JUDGMENT Singh, J. - 1. This is a defendant's second appeal against whom a decree for a sum of Rs. 600/- has been passed as damages for the malicious prosecution of the plaintiffs (respondents). 2. The defendant, Babulal, filed a criminal complaint (Ex. P-1) against the plaintiffs in tile Court of the Magistrate 1st Class, Hoshangabad. In that complaint it was alleged that the plaintiff No. 1, Ghasiram, threatened to assault the defendant with an axe that he forcibly removed from the person of the defendant's daughter certain gold and silver ornaments and that the plaintiff No.2. Smt. Bhageshwaribai, who is the wife of plaintiff No. 1, assaulted the defendant with a Khanita (a small sharp edged agricultural implement), causing an injury on his lips. Some allegations were also made against one Chhotelal, who was discharged by the criminal Court, but as he has not figured as a party in the present litigation, they need not be mentioned. The Magistrate 1st Class to whom the complaint was presented, took cognizance under section 190 of the Code of Criminal Procedure and directed police investigation under section 202 of the Code. After receipt of the police report, he noted in the order-sheet that a prima facie case under sections 323 and 324 of the Penal Code is made out and the case be disposed of by Shri S.K. Tripathi, Magistrate 2nd Class, according to law. Shri Tripathi, to whom the case was transferred, registered the same under sections 323 and 324 of the Penal Code and issued summons to the plaintiff for appearance before him. A copy of the complaint was served on the plaintiffs as required by section 304 (1-B) of the Code and on their appearance, the case was tried as a warrant case. A charge under section 323 of the Penal Code was framed against the plaintiffs but they were ultimately acquitted by the order, Ex. P-3. These facts are no longer in dispute. 3. The plaintiffs' case is that the allegations made against them in the complaint were entirely false to the knowledge of the defendant who maliciously prosecuted them without any reasonable and probable cause and that the prosecution having ended in their favour, they are entitled to general and special damages. 4. The first Civil Judge, Class II, Hoshangabad, who tried the suit, dismissed it. 4. The first Civil Judge, Class II, Hoshangabad, who tried the suit, dismissed it. But in appeal, the District Judge, Hnshangabad, held in favour of the plaintiffs. He has found that on the facts, that I have already stated, the plaintiff No.1 was prosecuted by the defendant on charges of robbery and assault, that both these allegations in the complaint were false and were made without any reasonable and probable cause. Similarly, it has been found that the allegations against plaintiff No.2 were also false and made without any reasonable and probable cause. The District Judge, on these findings, has decreed the suit and has awarded Rs. 600/- as damages to the plaintiffs. 5. In this second appeal, the learned counsel for the appellant, contends that on the facts of this case, the plaintiff No.1 was not prosecuted on the charge of robbery. His argument is, that as the complaint, after the police report, was registered only under sections 323 and 24 of the Penal Code, the plaintiff No. 1 was not required to answer the charge of robbery viz. forcible removal of ornaments from the person of defendant's daughter, and though this charge was laid in the complaint, it cannot be said that the stage of prosecution in respect of this charge was ever reached. The second contention raised by the learned counsel is that as regards rest of the allegations contained in the complaint, there was reasonable and probable cause for making the complaint. 6. The first contention raised by the learned counsel requires the consideration of meaning of 'prosecution' in the context of the tort of malicious prosecution. 7. In Clerk Lindsell on Torts to which I am referred; the opinion is expressed as follows:- "A justice of the peace can only take action on an information laid before him. If he thinks that it discloses ground for believing that an offence has been committed, be either issues a warrant for the arrest of the incriminated party or a summons commanding his attendance. But until he issues such summons or warrant the prosecution cannot be said to begin. The gist of the action for malicious prosecution is that the defendant set the Magistrate in motion. But until he issues such summons or warrant the prosecution cannot be said to begin. The gist of the action for malicious prosecution is that the defendant set the Magistrate in motion. '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 anyone ever commenced ?" (12th edition, para 1697, p. 896) One authority noted for this opinion in Yates Vs. The queen (1885) 14 QBD 648 which was a very different case as it had nothing to do with malicious prosecution and related to the construction of the words 'criminal prosecution' in section 3 of the News-paper Libel and Registration Act, 1881. This case was