JUDGMENT Akram, J. - This appeal by the plaintiff arises out of an action in damages for malicious prosecution and wrongful arrest. The plaintiff is a retired Sub-Inspector of Police, a practising mukhtear and Secretary of the Mukhtear's Bar Association. Defendant 1 is a member of the Indian Civil Service and was the Sub-divisional Magistrate of Brahmanbaria up to 20th December 1936, defendant 2 was the Court Sub-Inspector of Brahmanbaria but he died during the pendency of the suit, defendant 3 one Chand Ali, and defendant 4 one Abu Mean are labeurers. Briefly stated, the plaintiff's case was that on 5th April 1935, a society was formed under the name and style of the Brahmanbari Co-operative Rural Re-construction Society, Ltd., and was registered under Act 3 of 1912. Briefly stated, the plaintiff's case was that on 5th April 1935, a society was formed under the name and style of the Brahmanbari Co-operative Rural Re-construction Society, Ltd., and was registered under Act 3 of 1912. Defendant 1 was the chairman of the society, the society thereafter undertook the re-excavation of a khal, known as the Kurulia khal and accordingly (16th and 17th December) certain persons on behalf of the society went to make an alignment and while doing so included in it a strip of land (about 12 cubits in width) belonging to the plaintiff and cut down some of his bambeo clumps and damaged some of his mustard crops; that later on (23rd December) an Amin of the Sarail Estate, named Atul Chandra Shome, appeared with a number of labeurers and began to encroach further upon the plaintiff's lands, the plaintiff protested, but it was of no avail and more damage was done, that on 26th December 1935, a meeting of the society was held in which defendant 1 acting as president directed that those present should commence re-excavation of the khal from 1st January 1936 and threatened saying that "the absentees would be beaten with shoes and canes and harassed," that the co-villagers of the plaintiff, Basu Mean and others, sought his advice (27th December 1935) and he told them that no one could take away another's lands by force or compel him to work against his will, that this was reported to defendant 1 who made up his mind to misuse his power as Sub-divisional Officer and teach the plaintiff a lesson and accordingly on 28th December 1935, defendant 1 with a number of men proceeded along the khal and on arriving opposite the plaintiff's house sent for the plaintiff and, when he came, gave a push to him and then questioned in an angry tone why he objected to his land being demarcated, that the plaintiff thereupon attempted to explain his position saying that he was not living under Hitler's Government but under British Administration but defendant 1 became enraged and pointed out that he was the Sub-divisional Officer and when the plaintiff replied that at the time, defendant 1 was the chairman of the Rural Re-construction Society, he called the plaintiff badmash, scoundrel and alleged that he abused people. When plaintiff asked whom he had abused defendant 1 pointed to one Kala Gazi, who on being questioned said that he had been abused. 2. Defendant 1 after that continued his abusive language and finally ordered two bye-standers to arrest the plaintiff and take him to Brahmanbaria Jail. Chand Ali and Abu Mean (defendants 3 and 4) then arrested the plaintiff and took him to the jail, the jailor however refused to admit the plaintiff without a warrant and the plaintiff was kept at the jail gate until 6 P.M. When defendant 1 arrived he took the plaintiff into a vacant room at the jail gate, abused and threatened him again and suggested that he should apologize, but as the plaintiff refused to do so, defendant 1 caused Chand Ali (defendant 3) to make a false verbal complaint to the effect that the plaintiff had abused him, took down his complaint in writing and then called upon the plaintiff to plead to a charge under S. 504, Penal Code. When the plaintiff raised objection to the form of the trial, defendant 1 directed that he should be confined in jail and released upon furnishing bail of Rs. 5000. The plaintiff remained detained in jail from 28th December 1935, till 2nd January 1936 when he was produced before Mr. A. Rahman who released him on bail, the case was then adjourned to 23rd January upon application being made for moving the High Court under S. 526, Criminal P.C. The records were received back from the High Court on 5th June and on the 6th order was passed directing the plaintiff to appear on the 15th. This order however was not communicated to the plaintiff and he therefore left for Mymen singh and Comilla and only on his return home on 17th June got a notice dated 8th June handed over by his son, directing the plaintiff to attend Court on 15th June. He attended Court on the 17th but got no information as to the order passed on the 15th, he then applied for copies which were supplied on the 18th and came to know from these that a non-bailable warrant of arrest had been issued against him on 15th June. He attended Court on the 17th but got no information as to the order passed on the 15th, he then applied for copies which were supplied on the 18th and came to know from these that a non-bailable warrant of arrest had been issued against him on 15th June. He then went to Comilla where he fell ill and therefore sent an application supported by a medical certificate for adjournment but defendant 1 refused to grant the application and on the date fixed, 25th June, issued a proclamation and a writ of attachment holding that the plaintiff was an absconder, the plaintiff arrived home on 29th June and was placed under arrest on the next day. On 1st July 1936, the plaintiff was taken to the house of defendant 1 who taunted, humiliated and tortured him and then transferred the case to Mr. Aminulla, Deputy Magistrate, First Class, who released the plaintiff on bail of Rs. 250. The plaintiff then on 8th July, applied to the District Magistrate, Tipperah, for a transfer of the case, this was finally granted and the case was withdrawn to the file of the Additional District Magistrate. On 11th September 1936, the prosecution was withdrawn at the instance of the Crown on administrative grounds. The plaintiff asserted that defendant 1 and not defendant 3 (Chand Mean) was the real prosecutor, that the prosecution was malicious and without any reasonable or probable cause and had terminated in his favour, that he was entitled therefore to damages to the extent of Rs. 2500 for malicious prosecution and for wrongful arrest. 