JUDGMENT
1. These two appeals arise out of a suit brought by the plaintiff-respondent Syed Nasir Ali for recovery of Rs. 1,000 as damages for malicious prosecution. Defendant 1, Sharif, was a Police Inspector stationed at Khurja at the time when the offences for which the plaintiff-respondent was prosecuted were alleged to have been committed. Syed Zafar Ali and Aftab Husain, defendants 2 and 3, who are brothers, are related to the plaintiff. On 11th January 1924 defendant 2 made a report at the Khurja Police Station that his house, which is contiguous to that of the plaintiff, had been raided by the plaintiff and his associates and that he (defendant 2) closed his doors to prevent the raiders getting into his house and made good his escape by jumping down the roof of his house. As the officer-in-charge of the police station was indisposed, the head muharrir forwarded the report to the Circle Inspector, defendant 1, who, accompanied by a few constables, proceeded to the scene of occurrence. Subsequently at about 12 p.m. the Circle Inspector made a report at the thana that, while he and the constables were proceeding to the scene of occurrence, the party were waylaid by the plaintiff and a few others and beaten. This was said to have occurred between 6 and 7 p.m. Defendant 1 was under orders of transfer to Saharanpur and left Khurja next day. The offences with which the plaintiff and his party were charged by defendant 1 in the report already mentioned were those under Sections 332 and 147, I.P.C., i.e., voluntarily causing hurt to deter public servant from his duty and rioting. The officer-in-charge of the police station made an investigation which resulted in the plaintiff's prosecution for those offences before the Joint Magistrate, who acquitted the plaintiff and his co-accused on 27th March 1924. The suit which has given rise to these appeals was instituted on 27th May 1925 on the allegation that defendant 1 and Syed Zafar Ali, defendant 2, who is an Honorary Magistrate, and defendant 3 conspired to bring a groundless charge against the plaintiff without reasonable and probable cause and maliciously. The Munsif, in whose Court the suit was brought, dismissed it on 22nd March 1926. On appeal the learned District Judge of Bulandshahr sent back the case to the Munsif on the ground that the latter had improperly refused to examine certain witnesses whom the plaintiff desired to produce and directed him to submit fresh findings after recording the evidence of such witnesses.
2. In the meantime the Munsif, who had dismissed the suit, was transferred and was succeeded by another officer, who recorded the evidence which the appellate Court had directed to be taken and found in favour of the plaintiff on all the material questions arising in the case. On receipt of the findings the learned District Judge decreed the plaintiff's claim to the extent of Rs. 700 against all the defendants. Second Appeal No. 1958 of 1927 has been preferred by defendant 1 and Second Appeal No. 2260 of 1927 has been preferred by defendants 2 and 3. To clear the ground for a consideration of the questions of law which have been argued before us we should state the findings of fact arrived at by the lower appellate Court which must be accepted as conclusive on second appeal. It has been found by the learned District Judge concurrently with the finding of the Court of first instance after remand that defendant 1 and defendant 2 were on friendly terms; that there was ill-feeling between the plaintiff and defendants 2 and 3 in consequence of disputes about a certain zamindari; that in June 1923 proceedings under Section 145, Criminal P.C., were taken by the Sub-Divisional Officer, Khurja, against the plaintiff and defendants 2 and 3; that a report of defendant 1 then made was unduly favourable to defendants 2 and 3 and that the evidence otherwise proved that defendant 1 had identified himself with defendants 2 and 3. It has also been found that the criminal case against the plaintiff and his party was absolutely false and that the plaintiff, who was a schoolmaster, was busy with the printing of examination papers in the school building at the time when the offences were said to have been committed. The lower appellate Court has gone so far as to hold that the report of defendant 2 made at the thana on 11th January 1924, which was forwarded to defendant 1, was without foundation and that the subsequent report of defendant 1, charging the plaintiff and his party with offences under Sections 332 and 147 was equally without foundation. The learned District Judge has expressed himself thus:
The plaintiff has thus proved that he could not be at the alleged row nor could he be at the tiraha to fight with the defendants. As the plaintiff was innocent and the whole story of the defendants from end to end was false, so not a single person of mohalla of defendants 2 and 3 nor any one of the tiraha appeared as a witness for them. I agree with Mr. Ratan Lal that the reports of defendants 2 and 3 to the police that there was a danger of breach of peace, as also the report of defendant 1 that the plaintiff beat him was all false so far as the plaintiff was concerned. As everything was false and imaginary it is fair to assume that the defendants were actuated by malice in so doing... It seems that all the three defendants acted in a sort of conspiracy to ruin the plaintiff. Defendant 1 was going, he was to hand over charge the next day and so it needed all efforts to concoct a case against the plaintiff and men of his party as early as possible. For want of better grounds the prosecution was launched on a flimsy story not supported by reliable evidence even.
