1. The plaintiff in this case was process-server in the Court of the Munsif of Kasganj. The defendant in execution of two decrees obtained issue of warrants of arrest against his judgment-debtors. These warrants were made over to the plaintiff for service. On the 13th September, 1905, the defendant put in an application before the Munsif asking that another process-server be deputed to execute the warrants upon the allegation that the plaintiff had told him he would not execute them unless he were paid the sum of Rs. 8. An affidavit was put in support of his application.
2. An inquiry was held by the Munsif who formed the opinion that the defendant’s allegations were true and who then reported the matter to the District Judge with a recommendation that the plaintiff be transferred to some other Court, and that an unfavourable entry be made in the process-server’s service book.
3. The District Judge, however, took a more serious view of the matter and directed the prosecution of the plaintiff for an offence under Section 161 of the Indian Penal Code. The plaintiff was accordingly tried for an offence under that section and eventually was acquitted.
4. He then instituted the suit out of which this appeal has arisen claiming damages from the defendant for malicious prosecution.
5. Both the Courts below have dismissed the plaintiff’s suit upon the ground that the prosecution had not been actually instituted by the defendant. The lower appellate Court refers to a passage in Underhill’s Law of Torts , article 55 30 A 525 : 12 C.W.N. 1017. The prosecution must have been instituted by the defendant against the plaintiff and not merely by the authorities on facts furnished by the defendant.
6. The plaintiff comes in second appeal to this Court and contends that the defendant was responsible for the prosecution of the plaintiff in the Criminal Court, that his application to the Munsif amounted to the institution of a criminal charge against him and that the Courts below were wrong in dismissing the suit on the ground set forth above. I am referred to the judgment of their Lordships of the Privy Council-Gaya Prasad v. Bhagat Singh 30 A 525 : 12 C.W.N. 1017. The material passage in this judgment is as follows : The question in all cases of this kind must be who was the prosecutor? The answer must depend on whole circumstances of the case. The mere setting of the law in motion is not the criterion; the conduct of the complainant before and after making the charge must also be taken into consideration.”
7. In deciding the question as to whether the defendant is responsible for the institution of the criminal proceedings, we have to consider what was his intention when he filed the application in the Munsif’s Court on the 13th September, 1905. He had these two decrees which he wanted to execute by arresting the judgment-debtors. His immediate object was to effect the execution of his decrees by their arrests. He was under the belief that the plaintiff was throwing obstacles in the way of arresting- the judgment-debtors and it appears to me that his immediate intention in making the application was to expedite the execution of the warrants by having them transferred to some other process-server for service. It can scarcely be said that at that time he had contemplated the consequences which have ensued, i.e., the inquiry into the plaintiff’s conduct and the institution of criminal proceedings against him by order of the District Judge. These considerations lead me to the conclusion that the defendant is not responsible for the institution of these criminal proceedings.
8. As to his conduct after filing of the petition of 13th September, 1905, there was nothing said on this point in the plaint or in the memorandum of appeal in the Court below.
9. In my opinion the suit was rightly dismissed and I dismiss the appeal with costs including fees on the higher scale.