3. Defendant 1 in his written statement denied inter aha that he was the real prosecutor or that he was actuated by malice or acted in any manner mala fide in respect of the judicial proceedings. 2500 for malicious prosecution and for wrongful arrest. 3. Defendant 1 in his written statement denied inter aha that he was the real prosecutor or that he was actuated by malice or acted in any manner mala fide in respect of the judicial proceedings. His case was that when the Amin and his labeurers went to the locality on 23rd December 1935 finally to demarcate the new alignment, the plaintiff came out of his house, had a look at the map and then abused the Amin and his men in filthy language which might have led to a breach of the peace if they had not restrained themselves, that the Amin, Chand Ali and other labourers, on 24th December 1935, came to defendant 1 and made a verbal complaint against the plaintiff for an offence under S. 504, Penal Code, and defendant 1 told them to wait as he thought that he would better talk to the plaintiff and tell him not to behave in that fashion, that on the 26th a public meeting was called to which all the leading gentlemen were invited, in that meeting the people volunteered for getting various blocks excavated, that on 28th December 1935, defendant 1 went to inspect the Khal and when he arrived at village Ulchapara, Chand Ali repeated his complaint against the plaintiff, the defendant thereupon sent his orderly to call the plaintiff who came after some delay and, when asked why he had abused Chand Ali made an insolent gesture, and said that he would not answer the question. The defendant then reminded the plaintiff that he was before the Sub-Divisional Officer to whom a complaint had been made by the Amin and Chand Ali for a criminal offence and that he could take cognisance at once but the plaintiff questioned the defendant's authority and dared him to do his worst and after this continued to behave in such a manner that there was no other alternative left for the defendant but to take cognisance of the offence under s. 504, Penal Code, that the defendant therefore after doing so in his capacity of a Magistrate ordered the labeurers who were with him to arrest the plaintiff. The day being a holiday defendant directed that the plaintiff should be taken to the sub-jail; the defendant after finishing the inspection of the Khal, arrived at the sub-jail about an hour later and then sent for his bench clerk and recorded the statement of the complainant under S. 200, Criminal P.C. The defendant had been acting throughout judicially and was protected under the Judicial Officers' Protection Act (18 of 1850). It is not necessary for the appeal before us to set out here the course which the proceeding under S. 504, Penal Code, took subsequent to the arrest. It will be sufficient to state that the case against the plaintiff was withdrawn on 11th September 1936. 4. The trial Court on the evidence adduced held that defendants 3 and 4 were not the prosecutors and dismissed the suit as against them. It however found that defendant 1 was the prosecutor and was liable for compensation for malicious prosecution though not liable in respect of the claim for wrongful arrest. It accordingly decreed the suit in part for Rs. 1200 as against defendant 1. Defendant 2, as already stated, had died pending the suit. Against that decision defendant 1 filed an appeal (No. 7 of 1939) and the plaintiff filed a cross-objection against rejecting certain evidence tendered by him, and also preferred a substantive appeal (No. 8 of 1939) against defendant 1 only regarding the dismissal of the claim for illegal arrest. The Court below decreed defendant 1's appeal (No. 7 of 1939) and dismissed the plaintiff's cross-objection and appeal (No. 8 of 1939). From this decision the plaintiff has preferred the present appeal. It has been urged before us by the learned advocate for the appellant: (1) That the inferences drawn by the Court below are incorrect and that the findings arrived at are unwarranted and unjustified on the evidence on the record. In the appeal (No. 7 of 1939) before the lower appellate Court the findings of the learned District Judge were as follows: (a) There can be no doubt whatever in my opinion and finding that Chand Ali, accompanied by the amin and other persons, went to defendant 1's house on the morning of 24th December and made a complaint. In the appeal (No. 7 of 1939) before the lower appellate Court the findings of the learned District Judge were as follows: (a) There can be no doubt whatever in my opinion and finding that Chand Ali, accompanied by the amin and other persons, went to defendant 1's house on the morning of 24th December and made a complaint. In view of this finding, the whole edifice of the plaintiff's case falls to the ground as does a house built of playing cards when blown upon by the wind. Not only has the plaintiff failed to prove that Chand Ali did not make a complaint and that he had no reasonable and probable cause to make a complaint, but defendant 1 has proved beyond ail reasonable doubt that Chand Ali had very