JUDGMENT 1. This is an Appeal on behalf of the Defendants in an action for damages for malicious prosecution. The case for the Plaintiff-Respondent is that on the 19th May 1908, the second Defendant (a servant of the first Defendant), at the instigation of his master, lodged a false complaint at the Police station at Purulia charging the Plaintiff with murder and rioting with deadly weapons, that the Plaintiff at the time was absent at Ranchi and was arrested on his arrival at Purulia and detained in jail for three days before he was released on bail. The Plaintiff asserts that the information was maliciously and without reasonable and probable cause given to the Police authorities and that on the 1st August 1908 the Deputy Commissioner of Manbhum declared the charges against him to be false and ordered his release from bail. On the 11th August the second Defendant preferred a formal complaint and made a statement on oath before the Senior Deputy Magistrate at Purulia and charged the Plaintiff with offences under secs. 147, 148, 149 and 302, I. P. C. This complaint was dismissed under sec. 203, Cr. P. C. But the second Defendant, again, at the instance and instigation of the first Defendant, moved the Judicial Commissioner of Chotanagpur; the application for further enquiry was, however, dismissed on the 23rd December 1908. On these allegations, the Plaintiff claims Rs. 7,500 as damages for malicious prosecution. The claim has been resisted by both the Defendants. The second Defendant contends that the allegations made by him were true in every particular, that there was a riot on the 19th May 1908, as stated by him, that the Plaintiff was present on the scene of the riot with his men, and that by his order Bhuja Jolah, a servant of the first Defendant, was killed on the spot. The first Defendant asserts that he honestly believed the information given by the second Defendant and that he helped the prosecution with funds, and was occasionally present and gave instructions to the pleaders engaged for the prosecution, because he believed in good faith that his servant had been murdered by the order of the Plaintiff. The first Defendant asserts that he honestly believed the information given by the second Defendant and that he helped the prosecution with funds, and was occasionally present and gave instructions to the pleaders engaged for the prosecution, because he believed in good faith that his servant had been murdered by the order of the Plaintiff. He further alleged that the story of the Plaintiff that he was away at Ranchi was true: but that he had left for the place after the crime had been committed in his presence and by his order. Upon these allegations, several issues were raised of which two are material, namely, first was the criminal case brought by the second Defendant malicious and without reasonable and probable cause; and, secondly, did the first Defendant instigate the second Defendant to institute false charges against the Plaintiff. The Subordinate Judge upon the evidence has answered both these issues in favor of the Plaintiff. He has held that the Plaintiff left his home at 2 o'clock in the morning of the 19th May 1908, that he came to the railway station at about 5 o'clock and left for Purulia by the train which was timed to leave the station shortly after 7 o'clock. The Subordinate Judge has further held that he Statement of the second Defendant that the Plaintiff was present at the time of the rigor and gave orders which were carried out and ultimately caused the death of Bhuja Jolah, is maliciously false and that the second Defendant did this at the instance and instigation of his master (the first Defendant) between whom and the Plaintiff there was longstanding enmity. Under these circumstances, the Subordinate Judge has decreed the suit but has allowed the Plaintiff damages to the extent of Rs. 1,500 only. The Defendants have now appealed to this Court, and, on their behalf, the decision of the Subordinate Judge upon the two issues mentioned has been challenged. It has been contended that the Plaintiff has failed to discharge the burden which undoubtedly lay upon him to establish to the satisfaction of the Court that the prosecution was instituted maliciously and without reasonable and probable cause. On behalf of the Respondent this view has been controverter. But there is no cross-appeal on behalf of the Plaintiff in so far as the amount of damages is concerned. On behalf of the Respondent this view has been controverter. But there is no cross-appeal on behalf of the Plaintiff in so far as the amount of damages is concerned. Before we proceed to deal with the evidence on the record, it is necessary to consider for a moment the elements which must be established before the Plaintiff can succeed in a suit of this description. In the case of Abrath v. North Eastern Railway Company 11 Q. B. D. 440 at p. 455 (1883) Lord Justice Bowen laid down the law on the subject in these terms: " In an action for malicious prosecution, the Plaintiff has to prove, first, that he was innocent and that his innocence was pronounced by the tribunal before which the accusation was made; and, secondly, that there was want of reasonable and probable cause for the prosecution, or as it may be otherwise stated, that the circumstances of the case were such as to be, in the eyes of the Judge, inconsistent with the existence of a reasonable