motives, this leads to a very strong inference that he did not believe that his accusation was true.1

379. Where a case of this sort is tried by a judge and jury, it is the duty of the judge to direct the jury, as a matter of law, whether the facts alleged on behalf of the defence amount to reasonable and probable cause ; and it is the province of the jury to find, as a matter of fact, whether the facts so alleged actually exist. It is not, however, the duty of the judge to submit any issue of fact to the jury which is not fairly raised by the evidence. Where there is no fact or circumstance calculated to support such an issue, it is the duty of the judge to direct the jury accordingly. But where the case is tried without a jury, there is really nothing but a question of fact, and a question of fact to be tried by one and the same person.*

T380. In an action for a malicious prosecution, the plaintiff has to prove that he was innocent and that his innocence was pronounced by the tribunal before which the accusation was made. The object of the rule is to prevent a conflict of decisions between a civil and a criminal tribunal, and also because it would be impossible in most cases to find that a charge was not only false, but made without reasonable and probable cause, which had been found to be true by the tribunal before which it had been preferred. Even where a conviction upon the original charge had been subsequently reversed, the Madras High Court held that, in the absence of very special circumstances, the judgment of one competent tribunal against the plaintiff afforded very strong evidence of reasonable and probable cause." It is obvious, however, that although a conviction unreversed would be strong evidence that the charge was properly made, it might be shown that the conviction was itself procured by means of a conspiracy

1 See per Lord Mansfield, C.J., Johnstone v. Sutton, 1 T.R., p. 545; per Bowen, L.J., Brown v. Hawkes (1891), 2 Q.B., at p. 727.

2 Willans v. Taylor, 6 Bingh., pp. 186, 188; Howard v. Clarke, 20 Q.B.D. 558; Lister v Perryman, L.R. 4 H.L. 521; Brown v. Hawkes (1891), 2 Q.B., at p 727.

8 King v. Henderson (1898), A.C., p. 733.

↑ Per Lord MacNaghten, Pestonji Mody v. The Queen Insurance Co., 25 Bom. P.C. 332; Harish Chunder v. Nishi Kanta, 28 Cal. 591.

5 Basébé v. Matthews, L.R. 2 C.P. 684; Venu v. Cɔorya, 6 Bom. 376; Abrath v. N. E. Ry. Co., 11 App. Ca. 247, affg. 11 Q.B.D. 440.

Parimi Bapirazu v. Bellamkonda Venkayya, 3 Mad H.C. 238, following Reynolds v. Kennedy, 1 Wilson, 232; Jadubar v. Sheo Saran, 21 All. 26.

to bring forward false evidence in support of a false charge. In one of the earliest cases under this section, Scotland, C.J., said: "It is said that it must appear that the charge was fully heard and dismissed. This is not necessary. It is enough in a case like the present, if it appear that the charge is not still pending. An indictment for falsely charging could not be sustained if the accusation were entertained, and still remained under proper legal inquiry. Here the facts that the inspector of police refused to act upon the charges, and that no further step was taken, are enough to bring the case within s. 211."1 Accordingly, where a charge of theft was reported as false by the police, upon which the complainant was prosecuted under s. 211, and he then appeared in court and formally renewed his complaint, which remained still pending, a conviction under s. 211 was set aside. Where, however, the magistrate acting under Crim. P.C., X. of 1872, s. 147, which corresponds to Crim. P.C., V. of 1898, s. 203, examined the complainant, and agreeing with the report of the police, dismissed the complaint without hearing evidence, it was held that a subsequent prosecution under s. 211 was not illegal.3 Nor is an order of a magistrate under Crim. P.C., s. 209, refusing to commit an accused person for trial, sufficient evidence of innocence to support a charge under P.C., s. 211. The fact that the complainant did not proceed with the charge, because he had compounded it with the accused under s. 345 of the Crim. P.C., is no defence to an indictment under s. 211.5

381. The same principles have been followed in the comparatively rare cases in which an indictment under s. 182 has been preferred, in respect of a false charge of a triable offence. In two cases where the police had refused to proceed upon the charge, considering it to be false, but the complainant had persisted before the magistrate in asserting its truth, it was held that a conviction was illegal, where the magistrate had refused to deal with the

1 Reg. v. Subbana, 1 Mad. H.C. 30; Ashrof Ali v. Reg., 5 Cal. 281; Reg. v. Salik Roy, 6 Cal. 582.

2 In re Bishoo Barik, 16 Suth. Cr. 77; Government v. Karimdad, 6 Cal. 496; Reg. v. Sham Lall, 14 Cal. 707.

3 Reg. v. Rhawani Prosad, 4 All. 182; Reg. v. Kuniyil Raru, 24 Mad. 337.

Nalliappa v. Kadappa, 24 Mad. 59.

5 Reg. v. Atar Ali, 11 Cal. 79.

Ramasami v. Reg., 7 Mad. 292;

original charge.1 An opposite decision was given in a later case, which seems hardly distinguishable from the two just cited. The charge which the prosecutor actually intended to bring, and not that which was framed by the magistrate upon his evidence, must form the basis of & prosecution under s. 211. If he alleges an assault and theft, he cannot be indicted for making a false charge of dacoity. But where the facts stated by the prosecutor amount to a particular offence, and no other, and that statement is maliciously false, I do not see how his ignorance of the legal aspect of those facts can alter the character of his crime. No sanction is required under the Crim P.C., s. 195, where the false charge is only made to the police. As to the sanction in other cases, see post, ¶ 734.

