ALI MOHAMED Vs. ZAKIR ALI

JUDGEMENT

(1.) This second appeal by the defendant has been referred to a Bench of two Judges by a learned single Judge because a difficult question of law is involved. The facts which have been found in the present case are that the defendant made a complaint in the criminal Court against the plaintiff under Secs.449 and 506, I. P. C, and also asked for security to keep the peace to be taken under Section 107, Criminal P.C. The Sub-divisional Magistrate did not issue any summons or other process to the accused, but he called under Section 202, Criminal P.C., for a report from the police, and the Sub-Inspector made an inquiry and sent a report and after receiving that report the Subdivisional Magistrate went to the villags of the parties himself and went to the house of the accused and held an inquiry. He cams to the conclusion that the complaint lodged by the defendant was false, and he dismissed this complaint under Section 203, Criminal P.C. The accused then filed the present plaint. The question which has arisen in second appeal is whether a suit for damages for malicious prosecution will lie where no process has been issued by the Magistrate for the attendance of the person accused. On this point there are a number of conflicting rulings, but the weight of authority of the Courts in India is that no such suit for damages lias. This view has been taken in the following rulings: DeRozario V/s. Gulab Chand Anundjee [1910] 37 Cal. 358, Gopal Jan V/s. Bholanath Khettry [1911] 38 Cal. 880. K. Sheik Meeran Sahib v Ratnavelu Mundali [1911] 37 Mad. 181 and Subhag Chamar V/s. Nand Lal Sahu A.I.R. l929 Pat. 271. On the other hand the plaintiff-respondent relied on the following rulings: Bishan Prasad Narain Singh V/s. Phulman Singh [1914] 27 I.C. 449, Bishan Singh V/s. Ram Bahal Roy [19201 64 I.C. 741, Gursaran Das V/s. Israr Haidar A.I.R. 1927 Oudh 471, Ahmadbhad V/s. Framji Edulji [1904] 28 Bom. 226 and Imperatrix V/s. Lukshman Sakharam [1874] 2 Bom. 481. Now in some of the rulings on which the plaintiff relies the proposition enunciated by the plaintiff does not find full support Thus in 19 G. W. N. 9S5 at p. 93 it is stated: The prosecution might be infructuous, if, for instance, no notice was served upon the accused. In such a contingency, the action for damages for malicious prosecution would fail, not because there was no prosecution commenced, but because there was no damage done to the plaintiff.

(2.) The view of damages taken by the Calcutta High Court in this ease is that the damages should be material, that is, that the plaintiff should show that he suffered damages by having to defend himself in the criminal Courts. It is true that under English law the case is apparently otherwise. In Halsbury's Laws of England, Vol. 19, para. 1443, p. C77, it is stated: To succeed in an action for malicious prosecution a plaintiff must prove.... (v) that the plaintiff has suffered damage; unless, indeed, the proceedings necessarily import damage to his fame or person.

(3.) And in para. 1470 p. 688, it is stated: To support an action for malicious prosecution or other malicious legal proceedings, one of three heads of damage must be proved, if not implied by law: (1) Damage to a man's fame, as where the matter of which ho is accused is scandalous. (2) Damage done to the person, as where his life, limb, or liberty is endangered or. (3) Damage to his property, as where he is put to the expense of acquitting himself of the crime with which he is charged.