3. It may be that this picture is somewhat overdrawn, but sitting in second appeal we are bound by the findings of fact supported as they are by evidence which we are precluded from examining ourselves. We must therefore hold that the plaintiff-respondent was prosecuted maliciously without reasonable and probable cause.
4. The learned advocate for the appellant has argued: (1) that the suit should have been brought within three months from the accrual of cause of action, as required by Section 42, Police Act 5 1861; (2) that even if a longer period of one year provided for by Article 23 Sch. 2, Limitation Act, be applicable, the plaintiff's suit is barred and (3) that defendant 1 cannot, under the circumstances of the case, be regarded as the prosecutor and no decree for damages can be passed against him.
5. The first point may be shortly disposed of. On the passing of the Limitation Act 9, 1871, that part of Section 42, Police Act 5, 1861 which provides a period of three months for suits contemplated by it was repealed, with the result that such suits became subject to the general law of limitation contained in the Limitation Act and the special provision of limitation contained in Section 42, Police Act 5, 1861 ceased to be operative.
6. Article 23, Sch. 2, Lim. Act, provides a period of one year for suits for compensation for a malicious prosecution, to be reckoned from the date the plaintiff is acquitted or the prosecution otherwise terminates. The plaintiff-respondent having been acquitted on 27th March 1924, his suit brought on 27th May 1925, is prima facie barred unless allowance is made for two months. The plaintiff claims a further period of two months under Section 15, Lim. Act, which provides inter alia that in computing the period of limitation prescribed for any suit of which notice has been given in accordance with the requirements of any enactment for the time being in force, the period of notice shall be excluded. The plaintiff served defendant 1 with two months' notice under Section 80, Civil P.C., and brought the suit after the expiry of two months from the date of the notice. He, therefore, claimed benefit of Section 15 on the ground that such notice was imperative under Section 80, Civil P.C. If under the circumstances of the present case defendant 1 was entitled to a notice prescribed by Section 80, Civil P.C., there can be no doubt that the suit, so far, at any rate, as defendant 1 is concerned, was instituted within time. The question remains as to whether it was time barred against defendants 2 and 3 as to whom no question of notice can arise.
7. It was contended on behalf of defendant 1 that no notice under Section 80, Civil P.C., was necessary if the plaintiff's allegation be true that defendant 1 maliciously conspired with the other two defendants to launch a groundless prosecution against the plaintiff, because, in that case, he cannot be deemed to have acted in the discharge of his duty as a police officer. Reference was made in this connexion to Mumtaz Hussain v. A.E. Lewis [1910] 5 I.C. 467 which is, however, not a case in point. An assistant engineer against whom damages were claimed in that case by his subordinate for assault and use of abusive language was held not to be entitled to a notice under Section 80, Civil P.C. It cannot be said that a public officer acts in his official capacity in maltreating his subordinate in relation to the discharge of his duties as a public officer. Section 80 will apply to a case in which damages are claimed against a public officer in respect of any act purporting to be done by him in his official capacity. An important test is whether the public officer professed to act in his official capacity. As was ruled in Abdul Rahim v. Abdul Rahim A.I.R. 1924 All. 851:
If the act was such as is ordinarily done by the officer in the course of his official duties, and he considered himself to be acting as public officer and desired other persons to consider that he was so acting, the act clearly purports to be done in his official capacity within the ordinary meaning of the term 'purport.' The motives with which the act was dona do not 'enter' into the question at all.
8. In the case before us defendant 1 proceeded to the scene of occurrence on receipt of the report previously made by defendant 2 and forwarded to him by the head muharrir. He purported to do so in his capacity as a Police Inspector. His subsequent report complaining of assault and obstruction by the plaintiff and his party was likewise made by him in his capacity as a police officer. Indeed one of the offences with which he charged the plaintiff in that report was that under Section 332, i.e., voluntarily causing hurt to deter public servant from his duty. We are clearly of opinion that on the authorities of this Court and the language of Section 80, Civil P.C., defendant 1 did purport to act in his official capacity and that it was imperative on the plaintiff to give notice to him of the suit for malicious prosecution. The learned advocate for the appellant argued that notice, if at all necessary, was required by 8. 42, Police Act 5, 1861, which provides for one month's notice only. If this contention is sound the plaintiff's suit should be deemed to have been instituted beyond limitation by one month. We are unable to give effect to this argument. That section refers to actions for anything done or intended to be done under the provisions of this Act or under the general police powers hereby given.
