ZAHIRUDDIN MOHAMMAD Vs. BUDHI BIBI

JUDGEMENT

(1.) The appellant brought the present suit for recovery of damages for malicious prosecution; but the trial Court held that his plaint did not disclose any cause of action and dismissed the suit. Hence this appeal. On 15 January 1929, defendant 12 instituted a criminal case against the plaintiff under Section 380, Indian Penal Code, and certain other sections. The Magistrate ordered summons to be issued upon the plaintiff and also directed the issue of a search warrant against him for the production of certain articles. Before however any process could issue, the plaintiff appeared through a pleader before the Magistrate and on hearing the pleader the Magistrate cancelled his orders for the issue of summons and the search warrant. He then made over the case to an Honorary Magistrate for inquiry and on the report of the said Honorary Magistrate the case was dismissed tinder Section 203, Criminal P.C. On these facts it was contended on behalf of the defendants before the learned Subordinate Judge that the plaintiff had no cause of action as he had never been placed on trial and a number of decision were cited to show that no action for malicious prosecution could be maintained unless the prosecution had commenced and that the prosecution did not usually commence until some legal process had been actually issued against the accused.

(2.) The cases relied on by the defendants were as follows: Golap Jan. V/s. Bhola Nath (1911) 38 Cal 880, K. Meeran Sahib V/s. C. Ratnavelu Mudaly (1912) 37 Mad 181, A.A. Arunachala Mudaliar V/s. K. Chinnamunusami Chetty (1926) 97 IC 351 and Subhag Chamar V/s. Nand Lal Sahu A.I.R. 1929 Pat. 271. In all these cases no process had either issued or had been directed to be issued, and in some of them an inquiry had been ordered under Section 202, Criminal P.C., and the accused had appeared and taken part in such inquiry. In one of these cases the accused appeared in response to a notice and took part in the inquiry under Section 202, Criminal P.C. Notwithstanding these facts it was held in all the cases that there had been no commencement of the prosecution and that the accused had therefore no cause of action for a suit for damages for malicious prosecution.

(3.) It may be stated here that the Bombay High Court has taken a different view and has held that the mere fact of lodging a complaint would amount to commencement of prosecution. The balance of authority is however in support of the view that unless a process is issued and the accused is brought into Court as a result of such process, he has no cause of action for a suit for damages for malicious prosecution. This is also the view which has been held by a Division Bench of this Court in Subhag Chamair V/s. Nand Lal Sahu, A.I.R. 1929 Pat. 271, and we find no good reason to dissent from that view.