Zahiruddin Mohammad vs Budhi Bibi and Others

Fazl Ali, J.—The appellant brought the present suit for recovery of damages for malicious prosecution; but the trial Court held that his plaint did not disclose any cause of action and dismissed the suit. Hence this appeal. On 15th January 1929, defendant 12 instituted a criminal case against the plaintiff u/s 380, Penal Code, and certain other sections. The Magistrate ordered summons to be issued upon the plaintiff and also directed the issue of a search warrant against him for the production of certain articles. Before however any process could issue, the plaintiff appeared through a pleader before the Magistrate and on hearing the pleader the Magistrate cancelled his orders for the issue of summons and the search warrant. He then made over the case to an Honorary Magistrate for inquiry and on the report of the said Honorary Magistrate the case was dismissed tinder Section 203, Criminal P.C. On these facts it was contended on behalf of the defendants before the learned Subordinate Judge that the plaintiff had no cause of action as he had never been placed on trial and a number of decision were cited to show that no action for malicious prosecution could be maintained unless the prosecution had commenced and that the prosecution did not usually commence until some legal process had been actually issued against the accused.

The cases relied on by the defendants were as follows: Golap Jan. v. Bhola Nath (1911) 38 Cal 880, K. Meeran Sahib v. C. Ratnavelu Mudaly (1912) 37 Mad 181, A.A. Arunachala Mudaliar v. K. Chinnamunusami Chetty (1926) 97 IC 351 and Subhag Chamar Vs. Nand Lal Sahu, .

In all these cases no process had either issued or had been directed to be issued, and in some of them an inquiry had been ordered u/s 202, Criminal P.C., and the accused had appeared and taken part in such inquiry. In one of these cases the accused appeared in response to a notice and took part in the inquiry u/s 202, Criminal P.C. Notwithstanding these facts it was held in all the cases that there had been no commencement of the prosecution and that the accused had therefore no cause of action for a suit for damages for malicious prosecution.

It may be stated here that the Bombay High Court has taken a different view and has held that the mere fact of lodging a complaint would amount to commencement of prosecution. The balance of authority is however in support of the view that unless a process is issued and the accused is brought into Court as a result of such process, he has no cause of action for a suit for damages for malicious prosecution. This is also the view which has been held by a Division Bench of this Court in Subhag Chamar Vs. Nand Lal Sahu, , and we find no good reason to dissent from that view.

The present case however is distinguishable from the cases relied upon by the defendants. Here although no process was actually issued or served upon the plaintiff, yet an order of the issue of process u/s 204, Criminal P.C., and of a search warrant was formally recorded by the Magistrate and therefore it cannot be said that the appearance of the accused after such an order had been recorded was altogether voluntary. Technically therefore the prosecution had commenced and the plaintiff must be deemed to have a cause of action. That being so, the case will have to be remanded to the Court below to be tried on merits.

Mr. Ray who appears on behalf of the defendants also contended that the plaintiff''s suit should fail not only because no prosecution in the real sense of the term had commenced in the case but also because no damage had been sustained by the plaintiff.

In support of his proposition he relied upon an observation of Mookerjee, J., in Bishun Prasad Narain Singh v. Phitlman Singh (1915) 27 IC 449 which is to the effect that in certain cases an action may fail on the mere ground that the plaintiff had sustained no damage. Now there is no doubt that in considering the question of actual damage one cannot lose sight of the fact that the present case cannot in substance be distinguished from those cases in which the person accused actually appears in Court and takes part in an inquiry u/s 202 and ultimately the complaint is dismissed u/s 203. It is clear that in the circumstances of the present case if the plaintiff has suffered any damage at all that damage must have been of a very slight or nominal character.

As I have already stated, before any summons or search warrant was actually issued in the present case the Magistrate changed his mind and cancelled his previous order. The inquiry that followed was an inquiry u/s 202, Criminal P.C. and, as has been pointed out in the cases relied upon by the defendants, the plaintiff was under no obligation to take part in such an inquiry. Strictly speaking therefore the measure of damage in this case would be the damage suffered by the plaintiff between the order directing the issue of process and the cancellation of that order. Unfortunately however the Subordinate Judge decided the case on a preliminary ground without recording any evidence and in the absence of evidence this. Court cannot fix even the nominal damages to which the plaintiff might be entitled and the case in these circumstances will have to be remanded to the Court below for disposal according to law.

Another point which was brought to our notice was that the plaintiff had not given any particulars of damages in his plaint and that he had mentioned merely a lump sum of Rs. 5,250 which, on the face of it, is a highly exaggerated amount. That circumstance also will have to be considered by the Court below in assessing the damages. The judgment and the decree of the Subordinate Judge are therefore set aside and the case is remanded to him for disposal according to law. Each party will bear its own costs in this appeal.

Scroope, J.

In my opinion the cases relied on by the learned Subordinate Judge and cited by the learned advocate for the respondents, namely, De Rozario v. Gulab Chand Anundjee (1910) 37 Cal 358, Golap Jan v. Bhola Nath Khettry (1911) 38 Cal 880 and K. Meeran Sahib v. C. Ratnavelu Mudali (1912) 37 Mad 181, are very clearly distinguishable from the present case, in which there was an order for issuing summons on the accused and for search of his house and, in my opinion, it makes no difference that he came to Court before the processes were actually issued.

The stage at which he came to Court may affect the question of the amount of damages, but the fact that he came before the summons and the search warrant had actually been issued does not, in my opinion, justify his case being thrown out. In my opinion his prosecution had started and the plaintiff was entitled to have the question of damages investigated. I agree with my learned brother that the case should be remanded and the damages assessed on the lines indicated by him. I entirely agree also that the claim as assessed at Rs. 5,250 about which no details have at all been given is quite fantastic and at best the plaintiff would be entitled to little more than nominal damage''s.

The case arises out of a family dispute which it was desirable to settle without recourse to the Courts, but both sides seem firm, in their determination to fight the matter to the end.