Soora Kulasekara Chetty and Another vs Tholasingam Chetty

Alfred Henry Lionel Leach, C.J.—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 23rd

September, 1930, and he was accordingly discharged. The case proceeded as against the first appellant and resulted in his acquittal on the 25th

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 13th July, 1931. On the 12th 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 Article 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. Seshayyai ILR (1899) Mad. 24

and on the decision in Purshottam Vithaldas Shet v. Ravji Hari Athavale ILR (1899) Mad. 24 and declined to follow the decision in Madan

Mohan Singh v. Ram Sundar Singh ILR (1922) 47 Bom.

The case of Narayya v. Seshayya ILR (1899) 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. Ravji Hari Athavale ILR (1922) Bom 47 , 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. Ram Sundar Singh (I.L.R. 1930) 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 Article 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 Article 23.

Section 435 of the Code of Criminal Procedure 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. u/s 436, the District Magistrate may himself make, or direct a Subordinate

Magistrate to make, further enquiry into a complaint which has been dismissed u/s 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 u/s 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 Code of Criminal Procedure 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.

The learned Advocate for the respondent in this connection has laid great stress on Rule 263 of the Criminal Rules of Practice and Orders of

this Court. That rule states that when a District Magistrate is of opinion that an order of acquittal is wrong, and that such order should be set aside,

he should request Government to prefer an appeal u/s 417 of the Code of Criminal Procedure and should not report the case for the orders of the

High Court u/s 438 of the Code. But this rule does not say that he shall not report such cases to the High Court for its orders. If it did the rule

would be ultra vires the powers of the Court. The rule has been framed for the guidance of District Magistrates in suitable cases, and cannot be

read as saying that a District Magistrate shall never refer an acquittal to this Court. That this Court can revise an order of acquittal was recognised

by a Full Bench of this Court consisting of Schwabe, C.J., Oldfield and Coutts-Trotter, JJ., in A.T. Sankaralinga Mudaliar Vs. Narayana Mudaliar

and Others, . The learned Chief Justice in the course of his judgment pointed out that where there is an appeal by the Public Prosecutor or the

Crown from an acquittal the Court sets its face against revision; but where a private prosecutor, having no power to appeal comes to the Court in

revision it certainly is open to the Court to hear him. The fact that in such a case the High Court seldom interferes does not mean'' that it will never

interfere, and it has interfered in a suitable case, as is shown by the judgment of Wallace, J., in Balantrapur Venkatarao Vs. Valluri Padmanabha

Raju and Others, . The position, therefore, is this: The prosecutor may file an application before the District Magistrate for revision of an order of

discharge or of acquittal passed by a Subordinate Magistrate and on such a petition being filed it will lead in a proper case to the setting aside of

the order of discharge or of acquittal as the case may be. If the order of discharge is set aside a further inquiry will be ordered and in the case

where an order of acquittal is set aside a retrial will be directed.

The judgment of the Privy Council in Balbhaddar Singh v. Badri Sah (1926) 51 M.L.J. 42 : ILR Luck. 215 (P.C.) has great bearing on the

questions now before us. The appellants in that case were accused with two others of murder. The appellants were discharged by the Magistrate

who first dealt with the case, but the Sessions Judge called for the record and after notice to the appellants considered whether further enquiry

should be ordered into the charge which had been preferred against them. After hearing the arguments the Sessions Judge came to the conclusion

that the order of discharge had been properly passed and refused to commit the appellants for trial. The appeal to the Privy Council arose out of a

suit which followed for damages for malicious prosecution. The appellants succeeded in the trial Court but on appeal to the Court of the Judicial

Commissioner of Oudh the judgment of the trial Court was reversed. The appellate Court held that in an action for malicious prosecution the

plaintiff has to prove (1) that he was prosecuted by the defendant; (2) that he was innocent of the charge upon which he was tried; (3) that the

prosecution was instituted against him without any reasonable and probable case; and (4) that it was due to a malicious'' intention of the defendant,

and not with a mere intention of carrying the law into effect. Dealing with this statement Viscount Dunedin who delivered the judgment of the

Judicial Committee observed:

