Judgement Appeal from a decree of the Court of the Judicial Commissioner (December 14, 1905) reversing a decree of the Subordinate Judge of Bahraich (July 31, 1905). The question decided was whether on the facts found, which are detailed in the judgment of their Lordships, the respondents are liable in law to an action for damages for malicious prosecution. To an action so brought the respondents filed a written statement resisting the claim on the following grounds — Paragraph 11. Defendants did not institute any criminal prosecution, and were mere witnesses for the prosecution. Paragraph 12. Defendants as witnesses were justified in making the statements they did in the Criminal Court, and no suit can legally be brought against them. Paragraph 13. The prosecution was not malicious and with-out reasonable and probable cause, nor did it arise from any illegitimate motive. Law. Rep. 35 Ind. App. 189 ( 1907- 1908) Pandit Gaya Parshad Tewari V. Sardar Bhagat Singh 86 The Subordinate Judge decided that although the names of the respondents did not appear on the face of the criminal proceedings, yet in fact they were the prosecutors; that they had "concocted and fabricated false evidence to get the appellant charged with rioting "; that there was no reasonable and probable cause for the prosecution ; and that the respondents had acted maliciously. He accordingly made a decree in favour of the appellant, awarding him the sum of Rs.6082.8 as damages, and the costs of the suit. The Court of the Judicial Commissioner reversed this decree and dismissed the suit. On the authority of the cases of Narasinga Row v. Muthaya Pillai (1) and Dudhnath Kandu v. Mathura Prasad (2), the judge with hesitancy decided that no one but a person who has made a formal complaint or application for process to a Court can be sued for damages for malicious prosecution. On the merits he said " I am disposed to believe that the sub-inspector did institute a charge under s. 147 at the instigation of Bhagat Singh and not of his own motion ; that the charge was found false by the magistrate who tried the case; and that the evidence on the record produced by the appellants is not such as to incline me to believe it to have been proved. The evidence of Bhagat Singh was anything but straight-forward." He accordingly dismissed the suit, but without costs. The evidence of Bhagat Singh was anything but straight-forward." He accordingly dismissed the suit, but without costs. De Gruyther, K.C., and Kyffin, for the appellant, contended that the Appellate Court was wrong in holding that an action for malicious prosecution will not lie against a person who has not instituted it and has not himself made a formal application for criminal process to a Court. The authorities relied upon, namely, Dudhnath Kandu v. Mathura Prasad (( 1902) I. L. R. 24 Allah.317.) and Narasinga Rowv. Muthaya Pillai (( 1902) I. L. R. 26 Madr. 362), decided, no doubt, that no one but the actual prosecutor was liable, but they did not dispose of the question of fact as to who is the actual prosecutor in a manner applicable to all cases. That question, it was submitted, must depend upon what had been done by the defendants, whether they were the prime movers in and originators of the prosecution without whose action in the matter no prosecution would have been instituted. The First Court found that the defendants were the chief cause of the prosecution, that they had fabricated false evidence in support of it; and although their names did not appear on the face of the proceedings they gave false information to the police, instigated the charge, and took an active part in conducting it. Reference was made to FitzJohn v. Mackinder ((1801) 9 C. B. (N.S.) 505.), and to the Criminal Procedure Code (V. of 1898)—s. 147, as to disputes likely to cause a breach of the peace; s. 4, as to the definition of cognizable offence; s. 156, as to investigation by the police officer of a cognizable offence; Sched. IL, offence under s. 147 of the Penal Code; s. 190et seg. as to the conditions requisite for initiation of the proceedings; and s. 495, as to permission to conduct private prosecutions. The respondents did not appear. The judgment of their Lordships was delivered by SIR ANDREW SCOBLE. This is an action for damages for malicious prosecution. The parties are officials of adjoining estates, the plaintiff being manager of the Rampur Mathura estate, and the defendants being respectively munsarim and kanungo of the Boundi division of the Kapurthala estate. The respondents did not appear. The judgment of their Lordships was delivered by SIR ANDREW SCOBLE. This is an action for damages for malicious prosecution. The parties are officials of adjoining estates, the plaintiff being manager of the Rampur Mathura estate, and the defendants being respectively munsarim and kanungo of the Boundi division of the Kapurthala estate. The case