BURDEN OF PROOF.

149

CHAPTER 8
BURDEN OF PROOF.

Burden of proof In malicious proseoutlom

In an action for malicious prosecution, the plaintiff

must prove first that he was prosecuted by the defendant;
secondly that the prosecution was determined In his favour;
thirdly that It was without reasonable and probable cause;
fourthly that It was malicious. The onus of proving every
1
one of them Is on the plaintiff.

The burden of showing that a) certain facts did not

exist at all; b) even If they existed, they were not known
to the defendant; c) even If known to the defendant, they
did not constitute reasonable and probable cause, lies on
the plaintiff. But this burden of proof Is not stationary.

Halsbury, Laws of Englauid, Vol.25, at p.361 (3rd ed.);

Clerk and Llndsell, Torts, at p.894 (1961); Pollock,
Torts, at p.233 (1951); Blackburn and George, Torts,at p.
206 (1949); S.Ramaswamy Iyer, The law of torts, at p.256
(1965).
 150

When the plaintiff has given such evidence as if not answered,

will entitle him to a verdict, the burden of proof is shifted
1
to the defendant.

If the plaintiff has been charged with several offences

the burden of proof is on him to show that each one of the
2
charges lacked reasonable and nrobable cause.

If the plaintiff alleges that the defendant did not

believe in the guilt of the plaintiff though he had the
knowledge of the facts, it is for him to prove that the defen-
4
dant did not so believe.

Observations of the magistrate who tried the criminal

case, should not be used by the plaintiff to t>rove the absence
5
of reasonable and probable cause.

S
Indian Evidence Act:

Chapter VII of the Indian Svidence Act deals with

1. Abrath V North Eastern Rail.Go. (1883) 11 Q.B.D.440 at

p.456j Halsbury, Laws of England, Vol.25, at p.362, para
705 (3rd ed.)
2. Palmer V Birmingham Manufacturing Co.(1902) 18 T.L.R.552
4. Lister V Ferryman (1870) L.R. 4 H.C.521
5. Barker V Angell (1841) 2 Mood. & R,371; Hibberd V "harles
(1860) , 2 F.& F.126.
 151

burden of proof. The general principles of burden of proof

1
are laid dovm in sections 101 to 103. The rules embodied
in these sections are not so many, but they are different
aspects of the same rule i.e. the burden of proof lies on
2
the party who asserts the affirmative of the issue.

The expression • burden of proof ' has two meanings;

one is the burden of establishing the case and the other is
3
the burden of introducing the evidence. The phrase is
used in the former sense in section 101 and in the second

1. Section 101 of the Evidence Act: " Whoever desires any

court to give Judgment as to any legal right or liabi-
lity dependent on the existence of facts which he
asserts, must prove that those facts exist.
When a person is bound to prove the existence of any
fact, it is said that the burden of proof lies on that
person."
S,102 of the Evidence Act: "The burden of proof in a
suit or proceeding lies on that person who would fall
if no evidence at all were given on either side."
Sec.103 of the Evidence Act: The burden of proof as to
any particular fact lies on that person who wishes the
court to believe in its existence, unless it is provi-
ded by any law that the proof of that fact shall lie
on any particular person."
2. Monir, Principles and Digest of the law of Evidence,
at p.598 (1960): "The rules embodied in these sections
are not so many different or independent rules but
various aspects of the same rule as the same result
follows in particular cases whether the burden of proof
is ascertained from the point of view of S.IOI or
from that of 102 or sec.103."
3. Phipson on "Evidence, at p.30 (7th ed.)j Pickup V Thames
and Mersey Marine Insur.Co.Ltd.(1878) 3 Q.B.D.594.
 152

1
sense in section 102

The burden of proof in the first sense is fixed by

law before the trial. It is usually decided by the policy
of law. Law decides that in a particular cause of action
the burden should be either on the plaintiff or on the defen-
dant. This burden of establishing the case remains through-
out the trial on the person on whom it is originally placed.

Burden of proof in the second sense, i.e. the burden

of introducing the evidence, goes on shifting from party
to party throughout the trial. If the plaintiff makes out
his prima facie case, then the burden shifts to the defen-
dant to introduce evidence to rebut p^.aintiff' s claim. It
is not easy to lay down how and when the burden in the se-
3
cond sense goes on shifting.

What is laid down in these sections is nothing but a

general rule. Its applicability is not universal. Rules
on burden of proof are bound to vary from tort to tort.
No single principle will serve in torts as a guiding rule
for all cases. There are merely specific rules for specific

1. Monir, Principles and Digest of the law of Evidence,

at p.598 (1960).
2. Field, Law of Evidence, Vol.IV, at p.3445 (1966)
3. Monir, Princinles and Digest of the law of Evidence,
at p.598 (1960).
 153

classes of cases, testing for their iiltlmate basis upon

broad reasons of experience and fairness.

