Judgement Appeal (No. 5 of 1946) from a judgment and decree of the High Court in its civil appellate jurisdiction (February 1, 1945) affirming a judgment and decree of that- court in its original civil jurisdiction (March 31, 1943) dismissing the appellants suit for damages for malicious prosecution. Law Rep. 74 Ind. App. 193 ( 1946- 1947) Mohamed Amin V. Jogendra Kumar Bannerjee 128 The following facts are taken from the judgment of the Judicial Committee. In March, 1940, an agreement was entered into between the appellant and the first respondent which was contained in certain letters whereby the appellant agreed to sell certain property to a company which was to be formed by the first respondent. The appellant alleged that subsequently an oral agreement was made between himself and the first respondent containing certain provisions which went beyond the written agreement. The third respondent company was incorporated on April 16, 1940, to carry out the purchase from the appellant, and certain property was transferred by the appellant to such company. Subsequently the appellant took the view that the terms of the oral agreement which he had made with the first respondent had not been carried out, and accordingly he refused to transfer the rest of the property included in the sale to the company. The dispute, as the learned trial judge in this suit had held, was of a purely civil character. On September 16, 1940, the second respondent, acting on behalf of himself and the first and third respondents filed a petition of complaint against the appellant in the court of the Police Magistrate at Sealdah, a suburb of Calcutta, under the provisions of s. 190 of the Code of Criminal Procedure. The petition, after setting out the facts relating to the dispute, alleged that as the accused had refused to deliver the remainder of the properties agreed to be sold he had committed an offence under s. 422 of the Indian Penal Code or s. 406 of the Code in the alternative, and asked that he might be summoned to answer the said charge. The charge was duly registered by the magistrate on September 16, 1940, as a charge of cheating under s. 420 of the Indian Penal Code, and it was not disputed that the charge was intended to be one of cheating under s. 420 or criminal breach of trust under s. 406. The charge was duly registered by the magistrate on September 16, 1940, as a charge of cheating under s. 420 of the Indian Penal Code, and it was not disputed that the charge was intended to be one of cheating under s. 420 or criminal breach of trust under s. 406. The magistrate, having taken cognizance of the complaint, forwarded it to a Mr. N. N. Mukherjee for inquiry and report under the provisions of s. 202 of the Code. Mr. Mukherjee, by letter dated September 22, 1940, gave the appellant notice that a criminal case had been instituted against him by the second respondent, that it had been referred to the writer for inquiry, and that the inquiry would be held on October 25. For some reason, which had not been explained, Mr. Mukherjee did not hold the inquiry, and the magistrate than referred the matter to a Mr. Bannerjee, who also did not hold the inquiry. Thereupon the magistrate himself held the inquiry in open court. Notice of the inquiry was given to the appellant, who attended with counsel. At such inquiry the first respondent deposed that we have brought this case for cheating us against " the accused Md. Amin." On December 3, 1940, after the completion of the inquiry, the magistrate made an order, which concluded with these words " No case of cheating and, for the " matter of that, no criminal case of any nature could be made "out by the complainant.” He thereupon dismissed the complaint under s. 203 of the Code of Criminal Procedure. On June 26, 1941, the appellant filed this suit against the respondents. The only effective defendants were Nos. 1 to 3 (respondents Nos. 1, 2 and 3). No relief was claimed against defendants (respondents) Nos. 4, 5 and 6. The plaintiff claimed certain relief arising out of the civil dispute with the respondents Nos. 1-3, but that part of his action was dismissed by the trial judge and was not the subject of appeal. The claim relevant to this appeal was for Rs. 28,500 for damages for malicious prosecution, made up of costs incurred in his defence to the inquiry, damage to business and damage to reputation. The case was tried by Gentle J. on the original side of the High Court. The claim relevant to this appeal was for Rs. 28,500 for damages for