1. This appeal has arisen from a suit brought by the plaintiff-appellant for damages for malicious prosecution. The suit was dismissed by both the Courts below.
2. The plaintiff-appellant was the head, clerk of the Municipal Board, Tilhar, District Shahjahanpur, from 1924 to 1929. Defendant 2 was the chairman of the Board up to 7th February 1927, when he was succeeded by defendant 1 who held that office, till 1931, and perhaps subsequently. The appellant was in charge of the stationery and a report was made by some official to defendant 2 during his tenure of office that the appellant had embezzled a certain sum of money which his account showed had been spent in the purchase of stationery. The suspicion was apparently based on the absence of receipt from the seller of the stationery in question. Defendant 2 started a departmental, enquiry which was not completed when he relinquished office. That enquiry was continued after defendant 1 assumed charge. According to the findings arrived at by the lower appellate Court, defendant 1 was reluctant to prosecute the appellant. The District Magistrate however pressed upon him the desirability of launching a prosecution. Accordingly, defendant 1 acting as the chairman of the Municipal Board made a report to the Police and the appellant was prosecuted after a preliminary investigation. He was convicted by the Sessions Judge but was acquitted, on appeal to this Court on 15th May 1930. The suit which has given rise to this appeal was instituted on 13th May 1931, on the allegation that there was enmity between the plaintiff and the two defendants, and that actuated by malicious motives they conspired to launch the prosecution which ended in the appellant's favour. It appears that the appellant gave a notice purporting to be one under Section 326, Municipalities Act; but the suit was not instituted till after the expiry of six months from the date of the order of this Court acquitting the appellant. One of the questions which arose out of the pleas taken in defence was whether the suit was barred by Section 326(3), Municipalities Act, which provides that:
No action such as is described in Sub-section (1) shall, unless it is an action for the recovery of immovable property or for a declaration of title thereto, be commenced otherwise than within six months next after the accrual of the cause of action.
3. The lower Courts held that the suit was barred by the aforesaid rule of law. They also found that defendant 2 was in no way responsible for the prosecution of the plaintiff. As regards defendant 1, it was found that he prosecuted the plaintiff reluctantly and without malice and that there was a reasonable and probable cause for the plaintiff being prosecuted. The lower appellate Court has discussed all the circumstances of the case in a lengthy judgment; but it is difficult to discover whether according to that Court the circumstances existing on the date on which defendant 1 made a report to the police were such as to justify the assumption that the plaintiff was in all probability guilty of the offence for which he was prosecuted. It is not necessary for us to enter into a discussion of that aspect of the case in view of the fact that the suit appears to us to be barred by Section 326(3), Municipalities Act, as held by the lower Courts. Section 326(1), is in terms similar to those of Section 80, Civil P.C., and provides that:
No suit shall be instituted against a Board, or against a member, officer or servant of a Board in respect of an act done or purporting to have been done in its or his official capacity, until the expiration of two months next after notice in writing has been, in the case of a Board, loft at its office, and, in the case of a member, officer or servant, delivered to him or left at his office or place of abode, explicitly stating the cause of action, the nature of the relief sought, the amount of compensation claimed, and the name and place of abode of the intending plaintiff, and the plaint shall contain a statement that such notice has been so delivered or left.
4. The plaintiff complied with this part of Section 326, and the plaint contains a reference to the notice given by him to defendant 1 who was then the chairman of the Board. He (the plaintiff) however overlooked Sub-section 3, Section 326, which made it necessary for him to institute his suit within six months from the date of the accrual of the cause of action, i.e. the date on which he was acquitted by the High Court. Learned Counsel for the appellant contended before us that Section 326, Municipalities Act, is not applicable, as defendant 1, who was the prosecutor, could not have acted in good faith in his capacity as chairman of the Municipal Board if it is found that he prosecuted the appellant without reasonable and probable cause and maliciously. It is argued that notice under Section 326 is necessary only if the act complained of was done by the Board or one of its officers in good faith. As already stated, Section 80 Civil P.C., which applies to all public officers, is couched in similar terms and cases governed by that section are of authority in cases having reference to Section 326, Municipalities Act. In Muhammad Saddiq v. Panna Lal (1903) 26 All. 220, Banerji, J., held that:
Notice under Section 80, Civil P.C., was not necessary as the officer in question had not acted in good faith in pursuance of the law, but had taken advantage of his position as a public officer to commit illegal and tortious acts maliciously and without cause.
5. The authority of that case has been considerably shaken by subsequent decisions of several Division Benches of this Court. In G.I.P. Ry. Co. Ganpat Rai (1911) 33 All. 544, it was held by Stanley, C.J., and Banerji, J., that a notice under Section 49, Municipalities Act, 1900, which corresponds to Section 326(1), of the present Municipalities Act, was necessary where a member of a Municipal Board, as such member, made a report to the Board which resulted in the prosecution of a certain person for a Municipal offence. The case in which the question arose was one for damages for malicious prosecution by the persons who were prosecuted and who on acquittal instituted the suit. It should be noted that Banerji, J., who was a member of the Bench deciding that case, had decided the case of Muhammad Saddiq v. Panna Lal (1903) 26 All. 220, already referred to.
6. Section 49, Municipalities Act 1900, did not contain the provision which was subsequently enacted in Section 326(3) of the present Act. This however makes no difference, because if notice under Section 326(1) of the present Act is necessary and the section is at all applicable, Sub-section (3), Section 326 of the present Act must also be applicable with the result that if, after the passing of the present Act, a suit in which notice under Section 326(1), is necessary is not 'brought within six months from the date of accrual of the cause of action, it will be barred by Section 326(1). Abdul Rahim v. Abdul Rahman 1924 All. 851, is another case in point. A Division Bench of this Court held that the act of a police officer in entering a person's name in the 'history sheet' is ordinarily an act done in his official capacity, that the motive in which the entry was made is totally immaterial and that if a person whose name is entered in the 'history sheet' wishes to bring a suit against the officer concerned, he cannot do so without complying with the requirements as to the preliminary notice, of Section 80, Civil P.C. It was argued in that case that since the action of the police officer was not bona fide, he could not be held to have acted in his capacity as a police officer. The learned Judges held, following Dakshina Ranjan Ghose v. Omar Chand 1924 Cal. 145 and Koti Reddi v. Subbiah 1918 Mad. 62, that if the officer in question purported to act in his capacity as such, whether he was actuated by improper motives or not, notice was necessary.
7. The only other case to which reference need be made is Bishambar Sahai v. Sahai v. Shambhu Dayal 1930 All. 704, in which another Division Bench of this Court, of which one of us was a member, held that a notice under Section 80, Civil P.C., was necessary before a suit for damages for malicious prosecution could be instituted against an investigating police officer who purported to act in the discharge of his duty as a police officer. It was said that:
An important test is whether the Police Officer professed to act in his official capacity.
8. There can be no doubt that defendant 1 acted and professed to act in his capacity as the chairman of the Municipal Board and therefore Section 326, Municipalities Act, is in terms applicable. This being so, notice was rightly given by the plaintiff to the defendant before he instituted the suit. But the institution of the suit, having been delayed for more than six months after the appellant's acquittal by this Court, is barred by Section 326(3).
9. In the view of the case Ave have taken, it is not necessary to consider any other questions decided by the lower Courts. The appeal fails and is dismissed with costs.