Indian courts on burden of proof<-

The first case of importance wherein the nature of

burden of isroof in malicious prosecution is explained is
2
Balbhaddar Singh V Badri Sah. There, Viscount Dunedin
observed, " The |$ appellants must, therefore, go the whole
way. There is no halfway point of rest. They must show
that Badri Sah invented the whole story as far as it impli-
cated the appellants and tutored Raghunath and Teja to say
it. That is a very heavy onus of proof, and unless they
3
•sustain it, the appellants must fail," This simply means
that the onus of proof in this tort is extremely heavy which
the plaintiff may not, in every case succeed to discharge.
However, the plaintiff could not try to win the case with
an apT^eal to mercy.

1. Wifmore, Evidence, Vol.IX, at p.275? Field, The law of

Evidence, Vol.IV, at p.3446 (1966)
2. A.I.R. 1926 P.O. 46
3. at p.52.
 154

There are not very many cases on the issue of burden

of proof. In only about seven or eight cases, ths nature
of burden of proof involved in the ingredient of reasonable
and probable cause was considered. In some of these caseS)
onus of proof to be discharged In proving reasonable and
probable cause and malice were discussed together. There
are no cases at all on the nature of burden of proof in
proving the first two essentials of the cause of action.

A person may launch a prosecution against another on

the strength of the information which he comes to know or
on the strength of what he himself claims ti have seen. As
such the nature of burden of proof in malicious prosecution
has been considered under two heads;

I- Prosecutions launched on information:-

1
a) In Bishun Sarup V Bindraban the plaintiff had a
decree against the defendant which he proceeded to execute.
The amina ( court officer ) went to the house of the defen-
dant ( judgmont debtor ) along with the plaintiff and atta-
ched some articles. The defendant was away from home at
that time and on his return, he filed a criminal complaint

1. A.I.R. 1923 All.531

 155

of theft against the plaintiff charging him with the theft

of a ring. The plaintiff was tried but acquitted. The
plaintiff brought the suit for damages for malicious pro-
secution. This was decreed by the lower court. In appeal
the defendant contended that the burden of proof was cast
wrongly on him. Rafique J, of the Allahabad High Court
in a short judgment without referring to the authorities
in his support held the defendant liable. The learned
Judge observed, " From the evidence on the record which has
been believed by the lower appellate court, it is quite clear
that the charge of theft brought against Bindraban was abso-
lutely without foundation. In view of that finding it is
not open to the defendant to contend that there should have
been further evidence directly going to show that tlibre was
no probable and reasonable cause for him to charge Bindraban
with theft. If the charge was absolutely baseless it is
legitimate to infer that the defendant appellant had no
1
reasonable and probable cause for making charge." The
judgment however does not clearly say that the charge was
not only false but was false to the knowledge of the defen-
dant.
2
b) In Surendra Nath V Bidhu Bhusan the defendant got
plaintiff prosecuted for the offence of forgery on the stren-
gth of the information supplied by two persons, Kirtibash

1. A.I.R. 1923 A11.631 at p.532 2. A.I.R.1944 Cal.64

 156

and Manmatha* These two persons vere examined as witnesses

for the prosecution In the criminal court. But the Jury
disbelieved these two witnesses. The plaintiff was acqui-
tted. In a suit for damages for malicious prosecution,
the defendant did not call Kirtlbash and Manmatha to prove
that they had informed him of the plaintiff s criminal beha-
viour. Observing that the burden of proof is not stationary
the court held the defendant liable, as he failed to call
Kirtlbash and Manmatha to prove that he had reasonable and
probable cause. In appeal it was contended that the courts
below had erred in virtually placing on the defendant the
onus of showing reasonable and probable cause. Khundkar J.
of the Calcutta High Court relying upon Quartz Hill Consoll-
1
dated Gold Mini ig Co. V Eyre observed, " The proposition
that in actions for malicious prosecution, the onus of esta-
blishing absence of reasonable and probable cause to Justify
the defendant in launching the prosecution lies, in the first
instance, on the plaintiff is well settled. The onus is
not however, a stationary burden^ When the plaintiff has
given such evidence as if not answered would entitle him to
2
succeed, the burden of proof Is shifted to the defendant."

1. (1883) 11 Q.B.D.440 at p.456

2» A.I.R. 1944 Cal.64 at p.65.
 157

Th« learned Judge further observed, " It is true that the

appellate oourt has adverted to the failure of tithe defen-
dant to call evidence to show that he was Justified in pro-
secuting the plaintiff, but a reading of the Judgment as a
whole makes it quite clear that the appellate court was not
regarding the initial burden as an onus which rested upon
the defendant. In the trial court's Judgment, it was
clearly shown that the story of Kirtibash suid Manmatha giving
to the defendant the information that Bidhu had committed
the forgery was in the highest degree improbable because they
were men of Bidhu's camp. From the Judgments of both courts,
it is further clear that these persons were disbelieved by
1
the Jury in the criminal court."

