JUDGMENT Chandrasekhara Menon, J. 1. Certain interesting questions of law are raised in this appeal by Sri A.P. Chandrasekharan, learned Counsel for the Appellant-Plaintiff. The appeal arises out of a suit for damages for malicious prosecution. 2. The Defendant-Respondent filed a complaint before the police on 18th March 1964 stating that on the morning of that date at about 8 to 8.30 a.m. Plaintiff attempted to shoot and kill him. The police charged a case against the Plaintiff Under Section 307 I.P.C. and Section 27 of the Arms Act. The Magistrate who held the preliminary enquiry committed the case to the sessions. The Sessions Judge found the accused not guilty and acquitted him. Contending that the Defendant actuated by malice, had without reasonable and probable cause initiated the criminal proceedings against him and that he had given false evidence in the case which ultimately ended in the Plaintiff's acquittal, the present suit was instituted by the Plaintiff claiming damages of Rs. 1,000. The trial court decreed the suit, but on appeal, the learned subordinate Judge reversed the judgment and decree of the trial court and dismissed the suit with costs. Therefore, the Plaintiff has come up in second appeal to this Court. 3. Before I proceed to discuss the contentions raised by the parties, I might, in the first instance, point out that the oral evidence adduced in this case is that only of the Plaintiff and Defendant. The judgment of the sessions court in the criminal case is marked as Ext. A-1. Without examining the chemical examiner, his report in the criminal case is marked as Ext. A-2 and the whole of the deposition given by the Defendant earlier in the sessions court and in the committal proceedings before the Magistrate are marked as Exts. A-6 and A-5 respectively. I would also refer to the broad general principles regarding the factors to be proved and the Plaintiffs duty in an action for malicious prosecution. These are well settled and would in the present state of law give rise to little controversy. 4. A-6 and A-5 respectively. I would also refer to the broad general principles regarding the factors to be proved and the Plaintiffs duty in an action for malicious prosecution. These are well settled and would in the present state of law give rise to little controversy. 4. Action on malicious prosecution had a rather gradual progress in English Law (Indian Law on the matter is purely based on the principles established in English Law), for as stated by Winfield it had to make its way between two competing principles - the freedom of action that every man should have in bringing criminals to justice and the necessity for checking lying accusations of innocent people. There was for a long time an oscillation in the judicial mind between apprehension of scaring off a just accuser and fear of encouraging a false one. Winfield in his well-known work on Tort (7th Edition at page 704), says that action was put on firm basis in Savile v. Roberts (1698) 1 Ld. Rayam 374 and "indeed it is so much hedged about with restrictions and the burden of proof upon the Plaintiff is so heavy that no honest prosecutor is ever likely to be deterred by it from doing his duty". Winfield further observes: "It is notable how rarely an action is brought at all, much less a successful one for this tort. 5. The Plaintiff in an action for malicious prosecution has to prove that: (a) the Defendant prosecuted him; (b) the prosecution ended in the Plaintiff's favour, (c) the prosecution lacked reasonable and probable cause; and (d) the Defendant acted maliciously. 6. It is now well recognised that for establishing that the Defendant prosecuted him what the Plaintiff has to prove is only that tie Defendant is a person actively instrumental in putting the criminal law in force. It is not necessary that he should be a party to the proceedings. It is enough if it is shown that it is at the Defendant's instigation the proceedings are due. However as stated by Salmond in his law of Torts, instigating a prosecution is to be distinguished from the Act of merely giving information on the strength of which a prosecution is commenced by some one else in the exercise of his discretion, although the distinction may be a fine one in particular cases. 7. However as stated by Salmond in his law of Torts, instigating a prosecution is to be distinguished from the Act of merely giving information on the strength of which a prosecution is commenced by some one else in the exercise of his discretion, although the distinction may be a fine one in particular cases. 7. As regards the second ingredient, it is enough if the prosecution has actually determined in any manner in favour of the Plaintiff, it matters nothing in what way this has taken place. There need not have been any acquittal on merits, what the Plaintiff requires for his action is not a judicial determination of his innocence, but merely the absence of any judicial determination of his guilt (Salmond). 8. The other two elements which the Plaintiff has to prove in an action for malicious prosecution are want of reasonable and probable cause for the prosecution and malice on the part of the Defendant in so prosecuting. Malice and absence of reasonable and probable cause must unite in action to produce liability. Malice, it has been said, means the presence of some improper and wrongful motive - something other than a desire to bring to justice a person whom the accuser honestly believes to be guilty. Though malice has to be kept distinct from lack of reasonable and probable cause because as pointed out by Winfield, however spiteful an accusation may be, the personal, feelings of the accuser are really irrelevant to its probable truth, want of reasonable and probable cause in cases where the accuser had no honest belief in his accusation, may itself be evidence of malice. 