Jaganmohan Reddy, C.J.
1. Our learned brother Chandrasekhara Sastry, J., has referred this second appeal to a Bench for the determination of two questions involved therein viz., (1) whether a proceeding under Sec. 107, Cr. P. C., can be held to be a prosecution for the purpose of maintaining a suit for damages for malicious prosecution and (2) whether the findings regarding the malice and want of reasonable and probable cause are findings reasonable and probable cause are findings of fact whether they are findings which can be canvassed in second appeal. These questions arise from a suit instituted by the first plaintiff, kambhampati Peda Subbarao and plaintiffs Nos. 2 and 3, his sons, the 4th plaintiff who is the father-in-law of the 1st plaintiff's first son by name Krishna Murthy, the 5th plaintiff who is the father-in-law of the 2nd plaintiff and the 6th plaintiff who is the son-in-law of the 1st plaintiff against the brother of the 1st plaintiff, Kambhampati Venkata Satyanarayana alleging inter alia that the defendant and his two brothers, Gopalarao and Venkataratnam conspired to eliminate this first plaintiff from his business and because the 1st plaintiff took necessary steps to prevent them from taking possession of the business, the 1st defendant and his brothers harbored malice against the 1st plaintiff and his sons. On the night of 17-9-57, at about 10.30 P. M., when the 1st plaintiff's son, Krishna Murty went to his shop, which was dealing in goods obtained on an agency from Charminar Cigarette Factory, there was an altercation during the course of which Krishna Murty, Venkataratnam and Gopalarao are alleged to have received injuries. All the three of them were taken to the hospital for treatment. The next day, a police constable informed the 1st plaintiff that his son, Krishna Murty was taken to police station in unconscious condition and from there to the General Hospital, Vijayawada, for treatment, and that Krishna Murty ran away from the hospital in the early hours on 18-9-57. On the inquiry of the 1st plaintiff, however, he got information that at about 4 P. M. on 18-9-57, the police reported that Krishna Murty fell into a canal. From the inquiry, the 1st plaintiff suspected some foul play on Krishna Murty at the hands of the 1st defendant's brothers. He, therefore, sent a wire Ext. A-1 dated 18-9-57 to the D. S. P. Krishna, and also to the Inspector General of Police conveying his apprehension and praying for immediate action. Thereafter, he sent a further wire, Ext. A-2 on 21-9-57 in which he disclosed his suspicion against the 1st defendant, his brothers and some others. In view of this, it is alleged that the 1st defendant in order to save himself and his brothers from the responsibility to account for the loss of Krishna Murty, has maliciously conceived the vicious idea of implicating the 1st plaintiff and the other plaintiffs in criminal proceedings, and consequently filed proceedings under Sec. 107, Cr. P. C. in M. C. 105/57 before the Joint Magistrate, Vijayawada, on 25-9-57 making false allegations. A preliminary order under Sec. 112, Cr. P. C. was passed by the Magistrate and notices were issued to the plaintiffs. In spite on the fact that the nine adjournments were given to enable the defendant to produce evidence, he did not do so, even though all the plaintiffs were regularly attending the Court on the relevant dates. Eventually the complaint was dismissed as frivolous. The plaintiffs alleged malice and want of reasonable and probable cause against the defendant for having initiated proceedings against them under Sec. 107, Cr. P. C. and claimed damages for the mental damages for the mental agony and loss of reputation, which they suffered as well as trouble and expense they had incurred, which they valued at Rs. 2000 made up of Rs. 1000 towards compensation for the mental agony and loss of reputation suffered by them and Rs. 1000 towards expenses incurred by them.
2. The dependent denied the allegations and stated that the security proceedings were instituted bona fide due to reasonable apprehension about the security of the defendant and his brothers. In the disputes which arose out of partition, the plaintiffs bore grudge against the defendant and his brothers. On the night of 17-9-57 out of spite and with a view to kill them, Krishna Murty, stabbed Venkataratnam and Gopalrao with a big knife when they were in the shop of Charminar Agency. It is stated that the said Krishna Murty was caught red-handed and kept in the police custody in the hospital at Vijayawada. Later on, he absconded to avoid criminal prosecution. Gopalarao and Venkataratnam were treated in the hospital for some time. The defendant further stated that it is not true that Krishna Murty received Stab injuries that it was due to terror and apprehension that the defendant and his brothers believed that their lives were in danger and that the plaintiffs and Krishna Murty conspired against them. To ensure their safety, the defendant and his brothers filed M. C. 105/57 before the Joint Magistrate, Vijayawada, which was terminated as unnecessary because an offence under Sec. 307, I. P. C. was pending investigation against Krishna Murty. The defendant further stated that the security proceedings were not intended to defame the plaintiffs or bring them to disrepute or to cause them wrongful loss or suffering. M. C. No. 105/57 cannot be taken as a criminal prosecution launched against the plaintiffs so as to entitle them to claim damages for malicious prosecution. Besides, it is state, the plaintiffs were not arrested or put to any hardship nor did they spend Rs. 1000 towards expenses and consequently, they are not entitled to damages. It is also pleaded that the suit is barred by limitation, and that a single suit is not maintainable.