distinguished on this ground by the Privy Council in Mahommad Amin Vs. Yogenara Kumar Banerjee & others 1947 AC 322, P.328 and cannot be of assistance for deciding the meaning of 'prosecution' in the context of Malicious Prosecution. Another case noted on this point in Clerk and Lindsell is Gregory Vs. Derby (1839) 8 C & P. 749, p. 750, where it was said that even the issue of a warrant not followed by an arrest would not give a cause of action. This is clearly opposed to the test laid down in Mohammad Amin's case to which I will revert in detail later. Therefore, the opinion in the passage quoted above, that until the Magistrate issues summons or warrant, the prosecution cannot be said to begin, cannot be taken to be decisive and the question requires further examination. 8. To begin with, I will take up the English case. In Byne Vs. Noore 128 ER 658, in an action for maliciously indicting for an assault, the plaintiff gave no evidence other than the bill returned "not found" and he was non suited; Lord Mansfield C. J. said:- "I feel a difficulty to understand how the plaintiff could recover in the present action, wherein he could recover no damages, because be clearly has not proved that he has sustained any. I can understand the ground upon which an action shall be maintained for an indictment which contains scandal, but this contains none, nor does any danger of imprisonment result from it." The point to be noted is that the action failed not because there was no prosecution but because no damage had been proved as the charge was not scandalous. Then in Clarke Vs. Poston (1834) 6 C & P 428. (33 Digest, p. 390), it was held that to maintain an action against a person for having made a false charge of felony before a Magistrate, it is not necessary to show that the charge was taken down in writing and acted upon by the Magistrate. But it is necessary that the jury should be satisfied that it was made to the Magistrate with a view to entertain it as a charge of felony. Another important case to be noticed is Quarts Hill Gold Mining Company Vs. Eyre (1882-83) 11 QBD 674, where it was held that an action will lie for falsely and maliciously and without reasonable or probable cause presenting a petition under the Companies Act to wind up a trading company even although no pecuniary loss or special damage to the company can be proved, for the presentation of the petition is, from its very nature, calculated to injure the credit of the company. In this case, Bowen L. J., observed as follows:- "In its very nature the presentation or the prosecution of an indictment involves damage, which cannot be afterwards repaired by the failure of the proceedings, to the fair fame of the person assailed." (P. 691 of the report). The English cases that I have mentioned above do not establish the rule that issue of process to the accused or his appearance before the Magistrate on a criminal charge is a necessary ingredient for an action for malicious prosecution. What is necessary is that the defendant should have moved the Magistrate to take action against the plaintiff (on a charge which is made maliciously and without reasonable and probable cause) and damage should have resulted to the plaintiff. What is necessary is that the defendant should have moved the Magistrate to take action against the plaintiff (on a charge which is made maliciously and without reasonable and probable cause) and damage should have resulted to the plaintiff. If the charge is such that it does not affect the reputation of the plaintiff mere presentation of the complaint will not result in any damage to him, whereas, if 'the 'charge be scandalous, mere presentation will suffice, for plaintiff's reputation would be immediately affected resulting in damage. 9. In United States, the question at what stage criminal proceedings reach the stage of prosecution for giving a cause of action for malicious prosecution has given rise to a difference of opinion, but the better view, as commended by the Editors of American Jurisprudence, has been expressed as follows:-- "According to other authorities, and apparently with better reason, it is not indispensable that the plaintiff show that he was arrested and imprisoned, or was held without bail, it being sufficient to sustain the action if it appears that he had maliciously and without probable cause been vexed and harassed by a criminal prosecution. This view is based upon the fact that the person accused is injured by the mere fact that a criminal charge is maliciously and wantonly preferred against him. Whereby his reputation is injuriously affected and he is exposed to disgrace and infamy. An action should lie even though execution of the warrant is withheld, it is, asserted, if for no other reason than to satisfy that principle of law which demands an adequate remedy for every legal wrong." (American Jurisprudence, Vol. 34, pp. 712, 713). 