arose out of a dispute regarding the ownership of some alluvial land lying between the two estates; and the charge was that the plaintiff had taken part in a riot connected with this dispute. The case was sent for trial on November 22, 1902, but was not disposed of until July 15, 1903, when the magistrate dismissed it, holding that " there was no riot at all," and adding "I consider Kapurthala estate entirely to blame in this case, and hold that Sardar Bhagat Singh (assisted by Imam-ud-din Shah) is responsible for concocting up these riot and theft cases with all the minor complaints." Law. Rep. 35 Ind. App. 189 ( 1907- 1908) Pandit Gaya Parshad Tewari V. Sardar Bhagat Singh 87 The plaintiff thereupon brought this action, claiming Rs.7000 damages. The Subordinate Judge held that " it was found during the trial of the criminal proceedings, and proved before me by the evidence in the case, that the two defendants have concocted and produced false evidence to get the plaintiff charged with the crime " ; and he gave the plaintiff a decree for Rs.6082.8 damages and the costs of the suit. The Judicial Commissioner on appeal, on the authority of the case of Narasinga Row v. Mutltaya Pillai (I. L. R. 26 Madr. The Judicial Commissioner on appeal, on the authority of the case of Narasinga Row v. Mutltaya Pillai (I. L. R. 26 Madr. 362.), dismissed the suit, holding that " if the police or magistracy decide to act on information given by a private individual without a formal complaint or application for process, the Crown becomes the prosecutor and not the individual " ; but he added " I may say that, having studied the documentary evidence to which my attention was drawn, and read most of the voluminous oral evidence recorded by the Subordinate Judge, I am disposed to believe that the sub-inspector did institute a charge under s. 147 at the instigation of Bhagat Singh and not of his own motion ; that the charge was found false by the magistrate who tried the case; and that the evidence on the record produced by the appellants is not such as to incline me to believe it to have been proved." It will be convenient to refer at once to the decision of the Madras High Court (I. L. R, 26Mudr. 362.) which the learned Judicial Commissioner appears to have followed with some reluctance. The judgment is in these terms " The only person who can be sued in an action for malicious prosecution is the person who prosecutes. In this case, though the first defendant may have instituted criminal proceedings before the police, he certainly did not prosecute the plaintiff. He merely gave information to the police, and the police, after investigation, appear to have thought fit to prosecute the plaintiff. The defendant is not responsible for their act, and no action lies against him for malicious prosecution." The principle here laid down is sound enough if properly understood, and its application to the particular case was no doubt justified; but, in the opinion of their Lordships, it is not of universal application. In India the police have special powers in regard to the investigation of criminal charges, and it depends very much on the result of their investigation whether or not further proceedings are taken against the person accused. In India the police have special powers in regard to the investigation of criminal charges, and it depends very much on the result of their investigation whether or not further proceedings are taken against the person accused. If, there-fore, a complainant does not go beyond giving what he believes to be correct information to the police, and the police, without further interference on his part (except giving such honest assistance as they may require), think fit to prosecute, it would be improper to make him responsible in damages for the failure of the prosecution But if the charge is false to the knowledge of the complainant if he misleads the police by bringing suborned witnesses to support it, if he influences the police to assist him in sending an innocent man for trial before the magistrate, it would be equally improper to allow him to escape liability because the prosecution has not, technically, been conducted by him. The question in all cases of this kind must be, who was the prosecutor? and the answer must depend upon the whole circumstances of the case. The mere setting of the law in motion is not the criterion ; the conduct of the complainant, before and after making the charge, must also be taken in-to consideration. Nor is it enough to say that the prosecution was instituted and conducted by the police. That again is a question of fact. Theoretically all prosecutions are conducted in the name and on behalf of the Crown, but in practice this duty is often left in the hands of the person immediately aggrieved by the offence, who pro hac vice represents the Crown. In India a private person may be allowed to conduct a