3. The Munsif framed two issues, viz., (1) whether the defendant instituted the proceedings in M. C. No. 105/57 on the file of the Joint Magistrate, Vijayawada, against the plaintiffs without reasonable and probable case, and whether he was actuated by malice in doing so, and (2) to what damages, if any, are the plaintiffs entitled? He held that not only was the prosecution actuated by malice but also it was without reasonable and probable cause and awarded Rs. 1000 as damages for mental suffering and loss of reputation, Rs. 500 for legal fees and Rs. 100 towards incidental expenses. An appeal preferred against this judgment before the Subordinate Judge, Vijayawada, was dismissed.
4. Mr. Surya Rao contends that proceedings under Sec. 107, Cr. P. C. cannot be said to the criminal proceedings and cannot be the basis for a claim for damages for malicious prosecution. It is his case that no charge was framed and the plaintiffs did not suffer any mental agony or loss of reputation as they were not prosecuted. He relies upon a decision of a Bench of the Madras High Court in Kandasami Asari v. Subramania Pillai, (1903) 13 Mad LJ 370. We may at once say that much water has flown under the bridge since that decision in 1902, and speaking for overselves, though it has been disapproved in one of the later decisions, that decision is clearly distinguishable on the facts and circumstances of the present case. In that case, the defendants had presented a petition to the Divisional Deputy Magistrate giving him information that it was necessary that security should be taken from the plaintiff and others under Sections 107 and 110, Cr. P. C. The Deputy Magistrate referred the matter to the Sub-Magistrate for inquiry and report as to the truth of the allegations. The Deputy Magistrate recorded his opinion and no further action was taken. It may be observed that no notice was issued to the plaintiffs under Section 107 or Sec. 112, Cr. P. C., and they were not asked to show cause against the proposed action. In these circumstances, the Bench held that whatever other remedy the plaintiffs may have, an action for damages for malicious prosecution will not lie. They further observed that 'to sustain such an action there must have been a prosecution by the defendants of the plaintiffs for an offence'. This sentence has given arise to the contention that proceedings under Ss. 107, and 110, Cr. P. C., cannot be termed to be prosecution. It will be observed that the above decision is a very short and cryptic one, and the Bench did not feel the necessity to closely examine the scope and ambit of proceedings under S. 107 or S. 110, Cr. P. C. All they were concerned with was whether on the facts and circumstances of that case, it was a prosecution, and indeed, there can be no two opinions in this respect that it is not a prosecution because the plaintiffs were not called upon to show cause, they were not subjected to any harassment or expenses nor was there any likelihood of their reputation being involved. In fact, they never need have known that such proceedings were ought to be initiated but perhaps they discovered it. This case was considered another Bench of the Madras High Court consisting of Satyanarayana Rao and Raghava Rao, JJ., in the case of Akkuliya v. Venkataswamy, : AIR1951Mad659 . Satyanarayana Rao J., after referring to the facts of that case, observed at page 660 of the report.
'In that case, which arose out of proceedings under Sections 107 and 110, Cr. P. C. the proceedings were dropped at the initial stage after a report from the Sub-Magistrate was received. In view of that fact the observation of the learned Judges in that case in undoubtedly `obiter'.
