JUDGMENT 1. There is some question as to what is the extact nature of this suit. According to the Plaintiff it may be regarded as a suit either for malicious prosecution, or for illegal arrest. 2. The Defendant urges that it cannot be a suit for malicious prosecution. 3. As far as the pleadings go the important parts of the plaint are paragraphs 11 and 12, and in these the Plaintiff does not say that the illegal proceedings in question were instituted without reasonable and probable ground and maliciously. What he does say is, that the Defendant maliciously and fraudulently withheld the service of summons; that the summons was wrongly served and that the Defendant left him in ignorance of any service at all. He also alleges that the Defendant maliciously and falsely procured the issue of a warrant, and maliciously and without reasonable cause procured his illegal arrest. 4. All this seems to foreshadow a suit for illegal imprisonment rather than one for malicious imprisonment, and it will therefore be simpler to treat the case as such to begin with. 5. The legal proceedings that led to the arrest began with a notice dated the 13th November 1902, under see. 238 of the Bengal Municipal Act, Ex B., calling on the Plaintiff to demolish a building which he had put UP, or make his objections according to the ordinary form. 6. The state of the building at the time of the notice was a matter of considerable dispute. The house was admittedly bought by the Plaintiff in 1900 in a state which needed repairs. The Plaintiff says that no additions and alterations within the meaning of the Municipal Act were undertaken and carried on since November 1901. The Defendant says that the work was going on a few days before the notice, and had been actually commenced within fourteen days from that date. A good deal of evidence has been given on the question. But it seems to me it can only be important in a suit for malicious prosecution on the whole case. It has nothing to do with the question of illegal imprisonment. 7. The service of notice was made on one Judhistir Dass, the occupier of the next house to the one in question,--a very irregular proceeding but one which was in fact successful as the notice did in fact reach the Plaintiff through this man. It has nothing to do with the question of illegal imprisonment. 7. The service of notice was made on one Judhistir Dass, the occupier of the next house to the one in question,--a very irregular proceeding but one which was in fact successful as the notice did in fact reach the Plaintiff through this man. He male an answer by the letter of the 18th November, mentioned in para. 7 of the plaint. No answer was returned to this letter by the Defendant and a prosecution of the Plaintiff was ordered (Ex. No. 2), by the Chairman of the Municipality who considered that an infringement of the Act had been admitted by the letter of the 18th November, and that, therefore, there could be no defence to the prosecution. On this order there followed legal proceedings which it is necessary to notice with little detail. The application for summons was made on the 30th January 1903 by Baroda Kanta Mazumdar, who was authorized to act on that behalf by the Defendant. The application was granted by Akhoy Kumar Chatterji, an Honorary Magistrate, who usually sat and acted in Municipal cases. There is nothing to show that it was not granted on Baroda's sworn information, which would be the usual course and I think I may take it that it was 80 granted. On the application being granted, it was taken in the usual course to the Sealdah Police Court where the summons, Ex. I), was made out by the Nazir Annoda Prosad Chuckerbuty, and signed by the Honorary Magistrate. It is headed "Thanah Bartollah in Calcutta," and is addressed to the Plaintiff at No. 52, Grey Street, also in Calcutta, and endorsed on the back by the serving peon as served at the Plaintiff's house. Having been issued at Sealdah for service in Calcutta, it should have been endorsed for service in Calcutta by the Commissioner of Police. This was nut, and the Plaintiff denies all knowledge of the summons. Nassiram, a peon, to whom it was delivered for service, says that by the direction of the Overseer Dwarka Nath Rose, he served it at 15, Pykeparah, the house in relation to which the proceedings were taken. He also says that it was endorsed as served at the house of the Plaintiff by order of Dwarka Nath. This is denied by Dwarka Nath. He also says that it was endorsed as served at the house of the Plaintiff by order of Dwarka Nath. This is denied by Dwarka Nath. The question of service is not directly in issue but it may be of considerable importance. From the appearance of the summons itself, I believe that it was not served at Grey Street. This is made more likely by Monmotha's denial of having been served, and his subsequent conduct seems to shew that he was ignorant of these proceedings being instituted. I have considerable difficulty in accepting Nassiram's evidence, which is open to very great doubt indeed, particularly in view of the contradiction to that evidence supplied by Satyendro Nath Sen. In effect, I do not believe the summons was served at Grey Street, also I do not believe that Dwarka Nath ever instructed Nassiram to effect service at Pykeparah or to make the endorsement of the service in the form in which it was made. 8. On the summons being returned to the Honorary Magistrate of the Municipal Bench on the 21st March, Baroda was present and the Plaintiff was absent, The Magistrate accordingly ordered issue of a warrant recording no reasons for doing so and acting, I have no doubt, on the endorsement of service on the summons which they appear to have taken as satisfactory proof of service. The warrant was renewed and postponements took place, until the Plaintiff was arrested on the 11th December. The illegality of the arrest is practically not denied. It rests mainly on the fact that the application for summons was granted and the warrant was issued and renewed by Akhoy Kumar Chatterji sitting as Honorary Magistrate, although he was paid Secretary to the Municipality, though it is to be observed that he did not sign the final warrant on which the Plaintiff was arrested. A further objection to the illegality of the arrest arises from the fact that the final order for the warrant was signed by two Honorary Magistrates, one of whom was the Vice-Chairman of the Municipality and the other an Honorary Member. Also, as I have said already, the original summons was never properly served and in any case, service of this summons does not seem to be at all properly proved. 