10. As regards the Indian cases, a sharp difference of opinion existed on the question till at least 1947. In Golap Jan Vs. Bholanath ILR (1911) 38 Cal. 880, a Bench of the Calcutta High' Court (Jenkins, C. J., and Woodroffe, J.) held that where a complaint after reference to police under section 202, Criminal Procedure Code was dismissed by the Magistrate under section 203 of the Code, there was no commencement of the prosecution and no suit for malicious prosecution could be maintainable. Reliance in this case was mainly placed on Yates Vs. The Queen (1885) 14 QBD 648, which I have already referred and which is not a case on malicious prosecution. Reliance in this case was mainly placed on Yates Vs. The Queen (1885) 14 QBD 648, which I have already referred and which is not a case on malicious prosecution. Golapjan's case was followed by the Madras High Court in Meeran Sahib Vs. Ratnavelu Mudali ILR 37 Mad. 181, by the Patna High Court in Subhagchamar Vs. Nandlal ILR 8 Pat. 285, by the Allahabad High Court in Ali Mohammad Vs. Zakir Ali ILR 53 All. 771 and by the Rangoon High Court in Gauri Singh Vs. Bokka Venkanna ILR 13 Rang. 764. In contrast to these cases in Bishun Prasad Narain Singh Vs. Phulman Singh 27 IC 449 (Cal.), Sir Ashutosh Mukerjj with Beachcroft J., after a thorough analysis of cases, took a different view. According to this view the prosecution commences as soon as a complaint is made to the Magistrate. This view was shared by the Bombay High Court in Ahmed Bhai Vs. Framji ILR 28 Bom. 226 and by the Oudh Chief Court in Gursaran Das Vs. Israr Haidar AIR 1927 Oudh 471. 11. In the state of these authorities, came the decision of the Privy Council in Mohammad Amin Vs. Yogendra Kumar Banerji 1947 AC 322, at pp. 330 and 331, where the conflicting views of the Indian High Courts were examined. After noticing the various cases of the Indian High Courts; Their Lordship, while referring to Golap Jan's case ILR (1911) 38 Cal. 880, observed as follows:- "If Golap Jan's case, 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 dieisis, 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." (1947 A.C. 322, p. 330). Their Lordships think it right, therefore, to examine the principle on which the case was based." (1947 A.C. 322, p. 330). Then, after examining the foundation of the action for malicious prosecution, their Lordships said:- "But a criminal charge involving scandal to reputation or the possible loss of life or liberty to the party charged does necessarily , or naturally involve damage, and in such a case damage to reputation will be presumed." "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 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." (P.331) If the matter tested there alone, there was no difficulty in inferring that if the complaint alleges a charge affecting plaintiff's reputation, its presentation to the Magistrate will be sufficient to cause damage to the plaintiff, and therefore, mere presentation of such a complaint will lead to a "stage at which damage to the plaintiff results." But doubt is created from the following observations of their Lordships:- "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 plaintiff results." (1947 A.C. 322, at p. 311) 12. What is the meaning of these observations? One thing is clear that if the Magistrate on presentation of the complaint holds that it discloses no offence and does not take cognizance of it and immediately dismisses it, what results is not "prosecution" but only an unsuccessful attempt to prosecute which will not give rise to an action for malicious prosecution. But do these observations also mean that if the Magistrate takes cognizance of the offence, sends the complaint for police investigation and then dismisses it under section 203, again there is no prosecution? But do these observations also mean that if the Magistrate takes cognizance of the offence, sends the complaint for police investigation and then dismisses it under section 203, again there is no prosecution? In my view, that could not be the meaning, for that would in effect be endorsing Golap Jan's case ILR (1911) 38 Cal. 880, which was adversely criticised throughout the judgment; further that would militate against the test which was earlier laid down "whether such proceedings have reached a stage at which damage to the plaintiff results"; for publicity of a complaint containing a criminal charge during investigation by the police will normally result in damage to the plaintiffs reputation notwithstanding the fact that the complaint is afterwards dismissed under section 203. The position may be different when the offence alleged is not per se defamatory for in that case the plaintiff will not suffer any damage in reputation and unless summoned to answer the charge, will not be put to any expense. A suit for malicious prosecution in the latter class of cases will fail, not because there has been no prosecution, but because of absence of damage to the plaintiff which is a necessary requisite for bringing such suit. It would then be said that the criminal proceedings did not reach the stage at which damage to the plaintiff results. But, in cases where criminal