and probable cause; and, lastly, that the proceedings of which he complains were initiated in a malicious spirit; that is from an indirect and improper motive and not in furtherance of justice. All these three propositions, the Plaintiff has to make out, and if any step is necessary to make out any one of these three propositions, the burden of making good that step rests upon the Plaintiff" This statement of the law was substantially approved by the House of Lords when the case was taken on appeal before that tribunal, Abrath v. North Eastern Railway Company 11 App. Cas. 247 (1886), and subsequently by the Judicial Committee in Cox v. English Bank [1905] App. Cas. 168 There has been some discussion at the bar as to the accuracy of the first of the three propositions formulated by Lord Justice Bowen; and it has been suggested that, in so far as the Courts of this country are concerned, it is not necessary for the Plaintiff to establish that he was innocent; but it is sufficient for him to prove that his innocence was pronounced by the tribunal before which the accusation was made. In support of this contention, reliance has been placed upon the decision of the Judicial Committee in the case of Gunesh Dutt Singh v. Mugneeram Chow dry 17 W. R. 283 (1872). In support of this contention, reliance has been placed upon the decision of the Judicial Committee in the case of Gunesh Dutt Singh v. Mugneeram Chow dry 17 W. R. 283 (1872). Before we consider the effect of the decision of the Judicial Committee to which our attention has been drawn, it may be pointed out that the law on the subject is stated in the following terms in the Laws of England edited by Lord Halsbury (Vol. XIX, s. 1443). To succeed in an action for malicious prosecution, the Plaintiff must prove, first, the prosecution by the Defendant of a criminal charge against the Plaintiff before a tribunal into whose proceedings the Civil Courts are competent to enquire; secondly, that the proceeding complained of terminated in his favor, if from their nature they were capable of being so terminated; thirdly, that the Defendant instituted or carried on such proceedings maliciously; fourthly, that there was an absence of reasonable and probable cause for such proceeding; fifthly, that the Plaintiff has suffered damages; unless, indeed, the proceedings necessarily import damage to his fame or person." It will be observed that this statement of the essentials to an action or malicious prosecution does not explicitly require that the Plaintiff must prove that he was innocent. But it is, in our opinion, clear upon an examination of the authorities that the Plaintiff has to prove his innocence with a view to establish that the prosecution was commenced maliciously and without reasonable and probable cause. It has not been disputed on behalf of the Respondent that in the investigation of this latter question, at any rate, the Court would have to determine the circumstances under which the prosecution was commenced; and in many, if not in all, instances this would involve an investigation of the question of the innocence of the Plaintiff. This is well illustrated by the decision of the Judicial Committee in the case of Gunesh Dutt Singh v. Mugneeram Chowdry 17 W. R. 283 (1872). In that case, the Plaintiff in the suit for damages for malicious prosecution had been prosecuted on the allegation that he was present at an affray in which one of his opponents was killed and others were wounded. The Magistrate who heard the case dismissed it as against him for want of proof, and declined to commit him for trial. In that case, the Plaintiff in the suit for damages for malicious prosecution had been prosecuted on the allegation that he was present at an affray in which one of his opponents was killed and others were wounded. The Magistrate who heard the case dismissed it as against him for want of proof, and declined to commit him for trial. In the civil suit for damages for malicious prosecution, the Plaintiff relied upon the judgment in the criminal case in support of his claim. The Judicial Committee observed that this was not sufficient, and added as follows:-"What evidence does he give to rebut them? He puts in the decision of the Magistrate which was neither more nor less than this, that the case is not proved against him in the opinion of the Magistrate. Their Lordships are of opinion that this decision was no evidence whatever against the Defendants of the groundlessness of the prosecution. To hold that every person whom a Magistrate refuses to commit for trial is entitled to maintain an action for malicious prosecution on the bare proof (without more) of the dismissal of the charge, might very injuriously affect the administration of criminal law. It was in the power of the Plaintiff himself to go into the witness box and give evidence of his own innocence. He might have proved where he was and what: he did at the time of the affray. He might have stated all the circumstances within his knowledge. But he declines to give evidence." It is clear, therefore, from the judgment of the Judicial Committee that in a case of this description, it is incumbent upon the Plaintiff to prove his innocence, at least to justify the inference that the prosecution was commenced without reasonable and probable cause; and in order to enable him to establish that position satisfactorily, he was in substance to prove that he was innocent. It was not been suggested, and in view of the authorities which we shall presently mention, it cannot be suggested that the finding in the criminal case is conclusive upon this mater in the civil suit for damages for malicious prosecution. Bisho Nath Neogy v. Huro Govind Neogy 5 W R. 27 (1866), Doorga Das Laha v. Doorga Charan Saha 6 W. R. Civ. Ref. 26 (1866) Shumboo Chandta Chowdury v. Modhoo Kyburt. 