9. Also, as I have said already, the original summons was never properly served and in any case, service of this summons does not seem to be at all properly proved. 9. The question, which I have to answer on these facts, is how far the Defendant is liable for this illegality. The argument made before me on his behalf would seem to go so far as to make a complainant liable for any illegal arrest that takes place in the course of criminal proceedings instituted by him, that is to make the complainant liable for the mistakes of the Court or any of its officers. The authorities quoted do not however seem to go this length, consisting as they do in the first place of the cases quoted on p. 522 of Bullen and Leak's Pleadings beginning with Bates v. Pilling (1826) 6 B. and C 88 All of these, however, and some earlier ones to which I have been referred seem to be decided on execution proceedings, or proceedings, at all events, which come within the rule laid down by Willes, J., in Austin v. Dowling L.R. 10 C.P. 534 (1870) where that learned Judge draws a distinction between ministerial and judicial acts, pointing out that when the opinion and judgment of a judicial officer come between the charge and the imprisonment of the person charged, the person making the charge cannot be held liable for false imprisonment. The authority and reason of this decision are too high to leave it open to much dispute, and the absence of more recent decisions on the point seems to show that it has not been generally considered open to doubt. Nor do the numerous authorities, to which I have been referred by the learned Counsel for the Plaintiff, seem to me in any way to affect its principle. One comparatively recent decision of this Court, however, has been brought to my notice since the close of the case to which I ought to refer. In Secretary of State for India v. Jagat Mohini Dassi ILR 28 Cal. 540 (1901), the Appellate Side of this Court held that Lock v. Ashton 12 Q. B. 871 (1848), an earlier ease similar to Austin v. Dowling L.R. 10 C.P. 534 (1870) did not apply to a suit for mesne profits and damages based on a wrongful attachment under sec. 540 (1901), the Appellate Side of this Court held that Lock v. Ashton 12 Q. B. 871 (1848), an earlier ease similar to Austin v. Dowling L.R. 10 C.P. 534 (1870) did not apply to a suit for mesne profits and damages based on a wrongful attachment under sec. 88 of the Criminal Procedure Code. This form of attachment, as being an enforcement of criminal process rather resembles the imprisonment effected in the present case than the arrests on civil process in the other cases, I have been referred to. A claim to mesne profits and damages for unlawful possession is however a very different thing from damages for illegal imprisonment, and though the decision may limit the application of Austin v. Dowling L.R. 10 C.P. 534 (1870) to some extent I cannot regard it as preventing the application of the principle there laid down to this case. 10. The Plaintiff, however, relies on the decision in Painter v. Liverpool Gas Company 3 Ad. and E. 433 (1836) to show that where proceedings are void ab initio, as he contends they are in this case, the complainant may be liable though the process under which he acts may purport to have been granted judicially. What that case really decides, however, is that where a stranger acts, or assumes responsibility for action on an illegal process he will be liable, though the warrant itself may be a protection to any one to whom it is addressed; the liability of the Defendant being plainly based not primarily on the original illegality or voidness of the proceedings, but on the interference of the Defendant in the process in which they resulted. This however leaves it open to the Plain-tiff to show, if he can, that the Defendants interfered in the execution of illegal process in such a way as to make themselves liable for illegal arrest and imprisonment. For the authority of that case is not needed to show that, if a person procures the execution of what purports to be a warrant, but is wholly a nullity he will be liable for what he does if he has not such protection as is afforded to a person to whom the document is addressed by a judicial authority. 11. 11. It therefore becomes desirable to consider exactly what, the officers of the Defendant did in relation to the illegal process without considering how far the Defendant was liable for their actions and without for the moment distinguishing carefully between acts that might give ground for an action for malicious prosecution and those that might support a suit for illegal arrest. 12. Now, it is not suggested that the conduct of Akhoy Kumar Chatterji in sitting as Magistrate when he was in fact disqualified for doing so, can give any ground of action against the Defendant, although the Plaintiff alleges malice on his part in his action as Secretary of the Municipality. 13. Misconduct has also been imputed to Dwarka Nath, the Overseer of the Municipality, but the imputation rests on the word of Nassi Ram alone and I do not believe him in this matter. 