015-NLR-NLR-V-56-W.-HATURUSINGHE-Appellant-and-G.-W.-KUDADURAYA-Respondent.pdf
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Halurusinghi v. Kudaduraya
1954Present : San so til J. and Fernando A.J.
W. HATURUSINGHE, Appellant, and G. W. KUDADURAYA,
Respondent
S. C. 433—D. C. Kandy, M. R. 2,833
Malicious prosecution—Prosecution by Police—Acquittal—Liability in tort of personwho gave first information of alleged offence—Criminal Procedure Code,ss. 121, 122—“ Reasonable and probable cause
Whero the Police institute a prosecution in consequence of informationgiven to them by a person under section 121 of the Criminal Procedure Codeand the accused is acquitted at the trial, the first information given to thePolice (as distinct from a statement made under section 122 of the CriminalProcedure Code after tho commencement of the Police inquiry) is sufficientto found an action for malicious prosecution if it actually contains a clearallegation that the plaintiff committed an offence, or, in other words, if it for-mulates a charge against the plaintiff. In such a case, the informant cannotbe permitted to plead that the Police should not have acted upon his allegation.
In an action for malicious prosecution the plaintiff has the burden of provinga negative, i.e., that the defendant acted without reasonable and probable cause.In determining whether the burden has been discharged, regard should be hadto all the circumstances in which the defendant acted.
^LpPEAL from a judgment of the District Court, Kandy.
«*
Colvin R. de Silva, with T. W. Rajaratnam, for the defendant appellant.
H. W. Jayewardene, Q.C., with D. R. P. Ooonetilleke, for the plaintiffrespondent.
Cur. adv. vull.
FERNANDO A.J.—Ha turueinghe v. Kudaduraya
01
September 21, 19.54. Fernando A.J.—
This is the fifth case instituted in Court in consequence of a trivialincident which occurred in 1947, and one must hope, though vainlyperhaps, that it is the last of the series.
The plaintiff in this action was in 1947 charged with robbery of a leatherpurse in proceedings instituted by one Sergeant Perera of the GalagederaPolice under S. 148 (1) (b) of the Criminal Procedure Code and wasacquitted. The prosecution was instituted in consequence of a statementor complaint made to the Police by the defendant in the following terms :—“ This morning about 6.30 a.m. I was going to Kandy with some docu-ments regarding two civil cases fixed for 22.8.J9 and' to pay somesurveyors Fees to Mr. Murray of Kandy, f carried l!s. 200 in my leatherpurse. All were in 13 ten rupee notes and four five rupee notes whichIwar no marks of identification and as I was going along the road, atNivangotla, near the cemetery I met Kudaduraya who got on the roadfrom the cemetery. When I saw him he had no club in his hand andthen he pulled out a ‘ kitul ’ club from his waist and hit me twice hut1 avoided the blows by getting onto a side. I caught hold of his clubami wo both struggled and at the struggle the right hand sleeve of mycoat was torn, and we both fell into the culvert when he, Kudaduraya,pulled out my leather purse with cash from the right inner pocket. Iraised cries, when Kotuwegedera Kirihamy and another man namedRanhamy came there on the road and caught Kudaduraya. OneRanasinghe and another man Naide also came there and separated us.My pencil also: was fallen dowh and Ranasinghe picked it up but Kuda-duraya took it|:a%^y-‘ I t|p|h jvent and informed the V. H. I sustaineda bruise on tile teffc knee As a result of falling down. My inner coatpocket was loiinf
The plaintiff now sues the defendant in an action for malicious pro-secution and the learned District Judge has entered judgment in favourof the plaintiff for Rs. 750. Counsel for the defendant in appeal hasraised several questions of law, including one of some general importancein regard to actions for malicious prosecution.
