074-NLR-NLR-V-63-KARUNARATNE-the-Appellant-and-KARUNARATNE-Respondent.pdf
Karunaratne v. KarunarcUne
366*
Present:Basnayake, C.J., and K. D. de Silva, J.KARUXARATNE, Appellant and KARUNARATNE. Respondent
S. C. 903—D. C. Panadura, 3944:
Action for malicious prosecution—Ingredients necessary—Criminal Procedure Code.
S3. 21, 126, 148 (f) (b)—Penal Code, s. 418.
To succeed in an action for malicious prosecution the plaintiff must establishthat the charge was false, and false to the knowledge of the person giving theinformation, that it was made with a view to prosecution, that it was madeanimo injuriandi and not with a view to vindicate public justice, and that itwas made without probable cause.
366
BASNAYAJKE, C.J.—Karunaratne v. Kcu-unarcUne
Appeal from a judgment of the District Court, Panadura.
H. W. Jayewardene, Q.C., with D. R. P. OoonetiUeke and L. C. Senevi-ratne, for Defendant-Appellant.
A. C. Gunaratne, with G. L. L. de Silva, for Plaintiff-Respondent.
August 3, 1959. Basnayake, C.J.—
The plaintifF instituted this action for the recovery of a sum of Rs. 5 000as damages which he alleged he suffered in consequence of the followingacts committed by the defendant :—
(а)that the defendant complained to the Inspector of Police, Kaha-
tuduwa, that the plaintiff with intent to cause damage to thedefendant did set fire to omnibus No. CE 5520, property in thepossession of the defendant, and that the plaintiff did therebycause damage to the defendant to the extent of Rs. 1,100.
(б)that the defendant falsely and maliciously made a complaint to the
Kahatuduwa Police to induce and instigate the police to insti-tute a criminal action against the plaintiff and the defendantfurther provided the police with false witnesses to support thesaid false complaint against the plaintiff.
that in consequence of the false complaint the plaintiff was taken
into custody by the police, and
that he was charged in the Magistrate’s Court of Horana in case
No. 15397 of that court.
The plaintiff further alleged that the defendant acted wrongfully, un-lawfully and maliciously and without reasonable and/or probable causein making the complaint and inducing and instigating the institution ofcriminal proceedings against him. The defendant denied the allegationsbut stated that on 3rd August 1953 he gave information to the policethat a bus of which he was a co-owner had been burnt and that one Charlesinformed him that he had seen the plaintiff and two others running awayfrom near that bus.
At the trial the following issues were framed :—
“ 1. Did the deft on or about 3.8.53 complain to the police at
Kahatuduwa that plff with intent to cause loss and damage to the deft
set fire to bus CE 5520 ?
“ 2. Did the deft further provide the police with false witnesses in
support of the said complaint ?
BASNAYAKZE, C.J.—Karunaratne «. Karunaratne
36 r
“ 3. Did deft retain a proctor to assist the police in the prosecution,of the case instituted against the plff ?
“ 4. Was the plff prosecuted as a result of the said complaint in.MC 15397 Horana ?
" 5. Was plff acquitted of the said charge ?
“ 6. Was the said complaint false and malicious and withoutreasonable or probable cause ?
'* 7. If so, what damages is the plff entitled to recover from the-deft ? ”
Briefly the facts are as follows : On 3rd August, 1953 the defendantmade the following statement at the Kahatuduwa Police Station which,was recorded by Police Constable (No. 407) Perera—
“ Hapuarachige Don David Karunaratne, 38 years, cultivator, liveat Welmilla, comes to the station and complains, a bus belong to" Samsen Perera Ltd. ” usually parked at my premises for the nightand I am also a share holder. Last night at about 2 a.m. I wassleeping in the house. There was one Thomas sleeping in the verandahand another driver was sleeping in the other bus which was also parkedin the same premises belongs to me. One Charles was also sleepingin the rear verandah. Just then I heard Charles shouting and sayingthe bus was on fire. I immediately got up from my sleep followedby the other inmates and came out of the house and went towards thebus which was on fire. We all started to put the fire down by pouringwater and brought it under control. When everything was overCharles told me that he was waken as a result of some noise and henoticed 3 men namely Charles Mahatmaya, Abrham and Baby Singhowere running away from the bus. He saw them clearly and identifiedthem with the aid of the flame. There was none in the bus and wediscovered a closed tin of petrol from under the bus. This CharlesMahatmaya is a close relation of mine and is angry with me over someland dispute and the other two suspects are not angry with me. ButAbrham is working under Charles Mahatmaya as a watcher. I didnot examine the bus to find out the damages but came direct to informPolice. Therefore I shall find out the damages and inform the Policelater. This is all I have to state.
In consequence of that statement Sub-Inspector Anthonisz of the Kaha-tuduwa Police Station investigated the complaint, namely, of settingfire to a bus owned by Samson Perera Limited which was garaged in ashed adjoining the house of the defendant. In the course of the investi-gations he recorded the statements of Charles, Johannes and P. A. MartinA1wis. As the names of those#witnesses were given by the defendant,the Sub-Inspector asked him to produce them before him and he did so..