charge laid in the complaint is per se defamatory, that stage would be reached on the Magistrate taking cognizance of the complaint and in sending it for police investigation. The plaintiff, in this class of cases, will have a good cause of action for recovery of general damages even if he is not summoned to answer the charge and the complaint after police investigation is dismissed by the Magistrate under section 203. In taking this view, I respectfully dissent from the opinion expressed by the Orissa High Court in Ramjena Vs. Godadher AIR 1961 Orrissa 118, P. 121 that Golap Jan's case ILR 1911 38 Cal. 880 still holds the field and accept the opinion of the Calcutta High Court in Rameshchandra Vs. Bradjendranth AIR 1950 Cal. 259 , P. 260, that Golap Jan's case was overruled by the Privy Council. 13. Having expressed my view on the legal position, I now revert to the facts of the present case. 880 still holds the field and accept the opinion of the Calcutta High Court in Rameshchandra Vs. Bradjendranth AIR 1950 Cal. 259 , P. 260, that Golap Jan's case was overruled by the Privy Council. 13. Having expressed my view on the legal position, I now revert to the facts of the present case. The complaint filed by the defendant containing also a charge of robbery of forcibly snatching gold and silver ornaments from the person of the defendant's daughter was taken cognizance of by the Magistrate who sent it for police investigation under section 202. After receipt of police report, charge of robbery was not prima facie found to be correct and the Magistrate registered the complaint only under sections 323 and 324. Summons was then issued to the plaintiff for answering these charges but a copy of the whole complaint was served on him. The case was tried as a warrant case and the defendant could have led evidence also on the charge of robbery during the trial and in that event, the Magistrate II Class, who was trying the offence, would have been required, had he relied upon that evidence prima facie, to send the case under section 346 of the Code to another Magistrate having jurisdiction to try the charge of robbery. May be that this eventuality did not arise and the defendant confined himself to the lesser offences during the trial, but the plaintiff as a prudent man would have taken steps to face this eventuality. He must have consulted his lawyers on the whole complaint that was served on him so as to defend himself fully. Be that as it may, in my view, the facts that the complaint as a whole was taken cognizance of and was sent for police investigation and plaintiffs were served on the complaint, together with the fact that a charge of robbery is per se defamatory and affects reputation, are sufficient to constitute prosecution of the plaintiff No. 1 on the charge of robbery. I, therefore, reject the contention that the plaintiff No. 1 was not prosecuted on the charge of robbery. It is not disputed before me that there was absence of reasonable and probable cause for levelling this charge and that in this respect the defendant was actuated with malice. 14. I, therefore, reject the contention that the plaintiff No. 1 was not prosecuted on the charge of robbery. It is not disputed before me that there was absence of reasonable and probable cause for levelling this charge and that in this respect the defendant was actuated with malice. 14. As regards the rest of the allegations made in the complaint, the argument is that there was reasonable and probable cause for making those allegations. 15. The meaning of reasonable and probable cause is well explained by Lord Devlin in Glinski Vs. McIver 1962 Vol. I, All. E.R. 696 (H.L.) at pp. 714 and 715, in the following words:-- "It means that there must be cause (that is, sufficient grounds; I shall hereafter in my speech not always repeat the adjectives "reasonable" and "probable") for thinking that the plaintiff was probably guilty of the crime imputed; Hicks Vs. Faulkner (1881) 8 QBD at p. 173. This does not mean that the prosecutor has to believe in the probability of conviction; Dawson Vs. Vansandau (1863) 11 WR 516. The prosecutor has not got to test the full strength of the defence; he is concerned only with the question of whether there is a case fit to be tried. As Dixon J. put it, the prosecutor must believe that "the probability of the accused's guilt is such that upon general grounds of justice a charge against him is warranted"; Common wealth Life Assurance Society Vs. Brock (1935) 53 CLR at P. 382. Perhaps the best language in which to leave the question to the jury is that adopted by Cave, J., in Abrath Vs. North Eastern Railway Co., (1883) 11 QBD at p. 443; ".........did (the defendants) honestly believe in the case which they laid before the magistrates?". Another principle, which may be noticed, is laid down in Rishabhkumar Mohanlal Seth Vs. K.C. Sharma and another [4]:-- "The question, therefore, whether on certain facts found the inference about the want of reasonable and probable cause can be drawn is, according to the principles