The essentials in an aotion for malicious prosecution under Englishlaw or Roman Dutch Law are substantially similar. Winfield (Law ofTort, 4th Ed., p. 611) states that the plaintiff must prove (1) that thedefendant, prosecuted him ; and (2) that the prosecution ended in theplaintiff’s favour ; and (3) that the prosecution lacked reasonable antiprobable cause ; and (4) that the defendant acted maliciously. Withregard to the first requisite it is clear law that a person can be sued insuch an action even though he was not the actual prosecutor, that is tosay the actual person who in Ceylon makes a complaint or report to theCourt under >S. 148 of the Criminal Procedure Code. A person can bemade defendant in the action if he was “ actively instrumental in puttingthe law in force ”. Hence, a statement made to the Police may in certaincircumstances found an action for malicious prosecution if the Policethereafter institute a prosecution in Court. The important contentionof Counsel for the appellant was that in order to he held liable in such
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KERN AND O A.J.—II a' unising he v. Kudaduraya
a case, it is not sufficient that the person merely made the allegation thatthe accused had committed an offence ; he must in addition have activelyinstigated or incited the institution of the prosecution. This contentionwas supported by reference to several decisions of this Court. In UdumaLebbe Marikar v. Adumay Sarango 1 Clarence J. said, “ All that theplaintiff has proved is that defendant gave certain information to thePolice in consequence of which and of other information obtained by hisown inquiries, the Inspector prosecuted the plaintiff. It does not appearthat the defendant solicited the Inspector to prosecute ”. In Kotalawelav. Perera 2 Fernando A.J. expressed himself as follows :—“ If it beclearly shown that a private person procured a prosecution at the publicinstance, maliciously and without reasonable cause, an action may lieagainst him. It is in any case clear that where a private individualmerely lays information concerning the commission of an alleged criminaloffence, without requesting or directing the prosecution of any particularperson, and the public prosecutor is left to exercise his own judgmentas to whether a prosecution shall be instituted or not such prosecutionis not traceable to the action of the person who gave the information andhe cannot be held responsible for it. The defendant must have set thecriminal law in motion, that is, he must have voluntarily institutedcriminal proceedings. It is clear then that in South Africa an actionof this kind will not lie in a case where the prosecution had been institutedby a public officer, unless it is shown that the defendant in addition togiving information either requested or directed the prosecution of anyparticular person ”. In Saravanamuttu v. Kanagasabai 3 Howard C.J.said that “ there must be something more than a mere giving of information,to the Police or other authority who institutes a prosecution. Theremust be the formulation of a charge or something in the way of solicitation,request or incitement of proceedings
Considered by themselves these dicta would seem to indicate that aperson who makes a complaint to the Police which clearly implicatesanother as the offender would not be liable in an action for maliciousprosecution if he takes no further steps to induce the prosecution. Butwhen the facts of the two more recent cases are examined, it becomesclear that in each of them the defendant was not the person who gave“ information ” to the Police within the meaning of S. 121 of the CriminalProcedure Code, , but rather a person who. made statements under S. 122after the commencement of the Police inquiry. The only recent casewhere the defendant had given the first information was that of HendrickAppuhamy v. Motto Singho 4 where however the contents of the firstinformation were not available to the Court. Keuneman J. theresaid (at p. 460) “ No evidence in fact has been given as to the actualinformation given to the Police by the defendant, nor as to the circum-stances under which that information was given. No Police officer hasbeen called, and we do not know, whether this was the first informationgiven to the Police, and whether, in giving the information, the defend-ant in fact formulated a charge against the plaintiff, based upon his
*{1883) 6 S. C. C. 230.
(1036) 39 N. L. R. 10 at p. 13.
{1942) 43 N. L. R. 357 at p. 369.{1943) 44 N. L. R. 459.
FERNANDO A.J.—Haturuainghe v. Kudaduraya
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knowledge This passage does not to my mind indicate that the learnedJudge took the view that the first information by itself would not havesufficed to found the action for malicious prosecution ; it appears on thecontrary to bis opfen foithe construction that if in giving first informationthe d^fendant'iitt met fi|rmtilat}ed a charge against the plaintiff based uponhis own know3edge:he ihight Well have been held to be the real prosecutor-Counsel for the appellant relied strongly on the following statement in ajudgment of the Privy Council in Tewari v. Bhag at Singh 1 which wasfrlao cited by Keuneman J., “ If a complainant did not go beyond givingwhat he believed to be correct information to the Police and the Police,without further interference on his part (except giving such honest assist-ance as they might require) thought fit to prosecute, it would be improperto make him responsible in damages for the failure of the prosecution.But, if the charge was false to the knowledge of the complainant, if hemisled the Police by bringing suborned witnesses to support it, if hoinfluenced the Police to assist him in sending an innocent man for trialIjofore the Magistrate, it would be equally improper to allow him to escapeliability because the prosecution had not technically been conducted byhim. The question in all cases of this kind must be—Who was. theprosecutor ? And the answer must depend upon the whole circumstancesof tho case. The mere setting of the law in motion was not the criterion ;the conduct of the complainant, before and after making the charge,must also be taken into consideration What is clear from this passageis that a complainant will not be liable if he merely gives what he believedto be correct information to the Police. But the judgment of the Privy(Council does not clearly set out the law applicable in a case where the chargemade to the Police by the complainant was false to his knowledge.Tho passage appears to be open to either construction, namely that sucha chargo by itself is sufficient to found the action for malicious prosecutionor alternatively that there must be some further improper conduct onthe part of the complainant.
Counsel for the respondent has invited us to hold that the former istho corroct view. He contends that there is a distinction between whatis popularly called a first information and a statement recorded underS. 122 of the Code during the course of the Police inquiry. He referredto tho case of Wijegunatilleke v. Joni Appu 2 where it was held that falsestatement in the course of an inquiry by the Police under Chapter XII ofthe Codo is a statement made on a privileged occasion and cannot foundan action for damages. (In fact S. 122 clearly provides that such astatement cannot be used otherwise than (a) to prove that the witnessmade a different statement at a different time or to refresh the memoryof the person recording it or (6) as evidence in a charge of perjury.)Counsel accordingly contends that the necessity for some further mis-conduct on the part of the person making such a statement to the Policearises because the statement itself is shut out by the law from constitutingevidence of “ setting the law in motion against the plaintiff ”, but thatthere is no such necessity in the case of a first information if in fact theinformation donsists of the formulation of a charge against the plaintiff.