Proposition (2), as stated, is quite erroneous. It should be ''that the proceedings complained of terminated in favour of the plaintiff if from their

nature they were capable of so terminating''. This phraseology may be found in the judgment of Montague Smith, J., in Basebe v. Mathews (1867)

L.R. 2 C.P. 684. But the practice was in accordance with these words long before that case. Under the old forms of pleading a declaration, if the

law were really as the judges in this case defined it, would in all cases where there had not been an actual acquittal have been bad if there were not

added the statement that the plaintiff was innocent of the crime charged. The reports may be searched in vain for any declaration so found bad,

though there were many cases where prosecutions had terminated without acquittal. There was controversy as to what terminated proceedings as,

for example, whether a nolle prosequi of the Attorney-General was a termination. But at any rate it was quite settled that a prosecution comes to

an end when a Magistrate declines to commit. Accordingly in Bullen and Leake''s Precedents, 8th Edition at page 434, the regular form is given for

an action for malicious prosecution when the plaintiff has been arrested and brought before a Magistrate. After narrating the arrest and the charge,

it continues : ""The said justice having heard the said charge dismissed the same and discharged the plaintiff out of custody, whereupon the said

proceedings terminated''. In the present case it was sufficient for the appellants to prove, as they have done, that the criminal proceedings

threatened on account of the disclosure contained in the confessions of Raghunath and Teja ended so far as they were concerned when the

Sessions Judge finally refused to commit them for trial. That opened the way for the proof of the next proposition that the respondents had

instigated the proceedings maliciously and without probable cause.

The Sessions Judge finally refused to commit the appellants for trial as the result of proceedings before him following the discharge by the

Magistrate who held the inquiry.

The principle which applies here was stated by Williams, Bylesand Keating, JJ., in Gilding v. Eyre (1861) 10 C.B. (N.S.) 592 : E.R. 584 in

these words:

It is a rule of law, that no one shall be allowed to allege of a still depending suit that it is unjust. This can only be decided by a judicial deter-

cnination, or other final event of the suit in the regular course of it. That is the reason given in the cases which established the doctrine, that,

inactions for a malicious arrest or prosecution, or the like, it is requisite to state in the declaration the determination of the former suit in favour of

the plaintiff, because the want of probable cause cannot otherwise be properly alleged.

Now, when did the prosecution proceedings terminate in this case? We consider that the answer must be that they terminated on the 13th July,

1931, when the District Magistrate dismissed the revision petitions and that this answer is given by the decision in Balbhaddar Singh v. Badri Sah

(1926) 51 M.L.J. 42 : ILR Luck. 215 (P.C.). Until those petitions were dismissed the prosecution case was before the Court. And it seems to us

that it does not lie in the mouth of the respondent prosecutor to say that the proceedings had terminated so far as the second appellant was

concerned on his discharge and so far as the first appellant was concerned on his acquittal. The proceedings had not terminated, because he took

further steps with a view to securing their conviction.

The learned Advocate for the respondent says that in any event the suit is barred so far as the first appellant is concerned, as he was acquitted

and Article 23 provides that time shall run from the date of the acquittal. This argument ignores the wording of the article and the reason for the rule

that so long as proceedings are pending the accused shall not be allowed to sue. The wording ""when the plaintiff is acquitted"" cannot be divorced

from the words ""or the prosecution is otherwise terminated"". In our opinion the article provides that time shall run when the plaintiff is acquitted or

when the prosecution comes to an end in some other manner. If the acquittal is followed by other proceedings the prosecution is terminated not by

the acquittal but by the order passed in the subsequent proceedings and this construction was placed on the article by a Bench of this Court

consisting of Bakewell and Phillips, JJ., in Tanguturi Sriramulu v. Nyapathi Subba Rao Panthulu (1919) 57 I.C. 635 : AIR 1920 Mad. 151. It

follows from what we have said that the case of Narayya v. Seshayya ILR (1899) Mad. 24 was wrongly decided.

The appeal will be allowed and the case remanded to the trial Court for decision on the merits. The appellant will be entitled to his costs in this

Court and in the District Court.. There will be a direction for the refund of court-fee both here, and in the District Court.