TARA KINKAR CHANDA Vs. RASIK CHANDRA MAHAJAN

JUDGEMENT

(1.) This is an appeal by the plaintiffs in a suit for damages for malicious prosecution. The facts of the case are with sufficient clearness set out in the judgment of the trial Court and have been summarized by the Court of appeal below. The Courts below have directed themselves rightly as to the essentials in an action for damages for malicious prosecution.

(2.) The first essential and the main factor to be taken into consideration in a case of this description is that plaintiff was prosecuted by the defendant. Was there a prosecution which would sustain a claim for damages as made in the suit? On this part of the case the learned District Judge has adverted to the facts about which there is no doubt or dispute : defendant 1 at the direction of defendant 2 lodged an information to the police charging plaintiffs and defendant 3 with theft. The allegations made were enquired into, the plaintiffs being examined by Police Officers. The Circle Officer reported the case to be false, and the Deputy Superintendent of Police reported the same as mistake of fact.

(3.) The information to the police appears to have been lodged on 5 September and on 19th September 1923 the date on which the District Magistrate ordered the information to be entered as mistake of fact defendant 1 filed a petition of objection against the non-submission by the police of charge sheet under Section 379 and Section 342, I.P.C., with a prayer either that the police be directed to submit a charge-sheet or that the complainant be allowed to prove his case. The petition to the District Magistrate which has been read to ma in its entirety reiterated the charges made in the information to the police and the Magistrate in disposing of the same, recorded the following order: "The complainant declined to be examined. Dismissed under Section 203. Section 379 mistake of fact." In support of the appellant's contention before me that in view of the materials on the record, regard being specially had to what has been set out above there was prosecution in the present case.