malicious prosecution, made up of costs incurred in his defence to the inquiry, damage to business and damage to reputation. The case was tried by Gentle J. on the original side of the High Court. The learned judge held that there was no reasonable and probable cause for the criminal proceedings taken by the respondents, that there was not the slightest justification for filing a criminal complaint, and that the respondents were actuated by malice. The learned judge, however, felt himself bound to follow Golap Jan v. Bholanath Khettry (( 1911) I. L. R. 38 C. 880.) and to hold that the plaintiffs suit failed since there had been in law no prosecution. The learned judge stated that in the absence of authority he would have been inclined to a contrary view, and that the only damages which he would have awarded, had the suit succeeded, would have included Rs. 1,000 in respect of the costs to which the appellant had been put in connexion with the filing of the complaint. He was not satisfied that the loss of business alleged in the plaint had been established, and he did not deal with the claim to damages for Law Rep. 74 Ind. App. 193 ( 1946- 1947) Mohamed Amin V. Jogendra Kumar Bannerjee 129 loss of reputation. Accordingly, by decree, dated March 31, 1943, the plaintiffs suit was dismissed. From that decree the plaintiff filed an appeal, and on February 1, 1945, the appeal was dismissed. The learned Chief Justice (Derbyshire C.J., with whom Lodge J. agreed), who gave the leading judgment, followed Golap Jan v. Bholanath Khettry (( 1911) I. L. R. 38 C. 880.) and expressed the view that the case was rightly decided.’ Section 190 of the Code of Criminal Procedure, so far as relevant, enacted that except as thereinafter provided, any Presidency Magistrate, District Magistrate or Sub-divisional Magistrate or other Magistrate therein mentioned might take cognizance of any offence (a) on receiving a complaint of facts which constituted such offence. The exceptions referred to were not relevant to this appeal. The exceptions referred to were not relevant to this appeal. Chapter 16, which was headed " Of complaints to Magistrates,’ contained the following provisions "Section 200., A Magistrate taking cognizance of an 14 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 " "Section 202. (1) Any Magistrate, on receipt of a com-" plaint of an offence of which he is authorized to take " cognizance, or which has been transferred to him under " s. 192, may, if he thinks fit, for reasons to be recorded in " writing, postpone the issue of process for compelling the " attendance of the person complained against, and either " inquire into the case himself or, if he is a Magistrate other " than a Magistrate of the third class, direct an inquiry or " investigation to be made by any Magistrate subordinate " to him, or by a police-officer, or by such other person as he "thinks fit, for the purpose of ascertaining the truth or " falsehood of the complaint "Provided that, save where the complaint has been made "by a court, no such direction shall be made unless the "complainant has been examined on oath under the "provisions of s. 200. "(2A.) Any Magistrate inquiring into a case under this section may, if he thinks fit, take evidence of witnesses on oath." "Section 203 The Magistrate before whom a complaint is made or to whom it has been transferred, may dismiss the complaint, if, after considering the statement on oath " (if any) of the complainant and the result of the investigation " or inquiry (if any) under s. 202, there is in his judgment no " sufficient ground for proceeding. In such case he shall briefly record his reasons for so doing.” Chapter 17, which was headed of the commencement of Proceedings before Magistrates," laid down the procedure when the magistrate decided to issue process on the complaint. 1947. Feb. 13. Sir Thomas Strangman K.C., Bagram and Jayakar for the appellant. In England, speaking generally, on information being presented a magistrate may do one of two things, either dismiss it or issueprocess. 