summarised in Sree Meenakshi Mill., Ltd. Vs, Commissioner of Income-tax AIR 1957 SC 49 , a mixed question of law and fact. It is on these principles that the question whether the prosecution launched by the respondents was without reasonable and probable cause has to be determined" 16. It is on these principles that the question whether the prosecution launched by the respondents was without reasonable and probable cause has to be determined" 16. The only other allegation is the complaint against plaintiff No. 1 was that he threatened to assault the defendant with an axe. It is common case that some quarrel took place and atleast there was exchange of abusive language in between the parties. It is a matter of general experience, that abusive language used on such occasions takes the form of threats to assault. The plaintiff No.1, who has appeared as P.W. 1, has nowhere stated that he had no axe in his hand when this quarrel took place. Lalaram (P.W. 4), who is the only witness about the incident, examined by the plaintiff, also does not say that the plaintiff, had no axe in his hand when the abusive words were being exchanged between the parties. May be, that the plaintiff No. 1, while abusing the defendant, had no intention to use the axe, but if he had an axe in his hand and was using abusive language, it cannot be said that the defendant without any reasonable and probable cause inferred that the plaintiff was giving threats to assault with an axe. The learned District Judge has not appreciated that the burden of proof of want of reasonable and probable cause for prosecution is on the plaintiff and unless he leads evidence to discharge this burden, the defendant cannot be called upon to establish the truth of, or the existence of reasonable and probable cause for, the allegations made. On the evidence that I have mentioned above, and on the principles indicated in paragraph 15 above, I hold that the plaintiff No. 1 has railed to discharge the burden so far as the allegation of giving threats to assault is concerned. 17. As regards the plaintiff No 2, the allegation in the complaint was that she assaulted the defendant with a Khanifa causing him an injury on his lips. It has been found by the learned District Judge that plaintiff No.2, was not present and could not possibly be present at the place of the incident for she had given birth to a child two days before. It has been found by the learned District Judge that plaintiff No.2, was not present and could not possibly be present at the place of the incident for she had given birth to a child two days before. The learned District Judge has further held that the allegation against her was palpably false and was made maliciously because of the defendant's quarrel with her husband (plaintiff No. 1). These are findings of fact and must be accepted as they are based on evidence led in the case. If that be so, inference of want of reasonable and probable cause for the prosecution automatically follows. The defendant had no reasonable cause whatsoever for prosecuting the plaintiff No.2 who was not even present at the place of the quarrel which took place between him and plaintiff No. 1. I affirm the finding of the learned District Judge on this point. 18. The conclusion to which I reach on the above discussion is that the plaintiff No.1 had good cause of action for the suit on the charge of robbery made against him but not on the charge of assault; the plaintiff No.2 also had good cause of action for the suit on the charge of assault levelled against her. 19. What is the effect of the finding that the defendant had reasonable cause for making the complaint on one of the charges but not on others? The answer is furnished from the following statement of the Law in Halsbury's Laws of England, Vol. 25, p. 364:-- "If the plaintiff was indicted on more than one charge, it is sufficient for the plaintiff to show that there was no reasonable and probable cause for some of the charges in the indictment, though there may have been such cause for others. If the indictment contained only one charge, it is in general sufficient for the plaintiff to show that there was no reasonable and probable cause for part of the charge." (Para 711) 20. The result of the discussion is that though the defendant had reasonable and probable cause for levelling the charge of assault against the plaintiff No. 1, but as he had no justification for levelling other charges, the plaintiffs were entitled to succeed in the suit. 21. The quantum of damages awarded to the plaintiffs jointly is only Rs. The result of the discussion is that though the defendant had reasonable and probable cause for levelling the charge of assault against the plaintiff No. 1, but as he had no justification for levelling other charges, the plaintiffs were entitled to succeed in the suit. 21. The quantum of damages awarded to the plaintiffs jointly is only Rs. 600 and I do not find any reason to further reduce this small sum. 22. As a result, this appeal fails and is dismissed with costs.