9. In the instant case we are really concerned with the question whether there is want of reasonable and probable cause for the prosecution because once we come to the conclusion that there was a lack of reasonable and probable cause, then as far as the facts here are concerned, the court can come to the logical inference that there is malice on the part of the Defendant. The reason is that the prosecution has been initiated on allegations which are to the effect that the Defendant has himself direct knowledge of the offence. The reason is that the prosecution has been initiated on allegations which are to the effect that the Defendant has himself direct knowledge of the offence. If the court takes the view that there is lack of reasonable and probable cause, it follows in the circumstances of the case that the prosecution was initiated on a false complaint by the Defendant. A false complaint can only be on a wrongful motive. 10. What is strongly urged before me by Sri Chandrasekharan is the following proposition. If a man acts on his own knowledge and if he gives information of the commission of an offence committed in his presence and, therefore, the accusation against the Plaintiff is in respect of an offence which Defendant claims to have seen him committing and the trial ended, on acquittal on the merits, the presumption will be not only the Plaintiff was innocent, but also that there was no reasonable and probable cause. In support of this, he relied on Taharat Karim v. Malik Abdul Khaliq A.I.R. 1938 Pat 529, Nagendra Kumar v. Etwari Sahu A.I.R. 1958 Pat 329, Satdio Prasad v. Ram Narain A.I.R. 1969 Pat 102 and Appukuttan v. Makkappan 1965 K.L.T. 1054. In the last mentioned case the facts were these - A prosecution launched by the Defendant against the Plaintiffs, who were husband and wife, under Sections 323, 341 and 447 I.P.C. read with Section 34 I.P.C. for assaulting the Defendant on his land, ended in a discharge. In the suit for damages for malicious prosecution, some witnesses were examined and the same Munsiff, before whom the witnesses were examined, on the appreciation of the oral testimony found that the Defendant had filed the complaint without any reasonable and probable cause and maliciously. The District Judge found that the Plaintiffs have not proved malice or want of reasonable and probable cause for the prosecution and therefore reversed the Munsiff's decision. Mr. Justice Madhavan Nair who heard the matter in the High Court said that unless there was definite reason to reverse the Munsiff's appreciation of the oral testimony, the appellate court should not have disturbed the Munsiff's findings of fact. Mr. Justice Madhavan Nair who heard the matter in the High Court said that unless there was definite reason to reverse the Munsiff's appreciation of the oral testimony, the appellate court should not have disturbed the Munsiff's findings of fact. The learned Judge also placed reliance on the Patna Court decisions - A.I.R. 1938 Pat 529 and A.I.R. 1958 Pat 329, cited supra as well as on another decision of S.K. Das, J., in Darsan Pande v. Ghaghu Pande A.I.R. 1948 Pat 167 and observed that the District Judge has erred in his view of the burden of proof and his judgment on the basis of such erroneous view of burden of proof cannot stand. 11. I would be in perfect agreement with the above decision if it goes only to the extent that if the civil court on the basis of the evidence before it comes to the conclusion that the criminal complaint of the Defendant was a false one, then as the complaint was filed on the Defendant's alleged personal knowledge, the court could draw the presumption that there was absence of reasonable and probable cause and that malice existed. However, if it is to be taken in approval of what is stated in A.I.R. 1938 Pat 529 where it is laid down that when the accusation against the Plaintiff was in respect of an offence which the Defendant claimed to have seen him commit, and the trial ends in an acquittal on the merits, the presumption will be not only that the Plaintiff was innocent, but also that there was no reasonable and probable cause for the accusation, I differ. 12. In considering the question, what exactly is meant by reasonable and probable cause has to be looked into. The following passage from Winfield on Tort (9th Edn. page 492) on this aspect would be useful in this context. "There does not appear to be any distinction between 'reasonable' and 'Probable'. The conjunction of these adjectives is a heritage from the redundancies in which the old pleaders delighted, and although it has been said that reasonable cause is such as would operate on the mind of a discreet man, while probable cause is such as would operate on the mind of a reasonable man, this does not help us much, for it is difficult to picture a reasonable man who is not discreet." 