1947. Feb. 13. Sir Thomas Strangman K.C., Bagram and Jayakar for the appellant. In England, speaking generally, on information being presented a magistrate may do one of two things, either dismiss it or issueprocess. In India there is a difference; the magistrate can either dismiss it, or issue a summons, or he can take an intermediate course by holding an inquiry at which the accused may be present. In this case the accused was given notice and was present at the inquiry. In Golap Jan v. Bholanath Khettry (I. L. R. 38 C. 880, 886.) the Calcutta High Court held that an action for malicious prosecution would not lie on the ground that the complaint having been dismissed after inquiry no prosecution had commenced. That view was followed in other Indian High Courts, but subsequently differed from in the High Court of Calcutta itself C. H. Crowdy v. L. O. Reilly (( 1912) 17 C. W. N. 554, 562.); Bishun Persad Narain Singh v. Phulman Singh (( 1914) 19 C. W. N. 935, 963.), which is directly in point; Narendra Nath De v. Jyotish Chandra Pal Law Rep. 74 Ind. App. 193 ( 1946- 1947) Mohamed Amin V. Jogendra Kumar Bannerjee 130 (( 1922) I. L. R. 49 C. 1035, 1038.); Rabindra Nath Das v. Jogendra Nath Deb (( 1928) I. L. R. 56 C. 432, 434-5) and Gur Saran Dass v. Israr Haider (( 1927) I. L. R. 2 Luck . 746.). Cases which followed Golap Jans case (I. R. L. 38 C. 880) and which are therefore against the appellant are Sheik Meeran Sahib v. Ratnavelu Mudali (( 1912) I. L. R. 37 M. 181.), Subhag Chamar v. Nand Lal Sahu (( 1928) I. L. R. 8 Pat. 285.), Ali Muhammad v. Zakir Ali (( 1931) I. L. R. 53 A. 771, 773.) and Gowri Singh v. Bokka Venkanna (( 1935) I. L. R. 13 R. 764.). The complainant here is in effect by necessary implication asking for process to be issued, and when the magistrate says that he will take cognizance and hold an inquiry, and the accused is present and incurs expenses in presenting his case, all the ingredients are there, and an action would lie because the magistrate has acted on the complaint. The complainant here is in effect by necessary implication asking for process to be issued, and when the magistrate says that he will take cognizance and hold an inquiry, and the accused is present and incurs expenses in presenting his case, all the ingredients are there, and an action would lie because the magistrate has acted on the complaint. It is much too narrow a view to say that on the provisions of the Criminal Procedure Code prosecution does not begin until there is the issue of a summons. The answer to that is that malicious prosecution is really a misleading term; it is malicious abuse of the process of the court, and to this case there was a process in the court, because the court said that there would be an inquiry at which the appellant would have an opportunity of being present. With regard to damages, general damages is a necessary incident to a matter of this kind Mudhun Mohan Doss v. Gokul Doss (( 1866) 10 Moo. I. A. 563, 574-5). Khambatta K.C. and Umrigar for the first respondent. An inquiry by a magistrate under s. 202 of the Criminal Procedure Code into a complaint does not constitute a prosecution. The principle governing this matter is the same both in England and in India, and in Yates v. The Queen (( 1885) 14 Q. B. D. 648, 656-7) it was stated that " for this purpose one must determine when the prosecution by criminal information commences....laying the information before the magistrate would not be " the commencement of the prosecution, because the magistrate might refuse to grant a summons, and if no summons, " how could it be said that a prosecution against any one ever commenced? Although,” as is stated in Clerk and Lindsell on Torts, 9th ed., p. 665, "when once a summons is " issued, the commencement of the prosecution relates back " to the laying of the information.” The reasoning of Sir Lawrence Jenkins C.J. in Golap Jans case (I. L. R. 38 C. 880.), on which reliance is placed, is enforced by the provisions of the Code of Criminal Procedure, and it is of relevance that ss. 202 and 203 both deal with a stage before the issue of process. Section 204 deals with the issue of process. 202 and 203 both deal with a stage before the issue of process. Section 204 deals with the issue of process. So when it is said that malicious prosecution is the abuse of the process of the court that can only mean when process is commenced. The proceedings at the stage of the complaint before the magistrate are privileged; the stage of prosecution is not reached until the magistrate says under s. 204 of the Criminal Procedure Code that he is satisfied that there is a prima facie case and a summons will issue for the attendance of the accused. Gaya Parshad Tewari v. Bhagai Singh (( 1908) L. R. 35 I. A. 189.) gives some help on the present case. The remedy in a case like this is provided by the statute Code of Criminal Procedure, s. 250. The appellant has made out no case for damages for malicious prosecution. Sir Thomas Strangman