JUDGMENT Bennet, J. - This is an appeal by one Bindraban against Defendant No. 3, Raj Kumar, whom he sued for damages for malicious prosecution. The Court of first instance decreed damages against Raj Kumar and dismissed the suit against two other persons, one of whom was an investigating officer and the lower appellate Court on the appeal of Raj Kumar dismissed the suit against him also. The case for the Plaintiff as set forth in the plaint was based on the allegation that there was a conspiracy between the investigating Sub-Inspector, Defendant 1, and the other two Defendants, who had both previously been Sub-Inspectors,, and that on this ground the Defendants were all liable for damages for malicious prosecution. The lower appellate Court found that neither the Plaintiff nor his brother nor any other witness for the Plaintiff gave any evidence of the alleged conspiracy, and it held that no conspiracy was proved. In regard to Defendant No. 3, the only finding is that he mentioned the Plaintiff's name in his statement to the investigating officer u/s 161, Code of Criminal Procedure, and that Defendant 3, is not proved to have been actuated by malice, and that he is not liable for any damages to the Plaintiff. The facts which gave rise to the Criminal case are that on the 7th April, 1930, a man called Jafar received fatal injuries in a quarrel at a fair at Rampur while he was talking to an ekkawala called Abdul Rahim. The quarrel was between Jafar and some persons who came along. On Jaffar being injured the ekkawala picked him up and took him to Aliganj Police Station where the ekkawala made the first report. The investigation was begun by a Sub-Inspector and was later continued by the Station Officer, who is Defendant 1. In the course of that investigation the Station Officer took the statement of Defendant 3, the present Respondent, u/s 161, Code of Criminal Procedure as a witness. The finding of the lower Court is that Defendant 3, did not take any other part in the proceeding except the making of this statement as a witness to the investigating officer. Learned Counsel has to show that Defendant 3, is a person against whom damages can be given for malicious prosecution. It cannot be said that in any sense of the word Defendant 3, prosecuted the Plaintiff. Learned Counsel has to show that Defendant 3, is a person against whom damages can be given for malicious prosecution. It cannot be said that in any sense of the word Defendant 3, prosecuted the Plaintiff. It is stated in Underhill's Law of Torts in India that prosecution must have been instituted by the Defendant against the Plaintiff, A person who gives information to the police which starts a prosecution comes u/s 151(2), Code of Criminal Procedure which lays down that every information relating to the commission of a cognizable offence, if given orally to an officer in-charge of the police station, shall be reduced to writing by him or under his direction, and shall be read over to the informant; and such information shall be entered in a book kept in the office. This is the first information report. In the present case that first information report was made by the ekkawalas. As a result of that first report an investigation was held by the Police Officer and in the course of that investigation the statement, of the., Defendant 3, was taken u/s 161, Code of Criminal Procedure. There is a difference laid down by the Code in the method of taking the statements of persons who are witnesses, and Section 162, states that the statements of these witnesses are not to be signed, and they cannot be used by" the prosecution as evidence. The first information report on the other hand is signed by the person making it and it can be used as evidence when proved. The Code therefore draws a very considerable distinction between the two kinds of statements." As a result of the first information made to the police officer the police officer eventually sent a charge-sheet A, to the Superintendant of Police, and the Superinten-dant of Police in this case ordered prosecution, and the Plaintiff was presented before a Magistrate and acquitted. Learned Counsel has referred to two rulings. One of these is Baihhaddha Singh v. Badri Sah (1926) AIR 1926 P.C. 46 : 95 Ind. Cas. 329 : 24 A.L.J. 453 (P.C.), where their Lordships, of the Privy Council had before them the case of a Defendant Badri Sal, and the question was whether it could be said that this Defendant prosecuted the Plaintiff. One of these is Baihhaddha Singh v. Badri Sah (1926) AIR 1926 P.C. 46 : 95 Ind. Cas. 329 : 24 A.L.J. 453 (P.C.), where their Lordships, of the Privy Council had before them the case of a Defendant Badri Sal, and the question was whether it could be said that this Defendant prosecuted the Plaintiff. The circumstances were that Badri Sah was the lambardar of a village, and a boy in that village called Raghunath, aged 18, made a statement in the village, and his father brought him to Badri Sah, and the lambardar Badri Sah took the father and son to the police office, and the statement was taken down as the first information report. Their Lordships laid down at page, 460 (of 24 A. L. J.) that the question was Have the Appellants proved that Badri Sah invented and instigated the whole proceedings for prosecution? 2. They held that if that were so an action would lie against Badri Sah. The present case however, differs from the case in the ruling before their Lordships because in the present case Defendant 3, did not go to the police station and had nothing to do with the making of the first information report. 3. Another ruling to which Learned Counsel has referred is Gaya. Prasad v. Bhagat Singh (1908) 30 All. 555 : 5 A.L.J. 665 (P.C.), In that case the Defendant Bhagat Singh was the munsarim of the Kapurthala estate, and another officer of that estate made a report to thief, police that a large number of persons had cut and carried" away crops be onging to the tenants of the estate, and that Sub-Inspector of police ordered the Defendant Bhagat Singh to enquire and report. Bhagat Singh made report which the police forwarded in order that the proceedings u/s 145, Code of Criminal Procedure should be founded on it. Liter there was a proceeding u/s 107, Code of Criminal Procedure and Bhagat Singh conducted the prosecution. It is obvious therefore that both these actions of Bhagat Singh were concerned with the initiation and conduct of the criminal proceedings. Liter there was a proceeding u/s 107, Code of Criminal Procedure and Bhagat Singh conducted the prosecution. It is obvious therefore that both these actions of Bhagat Singh were concerned with the initiation and conduct of the criminal proceedings. Learned Counsel referred to a passage at page 533, which is as follows: If, therefore, 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 regain) think fit to prosecute, it would be improper to make him responsible in damages for the failure of the prosecution. But if the change 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 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. 4. In this case their Lordships referred to a complainant. It cannot be said that Defendant 3, who merely made a statement at a police investigation was in any sense a complainant. I consider therefore that on this point alone the Plaintiff's suit would fail against Defendant 3. The grounds of appeal are largely taken up with arguments in regard to "the alleged conspiracy; but the lower Court has found that no conspiracy is proved. It has also found that no malice is proved. For these reasons I dismiss this appeal under Order 41, Rule 11. 5. I do not consider that this is a case in which leave should be given for a Letters Patent Appeal. Learned Counsel has not shown any ruling which would establish his proposition of law.