As we have said earlier, the case is clearly distinguishable and there is no need for us to consider that any observations made go beyond the scope of the facts and circumstances of that case. The learned Judge in Akkuliya's case, : AIR1951Mad659 , referred to above have, on the other hand, P. C. constitute a prosecution in respect of which a suit for damages for malicious prosecution would lie. In the case before them, the respondents were served and they had to answer the complaint. It appears to us that the test as to whether a proceeding is a prosecution under the Code of Criminal Procedure is to see whether notices have been issued to plaintiffs and in fact whether they were asked to be taken under relevant provisions under which the proceedings were started. Reliance was placed by the learned Advocate for the appellant in Braja Sunder Deb v. Ramdeb Das, (1944) 1 Mad LJ 40 = (AIR 1944 PC 1). It may be observed that their Lordships of the Privy Council in that case were again dealing with a case where the 1st appellant, though his name was included in the complaint, was not sent up for trial. It was, in fact, dropped and, therefore, the proceedings against him were not considered to be a criminal prosecution. Lord Porter at page 43 of the report answered the question viz., 'has the Rajah of Aul any cause of action for malicious prosecution?' in these words; 'In their Lordships' view clearly he has not the simple answer is that he was never prosecuted'. We may, however, refer to another judgment of their Lordships of the Privy Council in Mohamed Amin v. Jogendra Kumar, (1947) 2 Mad LJ 27 = (AIR 1947 PC 108), which supports the view we have taken. The following question was posed by Sir John Beaumont delivering judgment of their Lordships of the Privy Council, viz.,
'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 damage for malicious prosecution'?
It may be observed that the complaint in that case was filed under Sec. 420, Cr. P. C. The Magistrate took cognizance of the complaint, and forwarded it for inquiry under S. 202, Cr. P. C. The Magistrate gave notice to the appellants after the receipt of which the appellants attended the inquiry with the counsel in open Court, and incurred expenses, Later, however, the complaint was dismissed. In considering the question, their Lordships found it necessary to examine the case of Golap Jan v. Bholanath Khettry, (1911) ILR 38 Cal 880, which held that in the circumstances of that case, in law, there was no prosecution. That was a case where a complaint was filed against the plaintiff for criminal breach of trust and the Magistrate had referred the matter to the police under Sec. 202, Cr. P. C. for inquiry and report. The complaint was finally dismissed with issuing process, under Section 203, Cr. P. C. It was held that in those circumstances no prosecution had commenced and accordingly no suit for malicious prosecution would lie. Reliance was placed in that case on the heading to Chapter 17, namely 'the commencement of proceedings before Magistrates' and it was held that that stage had never been reached. Not only this case but also several other cases were considered by their Lordships. After an examination of these cases, Sir John Beaumount observed at page 31 of the report as follows : -
'That the word 'prosecution' in the title of the action is not used in the technical sense which 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 a petition in bankruptcy or a petition to wind up a company (Quartz Hill Consolidated Gold Mining Co. v. Eyre (1883) 11 QBD 674.......................'
5. 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 upon 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. 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.
In that case, it was considered that as cognizance of the complaint was taken and after examining the complaint was taken and after examining the complainant on oath, notice was issued to the plaintiff, it was certainly a prosecution within the meaning of malicious prosecution giving rise to a claim for damages.
6. A Bench of this Court consisting of Subba Rao, C. J., and Satyanarayana Raju, J., as they then were, in the case Seshi Reddi v. Chandra Reddi, 1956 Andh WR 530 = (AIR 1957 Andh Pra 347), laid down a similar test that in an action for malicious prosecution, the plaintiff must show first that he was prosecuted by the defendant, that is to say, the law was set in motion against him on a criminal charge secondly, that the prosecution was determined in his favour; thirdly, that it was without reasonable and probable case, and fourthly that it was malicious. The emphasis is on the setting in motion of the law against the person aggrieved. In our view, therefore, as far as the facts of this case are concerned, notices were issued against the plaintiff-respondents under Sec. 112 and at least nine adjournments were taken during which all the plaintiffs in this case were present as respondents and were defended by counsel. In view of the fact that no evidence was adduced, on the request of the appellant himself, case diaries were persued, and the complaint was dismissed on the ground that 'there is no case made out at all against the respondents before the Court and the petition is frivolous in nature'. This finding by the Criminal Court, however, is not conclusive. What has to established is as repeatedly stated the four essential requisites in a suit for damages for malicious prosecution before the plaintiff can obtain a decree namely (1) that the plaintiff was prosecuted by the defendant in that the law was set in motion against him on a criminal charge, (2) that the prosecution was determined in his favour (3) that it was without reasonable on probable cause, and (4) that it was malicious. It is needless to say that the onus of proving each of these requisites is upon the plaintiff. In this case, the first two requisites have been established, namely, that the plaintiffs were prosecuted by the defendant in that, process was issued against them, they were harassed, they were required to attend and did, in fact, attend the Court on several occasions, they were defended and had incurred expenses, and in fact damage can be said to have been done to them by reason of this prosecution. Secondly, it ended in their favour. It is, therefore, contended that in so far as the malice and want of reasonable and probable cause are concerned, there is no proof at all. At any rate, the reasonable and probable cause are concerned, there is no proof at all. At any rate, the inference is drawn from certain facts though the said elements are not are established. It may be mentioned that the question which the Courts below were called upon to determine was whether the defendant honestly believed the case which he laid before the Magistrate and whether he acted with ill-will, hatred or spite.