10 W. R. 56 (1868). Bisho Nath Neogy v. Huro Govind Neogy 5 W R. 27 (1866), Doorga Das Laha v. Doorga Charan Saha 6 W. R. Civ. Ref. 26 (1866) Shumboo Chandta Chowdury v. Modhoo Kyburt. 10 W. R. 56 (1868). Ali Buksh v. Sheik Summeeruddin 12 W. R. 477 (1869) and Aghore. Nath Roy v. Radhika Prasad Base 14 W. R. 339 (1870). The view we take is also supported by the judgment of the Judicial Committee in Corea v. Peitis [1909] App. Gas. 549. We now proceed to test the evidence in this case from the point of view of the principles just reviewed. 2. The Plaintiff asserts that on the 19th May 1909 he left his home at 2 o'clock in the morning in company with another person with whom he was to go to Ranchi. Here it is necessary 10 state that the Plaintiff is the resident of a place named Dubra. About two piles towards the west of that place is Daria where the occurrence took place. On the way between the two places, there is a village known as Bamanbad. The railway station at Anara from which the Plaintiff left that morning is about five miles towards the south east of Dubra. There is also some evidence to show that it is possible to walk from Daria to Anara, a distance of about four miles across the fields, but it is also possible to go from Daria to Anara by a road which would cover about five miles. The case for the Plaintiff is that he left from Daria and went directly to the railway station at Anara. In support of this story, he pledges his own oath and also relies upon a witness who, in the village of Dubra itself, gave him a piece of twig wherewith he intended to clean his teeth early in the morning on his arrival at the railway station. He also took a rope from a shopkeeper in order to enable him to raise water from a well. The shopkeeper inquired whether he would require a tub and offered to give him one, but the Plaintiff informed him that he would prefer to take it from the Station Master himself. His story is that he drove in a cart from Dubra to Anara and arrived there before sunrise. The shopkeeper inquired whether he would require a tub and offered to give him one, but the Plaintiff informed him that he would prefer to take it from the Station Master himself. His story is that he drove in a cart from Dubra to Anara and arrived there before sunrise. He entered the station room, but it was so dark that he was not able to see the clock. He, therefore, roused the Assistant Station Master, whom he had known from before, and asked him what the time was. The Assistant Station Master was unable to tell him the time because the room was dark; but said that he had been to bed at 2 o'clock in the morning and that possibly it was about 5 o'clock. The Plaintiff then took from him a tub, cleaned his teeth and had his breakfast. The train which was timed to arrive at 7 o'clock was late, and the Plaintiff left in it 20 minutes later. If this story is believed in all its details, the allegation of the Plaintiff that he was not at the scene of the riot is conclusively proved. The story of the second Defendant in that event must be deemed maliciously false, because he alleges that he saw the Plaintiff on the spot and head him give orders during the progress of the riot. We are unable, however, to believe this evidence in all its circumstantial details. At the outset, it is worthy of note that neither the cart man nor the person who is said to have accompanied the Plaintiff is called to corroborate him; nor is any explanation offered for their absence. Besides this, the evidence produces the impression that it was manufactured with a view to establish a case of alibi. It was wholly unnecessary for the Plaintiff to start from his home at 2 o'clock in the morning with a view to catch the train which was timed to leave at 7 o'clock. The distance which he had to cover was about 5 miles; whether he walked on foot or drove in a cart, the journey could not have taken him more than three hours. If, therefore, he had started at 4 o'clock, he could have reached the station amply in time to catch the train. The distance which he had to cover was about 5 miles; whether he walked on foot or drove in a cart, the journey could not have taken him more than three hours. If, therefore, he had started at 4 o'clock, he could have reached the station amply in time to catch the train. Apart from this, his refusal to take the tub from the person who gave him the rope seems to indicate that he was anxious to have as many independent witnesses as possible to swear that he was in the neighborhood of the railway station early on the morning of the 19th May 1909. We may further add that the object of his visit to Ranchi is not quite satisfactorily explained. It was not a business of any very special or particular importance which required his presence at Ranchi just that morning. He is himself an elderly man, 60 years old; and if his story is believed, he is a man of considerable means. Why he should undertake such an inconvenient journey at that particular