9. It was not in the discharge of any duty imposed by the Police Act that defendant 1 was obstructed or made the subsequent complaint at the police station against the plaintiff. Defendant 2's report which had been forwarded to him by the head muharrir complained of a cognizable offence having been committed by the plaintiff. Defendant 1 proceeded to the scene of occurrence to investigate the case initiated by that report. It was therefore, in his capacity as an investigating police officer in the exercise of powers conferred upon him as such by the Criminal Procedure Code that he acted. His own report which led to the prosecution of the plaintiff-respondent was also made in the same capacity. It was held in Bachha Singh v. Jajar Beg [1915] 30 I.C. 173, that:
where a suit has to be brought against a police officer for damages for something done in the exercise of his powers under the Criminal Procedure Code the provisions of Section 42, Police Act, do not apply and the plaintiff has to give two months notice as provided by Section 80, Civil P.C.
10. Accordingly we hold that 8. 42, Police Act, does not apply and that the plaintiff was entitled to a period of two months being excluded in computing limitation. In this way the suit was rightly held by the lower appellate Court to be within time. The suit is in our opinion equally within time as against defendants 2 and 3. Section 15(2), Limitation Act, provides that in computing the period of limitation prescribed for any suit of which notice has been given in accordance with the requirements of any enactment for the time being in force the period of such notice shall be excluded.
11. If it is necessary or even permissible for a plaintiff to bring a suit claiming relief against all the defendants jointly, and if a notice under Section 80, Civil P.C., was necessary against one of the defendants and was in fact given, the period of notice is to be excluded in computing the period of limitation for the suit and not merely so far as the defendant to whom notice was given is concerned. Any other view will make the provision of Section 15(2) nugatory in cases in which it is necessary to implead in one suit, private individuals and the public officer against whom there is but one cause of action. All that the section requires is that a notice should have been given in accordance with the requirements of any enactment for the time being in force and if this condition exists it declares without any qualification or reservation that the period of notice shall be excluded in computing limitation. The learned Judges of the Patna High Court have taken the same view in B. & N.W. Railway Co. v. Ramsarup Lal Chowdhury A.I.R. 1922 Pat. 549.
12. The only other question that remains is whether defendant 1 should be considered to have prosecuted the plaintiff. His report at the thana complaining that the plaintiff and his party had committed the offences under Section 332 and Section 147, I.P.C., and asking for action being taken against them, taken with his conduct previous to the report as found by the lower appellate Court, is sufficient, in our opinion, to establish that he was the prosecutor of the plaintiff. It is true he did not take any part in the proceedings which followed except by giving his own evidence, but that fact will not make him any the less a prosecutor if he can be otherwise considered to be such. In Gaya Prasad v. Bhagat Singh [1908] 30 All. 525 their Lordships of the Privy Council held that:
It is not a principle of universal application that if police or Magistrate act on information given by a private individual without a formal complaint or application for process the Crown and not the individual becomes the prosecutor. The answer to the question, Who is the "prosecutor," must depend upon the whole circumstances of the case. The mere setting the law in motion is not the criterion; the conduct of the complainant before and after making the charge must also be taken into consideration. Nor is it enough to say the prosecution was instituted and conducted by the police; that is again a question of fact. Theoretically all prosecutions are conducted in the name and in behalf of the Crown, but in practice this duty is often left in the hands of the person immediately aggrieved by the offence who pro hac vice represents the Crown.
13. In a later case, Balbhaddar Singh v. Badri Sah A.I.R. 1926 P.C. 46, at 460 (of 24 A.L.J.) their Lordships observed:
Of course there is nothing in the point which seems to have been taken in the Courts below but which was not urged before their Lordships, that here de facto the appellants were not prosecuted by the respondent. In any country where, as in India, prosecution is not private, an action for malicious prosecution in the most literal sense of the word could not be raised against any private individual. But giving information to the authorities which naturally leads to prosecution is just the same thing. And if that is done and trouble caused, an action will lie.
14. In the case before us the finding is that all the three defendants conspired to prosecute the plaintiff maliciously and without reasonable and probable cause and that in furtherance of their design defendant 1 figured as the complainant in a cognizable offence of which information was lodged by him to the police and the latter prosecuted the plaintiff on the faith of such information. In the proceedings which followed before the Joint Magistrate all the defendants gave evidence. Defendants 2 and 3 actively aided the police in prosecuting the plaintiff in other ways. Under these circumstances we entertain no doubt that all the three defendants were rightly considered by the learned District Judge to have prosecuted the plaintiff so as to entitle the latter to sue them for compensation for malicious prosecution. In view of our findings on all the questions argued in second appeal we uphold the decree appealed from and dismiss the appeals with costs including counsel's fee on the higher scale.