definite grounds for a complaint and actually made one on 24th December. It was, of course, a verbal complaint. (b) I find then that Chand Ali did in fact report to defendant 1 what took place on 23rd December and that, on the basis of that report defendant 1 took cognizance of an offence punishable under S. 504, Penal Code. (c) It is clear that defendant 1 having taken cognizance of the complaint made on 24th December enguired at Uehapara into the facts alleged by Chand Ali. He was acting as a Magistrate and when the plaintiff refused to co-operate in the enquiry, defendant 1 acted under his ordinary powers and caused him to be arrested. (d) It was perhaps unnecessary for defendant 1 to record Chand Ali's statement at that stage of the proceedings, for he had already taken cognizance under S. 190(1)(c), Criminal P.C., but that is of no possible consequence here. Judicial errors have judicial remedies. I find that there is nothing in the evidence which proves affirmatively that defendant 1 was the real prosecutor and there was no reasonable and probable cause for the institution of proceedings. On the contrary, I find expressly and definitely on the review of the evidence adduced by both parties, that there was reasonable and probable cause and that the real prosecutor was Chand Ali. On the contrary, I find expressly and definitely on the review of the evidence adduced by both parties, that there was reasonable and probable cause and that the real prosecutor was Chand Ali. (e) I find-to reiterate once again-that the plaintiff has completely failed to prove that defendant 1 was the real prosecutor, that the prosecution was instituted against him without any reasonable or probable cause and that the prosecution was instituted with a malicious intention, that is, not with the mere intention of carrying the law into effect, but with an intention which was wrongful in point of law. As a corollary I find that there was no wrongful arrest and that all the acts done by defendant 1 were done by him in his capacity of a Magistrate. I find also that the allegations in the plaint are malicious, false and libelous and that they were made without any justification whatsoever. The above findings were arrived at after a full consideration, and discussion in great detail, of the evidence adduced by the parties and I do not see how we are entitled to interfere with them bearing in mind the observations of their Lordships of the Judicial Committee in ('29) 16 AIR 1929 190 (Privy Council) . The findings are all findings of fact and no error of law or of procedure by the learned Judge in respect of them has been brought to our notice by the learned advocate appearing for the appellant. In my opinion, the above findings are sufficient to dispose of the present appeal on the merits as concluded by the findings of the final Court of facts. (2) Next it has been argued that the Court below erred in law in holding that the suit in respect of the claim for compensation for malicious prosecution was barred by limitation under Art. 23 and also Art. 2, Limitation Act, on the basis that the suit must be regarded to have been instituted not on the date when the plaint was originally presented (2nd January 1937) but on the date when application for its amendment was made (30th May 1938). It appears that the word "malicious" was omitted after the word "false" in Para. 44 of the plaint and the expression "malicious prosecution" after the words "illegal arrest" in Para. 45. It appears that the word "malicious" was omitted after the word "false" in Para. 44 of the plaint and the expression "malicious prosecution" after the words "illegal arrest" in Para. 45. In the original plaint the cause title however showed that the suit was one in respect of malicious prosecution, para. 49 of the plaint also made reference to malicious prosecution and further more, issue 5 was joined on the assumption that there was a Claim for compensation for malicious prosecution. We are of opinion that the original plaint read as a whole indicated, though faintly, that the suit was one for compensation for false and malicious prosecution and that the amendment has not in any manner changed the character of the suit depriving the defendant of his valuable right of setting up the bar of limitation. Remembering that pleadings drafted in mofussil in this country are not to be too strictly construed (('34) 21 AIR 1934 130 (Privy Council) ). I hold that the amendment of the plaint was rightly allowed by the trial Court and that it did not amount to introducing new matter or new cause of action. In my opinion the suit should be taken to have been instituted on 2nd January 1937. It also seems to me that this part of the claim would be governed by Art. 23 which is the more specific article and not by Art. 2, Limitation Act, which applies to cases of compensation for doing or for omitting to do an act pursuant to an enactment, i.e., where the defendant acts under colour of statute. This part of the suit therefore in view of the frame of the suit in respect of compensation for malicious prosecution, fell, in my opinion, under Art. 23, Limitation Act, and was not barred by limitation. The other portion of the claim, viz., for compensation for illegal arrest however, in my opinion, falls within the scope of Art. 2 and is as such barred by limitation. (3) Next it has been contended that as the plaint itself does not disclose that the illegal arrest was made by defendant 1 in his capacity of a Magistrate, the order dated 2lst February 1939, deleting the portion of the claim for illegal arrest upon the finding that it was not maintainable in view of the provision of Act 18 of 1850 could not be sustained. As regards this contention it is disclosed from the plaint paras. 