7. The two other ingredients, viz., 'want of reasonable and probable cause' and 'malice' are not susceptible of precise definition, in that during the course of several centuries, they have been expressed in different language by different Judges in England, which has exported its law of Tort to this country. Winfield in his book on Tort (7th Edn. page 710) said that 'there does not appear to be any distinction between 'reasonable' and 'probable'. The conjunction of these adjectives is a heritage from the redundancies in which the old pleaders delighted, and although it had been said that reasonable cause is such as would operate on the mind of a discreet man while probable cause is such as would operate in the mind of a reasonable man, this does not help us much, for it is difficult to picture a reasonable man who is not discreet'. It is obvious, therefore, that there would be various definitions and indeed there were. Of them, it may be of assistance to cite the one given by Lord Devin in Glinski v. McIver, (1962) AC 726, 767, where he stated that reasonable and probate cause 'means that there must be cause (that is, sufficient grounds.........) for thinking that the plaintiff was probably guilty of the crime imputed'. This is merely to say that the prosecutor has to make out a prima facie case fit to be tried, not that it should succeed nor that he should have belief in the probability of conviction. Dixon, J., in Common-wealth Life Assurance Society Ltd. v. Brain, (1935) CLR 343, 382, was of the view that 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'. Or, as posed by Cave, J., to the Jury in Abrath v, North Eastern Railway Co., (1883) 11 QBD 79: 'Did (the defendants) honestly believe the case which they laid before Magistrate'? In our opinion, it may be simpler to state that the answer to the question 'did the prosecutor believe in the admittedly known facts when he launched the prosecution, so that the could be said to have reasonable and probable cause for so doing'? would furnish a workable test.
8. In so far as malice is concerned, it has been equally difficult to find a uniformity general definition of it. It has been various described. As winfield stated (Winfield on Tort, 7th Edn. Page 714). 'Perhaps we are nearer the mark it we suggest that malice exists unless the predominant wish of the accuser is to vindicate the law..........And it has long been law that malice and lack of reasonable and probable cause must be separately proved. Want of reasonable and probable cause may be evidence of malice in cases where it is such that the jury may come to the conclusion that there was no honest belief in the accusation made. If there was such an honest belief, the plaintiff must establish malice by some independent evidence, for malicious motives may co-exist with a genuine belief in the guilt of the accused. If want of reasonable and probable cause is not proved by the plaintiff the defect is not supplied by evidence of malice'. Again to cite Lord Devlin in McIyer's case, 1962 AC 726: 'Malice, it is agreed, covers not only spite and ill-will but also any motive other than a desire to bring a criminal to justice'.
9. The ordinary meaning of malice cannot be determined by any subjective standard. It denotes spite or hatred against an individual. But it is often difficult to infer this spite or hatred from the conduct of a person. A Bench of the Calcutta High Court in Bharat Commerce and Industries Ltd. v. Surendranath Shukla, : AIR1966Cal388 , after referring to what has been stated by Clarke and Lindsell and Professor Winfield in their respective books on the Law of Tort observed at pages 391-392:-
'Thus in order to give an objective meaning to the term `malice', it should be found out whether the accuser has commenced prosecution for vindication of justice, e.g., for redress of a public wrong. If he is actuated by these considerations, he cannot be said to have any malice. But if his object to prosecute is to be vindictive or to malign him before the public or is guided by purely personal considerations he should be held to have malice in the matter'.
In our view, it is difficult to envisage a person actuated by such purely public spirit and thus subject himself to the inconvenience and expense in launching a criminal prosecution. It would not be untrue to postulate some element of personal interest or dislike for the person against whom the prosecution is launched, which however would not amount to malice, though when it reaches the stage of ill-will, hatred, vindictiveness or cussedness, it can be said to be actuated by malice.
