MOHAMED AMIN Vs. JOGENDRA KUMAR BANNERJEE

JUDGEMENT

(1.) This is an appeal from a judgment and decree of the High Court of Judicature at Fort William in Bengal dated 1-2-1945, in appeal from its original jurisdiction, which affirmed a judgment and decree of that High Court dated 31-3-1943, in its original jurisdiction, dismissing the appellant's suit for damages for malicious prosecution. [1a] The question arising in this appeal is: At what stage will criminal proceedings instituted falsely and maliciously before a Magistrate under the provisions of the Indian Criminal P. C., lay the foundation for a suit for damages for malicious prosecution.

(2.) Before dealing with the facts of the case, it will be convenient to notice the relevant provisions of the Code of Criminal Procedure. Section 190, so far as relevant enacts that except an thereinafter provided, any Presidency Magistrate, District Magistrate or Sub-divisional Magistrate or other Magistrate therein mentioned may take cognizance of any offence (a) upon receiving a complaint of facts which constitute such offence, the exceptions referred to are not relevant to this appeal. Chapter 16 which is headed "OfcomplaintstoMagistrates" contains the following provisions: " Section 200. A Magistrate taking cognizance of an offence on complaint shall at once examine the complainant upon oath and the substance of the examination shall be reduced to writing and shall be signed by the complainant, and also by the Magistrate: Section 202. (1) Any Magistrate, on receipt of a complaint of an offence of which he is authorized to take cognizance, or which has been transferred to him under S. 192, may, if he thinks fit, for reasons to be recorded in writing, postpone the issue of process for compelling the attendance of the person complained against, and either inquire into the case himself or, if he is a Magistrate other than a Magistrate of the third class, direct an inquiry or investigation to be made by any Magistrate subordinate to him, or by a police-officer, or by inch other person as he thinks fit, for the purpose of ascertaining the truth or falsehood of the complaint : Provided that, save where the complaint has been made by a Court, no such direction shall be made unless the complainant has been examined on oath under the provisions of S. 200. (2A) Any Magistrate inquiring into a case under this section may, if he thinks fit, take evidence of witnesses on oath. Section 203. The Magistrate before whom a complaint has been made or to whom it has been transferred, may dismiss the complaint, if after considering the statement on oath (if any) of the complainant and the result of the investigation or inquiry (if any) under S. 302, there is in his judgment no sufficient ground for proceeding. In such case he shall briefly record his reasons for so doing." Chapter 17 which is headed "Of the Commencement of Proceedings before Magistrates" lays down the procedure when the Magistrate decides to issue process upon the complaint.

(3.) The relevant facts are these. In March, 1940, an agreement was entered into between the appellant and respondent 1 which was contained in certain letters whereby the appellant agreed to sell certain property to a company which was to be formed by respondent 1. The appellant alleged that subsequently an oral agreement was made between himself and respondent 1 containing certain provisions which went beyond the written agreement. Respondent 3 company was incorporated on 16-4-1940, in order to Carry out the purchase from the appellant, and certain property was transferred by the appellant to such company. Subsequently the appellant took the view that the terms of the oral agreement which he had made with respondent 1 had not been carried out and accordingly he refused to transfer the rest of the property included in the sale to the company. The dispute, as the learned trial Judge in this suit has held, was of a purely civil character and it is unnecessary to discuss the merits of it. On 16-9-1940, respondent 2 acting on behalf of himself and respondents 1 and 3 filed a petition of complaint against the appellant in the Court of the police Magistrate at Sealdah, a suburb of Calcutta, under the provisions of S. 190, Criminal PC. The petition, after setting out the facts relating to the dispute, alleged that as the accused had refused to deliver the remainder of the properties agreed to be sold he had committed an offence under S. 422, Indian Penal Code or S. 406 of such Code in the alternative, and asked that be might be summoned to answer the said charge. The charge was duly registered by the Magistrate on 16-9-1940, as a charge of cheating under S. 420, Indian Penal Code, and it is not disputed that the charge was intended to be one of cheating under S. 420, or criminal breach of trust under S. 406.