9, 12 and 17 that the arrest was ordered by defendant 1 in his capacity of a Magistrate and it is so found by both the Courts below-it is apparent that the arrest was made as a judicial act and was within' the competence of the Magistrate, the order therefore dated 2lst February 1939 deleting, from the plaint the portion containing the claim for compensation for wrongful arrest as not maintainable in view of Act 18 of 1850 was rightly made: vide ('90) 12 All. 115 : 1890 A.W.N. 32, Teyen v. Ram Lal. These contentions by the appellant relating to limitation and also to maintainability of the suit mentioned above do not seem to me to be of much importance any longer for the purpose of the present appeal. In view of the findings on the merits arrived at by the Court below, they have become now merely of academical interest and are of no practical value to the appellant. (4) Lastly it has been pointed out that no objection being taken in the written statement on the basis of s. 270(2), Government of India Act (1935), and no issue being framed upon it, the Court of appeal below was in error in holding that absence of good faith not being established by the plaintiff, the section operated as a bar to the maintainability of the suit. As already observed, I do not think it would serve any useful purpose to go into and deal with contentions of this nature in the present appeal and we therefore refrain from deciding this point. The appeal is concluded by findings of fact and is accordingly dismissed with costs. Pal, J. 5. The cases of the respective parties are given by my learned brother in his judgment and I need not repeat them here. The plaintiff's claim in the suit was laid on two distinct counts, viz., (1) compensation for illegal arrest and false imprisonment, (2) compensation for a malicious prosecution. As regards his claim for compensation for illegal arrest and false imprisonment, defendant 1 pleaded protection under the Judicial Officers' Protection Act (Act 18 of 1850) and filed an application for the striking out of the relevant paragraphs from the plaint. As regards his claim for compensation for illegal arrest and false imprisonment, defendant 1 pleaded protection under the Judicial Officers' Protection Act (Act 18 of 1850) and filed an application for the striking out of the relevant paragraphs from the plaint. The learned Subordinate Judge having rejected this application of the defendant, the matter was brought before this Court and this Court ultimately made the following order: If the Subordinate Judge finds that upon the case made in the plaint defendant 1 is entitled to the protection of the Judicial Officers' Protection Act with regard to that portion of the claim which relates to illegal arrest he may make a proper order striking out those portions of the plaint which relate to such claim. If, on the other hand, he finds that defendant 1 is not entitled to such protection, he will proceed to deal with the suit according to law. 6. Thereupon the learned Subordinate Judge heard this matter on 21st February 1939, as a preliminary issue taking the facts to be as they appeared in the plaint, and held that defendant 1 was protected by the Judicial Officers' Protection Act and thus was not liable for the alleged illegal arrest. Pursuant to the above order of this Court he accordingly struck out the portions of the plaint which related to this claim. Thereafter the hearing of the suit so far as the claim for compensation for malicious prosecution is concerned commenced on 22nd March 1939, and the claim was decreed in part by the learned Subordinate Judge as against defendant 1 on 1st May 1939. Defendant 1 preferred an appeal from this portion of the decree and the plaintiff preferred an appeal from the order dated 2lst February 1939, evidently treating that as a decree dismissing his claim for wrongful arrest and as a part of the final decree in the suit. This was Appeal No. 8 before the District Judge. The appeal preferred by defendant 1 from the decree against him for compensation for malicious prosecution was Appeal No. 7. In disposing of Appeal No. 8 the learned District Judge observed as follows: It is contended in this Court that no matter what. This was Appeal No. 8 before the District Judge. The appeal preferred by defendant 1 from the decree against him for compensation for malicious prosecution was Appeal No. 7. In disposing of Appeal No. 8 the learned District Judge observed as follows: It is contended in this Court that no matter what. may be the findings and the result of Appeal No. 7 this Court, in dealing with Appeal No. 8 is obliged to deal with the order of the learned Subordinate Judge taking the facts to be as they appear in the plaint At the very outset, it may be said that it would be merely absurd to forget all the findings arrived at in Appeal No. 7 and to proceed to deal with Appeal No. 8 as if the tort of malicious prosecution 'had never been tried. It has been found that defendant 1 acted on the basis of a report made by Chand Ali, that he went out to enquire into the circumstances of the abuse, and the breach of the peace which nearly followed in consequence of it, and that, as a Magistrate, he ordered the arrest of the plaintiff. Now these findings are binding on the plaintiff and are res judicata. It is merely absurd to suggest that in spite of these findings the Court should proceed to decide whether the suit should continue in so far as the tort of wrongful arrest was concerned. It would be impossible to try the tort of wrongful arrest without retrying the issues which have already been heard and determined. 7. Mr. It is merely absurd to suggest that in spite of these findings the Court should proceed to decide whether the suit should continue in so far as the tort of wrongful arrest was concerned. It would be impossible to try the tort of wrongful arrest without retrying the issues which have already been heard and determined. 