B DHARAM NATH Vs. MMOHAMMAD UMAR KHAN

JUDGEMENT

(1.) This is a second appeal by the plaintiff against a decree of the lower Appellate Court dismissing his suit for damages for malicious prosecution. The trial Court decreed the suit for damages amounting to Rs. 102 with costs, on the finding that the prosecution was without reasonable and probable cause. The lower Appellate Court confirmed this finding but on a technical point held that the defendant could not be said to have prosecuted the plaintiff in the sense required for a suit for damages for malicious prosecution. The facts of the case are that the plaintiff is one of the members of the Notified Area Committee and this Notified Area Committee prosecuted the defendant under Section 185, U.P. Municipalities Act, for a house which he ?had built. That ease was dismissed for want of prosecution. Subsequently the defendant made an application to the Magistrate who had tried that suit for prosecution of one B. Daulat Ram, the Chairman of the Notified Area Committee, under Section 211, I.P.C., and the Court below has held: The name of the plaintiff was added afterwards and no particular ground of any convincing worth is shown why he alone was singled out from among the members of the Committee.

(2.) The Magistrate held an inquiry under Section 476, Criminal P.C., and issued a notice to the plaintiff, and in accordance with that notice the plaintiff appeared before the Magistrate and the inquiry was conducted by the defendant against the plaintiff. At the conclusion of that inquiry the Magistrate refused to make a criminal complaint against the plaintiff and the proceedings terminated. The point before us is whether these proceedings conducted by the defendant against the plaintiff in the Court of the Magistrate do or do not constitute a prosecution within the meaning of "damages for malicious prosecution." At first the argument of learned Counsel for the defendant was that "prosecution" related only to a criminal trial. He was however forced to admit that the inquiry before a Magistrate in a case cognizable only by the Court of Session would also amount to a prosecution. Learned Counsel was quite unable to distinguish between an inquiry of that nature before a Magistrate and an inquiry before a Magistrate under Section 476, Criminal P.C., and none of the rulings which he produced gave him any assistance on this subject. He relied and the Court below relied on an old ruling in Ezid Baksh v. Harsukh Rai (1886) 9 All. 59. That was a case in which a suit was brought for damages for malicious prosecution not in regard to the actual trial of the plaintiff, as that matter was time-barred, but in regard to a subsequent application within the period of limitation which had been made for sanction to prosecute under Section 195, Criminal P.C., as it stood before amendment. Sanction was refused by the Magistrate and also by the Sessions Judge. No notice was issued to the plaintiff. Learned Counsel considers that the Court indicates in its judgment that even if the plaintiff had been present in those proceedings as a party before the Magistrate and before the Sessions Judge there would have been no prosecution of the plaintiff. The ruling however does not say so and the language in the ruling must be taken to apply to the case actually before the Court. In that case the Court considered that there was no prosecution, and it appears to us that the ruling based that opinion on the fact that the plaintiff was not present before the Magistrate or the Judge in pursuance of any notice issued by the Court at the instance of the defendant. The ruling states on page 61 that the plaintiff did appear at his own request. But obviously where a person appears before a Criminal Court at his own request, the case is not similar to that in which he appears in consequence of a notice issued to him by the Court. Under Section 195, Criminal P.C., as enacted in 1898, there was no procedure for an inquiry by the Court where the Court was asked to grant sanction. On the other hand in that Code and in the Code as it stands amended today, there is provision for an inquiry by the Court under Section 476. In the present case the Court did hold such an inquiry and the plaintiff was present before the Court in consequence of a notice issued by the Court far the plaintiff to attend that inquiry in the capacity of a person who was accused of a criminal offence under Section 211, I.P.C. The procedure of granting sanction under Section 195 was abolished by Act 18 of 1923. The ruling in question deals with the procedure under the unamended Section 195, Criminal P.C., where the Court granted sanction but had no power to issue notice to an accused person to attend an inquiry as an accused person. The case in the ruling therefore was, in our opinion, absolutely different from the present ease and probably this explains the difficulty which Courts have experienced in applying the principle of this ruling to cases under Section 476, Criminal P.C.

(3.) The next cases to which reference has been made are Muhammad Niaz Ullah Khan V/s. Jai Ram (1919) 6 A.I.R. All. 388 and Chiranji Singh Dharam Singh (1921) 8 A.I.R. All. 173. These were both cases where there had been an application by the defendant for the Court to require security from the plaintiff under Section 107, Criminal P.C. In each of those cases the Court held that where those proceedings had been initiated by the defendant maliciously and without reasonable and probable cause, an action for damages for malicious prosecution would lie. In Muhammad Niaz Ullah Khan V/s. Jai Ram (1919) 6 A.I.R. All. 388 at p. 508 it was laid down: An action for malicious prosecution is not necessarily confined to criminal proceedings. It has always been held that strictly civil proceedings cannot be made subject of such an action because the successful party in a civil proceeding is supposed to be indemnified by the order for costs which he gets in the end. But the English authorities have always recognized, and there are instances in India, where the same view has been taken, namely in cases of attachment whether before or after judgment under the Civil P. C. : See Kumarasamia Pillai V/s. Udayar Nanadan (1909) 32 Mad. 170 and Vaidanadier V/s. G. Krishnaswami Iyer (1913) 36 Mad. 375 that where such proceedings are brought maliciously and without reasonable and probable cause the person against whdm they are brought can, if they determine in his favour, sue the complainant for any damage suffered by him.