K.C. replied. March 26. The judgment of their Lordships was delivered by SIR JOHN BEAUMONT. The question arising in this appeal is At what stage will criminal proceedings instituted falsely and maliciously before a magistrate under the provisions of the Indian Code of Criminal Procedure, lay the foundation for a suit for damages for malicious prosecution? [His Lordship stated the facts and cited the statutory provisions set out above and continued] The first question which arises in this appeal is whether in Golap Jans case (I. L. R. 38 C. 880.) the correct principle was applied. The case has been followed in some courts in India and dissented from in others, and their Lordships will examine the position of the authorities. Golap Jans case (I. L. R. 38 C. 880.) was decided in the year 19.11 by a Division Bench of the Calcutta High Court presided over by Sir Lawrence Jenkins, the Chief Justice. A complaint had been made before a magistrate by the defendant against the plaintiff of criminal breach of trust and the magistrate had Law Rep. 74 Ind. App. 193 ( 1946- 1947) Mohamed Amin V. Jogendra Kumar Bannerjee 131 referred the matter for inquiry by the police under s. 202 of the Code of Criminal Procedure, and, on receiving the report of the police, dismissed the com plaint under s. 203 of the Code. 74 Ind. App. 193 ( 1946- 1947) Mohamed Amin V. Jogendra Kumar Bannerjee 131 referred the matter for inquiry by the police under s. 202 of the Code of Criminal Procedure, and, on receiving the report of the police, dismissed the com plaint under s. 203 of the Code. The court held that in those circumstances no prosecution had commenced and accordingly no suit for malicious prosecution would lie. Reliance was placed by the court on the heading to ch. 17. " The commencement of proceedings before magistrates,” and it was held that that stage had never been reached. The court also relied on the decision of the English Court of Appeal in Yates v. The Queen (( 1885) 14 Q. B. D. 648.), where the learned judges expressed the view that a prosecution could not be said to commence before a person was summoned to answer a complaint. But in that case the court was not dealing with a suit for malicious prosecution. It had to decide the question when a criminal prosecution had commenced within the meaning of s. 3 of the Newspaper Libel and Registration Act, 1881. Golap Jan’s case (I. L. R. 38 C. 880.) was followed in 1912 by a single judge in Madras in Sheik Meeran Sahib v. C. Ratnavelu Mudali (( 1912) I.L. R. 37 M. 181.). In the same year, namely 1912, in C. H. Crowdy v. L. O. Reilly (4), a Division Bench of the Calcutta High Court, consisting of Mookerjee and Beachcroft JJ., expressed the view that a suit for damages for malicious prosecution lay whenever the criminal law had been set in motion maliciously and without reasonable cause, and that it was not necessary to show that there had been a prosecution in the restricted sense in which that word is used in the Code of Criminal Procedure. To that extent, the reasoning in Golap Jans case (2) was criticized, but it was distinguished on the facts, because in Crowdy v. Reilly (( 1912) 17 C. W. N. 554.) the complaint relied on as the foundation of the suit had not asked for the prosecution of the plaintiff but that security proceedings should be taken under s. 145 or s. 107 of the Code of Criminal Procedure, and the magistrate had not directed any inquiry. In the year 1914 Bishun Persad Narain Singh v. Phulman Singh (( 1914) 19 C. W. N. 935) came before a Bench of the Calcutta High Court consisting again of Mookerjee and Beachcroft JJ. In that case the complainant charged the plaintiffs with certain acts of a criminal nature and prayed that security might be taken from them, as otherwise his life and property would be in danger. The magistrate examined the complainant on oath, who gave evidence as to the incidents mentioned in the petition and prayed that proceedings under s. 107 of the Code of Criminal Procedure might be taken against the plaintiffs. The magistrate thereupon referred the matter to the deputy magistrate for inquiry and report. The deputy magistrate issued notice to the parties and examined a considerable number of witnesses. The deputy magistrate in due course submitted his report, and the magistrate in charge accepted the report and refused to proceed with the complaint. The facts in that case appear to their Lordships in substance to raise the same question as arose on the facts in Golap Jans case (I. L. R. 38 C. 880.), since