7. Mr. Chakrabarty appearing for the appellant before us contends: (1) that so far as the plaintiff's case for wrongful arrest is concerned, the learned District Judge went wrong in disposing of it on the evidence in the case for malicious prosecution; (2) that the matter having been disposed of by the Court of first instance only on the issue whether the Judicial Officers' Protection Act (Act 18 of 1850) was a bar to the maintainability of the suit in this respect and that Court having heard and decided this as a preliminary issue taking the facts to be as alleged m the plaint, the learned District Judge in disposing of Appeal No. 8 went wrong in going beyond the allegations made in the plaint and in taking into consideration the evidence adduced in the case for malicious prosecution; (3) that the facts given in the plaint did not bring defendant 1's acts in this respect within the protection of the Judicial Officers' Protection Act and consequently the plaintiff is entitled to a hearing of his claim in this respect on its merits; (4) that even if the case be decided on the evidence already on record in connection with the case for malicious prosecution the plaintiff is entitled to a decree inasmuch as (a) the factum of arrest and imprisonment of the plaintiff at the instance of defendant 1 is admitted, and (b) defendant 1 has failed to establish any justification for this action which is prima facie wrongful. 8. As regards the first two points urged by Mr. Chakrabarty it must be confessed that the judgment of the learned District Judge entitles the appellant to raise these contentions. This Court directed the preliminary issue raised to be heard and decided only on the basis of the allegations made in the plaint and the learned Subordinate Judge decided that preliminary issue as directed by this Court If this decision was wrong the plaintiff would prima facie be entitled to a hearing of the case on the merits. This Court directed the preliminary issue raised to be heard and decided only on the basis of the allegations made in the plaint and the learned Subordinate Judge decided that preliminary issue as directed by this Court If this decision was wrong the plaintiff would prima facie be entitled to a hearing of the case on the merits. A case for wrongful arrest and one for malicious prosecution do not stand on the same footing for the purpose of disposal on the merits. An arrest is prima facie wrongful and requires to be justified by the defendant Freedom of the person is a very valuable right recognised by the system of law under whose protection the plaintiff lives. This freedom includes immunity not only from the actual application of force, but from every kind of detention and restraint not authorised by law. The infliction of such restraint is the wrong of false imprisonment. Any interference with a man's personal liberty is prima facie wrongful and, therefore, has to be justified. As regards malicious prosecution, however, the position is quite different. Any one is prima facie entitled to set a Court of justice in motion, and consequently the person complaining of such action must prove affirmatively the non existence of any reasonable and probable cause for it. In this particular case most of the material common incidents for the two cases have been found against the plaintiff in relation to his claim for compensation for malicious prosecution on the ground of his failing to adduce sufficient evidence in proof of the same. A finding arrived at thus will be of no help to the defendant in the case for false imprisonment, the onus in that case being on him to justify his action. In these circumstances it would certainly be unfair to drive the plaintiff out of Court on the so-called conclusions of fact arrived at by the Court of appeal below in the case for malicious prosecution, if the decision of the learned Subordinate Judge on the preliminary issue be found unsupportable on the allegations made in the plaint. Section 1, Judicial Officers' Protection Act (Act 18 of 1850) stands thus: No Judge, Magistrate... acting judicially shall be liable to be sued in any civil Court for any act done or ordered to be done by him in the discharge of his judicial duty.... Section 1, Judicial Officers' Protection Act (Act 18 of 1850) stands thus: No Judge, Magistrate... acting judicially shall be liable to be sued in any civil Court for any act done or ordered to be done by him in the discharge of his judicial duty.... Provided that he at the time, in good faith, believed himself to have jurisdiction to do or order the act complained of;... 9. The plaint itself discloses that defendant 1 is a Magistrate. The question, therefore, is whether the allegations made in the plaint disclose: (1) that the defendant was acting judicially while ordering the arrest of the plaintiff; (2) that he made that order in the discharge of his judicial duty; (3)(a) that he believed himself to have jurisdiction to order the act, (b) that the belief was in good faith. As regards the third of the above three requirements it must be noticed that actual existence of jurisdiction to do or to order the doing of the act is not necessary. The belief of the defendant that he had jurisdiction to order the arrest and detention of the plaintiff would suffice provided this belief was in good faith. There may be some difficulty as to the exact meaning of this requirement regarding 'good faith'. 