1. This second appeal by the defendant has been referred to a Bench of two Judges by a learned single Judge because a difficult question of law is involved. The facts which have been found in the present case are that the defendant made a complaint in the criminal Court against the plaintiff under Sections 449 and 506, I. P. C, and also asked for security to keep the peace to be taken under Section 107, Criminal P.C. The Sub-divisional Magistrate did not issue any summons or other process to the accused, but he called under Section 202, Criminal P.C., for a report from the police, and the Sub-Inspector made an inquiry and sent a report and after receiving that report the Subdivisional Magistrate went to the villags of the parties himself and went to the house of the accused and held an inquiry. He cams to the conclusion that the complaint lodged by the defendant was false, and he dismissed this complaint under Section 203, Criminal P.C. The accused then filed the present plaint. The question which has arisen in second appeal is whether a suit for damages for malicious prosecution will lie where no process has been issued by the Magistrate for the attendance of the person accused. On this point there are a number of conflicting rulings, but the weight of authority of the Courts in India is that no such suit for damages lias. This view has been taken in the following rulings: DeRozario v. Gulab Chand Anundjee  37 Cal. 358, Gopal Jan v. Bholanath Khettry  38 Cal. 880. K. Sheik Meeran Sahib v Ratnavelu Mundali  37 Mad. 181 and Subhag Chamar v. Nand Lal Sahu A.I.R. l929 Pat. 271. On the other hand the plaintiff-respondent relied on the following rulings: Bishan Prasad Narain Singh v. Phulman Singh  27 I.C. 449, Bishan Singh v. Ram Bahal Roy [19201 64 I.C. 741, Gursaran Das v. Israr Haidar A.I.R. 1927 Oudh 471, Ahmadbhad v. Framji Edulji  28 Bom. 226 and Imperatrix v. Lukshman Sakharam  2 Bom. 481. Now in some of the rulings on which the plaintiff relies the proposition enunciated by the plaintiff does not find full support Thus in 19 G. W. N. 9S5 at p. 93 it is stated:
The prosecution might be infructuous, if, for instance, no notice was served upon the accused. In such a contingency, the action for damages for malicious prosecution would fail, not because there was no prosecution commenced, but because there was no damage done to the plaintiff.
2. The view of damages taken by the Calcutta High Court in this ease is that the damages should be material, that is, that the plaintiff should show that he suffered damages by having to defend himself in the criminal Courts. It is true that under English law the case is apparently otherwise. In Halsbury's Laws of England, Vol. 19, para. 1443, p. C77, it is stated:
To succeed in an action for malicious prosecution a plaintiff must prove....
(v) that the plaintiff has suffered damage; unless, indeed, the proceedings necessarily import damage to his fame or person.
3. And in para. 1470 p. 688, it is stated:
To support an action for malicious prosecution or other malicious legal proceedings, one of three heads of damage must be proved, if not implied by law:
(1) Damage to a man's fame, as where the matter of which ho is accused is scandalous.
(2) Damage done to the person, as where his life, limb, or liberty is endangered or.
(3) Damage to his property, as where he is put to the expense of acquitting himself of the crime with which he is charged.
4. Now in India it is only damage under the second and third heads which has been considered sufficient to start an action for malicious prosecution. If damage to a man's reputation was concerned sufficient to start a suit for malicious prosecution, then the position would arise that damages to reputation could be the basis of a suit for malicious prosecution although such damages could not be the basis of a suit for defamation; it has been held in a Full Bench case of this High Court, Chunni Lal v. Narsingh Das [l918] 40 All. 341, that where a person presents a petition to a criminal Court ha is not liable in a civil suit for damages in respect of statements made therein which may be defamatory of the parson complained against. The Pull Bench case of this High Court has laid down that there is an absolute privilege for a complaint to a criminal Court so far as a civil Court is concerned, and that no suit will lie for damages for defamation. It would therefore be contrary to the spirit of this ruling if we were to hold that such damages could form the basis of a suit for malicious prosecution. We note that in the particular ruling on which the plaintiff relies on Bishan Singh v. Ram Bahal Boy the accused was directed by a Sub-Inspector to appear before the Magistrate and in the case to which reference has been made in Bishun Prasad v. Phulman Singh a notice was issued to the accused and ho was present at the inquiry on the criminal complaint which was under Section 107, Criminal P.C. although that was apparently a preliminary inquiry and not after a notice had been issued to the accused to show cause why ha should not furnish the security demanded. After considering the various rulings produced in this case we are of opinion that the criminal prosecution does not take place so far as the accused is concerned until process issues for the accused to be present and on that view we consider that in the present case a suit for damages for malicious prosecution will not lie. We further think that in the circumstances no damage can be said to have been suffered by the plaintiff. On both these grounds we consider that the present suit of the plaintiff will fail.
5. Some further argument was made by the learned Counsel for the appellant to the effect that the dismissal of a complaint under Section 203, Criminal P.C. is not a termination of the criminal proceedings in favour of the accused, because such a complaint might be revived by the Magistrate. If this doctrine were extended then there could be no suit for damages for malicious prosecution for oven in the case of an acquittal the acquittal could be set aside by an appeal of the Local Government under Section 417, Criminal P. C, But all that is required for the plaintiff to show on this point in a suit for malicious prosecution is that the criminal proceedings terminated in favour of the plaintiff and we consider that if the plaintiff shows that the Magistrate passed an order in his favour and the defendant fails to show that the proceedings, were revived, then the plaintiff has shown all that is necessary for the suit.
6. In this case the question was also argued in second appeal as to whether the plaintiff would be entitled to damages for defamation on account of the defamatory statements contained in the complaint made by the defendant to the Magistrate. But the Pull Bench ruling of Chunni Lal v. Narsingh Das has definitely held that the criminal complaint is absolutely privileged so far as the civil Court is concerned. I allow this appeal and dismiss the suit of the plaintiff with costs in all Courts.
7. My learned brother has discussed all the cases that have been cited before us and I entirely agree with him that the suit must fail. I wish to add just a few words as to the principle which must underlie a suit like this.
8. This is a suit for 'malicious prosecution.' There must be a prosecution before the plaintiff can succeed. The question therefore arises: What is 'prosecution?' Is it synonymous with 'institution of a criminal proceeding' as has been held indictable under Section 211, I. P.C. as an offence against justice or is it something beyond institution of a criminal proceeding? A mere institution of a criminal proceeding may not affect the plaintiff at all although it may affect a Court of justice or the mode of dispensing justice and it may be punishable under the criminal law. The plaintiff to succeed must show that he has a cause of action. Now what can be his cause of action, if he was never called upon by the Court before which the complaint was filed, to appear and answer a charge or even to appear and attend the proceedings. A complaint may be filed and the accused person may not even hear of it, although behind his back an inquiry may be ordered under Section 202, Criminal P. C, and some witnesses may be examined. The plaintiff in the civil suit is not at all hurt. He may not have, as I have said, heard of the fact that a complaint had been filed against him. Can it be said that the plaintiff has a cause of action? The answer should be in my opinion in the negative.
9. A suit in the circumstances of the present case must again fail on the ground that no damage has occurred. Tort has been defined as 'wrong independent of contract.' A wrong therefore is essential in order that a suit based on tort may be maintained. Now if the plaintiff has not been asked to appear in a Court of law, or if he appears as in the case of Subhag Chamar v. Naud Lal Sahu of his own motion it cannot be said that he has suffered any damage.
10. On principle therefore the suit cannot be maintained if notice has not been. issued to the plaintiff to appear and answer a criminal charge.