Principles

·  TORT — Malicious prosecution— Arrest and search constitute a “prosecution” when made under warrant and damaging to reputation.

·  TORT — Malicious’ prosecution — Malice not shown where defendant gave police information from honest motive to achieve Justice though without reasonable cause.

Defendant gave information to the police which led to the arrest of plaintiff and search of his shop under warrant for the theft of gold belonging to .a relative of defendant. The information was based solely on defendant’s suspicion of plain.tiff’s behaviour.
Plaintiff was released after the search and he brought this action for malicious prosecution.
Hield: (I) An actionable prosecution exists where the plaintiff was arrested and his shop searched in public. on a warrant signed by a Magistrate. The test of whether proceedings can be called a prosecution is whether they damage plaintiffs’ reputation.
(ii) Malice must be proved in an action for malicious prosecution and none was proved where the defendant acted from an interest in.securing the ends of justice even though without reasonable and probable cause.

Judgment                          

 Osman El Tayeb, P. J. April 23, 1957:— Plaintiff is a merchant of Ed Damer. He started business with his late father, and later with his elder brother until they entered into a registered partnership in 1956. Plaintiff is still a young man. He is claiming damages assessed at £S. 500 for injury caused to his reputation. basing his action on the tort known as malicious prosecution committed by the defendant, by giving information to the police accusing him of being in possession of some stolen gold, and thereby moving the police to act relying on that information.

It happened that ‘some months ago a big amount of gold was stolen from one Latif Sabagh at Atbara. The police at Atbara and at Ed Darner were working hard to detect that thief and they were seeking the help of any person who was prepared to render any. Defendant, a resident of Ed Darner, is the close relative of the owner of the stolen gold and so by reason of that relationship he became interested in detection of the crime and was prepared to assist the police. With this purpose, defendant, one day in early October, 1956-, gave information to the police at Ed Damer to the effect that he was accusing plaintiff of being in possession of some of the stolen gold. Relying on this information the police at the same time overcame plaintiff outside the town while the latter was on his donkey going to his village. He was brought back to the police station. He was searched and none of the stolen gold was found on him. At the same time a of search was obtained from a justice of the peace for the search of plaintiff’s shop, and that wat. done in the presence of plaintiff without a positive result. Then plaintiff was set free. It seems that this took no more time than was necessary to complete the search. During this time, however short it may be, the plaintiff  was under arrest the charge being that of receiving stolen property  a cognizable offence for which the police may arrest without a warrant. As to the search of plaintiff’s shop, a warrant was issued by a judicial officer, who has powers to do so under the law.

It is contended on behalf of plaintiff that this constituted malicious prosecution; that the defendant by giving information to the police and inducing them to act in the way they did, had no reasonable and probable cause and was motivated by malice; and that plaintiff suffered damage to his reputation and liberty.

In both England and India it is an actionable wrong to set the law in motion by initiating criminal proceedings against a person maliciusly and without reasonable and proper cause. We have to accept and apply the same principles in our Courts in so far as they constitute a wrong affecting the freedom and reputation. of the individual. The basis of the action is wrongly setting the law in motion. It is the right of everyone to put the law in motion if he does so with the honest intention of protecting his own or the public interest or when his intention is to assist in securing the .ends of justice. In some matters or cases an ordinary individual is bound by law to give information to the public, when he has reason to believe that an offence was committed of the class described in Code of Criminal Procedure, s. 109. Whether it he a right or a duty it must be exercised honafide and not without reasonable and probable cause. If there he abuse of that right or duty, which is allowed for the purpose of securing the ends of justice, then there will be an actionable wrong.

There is some divergence of opinion in India as to the kind of prosecution that would become actionable. In English law a prosecution must be initiated before a person clothed with judicial authority. “To prosecute is to set the law in motion, and the law is only set in motion by an appeal to some person clothed with judicial authority, inregard to the matter in question. If the charge is made to a police constable, and he thereupon— makes an arrest, the party making the charge, if liable at all, will be liable in action for false imprisonment, on the ground that he has directed the arrest, and therefore it is his own act and not the act of the law. But if he goes before a Magistrate who thereupon issues his warrant, then his liability   if’ any is for malicious prosecution.” Clerk and Lindsell, Torts 805 (10th ed. 1947)

In India the same rule applies, that the law can only be set in motion  by an appeal to a person clothed with judicial authority, i.e., a magistrate. If the complaint was made to a policeman or a police, officer on duty and he acted upon it without directions from a magistrate causing the arrest of the plaintiff in a cognizable offence, there was no prosecution. As to the limits of the meaning of “prosecution”, it is useful to quote Ratanlal, The English and Indian Law of Torts 184 (15th ed.): “The Privy Council has ruled that to found an action for damages for malicious prosecution based on criminal proceedings, the test is not whether the criminal proceedings have reached a stage at which they may be correctly described as a prosecution, but whether such proceedings have reached a stage at which damage to the plaintiff results. The Board were not prepared to go as far as some of the Courts in India, in saying that the mere presentation of false complaint which first sought to set the law in motion would per se found an action for damages for malicious prosecution.”