868
BASNAYAKTC, CJ.—Karunaratne v. KarunarcUne
It would appear that Johannes is the same person as Johanis Karuna-ratne who gave evidence in the criminal prosecution. In consequenceof the investigations made by Sub-Inspector Anthonisz, a report undersection 148 (1) (6) of the Criminal Procedure Code was made to theMagistrate’s Court alleging that the plaintiff, P. Liyanage Abraham,and Panagodage Baby Singho, had set fibre to bus No. CE 5520 propertyin the possession of the defendant and that they had thereby causeddamage to the extent of Rs. 1,100. Among the witnesses who werementioned in the report were H. A. David Karunaratne, DenupitiyageCharles and H. A. Juwanis Karuna ratne. Summons were issued on theaccused returnable on 17th September 1953 and on that date the police 'moved for a date to amend the plaint. On 1st October 1953, afterrecording the evidence of Sub-Inspector Anthonisz, the Magistrate,acting under section 152 (3) of the Criminal Procedure Code, decidedto try the case summarily as Additional District Judge and a freshcharge was read to the accused. That charge alleged that they hadcommitted an offence punishable under section 418 of the Penal Code.The owner of the bus Samson Perera Limited retained a lawyer to watchits interests and the prosecution was in the hands of Sub-InspectorAnthonisz. When the case came up for trial on 12th November 1953Sub-Inspector Anthonisz had been transferred and Sub-Inspector Eka-nayake led evidence for the prosecution. On that day the evidenceof Johanis Karunaratne was recorded and after bis cross-examinationthe Magistrate made the following record :—
“ At this stage the prosecuting Inspector states that he does notwish to proceed any further with this case, as the evidence of the lastwitness is obviously quite false, and moves to withdraw. I entirelyagree with the prosecuting Inspector that this witness is speakingutter falsehood and has got himself completely tied up in the same.In the circumstances, I allow the application to withdraw, and Iacquit the accused. ”
The evidence recorded by the Magistrate does not justify the conclusionof the learned District Judge that there was no reasonable or probablecause for the defendant to have made a complaint to the police. Thedefendant at no time alleged that the plaintiff set fire to the omnibus.The complaint to the police was not that the plaintiff set fire to the busbut that Charles informed him after the fire had been put out that he hadnoticed three men, one of whom was the plaintiff, running away fromthe bus. There is also no evidence to justify the learned District Judge’sconclusion that the defendant provided the police with witnesses in sup-port of his complaint. The police after investigation decided to make areport under section 148 (1) (6) of the Criminal Procedure Code afterthey were satisfied that there was a case against the accused. Section126 of the Criminal Procedure Code provides that—
“ If upon an investigation under this Chapter it appears to theofficer in charge of the police station or the inquirer that there is notsufficient evidence or reasonable ground of suspicion to justify the
BASNAYAKE, C.J.—Karunaratne v. Karunaraine
369-
forwarding of the accused to a Magistrate’s Court, such officer or in-quirer shall if such person is in custody release him on his executinga bond with or without sureties as such officer or inquirer may directto appear if and when so required before a Magistrate’s Court havingjurisdiction to try or inquire into the offence. ”
In the instant case the police were satisfied that a report under section148 (1) (b) should be made. The allegation that the defendant retaineda proctor to assist the police in the prosecution of the case is not borneout by the record. The record shows that a proctor was retained by theowners of the omnibus and that the prosecutor was a police officer.In regard to the issue whether the plaintiff was prosecuted as a result ofthe complaint it would appear that the police made a report to theMagistrate’s Court under the appropriate section of the Criminal Proce-dure Code upon being satisfied on investigation that there was a casewhich should be brought to court. The learned District Judge has alsoheld that the complaint made by the defendant was false and that thereis evidence to support that finding. A good deal of evidence has beenled to show that the feelings between the plaintiff and the defendant werebitter in consequence of land disputes, but that does not prove that thedefendant’s complaint that the bus which was garaged adjoining thedefendant’s house was set on fire on 3rd August 1953 is false. It wasestablished as a fact. In the case of Saravanamuttu v. Kanagasabai 1Howard C.J. sums up the principle of Jaw on malicious prosecution thus :
“ 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. ”
In actions for malicious prosecution the provision of section 21 of theCriminal Procedure Code must not be overlooked. That section provides:
“ Every person aware—-
(а)of the commission of or the intention of any other person to commit
any offence punishable under the following sections of the PenalCode, namely, 114, 115, 116, 117, 118, 119, 120, 121, 122,126, 296, 297, 371, 380, 381, 382, 383, 384, 418, 419, 435, 436,442, 443, 444, 445, and 446 ;
(б)of any sudden or unnatural death or death by violence, or of any
death under suspicious circumstances, or of the body of anyperson being found dead without it being known how suchperson came by death,
shall in the absence of reasonable excuse—the burden of proving whichshall lie upon the person so aware—^forthwith give information tothe nearest Magistrate’s Court or to the officer in charge of the nearestpolice station or to a peace officer or the headman of the nearest villageof such commission or intention or of such sudden unnatural or violentdeath or death under suspicious circumstances or of the finding ofsuch dead body. ”
1 (1942) 43 N. L. It. 357.
:370
jPathirane v. Pctihirane
The offence committed was one under section 418 and the defendant'being aware of it was in law bound to give information forthwith to thenearest Magistrate’s Court or officer in charge of the nearest police station•or to a peace officer or headman. A person who discharges a legal dutyis free from liability for his act even when the discharge of his duty hurtsanother (De ViUiers on Injuries, p. 39). It is only when he goes beyondi>he limits of his legal obligation or acts altogether outside it that hemay render himself liable (ibid.).
In the instant case the plaintiff has failed to establish anything more-than a mere giving of information to the police authorities, and is there-fore not entitled to succeed. To succeed in an action of this nature theplaintiff must establish that the charge was false, and false to the know-ledge of the person giving the information, that it was made with a view-to prosecution, that it was made animo injuriandi and not with a view tovindicate public justice, and that it was made without probable cause.In the instant case the plaintiff has failed to discharge the burden thatTests on him.
We therefore set aside the judgment of the learned District Judge anddismiss the plaintiff’s action with costs. The defendant is entitled to-the costs of the appeal.
de Silva, J.—I agree.
Appeal allowed.