BISHAN SINGH Vs. RAM BAHAL ROY

JUDGEMENT

(1.) This is an appeal against a decree awarding the plaintiff-respondent Rs. 61-8-0 as damages for malicious prosecution. On behalf of the appellant defendant No. 2 reliance is plated on a decision of this Court in the case of Golap Jan v. Bhola Nath 11 lnd. Cas. 311 : 38 C. 880 : 15 C.W.N. 917. That decision at first sight seems to support his contention that a suit for malicious prosecution is not maintainable when no process has been issued against the plaintiff. But that case was considered and distinguished in a later decision of this Court in the case of Bishun Pergash Narayan Singh v. Fulman Singh 27 Ind. Cas. 449 : 19 C.W.N. 935 : 20 C.L.J. 518, and it was there held that an action for damages for malicious prosecution would lie against a person, if that person maliciously and without reasonable and probable cause sets the machinery of the criminal law in motion, and that the prosecution commences as soon as the complaint is made to the Magistrate, irrespective of the result of the prosecution or of the stage at which it may fall through. In our opinion the facts of the present case more closely resemble those of the latter case than those of the former. Though the plaintiff was not summoned to appear before a Magistrate, it was found that he was directed by a Police Sub- Inspector to appear and in consequence of that, he appeared and engaged a Mukhtear. We think on these findings that the suit was maintainable. On the findings of fact which cannot be attacked in second appeal, all the six elements set forth in the case of Crowdy v. L.O. Reilly 18 Ind. Cas. 737 : 17 C.W.N. 554 : 17 C.L.J. 105 are found to exist.

(2.) It is contended that defendant No. 2, who was the master of the person who actually Bet the law in motion, should not be held liable, but there are distinct findings that defendant No. 1 acted under the instigation of defendant No. 2 and defendant No. 2 was the cause of the whole affair and acted through malice against the plaintiff. If, as has been held, it was necessary for the plaintiff s protection that he should appear before a Magistrate, he is entitled to recover in his damages the costs he incurred there.

(3.) We accordingly hold that this appeal fails and must be dismissed with costs.