although the complaint only asked for security proceedings to be taken, it alleged facts on which it would have been open to the magistrate to frame a criminal charge. The court, following their former decision, held that proceedings under s. 107 amounted to a prosecution for the purposes of a suit for malicious prosecution, and they further held that under the circumstances of the case the prosecution had commenced. The court was not prepared to accept the reasoning in Golap Jans case (I. L. R. 38 C. 880.) and expressed the view that the prosecution-—that act of the prosecutor which renders him liable to be cast for damages if malicious, and not based on reasonable and probable cause—commenced when the prosecutor had taken the initial step, namely, had made his complaint to the magistrate. The learned judges further expressed the view that the action for damages for malicious prosecution was not a creature of any statute, and that it was wide of the mark to investigate the precise meaning of the expression " prosecution " in the Code of Criminal Procedure, or the exact point of time when a prosecution may be said to commence within the meaning of that Code. Bishun Persad Narain Singhs case ([ 1914] 19 C. W. N. 935) was followed in Guy Saran Dass v. Law Rep. 74 Ind. App. 193 ( 1946- 1947) Mohamed Amin V. Jogendra Kumar Bannerjee 132 Israr Haider (( 1927) I. L. R. 2 Luck . 746.) by a Bench of the Chief Court of Oudh, where it was held that the essence of an action for malicious prosecution lies in the institution of criminal proceedings and their termination in the plaintiffs favour, and that the proceedings started with the issue of the complaint. The court disagreed with Golap Jans case (I. L. R. 38 C. 880.). The views expressed in Bishun Persad Narain Singhs case (2) were approved by Benches of the Calcutta High Court in Narendra Nath De v. Jyotish Chandra Pal (( 1922) I. L. R. 49 C. 1035.), and in Rabindra Nath Das v. Jogendra Nath Deb (( 1928) I. L. R. 56 C. 432.), though those cases were distinguishable on the facts as they were concerned with applications for sanction to prosecute. On the other hand, Golap Jans case (I. L. R. 38 C. 880.) has been followed by a Bench of the Patna High Court in Subhag Chamar v. Nand Lal Sahu (( 1928) I. L. R. 8 Pat. 285.), by a Bench of the Allahabad High Court in Ali Muhammad v. Zakir Ali (( 1931) I. L. R. 53 A. 771.), and by a Bench of the Rangoon High Court in Gowri Singh v. Bokka Venkanna (( 1935) I. L. R. 13 R. 764.). If Golap Jans case (I. L. R. 38 C. 880.), which was decided thirty-six years ago, had met with general approval in India, their Lordships might have been prepared to accept it on the principle of stare decisis, but, as the above discussion shows, the case has not met with universal approval. Nor can it be said to lay down any principle which may have served as a guide to conduct in other cases. No man can be heard to say that he lodged a false complaint maliciously without any justification in the belief that, though supported by his own oath, the magistrate would have no difficulty in detecting its falsity and in dismissing it without calling on the accused. Their Lordships think it right, therefore, to examine the principle on which the case was based. Their Lordships think it right, therefore, to examine the principle on which the case was based. The action for damages for malicious prosecution is part of the common law of England, administered by the High Court at Calcutta under its letters patent. The foundation of the action lies in abuse of the process of the court by wrongfully setting the law in motion, and it is designed to discourage the perversion of the machinery of justice for an improper purpose. The plaintiff must prove that the proceedings instituted against him were malicious, without reasonable and probable cause, that they terminated in his favour (if that be possible), and that he has suffered damage. As long ago as 1698 it was held by Holt C.J. in Savile v. Roberts ((1698) 1 Ld. Raym. 374.) that damages might be claimed in an action under three heads, (1.) damage to the person, (2.) damage to property, and (3.) damage to reputation, and that rule has prevailed ever since. That the word " prosecution " in the title of the action is not used in the technical sense which it bears in criminal law is shown by the fact that the action lies for the malicious prosecution of certain classes of civil proceedings, for instance, falsely and maliciously presenting a petition in bankruptcy or a