JUDGMENT : 1. This is a second appeal by the legal representatives of the plaintiff in a suit for damages for malicious prosecution. It was alleged by the plaintiff Hazarilal who is now dead that the defendants Pyarelal and Khyali made a report to the police against him alleging that he had murdered Asaram a brother of the defendants; that acting on this report the police took up investigation and presented a 'challan' against him on the charge of having murdered Asaram and that he was tried by the Sessions Court and ultimately acquitted of the charge. The lower Courts dismissed the plaintiff's suit holding that he had not been able to prove the fact that the defendants acted without reasonable and probable cause in making a report to the police against the plaintiff for the murder of Asaram. 2. After hearing Mr. Prabhudayal Gupta, learned counsel for the appellant, I have reached the conclusion that this appeal is devoid of any substance and must be dismissed. In an action of this character the plaintiff must establish 'inter alia' the following propositions, namely, (1) that the defendant acted without reasonable and probable cause; and (2) that the defendant acted maliciously. Learned counsel for the appellant conceded that the appellant's evidence in support of the fact that the defendants acted without reasonable and probable cause consisted only in the circumstance that the police authorities acted on the report of the defendants against Hazarilal and that the proceedings instituted against Hazarilal terminated in his favour. Neither of these circumstances in my opinion can be taken as establishing want of reasonable and probable cause on the part of the defendants. The question of reasonable and probable course depends on the facts as known to the defendant who initiated the prosecution. When the facts upon which the prosecutor acted have been ascertained and when the facts operating on the prosecutor's mind at the time of the prosecution are known then the court has to determine whether those facts afforded reasonable and probable cause for prosecuting the accused. If these facts do afford reasonable and probable cause then the prosecution would be justified and it would not as a rule be necessary for an inquiry to be made into the prosecutor's belief. The state of his belief goes to malice but not, as a rule to reasonable and probable cause. If these facts do afford reasonable and probable cause then the prosecution would be justified and it would not as a rule be necessary for an inquiry to be made into the prosecutor's belief. The state of his belief goes to malice but not, as a rule to reasonable and probable cause. I am supported in this view by the observations of Lord Goddard C.J. in- 'Tims. v. John Lewis and Co., 1951-1 All ER 814 (A) and of Denning, L.J. in "Tempest v. Snowden', 1952-1 All ER 1 (B). In the former case Lord Goddard said that the question whether there was a reasonable or probable cause is not to be determined subjectively, but that it is a question which objectively the Court has to decide on the evidence before it. In the latter case Denning, L.J. after pointing Out that the question of reasonable and probable cause had to be determined on the facts as known to the prosecutor, observed that the proposition that to have a reasonable and probable cause there must be an honest belief in the guilt of the accused, cannot be regarded as universal proposition applicable to all cases. I need not repeat all what Denning, L.J. has said to illustrate the universal inapplicability of the proposition that to have reasonable and probable cause there must be an honest belief in the guilt of the accused. I will only refer to what he said in the end. He said :- "I do not say that the prosecutor's belief can never come into the question of reasonable and probable cause. If. the prosecutor believed that the man was innocent and preferred the charge simply as a means of inducing him to pay over money to him, there would be no reasonable and probable cause for the prosecution because the cause for the prosecution would be, not the facts known to him, but another cause, and an unreasonable one see- 'Broad v. Ham', (1839) 8 LJ (NS) CP 357 (C). That is, I think, the short of case which Lord Atkin had in mind when he referred to belief in- 'Herniman v. Smith', 1936-2 All ER 1377 (D). That is, I think, the short of case which Lord Atkin had in mind when he referred to belief in- 'Herniman v. Smith', 1936-2 All ER 1377 (D). Apart from exceptional cases of that kind, however, I think it right to say that, once the facts as known, to the prosecutor are ascertained, the state of his belief goes only to malice and not to reasonable and probable cause." 3. From what has been said above, it is clear that the fact that in instituting proceedings against Hazarilal, for the murder of Asaram, the police acted on the report or the defendants is altogether irrelevant in determining the question whether the Defendants had a reasonable and probable cause for prosecuting Hazarilal. So also tire fact that the proceedings instituted against Hazarilal terminated in his favour has no bearing whatsoever on the question of want of reasonable and probable cause on the part of the prosecutor. If on the facts as known to the prosecutor, he had a reasonable and probable cause for prosecuting the accused, then the fact that the prosecution ended in the discharge or acquittal of the accused cannot take away the reasonable cause which existed. I am quite aware of a decision of the Nagpur High Court in- 'Sitaram v. Dudharam', AIR 1952 Nag 310 (E) where Deo, J. had taken the view that the production of the judgment in the criminal case acquitting the plaintiff is sufficient for discharging the plaintiff's burden of proving want of reasonable and probable course for the prosecution. The reasoning of the learned Judge is that innocence is proved by proving acquittal in criminal proceedings where the prosecutor must know whether his accusation against the accused is false or true, that if the accused is innocent it follows that the prosecutor must be telling a falsehood and there must, be a want of reasonable and probable cause. With all respect to the learned Judge. I do not agree with the view taken by him. If as I have pointed out above the question of reasonable and probable cause has to be determined upon facts as known to the prosecutor, then the fact that the prosecution ended in the acquittal of the accused can never come into the question of reasonable and probable cause. I do not agree with the view taken by him. If as I have pointed out above the question of reasonable and probable cause has to be determined upon facts as known to the prosecutor, then the fact that the prosecution ended in the acquittal of the accused can never come into the question of reasonable and probable cause. I think it is a trite remark to make that the fact that an accused has been acquitted in criminal proceedings does not necessarily imply that the accusation against the accused person was false to the knowledge of the prosecutor. In the present case the plaintiff made no attempt to lead evidence of the type indicated above to establish want of reasonable and probable cause on the part of the defendants. That being so the plaintiff's claim for damages must be rejected without any inquiry into the question whether the defendants acted maliciously. It has to be remembered that even though a prosecutor is actuated by express malice, he cannot be made liable so long as there was reasonable and probable cause for the prosecution. As there is no evidence here of want of reasonable and probable cause, it is not necessary to inquire into the question of malice. 4. Mr. Prabhudayal Gupta while admitting that the plaintiff did not produce any evidence to prove the facts operating on the defendants' mind when they made the report; to the police, made a plea for sending back the case to the trial court and for giving him an opportunity to produce further evidence on the ground that proper issues had not been framed in the suit. I am not disposed to accept the contention when the appellant at no time complained in the trial court or in the lower appellate court against the issues framed in the suit and about his being misled by those issues in producing evidence. No such grievance has been made even in the memorandum of this appeal. 5. For the above reasons I uphold the decision of the lower court and dismiss this appeal with costs. Appeal dismissed.