it is argued that there is no evidence to support the findingof the District Judge on this point. No evidence in fact has been givenas to the actual information given to the Police by the defendant, noras to the circumstances under which that information was given. NoPolice officer has been called, and we do not know whether this was thefirst information given to the Police, and whether, in giving the informa-tion, the defendant in fact formulated a charge against the plaintiff,based upon his own knowledge. The plaintiff said that, in the Magistrate’s.Court, the defendant gave evidence against him, but here again we do notknow what that evidence was, and no attempt was made to put in theevidence of the defendant as contained in the Magistrate’s record. TheDistrict Judge thought that what the defendant told the Police can begathered from the plaint P 1 in the Magistrate’s Court, but I do notthink the District Judge was justified in drawing the inference that thedefendant gave information to the Police in the form. contained in P 1.It seems clear from the proceedings that the plaint was filed not onlyon the information given by the defendant, but also as a result of furtherinvestigation by the Police. Nor does the fact that the defendant was’ the first witness called throw any light on the matter, as the DistrictJudge thought it did.
The District Judge depended also on a statement in cross-examinationby the plaintiff, to the effect that his wife told him that the Police camein search of plaintiff to his house accompanied by the defendant anddefendant’s father. Plaintiff’s wife was not called, and it is impossibleto hold that her statement, even if it was made, was true. The DistrictJudge should have dismissed from his mind this hearsay evidence, which
KEUNEMAN J.—Hendrick Appuhamy and Matlp Singho.
at the most could only have been utilized to explain the subsequentconduct of the plaintiff, who ran away from his village thereafter.
In a recent case, Saravanamuttu v. Kanagasabai – Howard C.J., afterdealing with previous cases, said :
"The cases that I have cited establish as a clear principle of lawthat there must be something more than a mere giving of informationto the Police or other authority who institutes a prosecution. Theremust be the formulation of a charge, or something in the way ofsolicitation, request or incitement of proceedings.”
The decision in this case is, I think, very largely in conformity with thedecision of the Privy Council, in Tewari v. Bhagat Singh ’ cited to uson behalf of the plaintiff. I may cite this passage :
“If a complainant did not go beyohd giving what he believed to becorrect information to the Police and the Police, without furtherinterference on his part (except giving such honest assistance as theymight require) thought fit to prosecute, it would be improper to makehim responsible in damages for the failure of the prosecution. But,if the charge was false to the knowledge of the complainant, if hemisled the Police by bringing suborned witnesses to support it, if heinfluenced the Police to assist him in sending an innocent man for trialbefore the Magistrate, it would be equally improper to allow him toescape liability because the prosecution had not technically beenconducted by him. The question in all cases of this kind must be—Who was the prosecutor ? And the answer must depend upon thewhole circumstances of the case. The mere setting of the law inmotion was not the criterion, the conduct of the complainant, beforeand after making the charge, must also be taken into consideration:”
In the present case, we do not know what information was given by thedefendant to the Police. Whether it included the formulation of a charge,or was based upon his personal knowledge, or was believed by him, wecannot say, because there is no evidence either way on those points.There is nothing to show that he exercised any influence upon the actionsof the Police. There is nothing to suggest that he suborned witnesses.In this state of the evidence, I think there is an important and vitalelement missing in the case of the plaintiff. It is not possible on thewhole of the evidence to hold that the defendant was the realprosecutor.
The appeal is allowed with costs, and the plaintiff’s action dismissedwith costs.
Jayktlleke J.—I .agree.
Appeal allowed. -a (1907-8) 24 T. L. R. 884.
343 N. L. R. 357.