1 (J907-8) 24 T. L. B. 884.
* (1920) 22 N. L. B. 231.
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FERNANDO A. J.—Haturuainghe v. Kudaduraya
The passage cited above from the judgment of Howard C.J. appearsto bear out this view ; the mere giving of information to the Policeis not sufficient without “ something more ”, that is, either (a) the formu-lation of a charge or (b) a solicitation request or incitement. Althoughthere is no recent case directly in point, I find that in Podisingho v. Appu-hamy 1, it was held sufficient that the defendant set the authorities inmotion to the detriment of the plaintiff.
I am of opinion that a first information given to the Police is sufficientto found an action for malicious prosecution if it actually contains a clearallegation that the plaintiff committed an offence, or, in other words,if it formulates a charge against the plaintiff. While it is correct thatthe Police have a discretion whether or not to prosecute, it is neverthelesstheir duty to prosecute if they form the opinion that the allegation maybe true. If they do form such an opinion, particularly in a case wherethere appears to be corroboration from a source named by the informant,ho can surely not be permitted to plead that the Police should not haveacted upon his allegation.
In the case before us the defendant made a clear accusation of theftagainst the plaintiff, and there is in addition evidence that he insisted thatthe Sergeant should institute proceedings, a course which the Sergeanttook when he found that the defendant’s story appeared to be corrobora-ted. I think therefore that the complaint was sufficient to found theaction.
Counsel for the appellant has also argued that the defendant only madean allegation of theft and assault and that since the allegation did notamount to a statement of facts sufficient to constitute robbery withinthe meaning of S. 379 of the Penal Code, he cannot be held responsiblefor the action of the Police who instituted a charge of robbery and not thecharge of theft. I do not propose to deal with this point at any lengthbecause I have formed the view that the appeal must succeed on othergrounds. It is sufficient to say that since there was an allegation both ofassault and of theft, the defendant cannot be allowed to seek shelterbeneath the misconstruction of his allegation by the Police. Further-more, the charge of robbery was sufficient to enable the Magistrate toconvict of theft, and it must be assumed iii the absence of such a convictionthat theft was not established. The example (suggested by myself)of a prosecution for rape based upon a complaint of mere assault is notI think relevant because a person who complains of simple assaultcannot properly be said to have set the law in motion on a charge ofrape.
In order to succeed in an action for malicious prosecution, the plaintiffmust prove that the defendant acted without reasonable and probable■cause. The burden is clearly on the plaintiff, Corea v. Pieris 2. IndeedWinfield at p. 017 points out that in this respect “ the plaintiff is compelled 1
1 U904) 3 Bat. 145.
* (1908) 10 N. L. R. 321 ; (1910) 12 V. L. R. 147 (P. C.).
FERNANDO A.J.—Hatnrusinghe v. Kudaduraya
to undertake a task commonly supposed to be impossible—to prove anegative It is necessary therefore to examine the maimer in whichthe learned District Judge has approached the question of Jack ofreasonable and probable cause. He examines the evidence both of theplaintiff and the defendant and concludes that the charge was a falseone, and therefore that it was made without reasonable and probablecause. I do not think however that this conclusion was justified havingregard to the circumstances in which the complaint was made—circum-stances which the Judge should have considered in determining whetheror not the plaintiff had discharged the somewhat unusual burden caston him in an action of this description. The plaintiff had himself ad-mitted an exchange of blows between himself and the defendant on themorning in question, but he nevertheless made no complaint of the assaultto the authorities. On the other hand the defendant made a very promptcomplaint to the Headman and then to the Police. This indicates theprobability that the incident of the morning had caused more resentmentin the mind of the defendant than in that of the plaintiff. If the defen-dant did so resent the blows which the plaintiff admits were exchangedit might well be that in that state of mind his allegation of theft was anembellishment made merely in anger. “ It may, I think be assumed ”,says Cave J. in Brown v. Hawkes 1, “ that the defendant was angry ;but so far from this being a 'wrong or indirect motive, it is one of themotives on which the law relies to secure the prosecution of offendersagainst the criminal law ”. Then there was evidence-that the defendantdid at the time of the incident and in the presence of the plaintiff referto the loss of his purse. The learned Judge has failed to consider thequestion whether tho purse was actually lost, and if so whether the alle-gation of theft may have been made mistakenly. The fact that the defen-dant attempted subsequently to substantiate this allegation in his evidenceto tho Magistrate does not lead to the necessary inference that the originalcomplaint was mailo without reasonable and probable cause. I thinkthat the learned J udge should also have taken into consideration the factthat although tho defendant mado an allegation that the plaintiff tookhis purse, it was in the main a complaint of assault, which latter com-plaint could not possibly have been held to have been made withoutreasonable and probable cause. I think therefore that the plaintifflias failed to discharge the burden of proving that tho complaint wasmode without reasonable and probable cause.
For these reasons the judgment and decree are sot aside and the plain-tiff’s action dismissed with costs in both Courts.
Sanson i .1.—1 agree.
Appeal allowed.
{1891) 2 Q. B. D. at p. 722.