(1.) This appeal arises in a suit; brought by the respondent to recover from the defendant Rs. 5,000 as "compensation on account of mental distress and defamation." It appears that on the 18 of April 1898, Ori, a servant of the defendant, accompanied by the defendant, went to the Police station at Mirzapur and laid an information to the effect that the plaintiff, Muhammad Hadi, and several other persons entered the female apartments of the defendant, broke open locks, plundered his goods, and caused hurt to his wife. There upon an inquiry was made by the Police, with the result that the information was found to be false, and a report was sent up to that effect on the 28 of April, 1898. The defendant was prosecuted under Section 182 of the Indian Penal Code, convicted and sentenced to six months imprisonment. The present suit was instituted on the 28 of April, 1899. In answer to it the defendant raised, among other pleas, the plea of limitation, which has been repeated in the appeal before us. The first question which we have to determine^ therefore, is whether the claim was within time.
(2.) The Court below has held the suit to be governed by Art. 36 of the second schedule of the Indian Limitation Act, and not to be barred by limitation. That is a general article applying to all cases of torts which are not specially provided for in the other articles in the schedule, and is inapplicable if the suit clearly comes within some other article. The other articles which may have any bearing upon the present suit are Articles 23, 24 and 25.
(3.) Art. 23 relates to suits for compensation for malicious prosecution. If the present suit is one of that description, it wag within time, having been brought before the expiry of one year from the date on which the charge laid against the plaintiff was reported to be false. The learned vakil for the appellant contends that this is not a suit for malicious prosecution, and relies on Austin V/s. Dowling (1870) L.R. 5 C.P. 534 and Yates V/s. The Queen (1885) L.R. 14 Q.B.D. 648. In the former of these cases Willes, J. held that there can be no malicious prosecution until the plaintiff was brought before a judicial officer. In the latter, Brett, M.R., observed that laying the information before the Magistrate would not be the commencement of the prosecution because the Magistrate might refuse to grant summons, and if no summons, how could it be said that a prosecution against anyone ever commenced? And Cotton, L.J., was of opinion that "it was not laying an information or making a charge, but the summons before the Magistrate which ought to be considered the commencement of the prosecution." Whether, having regard to the provisions of the Criminal P. C., the same rule would apply in this country, it is not necessary for the purposes of this case to decide. But we are clearly of opinion that a prosecution does not commence until proceedings are initiated by a Magistrate taking cognizance of an offence under the Criminal P. C.. Part V of that Code deals with "information to the Police and their powers to investigate." Part VI provides for "proceedings in prosecutions," and Chapter XV(B), which comes under that part, is headed" conditions requisite for initiation of proceedings." The first section under that head is Section 190, which declares the materials upon which a Magistrate may take cognizance of an offence. It is thus evident that the Code makes a distinction between the giving of information to the Police and the initiation of criminal proceedings. A similar distinction is made in Section 211 of the Indian Penal Code between the institution of criminal proceedings and the making of a charge to the police-a distinction which was recognised by this Court in Queen-Empress v. Bisheshar (1893) I.L.R. 16 All. 124. The laying of an information before the Police cannot, therefore, be held to be the commencement of a criminal prosecution, consequently a suit for malicious prosecution does not lie unless cognizance of the offence imputed has been taken by a Magistrate. As in the present instance no action was taken by a Magistrate against the plaintiff, the suit cannot be regarded as one for compensation for malicious prosecution to which Art. 23 applies. We may observe that the claim as laid in the plaint does not purport to be one for malicious prosecution.