'Belief itself is a mental condition and is subjective. A question may arise whether in order to see whether a person believed something in good faith it is necessary to see whether there existed any reasonable cause for this belief or whether it would suffice if he himself thought that there was reasonable cause. A further question may arise if we are to apply the subjective test, namely, whether this test would apply to all cases irrespective of the question whether the defendant is a magistrate, a police officer or a private individual. It may be that in some of these cases there will be no justiciable issue at all, the act being an executive act not open to legal review. The most stringent construction against the persons seeking the protection of the section will be to require objective existence of reasonable cause to support 'belief in good faith', to read the section as imposing an objective condition precedent of fact, namely, the existence of reasonable cause to supply grounds of the officer's honest belief. The most stringent construction against the persons seeking the protection of the section will be to require objective existence of reasonable cause to support 'belief in good faith', to read the section as imposing an objective condition precedent of fact, namely, the existence of reasonable cause to supply grounds of the officer's honest belief. Section 65, Criminal P.C., empowers any magistrate to arrest in the following terms: Any Magistrate may at any time arrest or direct the arrest, in his presence, within the local limits of his jurisdiction, of any person for whose arrest he is competent at the time and in the circumstances to issue a warrant. 10. Section 204 of the Code enacts when a Magistrate can issue a warrant. The section says: If in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding, and.... if the case appears to be one in which, according to that column (Fourth column of Sch. 2) a warrant should issue in the first instance, he may issue a warrant..... 11. The allegations made in para. 11 of the plaint show that the plaintiff knew that defendant 1 was the Sub-Divisional Magistrate and that he was reminded by defendant 1 of this fact. In para. 12 of the plaint the plaintiff gives the incident leading to his arrest under the order of defendant 1. The allegations made therein disclose: (1) that defendant 1 had been informed by one Kala Gazi that the latter had been abused by the plaintiff; (2) that Kala Gazi reiterated this information on the spot in the presence of the plaintiff. The allegations of Kala Gazi, if established, would constitute an offence under S. 504, Penal Code. Column 4 of Sch. 2 referred to in S. 204, Criminal P.C., quoted above, mentions this S.504, Penal Code, as a case in which warrant should issue in the first instance, Section 190(1)(c) of the Code enacts that any....Sub-Divisional Magistrate....may take cognizance of any offence upon information received from any person other than a police officer, or upon his own knowledge or suspicion that such offence has been committed. 12. According to the allegations made in the plaint there was this information received from a person other than a police officer. 12. According to the allegations made in the plaint there was this information received from a person other than a police officer. It would be competent for the Sub-Divisional Magistrate to take cognizance of the offence on this information and as soon as he would take such cognizance he would be competent to direct the arrest of the accused in his presence. No doubt the plaint also says that these allegations of Kala Gazi were false. But that allegation of the plaintiff even if communicated to the Magistrate then and there would not disentitle the Magistrate to take cognizance of the offence under S. 190(1)(c), Criminal P.C. The place was admittedly within the local limits of the Magistrate's jurisdiction. In these circumstances the very facts stated in the plaint would disclose reasonable cause supplying the ground for honest belief of the Magistrate that he had jurisdiction to act in the manner he did on that occasion. The learned Subordinate Judge took this view, and, in my opinion, he correctly held that so far as this part of the plaintiff's claim is concerned defendant 1 was within the protection of the Judicial Officers' Protection Act. The allegations m the plaint sufficiently support the conclusion that the defendant was acting judicially while ordering the arrest of the plaintiff and that he made that order in the discharge of his judicial function, though the action taken by him might not have been quite judicious. 13. In this view it becomes unnecessary for me to consider whether the claim for compensation for false imprisonment would have been barred by limitation under Art. 2, Limitation Act. The learned District Judge held this article to be applicable to the claim Article 19 makes specific provision for suits for compensation for false imprisonment Wrongful arrest and detention constitute the injury of false imprisonment. Even if not, it is certainly an injury to the person. It is certainly an infringement of the very valuable right of freedom. Article 22, Limitation Act, makes residuary provision for suits relating to such tortious acts. Even if not, it is certainly an injury to the person. It is certainly an infringement of the very valuable right of freedom. Article 22, Limitation Act, makes residuary provision for suits relating to such tortious acts. Coming now to the second part of the plaintiff's case, namely, his claim for compensation for malicious prosecution, I would at the very outset strongly condemn the satirizing tone of the learned District Judge's criticism of the judgment of the learned Subordinate Judge The judgment of the learned Subordinate Judge hardly deserved such criticism and, in my opinion, such criticism ill suits the purpose of administration of justice. 