10. Before we consider the second question namely whether the findings regarding malice and want of reasonable and probable cause are findings of fact or whether these are finding which can be canvassed in second appeal, it is necessary to examine what the evidence is upon which the Courts below have acted and whether that evidence is sufficient to establish malice and whether it was only an inference drawn by the Courts from certain facts. In this case, there is ample evidence for the Court to come to the conclusion that not only was the defendant actuated by malice in filing the complaint but also there was no reasonable and probable cause for him to proceed with the prosecution. The 1st plaintiff, the defendant, and his two brothers were members of the joint family and though the agency which they obtained from Charminar Cigarette Factory was in the name of the 1st plaintiff, it was treated as a joint family asset and, as the Courts below pointed out, on the day when the fracas is said to have taken place between Krishna Murty and others in the shop the defendants claimed that they were in charge of that shop to the exclusion of the plaintiff and the members of his family while the plaintiff and his sons contend that they were in possession. In those circumstances, it is not difficult to presume that the altercation related to taking of possession of the shop by the plaintiffs from the defendants or vice versa. Both sides suffered injuries. It is not denied that Krishna Murty and multiple injuries as also the two brothers of the 1st defendant namely, Gopalarao and Venkatratnam. The evidence further shows that Krishna Murty was in an further shows that Krishna Murty was in an unconscious state and morphia was administered to him at about 4 a.m. and there-after the assertion that he had absconded, is something which is difficult to comprehend, something which is difficult to comprehend. Prior to this, there is evidence to show that he must have jumped into a canal as his body was seen floating. In these circumstances, the 1st defendant's categorical assertion in the complaint that the 1st respondent, Krishna Murty was absconding in order to escape the prosecution and punishment for stabbing Gopalarao and Venkataratnam, and that the other plaintiffs fully know the whereabouts of the 1st respondent, Krishna Murty, and are giving him food and shelter, would show that he could not have believed in the statements made by him. These averments, in our view, were made recklessly without regard to the truth and with an ulterior objective namely to bind over the plaintiff -respondents so that they may not attempt to take possession. This is further fortified by the subsequent allegations in the petition that the plaintiff-respondents in this case and Krishna Murty were determined to do away with the 1st defendant and his injured brothers, that in fact their main object is to kill the defendant and to get at the management of the business for the benefit of the 1st respondent exclusively and that the respondents were also openly saying so. He has also stated that the 1st respondent was not to be seen outside and that he learnt that the 1st respondent with the support and help of the other respondents is trying to do bodily harm to him. Thus, according to him, all the respondents have conspired against the defendants and his brothers, Gopala Rao and Venkataratnam and the defendant is very much afraid of bodily harm at the hands of responds.
11. These allegations, as pointed out by the trial Judge as well as the appellate Judge, are totally unfounded. The appellant examined himself as D. W. 1 and produced two others, a betel-leaf shop owner who was examined as D. W. 2, and fountain pen shop owner who was examined as D. W. 3. The shops of these witnesses were situated near the Charminar Agency shop D. W. 2 depend that on the third day following the incident he had found some of lowing the incident he had found some of the plaintiffs and others gathering at the Charminar Agency Shop in the evening and stating that the same fate which had befallen Krishna Murty should overtake defendant also, and that the defendant was present at that time. D. W. 3 says that he saw a crowed gathering at the agency shop and that some of the plaintiffs were in the crowd. He further stated that it would have been better if the defendant had received injuries, but that the defendant was present them. From the depositions of the witness examined above it is clear that they were speaking of incidents which occurred on two different occasions. D. W. 2 says that the defendant was present at the time when the plaintiffs were saying that the same fate which had befallen Krishna Murty should overtake the defendant also. This shows that he was not present on the second occasion spoken to by D. W. 3. It is apparent from the evidence of this witness that while the plaintiffs and others were present, the witness does not say that the plaintiffs made a threat. The threat also was not in respect of causing any death but only that the injury that the brother of the defendant had received would befall the defendant-appellant. D. W. 3 also says that some of the plaintiffs who were in the crowd said that it would have been better if the defendant had received injuries. Notwithstanding this the allegations in the petition are the plaintiffs wanted to kill the defendant-appellant to get at the management of the business for the benefit of the plaintiffs. The trial Court as well as the appellate Court had considered the evidence of the plaintiffs and believed their evidence, particularly of those plaintiffs, who were not present at the time of the altercation, and who were living away from Vijayawada, and who had come there only on bearing of the disappearance of Krishna Murty. This evidence not only establish motive but also that there was absolutely no reasonable or probable cause for taking proceedings against them. None of the witnesses, either D. W. 2 or D. W. 3 mentioned that these persons had said anything to justify the prosecution. In view of the fact that both the Courts below have given a definite finding on the evidence before them, no question of any inference would arise and in these circumstances, the second question that has been posed before us need not be gone into.
12. This second appeal is accordingly dismissed with costs.
DGB/ D. V. C.
13. Appeal dismissed.