petition to wind up a company (Quartz Hill Consolidated Gold Mining Co. v. Eyre (( 1883) 11 Q. B. D. 674.)). The reason why the action does not lie for falsely and maliciously prosecuting an ordinary civil action is, as explained by Bowen L.J. in the last mentioned case, that such a case does not necessarily and naturally involve damage to the party sued. A civil action which is false will be dismissed at the hearing. The defendants reputation will be cleared of any imputations made against him, and he will be indemnified against his expenses by the award of costs against his opponent. The law does not award damages for mental anxiety, or for extra costs incurred beyond those imposed on the unsuccessful party. But a criminal charge involving scandal to reputation or the possible loss of life or liberty to the party charged does necessarily and naturally involve damage, and in such a case damage to reputation will be presumed. The law does not award damages for mental anxiety, or for extra costs incurred beyond those imposed on the unsuccessful party. But a criminal charge involving scandal to reputation or the possible loss of life or liberty to the party charged does necessarily and naturally involve damage, and in such a case damage to reputation will be presumed. From this consideration of the nature of an action for damages for malicious prosecution emerges the answer to the problem before the Board. To found an action for damages for malicious prosecution based on criminal proceedings the test is not whether the criminal proceedings have reached a stage at Law Rep. 74 Ind. App. 193 ( 1946- 1947) Mohamed Amin V. Jogendra Kumar Bannerjee 133 which they may be correctly described as a prosecution; the test is whether such proceedings have reached a stage at which damage to the plaintiff results. Their Lordships are not prepared to go as far as some of the courts in India in saying that the mere presentation of a false complaint which first seeks to set the criminal law in motion will per se found an action for damages for malicious prosecution. If the magistrate dismisses the complaint as disclosing no offence with which he can deal, it may well be that there has been nothing but an unsuccessful attempt to set the criminal law in motion, and no damage to the plaintiff results. But in this case the magistrate took cognizance of the complaint, examined the complainant on oath, held an inquiry in open court under s. 202 which the plaintiff attended, and at which, as the learned judge has found, he incurred costs in defending himself. The plaint alleged the institution of criminal proceedings of a character necessarily involving damage to reputation and gave particulars of special damage alleged to have been suffered by the plaintiff. Their Lordships think that the action was well founded, and on the findings at the trial the plaintiff is entitled to judgment. As already noted, the learned judge was prepared to allow Rs. 1,000 as special damage to property, but did not consider the question of damage to the reputation of the plaintiff, which the plaint assessed at Rs. 25,000. Their Lordships think that the action was well founded, and on the findings at the trial the plaintiff is entitled to judgment. As already noted, the learned judge was prepared to allow Rs. 1,000 as special damage to property, but did not consider the question of damage to the reputation of the plaintiff, which the plaint assessed at Rs. 25,000. Before this Board, however, counsel for the appellant stated that he did not ask for more than nominal damages and was willing to accept such sum as the Board might award. The parties did not ask for a reference as to damages and in the circumstances their Lordships are prepared to take the course which was taken by the Board in Nawab Sidhee Nuzur Ally Khan v. Rajah Ojoodhyaram Khan (( 1866) 10 Moo. I. A. 540.) and to assess the damages themselves. They accept the figure of Rs. 1,000 which the learned judge would have awarded as special damage, and they assess general damage to reputation at Rs. 100. Their Lordships will therefore humbly advise His Majesty that this appeal be allowed, that the decree of the Appeal Court dated February 1, 1945, be set aside, and that the decree of Gentle J., dated March 31, 1943, also be set aside, and that judgment be entered for the appellant against respondents 1 to 3 for the sum of Rs. 1,100. Respondents Nos. 1-3 must pay the costs of this appeal and of the appeal in India and half of the appellants cost of the trial.