prosecution under s. 495 of the Criminal Procedure Code, which provides that " any magistrate inquiring into or trying any case may permit the prosecution to be conducted by any person other than an officer of police .... Any person conducting the pro secution may do so personally or by a pleader." When this is permitted, it is obviously an element to be taken into considera tion in judging who is the prosecutor and what are his means of information and motives. The foundation of the action is malice, and malice may be shewn at any time in the course of the inquiry. The foundation of the action is malice, and malice may be shewn at any time in the course of the inquiry. As Bramwell B. observes in FitzJohn v. Mackinder (9 C. B. (N.S.) 505, at p. 522.), "This action is not for damages in respect of the preferring of the indictment only, but also for the residue of the prosecution, and the damage consequent upon it.....Where an action is Law. Rep. 35 Ind. App. 189 ( 1907- 1908) Pandit Gaya Parshad Tewari V. Sardar Bhagat Singh 88 maintainable in respect of the whole prosecution, including the preferring of the bill, it is in part maintainable for the subsequent stages and conduct of it." And in the same case Cockburn C. J. says (lbid. at p. 531.) " A prosecution, though in the outset not malicious, as having been undertaken at the dictation of a judge or magistrate, or, if spontaneously undertaken, from having been commenced under a bona fide belief in the guilt of the accused, may nevertheless become malicious in any of the stages through which it has to pass, if the prosecutor, having acquired positive knowledge of the innocence of the accused, perseveres malo animo in the prosecution, with the intention of procuring per nefas a conviction of the accused." Turning to the facts of the present case, it appears that on November 2, 1902, an application was made to the Deputy Collector of Bahraich for an investigation by the police of a charge of unlawful assembly against eight persons of whom the plaintiff was not one. The investigation was entrusted to Izhar-ul-haq, a sub-inspector of police, who says " I summoned the plaintiff because Bhagat Singh gave me a list of accused persons containing plaintiffs name.....When Bhagat Singh produced that list, I said to him that the complaint filed in Court did not contain Gaya Parshads name. How was it that the defendant had mentioned his name . . . . ? And then Bhagat Singh [said] that the chief cause of riot was the plaintiff; so he gave the plaintiffs name in the list, and that he would be summoned." This makes it clear that Bhagat Singh was directly responsible for any charge at all being made against the plaintiff. . . . ? And then Bhagat Singh [said] that the chief cause of riot was the plaintiff; so he gave the plaintiffs name in the list, and that he would be summoned." This makes it clear that Bhagat Singh was directly responsible for any charge at all being made against the plaintiff. Imam-ud-din was the person who made the original report of an unlawful assembly, upon which the prosecution for riot was ultimately based, and the two men appear to have acted together throughout the subsequent proceedings. They took the principal part in the conduct of the case both before the police and in the magistrates Court; and the learned counsel who appeared for the prosecution at the trial before the magistrate expressly says that they instructed him that Gaya Parshad " joined the riot." As already mentioned, the magistrate found that there was no riot at all, and that on the day on which it was alleged to have occurred the appellant was ill at Lucknow. The charge was a false one to the knowledge of the respondents, and they must abide the consequences of their misconduct. In granting leave to appeal to His Majesty in Council, the learned Judicial Commissioner says " It is difficult to over-estimate the importance of the question raised in this case, namely, whether a person may be sued for damages for malicious prosecution who makes a false report which results in a prosecution, or who instigates the police to send persons up for trial under s. 170 of the Code of Criminal Procedure, or who conducts the case against those persons when sent up for trial." And he adds " All these are circumstances which occur perhaps daily in every district in India, and having regard to the immense number of false charges made, [we] think it most desirable that there should be no doubt as to the law on the subject." In the opinion of their Lordships it would be a scandal if the remedy provided by this form of action were not available to innocent persons aggrieved by such unfounded charges, and they will humbly advise His Majesty that the appeal ought to be allowed and the decree of the Judicial Commissioner set aside, with costs, and that of the Subordinate Judge confirmed. The respondents must pay the costs of the appeal.