time in the morning is not explained with any approach to plausibility. The position becomes worse for the Plaintiff when we remember that the case at Ranchi for which he is suppose to have gone there, was not due for hearing till two days later. We have, further, the fact that the Subordinate Judge has not placed implicit reliance upon the Plaintiff, and although we have not had the advantage of seeing him in the witness-box, a perusal of his deposition has not produced a particularly favorable impression upon our minds. The Subordinate Judge relies, on this part of the case principally if not solely, upon the testimony of the Assistant Station Master. That evidence, we do not hesitate to hold, must be pronounced unsatisfactory. The story which he narrates wit an abundance of minute details, does not carry conviction. He cannot assign a good reason for remembering all the details 18 months after the incident. He left the station on the day following the incident and went on leave. He was not present at the Police inquiry if he had been, that might possibly have explained why he happened to remember the details after a considerable length of time. He cannot assign a good reason for remembering all the details 18 months after the incident. He left the station on the day following the incident and went on leave. He was not present at the Police inquiry if he had been, that might possibly have explained why he happened to remember the details after a considerable length of time. He denies in one place that he narrated the story to other people; but subsequently admits that he had spoken about it to people whose names he cannot recollect. He alleges that on the very day the Plaintiff left the station, he heard at 10 o'clock in the morning that a murder had been committed, and that the Plaintiff was charged with complicity in the crime. He does not state definitely, though he makes the suggestion in one portion of his deposition, that he asserted at the time that the Plaintiff was at the railway station early in the morning and could not possibly have been connected with the crime. His evidence, on the whole, does not carry conviction, and, in any view, it is not sufficient to justify an implicit reliance upon the story narrated by the Plaintiff. We have finally to examine the assertion of the Plaintiff that it was physically impossible for him to have been present at the riot and subsequently to have reached the railway station in time to catch the train. Upon this part of the case, implicit reliance must not be placed upon the accuracy of statements as to the precise time when the riot took place. One fact is established beyond all doubt, namely, that there was a not that morning at the place alleged by the Defendant and that a servant of the first Defendant was killed on the spot. In the first information lodged at the Police station by the second Defendant at about ten o'clock, it was stated that the riot took place at 7 o'clock. The Plaintiff asserts that if the riot did take place at 7 o'clock and if he was present on the scene at the time, it was impossible for him to be at the railway station in time to catch the train, which he could not anticipate would be late by 20 minutes that morning. But we are not satisfied that the riot did take place as late as 7 o'clock. 3. But we are not satisfied that the riot did take place as late as 7 o'clock. 3. The evidence indicates that the riot took place about an hour after sunrise, that is to say, at about 6 o'clock. If the riot did take place at that hour, it would not be impossible for the Plaintiff to be present at the riot and subsequently to arrive at the station in time to catch the train. Upon the question, however, whether the Plaintiff was actually present at the scene of the riot and gave orders, as alleged by the second Defendant, although we are not prepared to hold that the Plaintiff has established that it was physically impossible for him to be present there that morning, we are also not prepared to accept the statement that the Plaintiff was so present and issued the directions attributed to him. It is extremely improbable that a man of his age and station in life would undertake the grave risk involved in actual presence at the scene of the riot and issue orders for the murder of one of his opponents. On the other hand, it is not unlikely that the Plaintiff might have been in the neighbor hood of the place and was seen by the second Defendant who exaggerated the story and attributed to him orders which he never actually gave. Upon the evidence as it stands, it is impossible for us to pronounce a definite opinion as to what actually look place. But as the burden lies upon the Plaintiff to prove that the prosecution was commenced maliciously and without reasonable and probable cause, the difficulty which we feel leads us to the conclusion that the Plaintiff cannot succeed in this litigation. He has wholly failed to prove to our satisfaction by his own evidence and by the evidence of witnesses he has called that he was not present at the scene of the riot as alleged by him and that the prosecution was commenced against him maliciously and without reasonable and probable cause. The result is that this Appeal is allowed, the decree of the Subordinate Judge discharged and the suit dismissed. Under the circumstances we direct each party pay his own costs throughout the litigation.