1 Reg. v. Radha Kishen, 5 All. 36; Reg. v. Jamni, 3 All. 387.

2 Reg. v. Rhaghu Tiwari, 15 All. 336.

3 Reg. v. Melon Meeah, 3 Wym. Cr. 9.

4 Ramasami v. Reg., 7 Mad. 292.

CHAPTER VIII.

ACTS AFFECTING THE PUBLIC HEALTH AND SAFETY.

I. Nuisance, ¶¶ 382-395.

II. Negligence, ¶¶¶ 396-413.

¶ 382. Public Nuisance.-A person is guilty of a public nuisance who does an act, or is guilty of an illegal omission, which causes any common injury, danger, or annoyance, to the public or to the people in general who dwell or occupy property in the vicinity, or which must necessarily cause injury, obstruction, danger, or annoyance, to persons who may have occasion to use any public right.

A common nuisance is not excused on the ground that it causes some convenience or advantage (s. 268).

Nuisances are either public or private. The appropriate remedy for a public nuisance is by way of proceeding under criminal law; for a private nuisance, is by action or injunction. An indictment will fail if the nuisance complained of only affects one or a few individuals; where upon an indictment against a tinman for the noise made in carrying on his trade, it appeared in evidence that the noise only affected the inhabitants of three sets of chambers in Clifford's Inn, and that, by shutting the windows, the noise was in a great measure prevented, it was ruled by Lord Ellenborough, C.J., that the indictment could not be sustained, as the annoyance was, if anything, a private nuisance.1 Similarly, an action will fail if the plaintiff complains of something which is a public nuisance, which causes him no special and particular damage beyond that which results from it to the community in general; for, otherwise, the offending party might be ruined by a million of suits.2

383. In general, it may be laid down that anything which seriously affects the health, safety, comfort, or convenience of the community may be indicted as a 1 R. v. Lloyd, 4 Esp. 200.

2 Winterbottom v. Lord Derby, L.R. 2 Ex. 316; Ramphul Rai v. Raghunandum, 10 All. 498; Satku Valid Kadir v. Ibrahim Aga, 2 Bom. 457.

3

public nuisance. For instance, drawing water for a canal from a filthy and polluted source; carrying on trades which caused offensive smells 2 or intolerable noises; keeping gunpowder, naphtha, or similar inflammable substances in such large quantities as to be dangerous to life and property.* And so every act will be a nuisance which obstructs the public in the use of a highway or navigable river, either by actually blocking up or narrowing the available passage,5 or by causing such a noxious smell as to be a substantial annoyance to those using the highway, although not to the neighbourhood in general, or by placing anything on the land next to the highway, which can be a source of danger to persons properly using it." So it has been held, that where a man uses his premises in a perfectly innocent manner, as by giving entertainments with music and fireworks, if the result is to bring together crowds of disorderly persons, and this is repeated so often as to be a serious annoyance to the neighbourhood, it is indictable as a nuisance. Acts which merely cause a partial or temporary inconvenience, such as the omission to prevent ponies or buffaloes straying on the highway, are not indictable as public nuisances under s. 294.9

384. Under English law the keeping of a brothel or a gambling-house is indictable as a nuisance, chiefly, as it would appear, from the injury thereby caused to public morals. I doubt, however, whether such an injury comes within any of the terms of s. 268. Where a person kept a common gambling-house, which brought together crowds of disorderly persons to the general annoyance of the

1 Atty.-Gen. v. Bradford Canal, L.R. 2 Eq. 71.

2 Malton Board of Health v. Malton Manure Co., 4 Ex. D. 302; Rapier v. London Tramways Co. (1893), 2 Ch. 588.

8 Lambton v. Mellish (1894), 3 Ch. 163.

4 Reg. v. Lister. D. & B. 209; S C. 26 L.J. M.C. 196; Hepburn v. Lordan, 2 Hem. & M. 345; S.C. 34 L.J. Ch. 293.

5 Benjamin v. Storr, L.R. 9 C.P. 400; R. v. Lord Grosvenor, 2 Stark. 511; Petition of Umesh Chandra, 14 Cal. 656; Reg. v. Virappa, 20 Mad. 433.

6 R. v. Pappinean, 2 Stra. 686; R. v. Neil, 2 C. &. P. 485; Ogston v. Aberdeen (1897), A.C. 111.

7 Penna v. Clare (1895), 1 Q.B. 199.

8 1 Hawk. P.C. 693; R. v. Moore, 3 B. & Ad. 184; Walker v. Brewster, L.R. 5 Eq. 25.

9 Joyanath v. Jamul, 6 Suth. Cr. 71; Onooram v. Lamessor, 9 Suth. Cr. 70.

10 1 Hawk. P.C. 693; 5 Bac. Abr. 788, Nuisance A.

1