13. The principal difficulty, and it is no minor one in stating- the law as to reasonable and probable cause arises from the division of function between Judge and Jury. It has been recognised for centuries that once a man has been acquitted by a criminal court, juries are too ready to award him damages against his prosecutor, and therefore it is for the judge to decide whether the Defendant had reasonable and probable cause for launching the prosecution, but it is for the jury to decide any incidental questions of fact necessary for the Judge's determination. Moreover, this branch of the law is unusual in requiring the Plaintiff to undertake the difficult task of proving a negative. It is for him to prove that the prosecutor did not have reasonable and probable cause, and not for the prosecutor to prove that he had. 14. In Herniman v. Smith 1938 A.C. 305. The House of Lords approved and adopted the definition of reasonable and probable cause given by Hawkins, J. in Hicks v. Faulkner 1878 8 Q.B.D. 167 as an honest belief in the guilty of the accused based upon a full conviction, founded upon reasonable grounds, of the existence of a state of circumstances, which, assuming them to be true, would reasonably lead any ordinarily prudent and cautions man placed in the position of the accuser, to the conclusion that the person charged was probably guilty of the crime imputed. This definition may, however, be over-elaborate for some cases, and has even been said not to fit the ordinary run of cases. It cannot serve as a substitute for the rule of law which says that, in order to succeed in an action for malicious prosecution the Plaintiff must prove to the satisfaction of the judge that, at the time when the charge was made, there was an absence of reasonable and probable cause for the prosecution. Various other definitions have been attempted but perhaps the most helpful is that given by Lord Devlin in Glinski v. Mclver 1962 A.C. 766. Reasonable and probable cause means that there must be cause (that is, sufficient grounds) for thinking that the Plaintiff was probably guilty of the crime imputed. Hicks v. Faulkner 1878 8 Q.B.D. 167. This does not mean that the prosecutor has to believe in the probability of conviction: Dawson v. Vasandu 1863 (11) W.R. 516. Reasonable and probable cause means that there must be cause (that is, sufficient grounds) for thinking that the Plaintiff was probably guilty of the crime imputed. Hicks v. Faulkner 1878 8 Q.B.D. 167. This does not mean that the prosecutor has to believe in the probability of conviction: Dawson v. Vasandu 1863 (11) W.R. 516. The prosecutor has not got to test the full strength of the defence; he is concerned only with the question of whether there is a case fit to be tried. As Dixon, J. (as he then was) put, it the prosecutor must believe that the probability of the accused's guilt is such that upon general grounds of justice a charge against him is warranted: Commonwealth Life Assurance Society v. Brain 1935 (53) C.L.R. 382. 15. In many cases the issue of reasonable and probable cause raises only one question, namely, whether the facts admittedly known to and believed by the prosecutor when he launched the prosecution furnished him with reasonable and probable cause for so doing, and in such cases there is no question to be left to the jury. This question is for the judge alone. Moreover, if the prosecutor knew, or, rather, thought he knew, certain facts, it matters not that those facts turn out to be false. ''The Defendant can claim to be judged on that." 16. The Judge's concern is essentially with the objective aspect of the question - whether there was reasonable and probable cause in fact but the overall question is a double one, both objective and subjective: did the prosecutor actually believe and did he reasonably believe that he had cause for posecution. Not only must there be reasonable and probable cause in factual but "it would be quite outrageous if, where a party is proved to believe that a charge is unfounded, it were to be held that he could have reasonable and probable cause, "and the prosecutor himself must also honestly "believe that he has reasonable and probable cause. His belief is a matter for the jury, not the judge, to determine, but the burden of proving lack of honest belief is on the Defendant, and the question should only be put to the jury "in the highly unlikely event that there is cogent positive evidence that, despite the actual existence of reasonable and probable cause, the Defendant himself did not believe that it existed". If there is such evidence, then it is permissible to ask the jury whether the Defendant honestly believed that the Plaintiff was guilty of the offence with which he was charged, but questions of guilty are not really for the prosecutor, and it may be better, therefore, to ask the jury whether the prosecutor honestly believed in the case he put forward." 17. From the above it appears to me that it is for the civil court to consider in the suit whether the complaint made by the prosecutor was based on reasonable and probable cause. If it comes to the conclusion that the complaint was false to the knowledge of the prosecutor himself then certainly it could be inferred that there was no reasonable and probable cause for the prosecution. It is not a case where the court presumes lack of such cause because of acquittal of the accused, but finds the Plaintiff to have discharged his burden in the matter by showing the complaint to be a false one to the prosecutor's knowledge by the evidence in the suit itself. 