14. To sustain his claim for malicious prosecution the plaintiff has to prove (1) That there was want of reasonable and probable cause for the prosecution (2) That the proceedings were initiated m a malicious spirit, i.e., from an indirect and improper motive and not in furtherance of justice. We may assume in this case that the plaintiff was innocent and that his innocence was pronounced by the tribunal before which the accusation was made There is again no question that the prosecution which is alleged to have injured the plaintiff was for an offence, a conviction of which would carry reprobation impairing the fair name of the person convicted. 15. As has been stated above, any one is prima facie entitled to set a Court of justice in motion. Prosecuting is not, thus, prima facie, a tort and is not a tort in itself. For reasons of public policy the law gives protection to persons prosecuting, even where there is no reasonable and probable cause for the prosecution. It is only when the person abuses his privilege for the indulgence of his personal spite that he loses the protection and renders himself liable to action, not for the malice but for the wrong done in subjecting another to annoyance, expenses of a causeless prosecution and possible loss of reputation. Want of reasonable and probable cause and existence of malice must concur in order to constitute this wrong. If there is reasonable and probable cause for the prosecution then, even though the prosecution is started to satisfy a personal grudge and is prompted by malice and the worst of motives the prosecutor will not be liable for an action for malicious prosecution. If there is reasonable and probable cause for the prosecution then, even though the prosecution is started to satisfy a personal grudge and is prompted by malice and the worst of motives the prosecutor will not be liable for an action for malicious prosecution. The learned District Judge in his case has found that there was reasonable and probable cause for the prosecution. If this finding stands then no other question will arise and the plaintiff's appeal must fail. 16. Mr. Chakrabarty appearing for the appellant contends and, I must say, rightly contends, that the question whether or not there was a reasonable or probable cause for the prosecution is a question of law to be inferred from certain facts. This contention of Mr. Chakrabarty is amply supported by the highest authorities: see (1905) 1905 A.C. 168 : 74 L.J. P.C. 62 : 92 L.T. 483, Cox v. English, Scottish and Australian Bank; (1938) 1938 A.C. 305 : 107 L.J. K.B. 225 : 82 S.J. 192 : (1938) 1 All. E.R. 1, Harminan v. Smith. It therefore becomes necessary for us to see on what facts the learned District Judge has based his conclusion as to the existence of reasonable and probable cause in this ease. The learned District Judge has found: (1) That on 23rd December, the plaintiff used disgraceful language and indulged in every form of vulgarity of speech when addressing Chand Ali and that such language was sufficient even to lead to bloodshed; (2) That Chand Ali accompanied by the Amin and other persons went to defendant 1's house on the morning of 24th December and made a complaint. It was of course a verbal complaint; (3) That the following statement of defendant 1 as to what he did on this complaint must be accepted as true: Chand Ali made regular complaint to me as Sub-Divisional Magistrate. It was not my duty to record the statement. It was a report which constituted an offence in which I was asked to take action. The Amin and other labourers corroborated the statement of Chand Ali. I took cognizance of the offence then and there. I wanted to enquire into the matter. I took the matter on its face value. I did not like to take any immediate action then. I told that I would not do anything that would antagonise others. The Amin and other labourers corroborated the statement of Chand Ali. I took cognizance of the offence then and there. I wanted to enquire into the matter. I took the matter on its face value. I did not like to take any immediate action then. I told that I would not do anything that would antagonise others. I wanted sympathy from all in this great work. I deferred any action then and there. I thought of inquiring about the truth or otherwise of the complaint and to have the matter compromised, if possible. I did not take any action because I did not hear the other party. I thought that I will hear the other side before I take action. 17. All these are undoubtedly questions of fact and the findings of the learned District Judge in respect of them are the result of his appreciation of the evidence on the record. It is not disputed that there is evidence on the record in support of these findings. As regards the second of the above findings Mr. Chakrabarty refers us to the definition of the word 'complaint' in s. 4(1)(4), Criminal P.C., which defines the term as the allegation made orally or in writing to a Magistrate with a view to his taking action under this Code that some person.... has committed an offence. and points out from the evidence of defendants' witness Atul Chandra Som, accepted and relied on by the learned District Judge himself in his judgment, that "Chand Ali said that he was a poor man and so he will not lodge complaint in Court." Mr. Chakrabarty contends that this shows that there could not have been any 'complaint' before the learned Magistrate. The learned District Judge himself pointed out after the above finding that the word complaint there was used not in the sense in which it is used in the Criminal Procedure Code. Assuming that there was no complaint by Chand Ali within the meaning of the definition given in the Code, the second of the above findings will amount to saying that on 24th December, defendant 1 received information from Chand Ali that an offence under S. 504, Penal Code, had been committed by the plaintiff on 23rd December. Mr. Assuming that there was no complaint by Chand Ali within the meaning of the definition given in the Code, the second of the above findings will amount to saying that on 24th December, defendant 1 received information from Chand Ali that an offence under S. 504, Penal Code, had been committed by the plaintiff on 23rd December. Mr. Chakrabarty's comment on the 3rd of the above findings is: (1) that the statement as to taking cognizance on the complaint of Chand Ali is inconsistent with what defendant 1 stated in paras. 