It may however be observed that the Judgment of the

Calcutta High Court does not clearly mention the facts and
circumstances under which it thought that the lower courti
was Justified in shifting the burden from the plaintiff to
the defendant.

II- Prosecutions launched on the strength of wl^at the defen-

dant t^imself claimed to have seen: -
2
a) In Taharat Karim V Abdul Khaliq, the defendant

I. Surendra Nath V Bidhu Bhusan A.I.R.1944 Cal.64 at p.67.

i. A.I.R. 1938 Pat.529
 15S

who got the plaintiff prosecuted claimed to have been an

eye-witness to the offence committed by the plaintiff.
The plaintiff was acquitted. In a suit for malicious pro-
secution, Dhavle and Agrawala JJ. of the Patna High Court
held the defendant liable. The learned judges laid down
the principle in the following words, " Now the onus of
establishing that the defendant had no reasonable and probable
cause for the prosecution undoubtedly lay on the plaintiff.
Where, however, 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 as in the case here, the presumption will not only
be that the plaintiff was innocent, but also that there was
i
no reasonable and probable cause for the accusation."

It is well established law that the civil court in a

2
suit for malicious prosecution has to try the case afresh.

1. A.I.R. 1938 Pat.529 at p.S-^g.

2. Per Misra J. in An Singh V Bhagat Singh, A.I.R.1938 All.
568 at p.570i " It was further held in that case ( Sah
Chaturb^^uj V Sah Mauji Ram, A.I.R.1936 All.537 ) that
in every case of malicious prosecution the civil court
must hear evidence on both sides and decide for itself,
independently of the findings of the criminal court
whether or not the prosecution of the plaintiff was
without reasonable and probable cause and malicious,
and it will not take into consideration the Judgment
or the reasons, which may have, led the criminal
court to an order of acquittal,"
 159

Independently of the judgment of the criminal court. The

judgment of acquittal could only be used to prove the fact
that the prosecution ended in favour of the plaintiff, the
1
date of acquittal and as to who was the prosecutor. It
is submitted that from this point of view the judgment of
the Patna High Court appears to be erroneous in asmuchas
the plaintiff was not put to proof of the absence of reason-
able and probable cause.

b) A similar question was considered by the Patna

2
High Court in Ucho Singh V Nageswar Prasad too. The defen-
dant had given information to the police that he had seen
the plaintiffs attacking one Mr.Prithvi Singh and one of
them gave a death blow. The defendant clearly stated that
all these things happened in his presence* As a result of
this information, the plaintiff was arrested. They were
tried for murder but acquitted. In a suit for damages for
malicious prosecution, both the courts below found that the
story put forward by the prosecution implicating the plain-
tiffs as being murderers was false to his knowledge. They
held the defendant liable. In an appeal to the High Court
the defendant's lawyer contended that the judgments of the
lower courts were vitiated by the fact that the burden of

1* See Chap.6, at p. lio i^'

t. A.I.R. 1958 Pat.285
 160

proof was wrongly put on the defendant. Choudhary J. of

the Patna High Court upheld the Judgment of the lower court.
The learned Judge observed, " The amount and nature of IWH?-
€t«A evidence required to discharge the initial burden depends
upon the facts and circumstances of each case. If a man
acts upon his own knowledge, then the fact that the complaint
was a false one will raise a presumption that there was
absence of reasonable and probable cause and malice existed
unless it is shown that his memory was defective or that
1
there was some valid groimd for this apprehension*" The
case came in further appeal before a division Bench consis*
ting of V.Ramaswdmi C.J. and Untwalia J. of the Patna High
2
Court. The leanned Judges relying upon the Privy Council' s
3
decisions in Balbhaddar Singh V Badri Sah and Mohamed Amln V
4
Jogendra Kumar BannerJee held that the burden of proof in
malicious prosecution never shifts from the plaintiff to the
defendant. However, the suit of the plaintiff was allowed,
as they found on the evidence on record that the charge was
false to the knowledge of the defendant. The learned Judges