14. The whole of the Plaintiff's case has in fact been based on the conduct of Baroda Kanta Mazumdar, the Surveyor of the Municipality, who carried on the proceedings before the Magistrate which ended, as far as we are concerned, in the arrest of the Plaintiff and it is his conduct only which I need deal in regard to the whole of the case. 15. Taking up the proceedings after the application for the summons had been granted, Baroda had to pay a fee before it would issue, which he did. This seems to me a wholly unimportant matter of no legal effect at all and to be merely a part of the application he had already made. It is contended by Counsel for the Plaintiff that it then became his duty to see that the summons was properly served. For this proposition absolutely no authority has been laid before me and I have no hesitation in disagreeing with it. A summons issued by any Court is always under the authority of that Court and of that Court alone. It may be that the Court will not move in the matter of its service till it is provided with the assurance that it will be served on the right person and the complainant is plainly the proper person to provide such assurance, and is in fact the only person who can be forced to provide it. It may be that the Court will not move in the matter of its service till it is provided with the assurance that it will be served on the right person and the complainant is plainly the proper person to provide such assurance, and is in fact the only person who can be forced to provide it. But the service is the act of the Court and the familiar procedure of identification is altogether outside the law, and is in no way legally necessary. In this case I believe the summons was not properly served; at any rate I hold there is no evidence that it was. Who was to blame for this I have not to decide except in so far as I hold that it was not Baroda. There is no doubt that on the summons being returned, Baroda was present and the Plaintiff was not, and the same is true of the occasions when the various warrants were renewed. 16. Does Baroda's presence on these occasions make him in any way responsible for what the Magistrates did? I hold that it certainly did not. His duty was to be present, to conduct the prosecution if the case was called on; and if he had not been present the case would have been struck out. As matters fell out the Magistrates instructed themselves as to the service of the summons, apparently merely by looking at the endorsement of their own officer on the back of the document itself. I hold that they made a mistake in the matter, and their procedure seems to me to have been moat dangerously loose; but I know of no law and of no principle of law by which Baroda can be held responsible for this mistake. T am asked to regard Baroda as making a continuing application for process on each of his appearances before the Magistrate: but as I understand the law, his responsibility, as far as the illegal arrest is concerned, ceased as soon as he had put the law in motion. It may be that he identified the Plaintiff on his arrest, though I am not at all satisfied that he did. It may be that he identified the Plaintiff on his arrest, though I am not at all satisfied that he did. But taking this to be so, I hold, for the reasons I have stated above, that this had no legal effect, and that, his position was merely that of an outsider called in to help the Court execute its own process. 17. This disposes of the case as far as Baroda's action is concerned between the time of the application for summons and the arrest. During this time, if at all, he made himself liable for the arrest and there is no other person for whose conduct the Defendant, can be held liable. I need not therefore consider how far the Defendant is liable for Baroda's action from this point of view. 18. It remains to be considered if the facts supply any ground tor an action for malicious prosecution, and I cannot see how they can. Counsel has argued before me that an action will lie if at some time after the institution of the case, i.e. the application for summons, the Defendant acted without reasonable cause and with malice. No authority has been produced to support this proposition, and it seems to me inconsistent with the law on the subject. At the time of the institution of this suit the criminal proceedings commenced by Baroda's application for a summons had not terminated; and therefore this suit cannot be one for malicious prosecution on the whole proceedings. If the arrest stood by itself, that is, if it terminated the legal proceedings, it may be that an action for malicious prosecution might lie before it was in any way set aside; but I am unaware of any authority for saying that an action for malicious prosecution will lie on part only of criminal proceedings, though that part may comprise the institution of these proceedings. If the part of the proceedings on which it is sought to found the action does not comprise their institution, I cannot, as I have said before, consider that it gives any right of action. 19. I have omitted any reference to a part of the evidence which goes to show improper conduct on the part of the Secretary of the Municipality and an attempt to extort blackmail on the part of Baroda. 19. I have omitted any reference to a part of the evidence which goes to show improper conduct on the part of the Secretary of the Municipality and an attempt to extort blackmail on the part of Baroda. The suggestion is that the Secretary wanted to obtain the Plaintiff's house at a cheap rate for certain purposes and that Baroda asked for a bribe to prevent a prosecution. If I believed this story the case would present a very different appearance from what it does. The charge is one that it is very easy to make, it is also one which it is very difficult to prove, even though it is true. In this case it rests entirely on the word of the Plaintiff and his servant. Under these circumstances, I cannot find it proved without corroboration of a kind that is not forthcoming in this case, and I therefore attach no weight to it. 20. The result is, that I find in favour of the Defendant and give judgment accordingly with costs. I may add that I consider that this is a somewhat hard case for the Plaintiff. The error for which he has suffered improper arrest was that of the Bench of Magistrates who plainly transacted their business In a very careless manner. Whose fault this was T need not consider. Akhoy Kumar Chatterji's conduct in acting as a Magistrate in the matter was plainly improper, but I do not know that it actually prejudiced the Defendant. I see no reason for blaming the other Honorary Magistrates; but the business of the Bench was plainly conducted in a way that calls for amendment.