16 and 24 of his written statement, (2) that the statement is contradicted by the entry in the order-sheet of the criminal case and (3) that the very statement that defendant 1 was still thinking of settling the matter shows that till then he did not take cognizance of the offence. 18. The offence complained of or reported, being one under S. 504, Penal Code, was certainly compoundable by the person insulted. I do not see how that statement by defendant 1 detracts from his statement that he took cognisance of the offence then and there. Taking cognizance of an offence is a mental act. The person himself deposes as to the time when he took cognizance of the offence and he is believed by the final Court of fact. It is difficult to see how we can interfere with this finding. The order sheet in the criminal case does not show that it was only at the jail gate and only after recording the statement of Chand Ali that the Magistrate took cognizance of the offence. Section 190, Criminal P.C., lays down on what materials a Magistrate can take cognizance of an offence and s. 200 of the Code enacts that a Magistrate taking cognizance of an offence on complaint shall at once examine the complainant upon oath and the substance of the examination shall be reduced to writing and shall be signed by the complainant and also by the Magistrate. This may mean that when cognizance is taken on complaint the factum of taking cognizance is not to remain a mere mental act but must consist of the acts prescribed by S. 200. It will not be necessary for me to consider this question in the present case. This may mean that when cognizance is taken on complaint the factum of taking cognizance is not to remain a mere mental act but must consist of the acts prescribed by S. 200. It will not be necessary for me to consider this question in the present case. For our present purposes we are only concerned with seeing whether or not there were materials in existence on which the criminal prosecution that followed as a matter of fact can be said to have been started without any reasonable and probable cause. I shall assume that when a Magistrate takes cognizance of an offence otherwise than on complaint or police report, he starts the prosecution and if he thus takes cognizance without any reasonable and probable cause, and prompted by malice, he renders himself liable to an action for malicious prosecution. 19. That he took cognizance of the offence is an admitted fact. He says that he took cognizance on the complaint of Chand Ali under S. 190(1)(a), Criminal P.C. He has been believed by the final Court of fact that he took cognizance of the offence on the spot. Though he characterised the information received from Chand Ali as the complaint made by the latter, this is not a question of fact. He chose to treat that information as 'complaint' but as a matter of fact it was not so. The fact however still remains that he took cognizance of the offence on the materials received by him from Chand Ali on 24th December. Mr. Chakrabarty contends that the reasonableness of the cause must be judged by the objective test and invites us to hold that judged by this test the materials before defendant 1 did not supply any reasonable and probable cause for the prosecution. Mr. Noad appearing for the respondent contends: (1) That the test of reasonableness must be 'subjective'; reasonable and probable cause means reasonably apparent to and relied on by the prosecutor; (2)(a) That even applying the objective test the above facts as found by the final Court of fact are sufficient to establish reasonable and probable cause; (b) that at any rate the existence of those materials before the defendant at the time when he took action would at least disprove the negative, namely, want of reasonable and probable cause. 20. 20. I am not sure whether the test "reasonably apparent to and relied on by the prosecutor" would not itself again involve the determination of the question whether a thing is reasonably apparent to the prosecutor when he himself thinks it to be reasonable or whether that reasonableness again should have objective existence. But, in my opinion, the second contention of Mr. Noad must be accepted. On the facts found it is difficult to say that it would have been without any reasonable and probable cause for any Magistrate to take cognizance of the offence and start the prosecution as was done by defendant 1. It may be that defendant 1 was prompted to take immediate action, having been enraged by the alleged effrontery of the plaintiff. It may also be that the subsequent steps taken by the defendant were injudicious. The spectacle of dispassionate justice and of calm adherence to the law of the land never fails to produce its effect on the public mind and is particularly admired in a guardian of law and order who can avoid being driven to action by an effrontery of the present type calculated only to touch one's personal feeling of dignity. No wielder of any public power should regard the enjoyment of that power as an event in itself. At the same time it is difficult to say that there was no reasonable or probable cause for prosecution in this case even judged by the standard of what on similar materials an average prudent man would do. 21. In the above view no other question really arises for our decision. As the prosecution cannot in this case be said to have been without reasonable and probable cause, malice or no malice, the present action must fail. I, therefore, agree that the appeal must be dismissed with costs.