1. A.I.R. 1958 Pat.285 at p.290

2. A.I.R. 1962 Pat.478
3. A.I.R. 1926 P.C.46
4. A.I.R. 1947 P.G.108
 161

observed, " In the present case, therefore, we 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
murder committed by the plaintiff. The presence of this
circumstance in an action for malicious prosecution cannot
make any legal difference to the application of the prin-
ciple of onus of proof which is now well settled by a ca-
tena of authorities of highest courts both in India and
English law. The fact that the defendant purported to be
an eye-witness of the occurance of murder 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 never
shifted from the plaintiff to the defendant, even in such

cases. In our opinion the view of law ladd down by Dhavle

1
and Agrawala JJ. in TaUiarat KarAm V Malik Abdul Khaliq cannot
be held to be authoritative in view of the decisions of the
2
Judicial Committee in Balbhaddar Singh V Badri Sah and Amin V
3
Jogendra 'Cumar Bannarjee. " It may however be noted that
in Mohamed Amin V Jogendra Kumar Bannerje*?' case, the Privy

1. A.I.H. 1938 Pat.529

t» H.I.R. 1926 P.G.46
i* A.I.R. 19«7 P.O.108
 162

Coimcil did not consider the Issue of burden of proof at all.

In Balbhaddar Singh's case all that Viscount Dunedin said
was that the burden of plaintiff in proving all the four
essentials is very heavy but until he sustains it he cannot
be successful*

Secondly, Ramaswaml G.J, and Untwalia J. in observing

that'the burden of proof never shifted from the plaintiff to
the defendant*, may at best be taken to be expressing the
view that the burden of establishing the case ( as distin-
guished from the burden of introducing the evidence ) never
shifts from party to party. So far a-s the burden of intro-
ducing the evidence is concerned there are sufficient autho-
1
Titles to show that it is not stationary.

In a case where the defendant claims to be an eye-

witness to a particular offence committed by the plaintiff
but the plaintiff is acquitted, it might be a case where the

1. Per Bowen L.J. in Abrath V The North Eastern Rly Co.

(1883) 11 Q.B.D. 440 at p.456» " The test being such as
I have stated, it is not a burden that goes on for ever
resting on the shoulders of the persons upon whom it
is first cast. As soon as he brings evidence againut
which, until it is answered, rebuts the evidence against
which he is contending, then the balance descends on
the other side amd burden rolls over until again there
is evidence which once more turns the scale."
 163

defendant might be labouring under a mistaken identity or

the prosecution failed to bring evidence to prove the guilt
of the plaintiff for various reasons. All that a person
who has seen a particular offence being committed, has to do
is to give the information to the police or to the magistrate.
No man however reasonable takes the trouble of collecting
the evidence to prove what he had seen. Hence in such cases
the burden of proving the presence of reasonable and probable
cause should be shifted to the defendant only when the plain-
tiff has discharged his burden by proving to the satisfac-
tion of the court that the charge made by the defendant was

false. This is what ir^ was held by the Oudh Court in Vilaya-
1
ti Begam V Nawal Kishore, and by the Patna High Court in
2 3
Darsan Pande V Ghaghu and in Nagendra Kumar V Etwari Sahu.
Niamtullah J. of the Allahabad High Court in Bhawani ShankerV
4
Raghubar Dayal , however, seems to have taken a correct view
5
of the law. The learned judge observed, " If the facts
alleged by the defendant in the criminal case are such as
from their nature, were necessarily true or false to his

1. A.I.R. 1947 Oudh 116

2. A.I.R. 1948 Pat. 167
3. A.I.R. 1958 Pat. 329
4. A.I.R. 1937 All.417
5. at p.418
 164

knowledge, the plaintiff must establish that the defendant's

story was false; and if he proves that the defendant's story

was false, he should be deemed to have proved that there was

no reasonable and probable cause for the defendant to prose-

cute the plaintiff."

Summaryt

The above discussion may be summarised as below-

1. The expression ' burden of proof ' has two meanings;

one the burden of establishing the case and the other,

the burden of introducing evidence. The burden of proof

in the first sense is fixed by law before the trial, and

remains on the party on whom it is originally placed

throughout the trial; but the burden of introducing evi-

dence may shift from party to party.

2. The burden of proving all the four essentials of

malicious prosecution is on the plaintiff.

3. Observations of the magistrate who tried the criminal

case, can not be used by the plaintiff to prove the

1
absence of reasonable and probable cause.

1. See Chap. 6, at p. Ill

 165

4. In case of prosecutions launched by the defendant

on the basis of information supplied by i others, the
plaintiff in a suit for malicious prosecution must
prove that the charge was false and false to the l^ow-
ledge of the defendant.
However, this onus is not a stationary one. When
the plaintiff has given such evidence as if not answered
would entitle him to succeed, the burden is shifted to
the defendant.
5. In cases where the defendant launches prosecution,
claiming himself to be an eye-witness to the offence
committed by the plaintiff, in a suit by the plaintiff
for damages for malicious prosecution, the burden of
proving the presence of reasonable and probable cause
should be shifted to the defendant only when the plain-
tiff has discharged his burden by proving that the
charge made by the defendant was false.