RABINDRA NATH DAS Vs. JOGENDRA CHANDRA DEB

JUDGEMENT

(1.) This appeal arises out of a suit for damages for malicious prosecution upon the following facts. In a previous suit in which one Bola Nath was defendant the plaintiff who is a pleader practising in Habigunj in the district of Sylhet filed a written statement accompanied by a vakalatnama on 16 February 1923 purported to have been signed by Bhola Nath and some other defendants. The vakalatnama showed that it was accepted by the plaintiff on the 7th February 1923 which was the date of the vakalatnama. On 28 February 1923 the plaintiff reported to the Court that his client Bhola Nath had died. In May 1923 the defendant applied to the Munsif for sanction under Section 195, Criminal P.C., to prosecute the plaintiff, his clerk and defendants 30 and 33 on the allegation that the signatures of Bhola Nath on the wrtiten statement and the vakalatnama were forgeries since he had died on 3 February 1923. The application was registered as a miscellaneous case and the plaintiff was directed to show cause. On 9 June 1923, the data of the hearing of the case, the plaintiff filed certain papers from the criminal Court to show that Bhola Nath was alive on 7 February 1923. On the next date of the hearing, that is, 30 June 1923, the defendant applied for time to summon his witnesses. On 21 July 1923 be again applied for time, to file certified copy of the death register; and again on 4 August he applied for time for the same purpose, but his application was rejected and the case dismissed,. Thereafter the plaintiff instituted the present suit for recovery of damages for malicious prosecution and defamation. One of the points of law raised by the defence was that the suit for damages for defamation was not maintainable. A preliminary issue was framed and the Munsif, who heard it decided that the plaintiff was not entitled to recover damages for defamation. The case was again finally heard by the same Munsif and the plaintiff's suit was decreed for Rs. 250 with costs. On appeal by the defendant the learned Subordinate Judge confirmed the decree and hence this second appeal by the defendant.

(2.) The first point raised by the learned advocate on behalf of the appellant is that there was no prosecution within the meaning of the law such as to give rise to the plaintiff's claim for damages for malicious prosecution. It is argued that a mere application for sanction to prosecute is not a prosecution No authority has been cited in support of this proposition. But several cases have been placed before us in which it has been held that a mere filing of a petition in a criminal Court for necessary action on which no action was taken or which was- dismissed is not prosecution giving rise to the plaintiff's claim for damages. The view expressed in the reported cases is not consistent on this point and so far as this Court is concerned it was authoritatively laid down by Jenkins, C.J. in Golapjan V/s. Bhola Nath (1911) 38 Cal. 880 that dismissal of a complaint under Section 203, Criminal P.C. does not give rise to a right to claim compensation for malicious prosecution. This view is supported by the opinion expressed by Fletcher, J. in De Rozario V/s. Gulab Chand Anandaji (1910) 37 Cal. 358 and by the English authorities and by most of the text writers on the law of Torts. In Yates v. The Queen (1885) 14 Q.B.D. 648 on which reliance has been placed by a decision of this Court upon this point, Brett, M.R. observed, apparently by way of an obiter, at p. 657: For my own part I consider that laying the information before a Magistrate would not be-the commencement of the prosecution because the Magistrate might refuse to grant a summons, and if no summons, how could it be said that a prosecution against any one ever commenced.

(3.) Cotton, L.J. -in the same case expresed his opinion thus: It cannot be said that prosecution commences-before a person is summoned to answer a complaint.