John Stanley, C.J. and Burkitt, J.
1. This is an appeal from a decree of the Subordinate Judge of Azamgarh, by which he allowed damages to the extent of Rs. 2,576 to the plaintiff for alleged malicious prosecution. It appears from the evidence in the case that on the 12th of September 1898, the defendant was severely beaten by several persons and had an arm fractured. He made a report at the police station that four persons whom he named had assaulted him. Subsequently he presented a petition of complaint to the Criminal Court, in which to the four persons whom he had charged with the assault upon him, he added the name of a fifth, namely, one Jugal Kishore. In the ordinary course the defendant was required to make a statement upon oath of the occurrence previous to the issue of process; and in the course of his examination, in detailing the circumstances of the assault, he said that Mathura Prasad, the plaintiff, in the course of the assault, came from behind and called out 'beat.' Thereupon the Magistrate issued a warrant against the plaintiff in addition to the other persons to whom we have referred.
2. It is clear from this that no complaint whatever was made by the defendant against Mathura Prasad, but that in the course of his examination upon oath as a witness the defendant did connect the plaintiff with the assault in the way which we have mentioned. The defendant seems to us to have carefully abstained from lodging a complaint against the plaintiff. An action for malicious prosecution does not lie under such circumstances. There has been no prosecution by the defendant of the plaintiff. The prosecution which was directed, was directed by the Magistrate suo motu, and not upon a complaint of the defendant, or in any application made by him for the issue of process. The words complained of were spoken by the defendant upon a privileged occasion namely when he was being examined before a Magistrate in the course of a criminal proceeding. It appears to us, therefore, that the action was wholly misconceived, and that the facts appearing in evidence did not justify its institution. It is unnecessary for us, holding as we do this view, to go into the other matters which have been discussed in the judgment of the Subordinate Judge; but we may say that if there was a prosecution of the plaintiff by the defendant as alleged, the reasons which the Judge has assigned in his judgment for his refusal to admit the plea of the defendant that there was reasonable and probable cause for the prosecution are wholly unintelligible. We allow the appeal, set aside the decree, and direct the plaintiff's suit to stand dismissed with costs.