Gaya Prasad v. Bhagat Singh

Facts

The case concerned whether a private complainant who set the criminal law in motion against the plaintiff could be treated as the 'prosecutor' for the purposes of an action for malicious prosecution, given that in India prosecutions are conducted by the police and the State, not by private persons. The question turned on the complainant's conduct before and after lodging the charge.

Issues

• In the Indian system, where the police conduct prosecutions, who is to be regarded as the 'prosecutor' answerable for malicious prosecution?
• Does the complainant's conduct before and after making the charge determine his liability?

Arguments

It was contended that since the prosecution was technically launched and conducted by the police, a private complainant who merely gave information could not be held liable. The opposing view was that a complainant who knowingly furnished false information and procured false evidence to mislead the police was in substance the prosecutor.

Held

The Privy Council held that the mere setting of the law in motion is not the criterion; the conduct of the complainant before and after making the charge must be examined. If a complainant honestly gives information he believes correct and the police then prosecute, he is not liable. But if the charge is false to his knowledge, and he misleads the police by suborning witnesses or influencing them to send an innocent man for trial, he cannot escape liability merely because the prosecution was technically conducted by the police. The question in every case is: who was the prosecutor?

Ratio decidendi

A private complainant is the 'prosecutor' for the purpose of malicious prosecution if, knowing the charge to be false, he is actively instrumental in setting and keeping the criminal law in motion against the plaintiff; this is a question of fact decided on the whole circumstances.

Significance

Leading Privy Council authority defining who is a 'prosecutor' under Indian conditions where prosecutions are public. It is repeatedly relied upon (e.g. in Pannalal v. Shrikrishna and Dattatraya Pandurang Datar) to distinguish mere informants from real prosecutors, and remains the governing test on the first essential of malicious prosecution in India.

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