In this case defendant gave the information to Ed Damer Police. They overcame plaintiff outside the town while he was going to his village, and they brought him back to the Police Station in the town. This is arrest upon information of an offence on which the police may arrest without a warrant. Up to this point it is clear that there was no prosecution. Next

the Police obtained a warrant of search from a justice ot the peace, anu searched. the shop of plaintiff. Nothing was found and plaintiff was re leased. In some Courts in India this was considered to be prosecution and the defendant was held liable. I think that the opinion which we have to adopt is that the magistrate or a justice of the peace is the person who can put the law in motion. Where the information was lodged with the police by the defendant and the police relying on that information have started an investigation, even up to arrest and search of plaintiff, when they can do so without a warrant, but there was no positive result and plaintiff wa released, there is no prosecution. The prosecution starts after the magis trate has given directions under Code of Criminal Procedure, s. 114 or s.122C, when the information was communicated to him and he acted upon it. We have to consider this as the stage at which damage results to the plaintiff. The search of plaintiff’s shop at the market area in the presence of many persons consequent on an accusation of receiving stolen property is certainly an act causing injury to his reputation. As the search was conducted by virtue of a warrant signed by a person judicially authorised to do so, then I come to the conclution that there was prosecution that terminated in favour of plaintiff.

The other important point is whether defendant in giving the informa tion to the police had acted maliciously and without reasonable and pro bable, cause. “The term ‘malice’ in this form of action is not to be consi dered in the sense of ;pite or hatred against an individual, but of malus animus, and as denoting that the party is actuated by improper and indirect motives. The proper notive for a prosecution is, of course, a desire to secure the ends of justice. If a plaintiff satisfies a jury either negatively or affirmatively that something else was, he proves his case on the point.” Clerk and Lindsell, Torts 820-821 (10th ed. 1947)

In our case there is nothing before the Court on the side of plaintiff to prove that defendants motive was something other than a desire to secure the ends of justice. A large amount of gold was stolen from a shop of a relative of his at Atbara in a most exciting manner by the burglar making a hole in the roof of the shop. Defendant was clearly anxious to assist in the detection of the ca This was his motive, which clearly pertains to a desire to secure the ends of justice. But there is nothing to indicate a contrary or any other specific intention. The relations between the parties were normal and rather friendly up to the material time. There was nothing to suggest any improper or indirect.motive, and also nothing to show any wish to injure the plaintiff.

It remains for us to give an opinion about lack of reasonable and probable cause. This may seem to be for practical purposes unnecessary, be cause lack of reasonable and probable cause must be coupled with presence of malice in order to establish liability. I discussed malice first because I find it clear in my mind that malice in fact does not exist. On the other hand, it is doubtful whether defendant was careful and cautious enough in the circumstances before lodging the information.

The facts on which defendant made up his mind were as follows: He successfully gave information about two persons, namely, Rabie and Ahmed Khalifa, who were accomplices and their arrest led to the detection of the gold theft of Atbara. These two or one of them mentioned the name of one Mohamed El Tayeb. The latter is a relative of plaintiff. A Policeman came with a summons to find this person, and was looking for him at plaintiff’s shop, at a time when Mohamed El Tayeb was actually there. The name in the Summons was wrongly written Mohamed Ibrahim Taha. Plaintiff put the Policeman in doubt as to whether the person required was this or that. The Policeman went to the telephone to enquire from the office. During this time Mohamed El Tayeb left plaintiff’s shop for his own, and then plaintiff brought his donkey and loaded it with the saddle bags. He took some articles from the shop, put some in the bags and some in his pocket and rode away to the village. Defendant suspected that those arti cles, not known to him as he was looking from a distance, were some of the stolen gold.

Now can we say that a reasonable and prudent man would on those facts feel satisfied and convinced that plaintiff was in possession of the stolen gold ? I should ty the answer is no. It is acceptable that the circum stances may rightly cause defendant to suspect, but not believe or on suffi ciently strong grotinds to accuse plaintiff of Possession of the stolen gold. The conclusion is that defendant was honest but indiscreet. He is, there fore, not liable in damages.

Had plaintiff succeeded in this case he would have been entitled to general damages in the region of about £S.l00.

Case is dismissed with costs.