JUDGMENT
Fletcher, J.
1. This is a suit for malicious prosecution.
2. The plaintiff alleges in the plaint that on 16th Jane (sic), the defendant falsely, maliciously and without any reasonable and proper cause, laid complaint under Section 380 of the Indian Penal Code against the plaintiff before the Chief Presidency Magistrate, and also asked for a search warrant against her.
3. The 7th paragraph, of the plaint alleges that the Magistrate sent the case to the Police fo enquiry and report, but the defendant thereafter wrote to the Police Inspector stating that he did not want to proceed with the case or the house of the plaintiff to be searched. Paragraph 10 of the plaint alleges that a fresh complaint was made against the plain tiff through one Bissonath Dubay, but the said complaint was also dismissed.
4. The point argued is whether, on these allegations, a suit for malicious prosecution can lie. Mr. Chatterjee admits that the evidence is not enough to carry the case higher, but says that the plaintiff can on these allegations maintain the suit for damages for malicious prosecution.
5. The case on which Mr. Chatterjee relies is the decision of Chandavarkar and Jacob, JJ. in Ahmedbhai v. Framji Edulji 28 B. 226, and there is no doubt that in that case the learned Judge did say that a prosecution commences when a complaint is made, and it is enough if the charge is made to the Magistrate. This statement is made on the authority of a statement taken from Addison on Torts, 8th edition, page 249. The case referred to in Addison is Clarke v. Postan (1834) 6 Car. and P. 423, which has been considered by Lord Justice Cotton in the case of Yates v. The Queen L.R. 14 QB. D. 648, at p. 661 : 54 L.J.Q.B. 258 : 52 L.T. 305 : 33 W.R. 482 : 49 J.P. 436.
6. The case of Clarke v. Postan (1834) 6 Car. and P. 423 was a mere dictum of the Judge at Nisi Prius, and the case of Yates v. The Queen L.R. 14 QB. D. 648, at p. 661 : 54 L.J.Q.B. 258 : 52 L.T. 305 : 33 W.R. 482 : 49 J.P. 436 is a considered judgment of the Court of Appeal.
7. My opinion is that the decision of Lord Usher and Lord Justice Cotton in Yates v. The Queen. L.R. 14 QB. D. 648, at p. 661 : 54 L.J.Q.B. 258 : 52 L.T. 305 : 33 W.R. 482 : 49 J.P. 436 is to be preferred on this point to the ruling in Clarke v. Postan (1834) 6 Car. and P. 423.
8. Looking to the provisions’ of the Criminal Procedure Code, it is obvious that process never issued at all. Section 200 is the first section in Chapter XVI. Section 200 says what should be done on a complaint. In Section 202 the marginal note is postponement of issue of process, and states what is to be done in a case when the Magistrate, instead of issuing process, sent the matter to the Police to enquire and report. Then conies Chapter XVII, and the first section of which has the marginal note Issue of Process,” and the Chapter is headed The Commencement of Proceedings.”
9. In this case the Magistrate “never issued process. The plaintiff was not prosecuted. The only step taken was that the matter was sent to the Police for enquiry and report.
10. I think that the case of Ahmedbhai v. Framjee Edulji 28 B. 226, which relies on the statement in Addison on Torts, that the prosecution commences from the date of complaint, is sufficiently explained by the case of Thorpe v. Priestnall (1897) 1 Q.B. 159 : 66 L.J.Q.B. 248 : 45 W.R. 223 : 60 J.P. 821. This case shows that once summons is issued the commencement of prosecution relates back to the laying of the information or making of the complaint. It is to be noticed that the learned Judges in the Bombay High Court did not refer to the case of Yales v. The Queen L.R. 14 QB. D. 648, at p. 661 : 54 L.J.Q.B. 258 : 52 L.T. 305 : 33 W.R. 482 : 49 J.P. 436, nor was such case cited to them in the course of the argument.
11. In these circumstances, I prefer to follow the decision of Yates v. The Queen L.R. 14 QB. D. 648, at p. 661 : 54 L.J.Q.B. 258 : 52 L.T. 305 : 33 W.R. 482 : 49 J.P. 436 rather than the decision of Ahmedbhai v. Framjt Edulji 28 B. 226. I hold, therefore, that the plaint discloses no cause of action, and the suit must, therefore, be dismissed with costs on scale No. 2.
