SOORA KULASEKARA CHETTY Vs. THOLASINGAM CHETTY

JUDGEMENT

(1.) The respondent filed a complaint against the appellants before the Bench of Magistrates of Saidapet, in which he accused the appellants of assault, insult and criminal intimidation. The charges against the second appellant were dismissed on the 23 September, 1930, and he was accordingly discharged. The case proceeded as against the first appellant and resulted in his acquittal on the 25 May, 1931. The respondent was not satisfied with the decision of the Magistrates and he filed two applications in revision, one against the discharge of the second appellant and the other against the acquittal of the first appellant. These applications were filed in the Court of the District Magistrate of Chingleput and were heard by him. The hearing resulted in the dismissal of the petitions on the 13 July, 1931. On the 12 July, 1932, the appellants filed a suit in the Court of the District Munsiff of Chingleput for damages for malicious prosecution. The District Munsiff dismissed the suit on the ground that it was barred by the law of limitation and this decision was upheld on appeal by the District Judge of Chingleput. Therefore we are called upon to decide whether the suit was barred by Art. 23 of the Limitation Act. That article fixes the period of limitation for a suit for malicious prosecution at one year and time begins to run "when the plaintiff is acquitted or the prosecution is otherwise terminated". In dismissing the appeal the learned District Judge relied on the decision of this Court in Narayya V/s. Seshayyai (1899) I.L.R. 23 Mad. 24 and on the decision in Purshottam Vithaldas Shet V/s. Ravji Hari Athavale (1899) I.L.R. 23 Mad. 24 and declined to follow the decision in Madan Mohan Singh V/s. Ram Sundar Singh (1922) I.L.R. 47 Bom.

(2.) The case of Narayya V/s. Seshayya (1899) I.L.R. 23 Mad. 24 was an appeal decided by Subramania Aiyar and Moore, JJ. It arose out of a suit for damages for malicious prosecution, which had been instituted more than a year after the date of the acquittal, but within a year from the dismissal of a revision petition filed by the prosecutor against the acquittal. The learned Judges held that the period of limitation began to run when the appellant was acquitted, treating the order of acquittal as being final. In Purshottam Vithaldas Shet V/s. Ravji Hari Athavale (1922) I.L.R. 47 Bom, Macleod, C.J. and Kanga, J., decided that the period of limitation ran from the date of the order of discharge on the ground that the cause of action would not be suspended because further proceedings might be taken either by the Government or by the complainant in order to get the order of discharge set aside. On the other hand in Madan Mohan Singh V/s. Ram Sundar Singh (1930) I.L.R. 52 All. 553, the Allahabad High Court held that an application for revision of an order discharging an accused person could be deemed to be a continuation of the prosecution, or a fresh prosecution in itself, and therefore when the suit was instituted within one year of the dismissal of the application for revision it was in time, notwithstanding that more than 12 months had elapsed from the date of discharge. The learned Judges, however, remarked that in a case where the prosecution ended in acquittal the language of Art. 23 left no room for argument with regard to the commencement of limitation, as the article specifically provides that limitation is to run from the date of acquittal. We consider that in these cases the real significance of an application for revision has not been realised and we are unable to accept the Allahabad High Court's reading of Art. 23.

(3.) Section 435 of the Criminal P. C. provides that the High Court or any Sessions Judge or District Magistrate or any Sub-Divisional Magistrate empowered by the Local Government in this behalf, may call for and examine the record of any proceeding before an inferior Criminal Court for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of an inferior Court. Under Section 436, the District Magistrate may himself make, or direct a Subordinate Magistrate to make, further enquiry into a complaint which has been dismissed under Section 203 or Sub-section (3) of Section 204, or into the case of a person accused of an offence who has been discharged. Section 438 provides that the Sessions Judge or District Magistrate may, if he thinks fit, on examining under Section 435 or otherwise the record of any proceeding, report for the orders of the High Court the result of his examination. These sections are very widely drawn. Section 417 states that the Local Government may direct the Public Prosecutor to present an appeal to the High Court from an order of acquittal passed by any Court other than a High Court, but this section does not limit the powers of a District Magistrate, in calling for a record from a Subordinate Magistrate, and there is no section in the Criminal P. C. which does limit this right. Therefore it follows that if a District Magistrate considers that a person has been acquitted who should not have been acquitted he can report the case to the High Court with a view to that Court exercising its powers of revision.