18. I might state here that the dictum as laid down, according to me rather widely in A.I.R. 1938 Pat 529, has been held to be no longer good law by another Division Bench of the Patna High Court consisting of Ramaswamy, C.J. and Untwalia, J. (as they then were) in Ucko Singh v. Nageshwar Prasad A.I.R. 1962 Pat 478. Their Lordships held the said decision really runs counter and inconsistent with ratio of the decisions of the judicial committee in Balbhaddar Singh v. Badri Sali A.I.R. 1962 P.C. 46, Pestanji Mincherji Mody v. Queen Insurance Co. I.L.R. 25 Bom 332, Mohammed Amin v. Jogendra Kumar A.I.R. 1947 P.C. 108 and also of the leading English decision by the court of appeal in Abrath v. Math Eastern Railway Co. 1883 11 Q.B.D. 440. The Patna High Court observed in the above mentioned case that the court see no reason why the application of the principle with regard to the burden of proof should be affected by the mere fact that the Defendant had purported to be an eye-witness of the offence committed by the Plaintiff. 1883 11 Q.B.D. 440. The Patna High Court observed in the above mentioned case that the court see no reason why the application of the principle with regard to the burden of proof should be affected by the mere fact that the Defendant had purported to be an eye-witness of the offence committed by the Plaintiff. The presence of this circumstance, the learned Judges said in an action for malicious prosecution cannot make any legal difference to the application of the principle of onus of proof which is now well established by a catena of authorities of the higest courts both in Indian and English Law. The fact that the Defendant purported to be an eye-witness of the occurrence of the crime is no doubt a factual circumstance which should be taken into account in deciding whether the Plaintiff has discharged the burden of proof. But legally speaking the burden of proof is never shifted from the Plaintiff to the Defendant even in such a case. 19. The following passage from the judgment of Mr. Justice V.R. Krishna Iyer in Chanu v. Valayanat Chirutha 1970 K.L.J. 1023 at pages 1031 and 1032 is relevant: "If a person alleges in a complaint or 'first information' that a certain offence has been committed by another to his personal knowledge, runs the argument, and the criminal case flowing therefrom fails eventually, a presumption of absence of reasonable and probable cause arises and, further, of malice in the prosecutor. The learned Subordinate Judge has proceeded on this footing relying upon the rulings reported in A.I.R. 1960 Ori 29 and 1965 K.L.T. 1054. There are quite a number of other decisions which take this view and I may mention that this is of pivotal significance in an action for malicious prosecution because some High Courts have gone further to hold that if a person gives information to the police which to his knowledge is false and gives evidence for the prosecution later he may be taken to be the real prosecutor even though he has not taken any other steps in the course of the investigation or in the conduct of the case. Naturally, the impact of an acquittal on the ingredients making up the tort in that species of the information or complaint which alleges personal knowledge of the accuser deserves serious consideration. Naturally, the impact of an acquittal on the ingredients making up the tort in that species of the information or complaint which alleges personal knowledge of the accuser deserves serious consideration. The logic is that when a person is acquitted in a criminal case his innocence of the charge is established and, if he is innocent, the allegations in the complaint or information making him guilty are untrue. And where those allegations purport to be made by an accuser as within his personal knowledge, the complaint is false. If it is false, obviously it is bereft of reasonable and probable cause and inspired by improper motive. The cornerstone of this edifice is that an acquittal in a criminal court is axiomatically a certificate of innocence, a first rate fallacy. A. conviction follows upon that degree of proof of guilty, which is free from reasonable doubt. If evidence falling short of this exacting standard is all that has been adduced in court, the accused has to be acquitted, be he guilty. In other words, on a mere preponderance of probabilities a criminal court could not even if it would, while a civil court could, even if it would not, hold the charge proved. For, it is undoubted law that in civil proceedings a findings can and may be rested on the probabilities of the case, (vide 1960 Kerala 195) but a criminal court, under our jurisprudence, is bound to acquit the accused not merely when he is innocent but in every case where the guilt has not been brought home beyond reasonable doubt. This is part of the public policy of our penal law referred to as the bedrock of criminal law or the golden thread that runs right through our criminal jurisprudence. Better that a hundred guilty person escape rather than one innocent person be convicted. It follows from this policy that courts perforce allow guilty persons to escape because the proof of guilt is not sufficiently rigorous and so an acquittal is not necessarily a judicial negation of guilty." 20. I might say that I am in respectful agreement with this view. 21. It follows from this policy that courts perforce allow guilty persons to escape because the proof of guilt is not sufficiently rigorous and so an acquittal is not necessarily a judicial negation of guilty." 20. I might say that I am in respectful agreement with this view. 21. All the same I would have referred the matter to a Division Bench if/l had to decide this case on this aspect of burden of proof alone in view of the positive pronouncement made by Justice Madhavan Nair in 1965 K.L.T. 1054 which is quite against the view that I hold. However, I do not do so because what is stated in Ext. A-1 is only this, after a review of the evidence in the matter: "All these and other defects and discrepancies referred to above are of such character that one is assailed by doubt regarding the truth of the substantial part of the prosecution story. I would, therefore, give the benefit of doubt to the accused. I hold that the prosecution has failed to prove beyond all reasonable doubt that the accused shot at P.W. 1 with intention to cause his death and the accused is not guilty of both the charges. The accused is therefore acquitted." There is no evidence in this case from which the court can come to the conclusion that the complaint made by the Defendant was false to his knowledge. 22. In the first instance as far as Ext. A-1 is concerned the court could look into only for the purpose of finding out whether the proceedings of the criminal court terminated in favour of the Plaintiff. No further probe into the judgment of the criminal court will be relevant in view of Section 43 of the Evidence Act. Section 43 reads: "Judgments, orders or decrees, other than those mentioned in Sections 40, 41 and 42, are irrelevant unless the existence of such judgment, order or decree, is a fact in issue, or is relevant under some other provision of this Act." 23. The following passages in Sirkar on Law of Evidence appearing at page 472, 12th Edn. in commentaries Under Section 43 may be quoted here: "Section 43 states the general rule that all other judgments not inter parties are irrelevant. There is an important qualification to this rule. The following passages in Sirkar on Law of Evidence appearing at page 472, 12th Edn. in commentaries Under Section 43 may be quoted here: "Section 43 states the general rule that all other judgments not inter parties are irrelevant. There is an important qualification to this rule. A judgment may not be admissible for proving the truth of the particular points which it decides, but it may be admissible for other purposes, as for instance when its existence is a fact in issue, or when it is relevant under the rules of relevancy contained in the other provisions of the Act, e.g. Sections 8, 11, 13, 54 Ext. P-1(2) and c. Thus where A has been tried and acquitted of a crime against B, and afterwards sues B for malicious prosecution, the judjment is conclusive evidence of A's acquittal and is relevant for that purpose, but it is not relevant as proof that A was innocent or that B was prosecutor, or was actuated by malice." 24. Legatt v. Tellervey 14 East 302 25. Therefore, Ext. A-1 is merely to show "that the person prosecuted is out of criminal woods", in the words of V.R. Krishna Iyer, J. in 1970 K.L.J. 1023. Justice Iyer further observes at pages 1030 and 1031 of the said judgment. "It is basic to the trial of cases in India that the Evidence Act must be applied without judicial exceptions and erosions. May be that this statute contains rules both dated and exotic and it may, perhaps be that in current conditions the law needs considerable revision but the court has merely to apply its provisions as they are. I have already explained that the Evidence Act does not admit of using the criminal court judgment for purposes other than are sanctioned by Section 43 and I am unable to find nor has counsel helped me to spot any provision of law by which the contents of a criminal court judgment may become relevant to ascertain whether the acquittal is on the merits or not and, further, whether it is after giving the benefit of the doubt or on account of the weakness of the prosecution evidence or on account of the overpowering effect of the defence evidence and so on. It appears to me that the Madras view outlined in A.I.R. 1933 Mad 429 sets out the correct law and Ext. It appears to me that the Madras view outlined in A.I.R. 1933 Mad 429 sets out the correct law and Ext. A-1 may be looked into for establishing the termination of the criminal proceeding in favour of the Plaintiff and for other formal purposes such as to ascertain the names of the witnesses examined, but not for any other substantive purpose, however tempting such use might be." 26. Therefore, one cannot utilise the judgment of the sessions court for the purpose of finding whether the acquittal is on merits or one giving the benefit of doubt. Therefore, the civil court has to independently consider and come to the conclusion whether the complaint made by the Defendant was false. Even in case the judgment in the criminal court could be put to use for finding out the nature of acquittal (as apparently it was so utilised in 1967 K.L.J. 967 but which decision, Justice Krishna Iyer observes, contains no specific pronouncement about the relevancy of the criminal court judgment in an action for malicious prosecution for enquiring into a graduated scale of guilt of non-guilt and could not be said to have laid down the law on the matter), it only gives benefit of doubt to the Plaintiff. There is no positive affirmation about the falsity of the Defendant's case. 27. I am not referring to the other Indian and English decisions in the matter brought to my notice by Sri Ravindran in view of the fact that no new principles are laid down therein other than that indicated above. 28. An appraisal of the evidence adduced in the case, in the light of the principles stated above, cannot but lead to the conclusion that the Plaintiff has failed to establish that there was no reasonable or probable cause for the prosecution. The Subordinate Judge is, therefore, right in his conclusion and this appeal is dismissed. I make no order as to costs in this Court.