S. Barman, J.
1. What amounts to prosecution for purposes of malicious prosecution?-- is the only question involved in the defendant's second appeal from a reversing decision of the learned Additional Subordinate Judge, Puri whereby ho set aside the judgment and decree of the learned Munsif and decreed the plaintiff's suit for malicious prosecution.
2. The facts are few and simple : On June 13, 1953, the defendant complainant (appellant herein) lodged a First Information Report at Puri, Sadar Police Station to the effect that the plaintiffs (respondents herein) formed an unlawful assembly, assaulted him, his wife and son in his betel garden, set fire to his betel garden and thereby caused damage to the extent of Rs. 2000/-.
The Police investigated into the case and on completion of investigation submitted final report to the Sub-divisional Magistrate, Puri, to drop the criminal proceeding on the ground thatit was false and he further submitted a complain1 against the complainant for prosecution under Section 211 Indian Penal Code for making a fab9 charge of offence. The defendant complainant is alleged to have lodged protest before the Sub-divisional Magistrate, who forwarded it to a Deputy Magistrate for enquiry of the complaint under Section 202 Criminal Procedure Code,
The enquiring Magistrate recorded evidence of both parties, visited the spot and submitted his report with the finding that the case was false. The Sub-divisional Magistrate, Puri perused the enquiring Magistrate's report and other records and dismissed the complaint under Section 203 Criminal Procedure Code on November 17. 1953. Thereafter, the defendant complainant filed a criminal revision petition in the court of tho Sessions Judge which was also dismissed on April 6, 1954.
The plaintiffs (who were complained against) attended the investigation, the preliminary enquiry before the Deputy Magistrate, engaged lawyers and produced their evidence before him in support of the defence and also appeared before the Sessions Judge through their lawyer and defended the case. The plaintiffs surrendered before the Sub-divisional Magistrate on account of their apprehension of arrest by the Police and procured bail.
It is on these facts that the plaintiffs brought the suit for malicious prosecution, on the ground that their prosecution was malicious, without any reasonable or probable cause; and that they had suffered damage for mental and bodily pain and loss of reputation, besides incurring expenses in defending themselves in the criminal case and accordingly claimed Rs. 981/3/- as damages.
The defence, taken by the defendant complainant was that on account of previous enmity the plaintiffs formed an unlawful assembly, assaulted the defendant complainant, his son and wife in his betel garden and set fire to his garden; that his accusation against the plaintiffs was based On information, which was true to his knowledge;and that it was neither actuated by malice nor was there any absence of reasonable or probable cause to start the prosecution.
3. On these facts the trial Court found that there was no reasonable or probable cause for making the complaint; but as there was no prosecution, in the case, in that the learned Magistrate only enquired into the complaint which, ultimately, was dismissed and accordingly tho defendant complainant was found not liable tor malicious prosecution, and hence dismissed the suit. In appeal, the learned lower appellate Court, while agreeing with the trial Court's findings that there was no reasonable or probable cause, however, took the view that the Magistrate's enquiry,which the plaintiffs had attended -- amounted to prosecution; and accordingly decreed the suit in favour of the plaintiff and granted damages for Rs. 631/3/-. Hence this Second Appeal by the accused plaintiffs.
4. The only point, for consideration, is whether on the facts and in the circumstances of the case it amounted to prosecution in order to make the defendant complainant liable for malicious prosecution. Sir Lawrence Jenkins while delivering a judgment of a Division Bench of the Calcutta High Court in Golap Jan v. Bholanath Khe-try, ILR 38 Cal 880 clearly laid down that when a complaint had been laid before a Magistrate by the defendant complainant against the plaintiff accused for a criminal offence and the Magistrate had referred the matter to the police under Section 202 Criminal Procedure Code for enquiry and report and finally dismissed the complaint under Section 203 Criminal Procedure Code, without issuing processes, the prosecution had not commenced and no suit for malicious prosecution was maintainable.
In that case also, the question was whether--assuming malice and lack of reasonable or probable cause -- there was such a prosecution, as is necessary for maintenance of a suit for malici-mis prosecution. The scheme of the Indian Criminal Procedure Code relating to enquiry into complaints is contained in Chapter XVI--'Of Complaints to Magistrates,' -- covering Sections 200 to 203. Then Chapter XVII, covering Sections 204 and 205, relates to commencement of proceedings before Magistrates, Section 204 relating to issue of process and Section 205 regarding Magistrate's power to dispense with personal attendance of accused.
Mr. Asok Das, learned counsel for the defendant complainant, contends that in preliminary proceedings under Sections 200-203 Criminal Procedure Code, the question of the person complained against, attending the enquiry does not arise; that in case he attends it is only voluntary. In the present case, the person complained against (plaintiffs) were not called to attend the enquiry under Section 202, the scope of which was to find out whether a prima facie case had been established against the person complained against.
Section 202 provides for postponement of issue of process and under Section 203 the Magistrate can dismiss the complaint without requiring the person complained against to attend. It is not until the process is issued under Section 204, thatthe prosecution can be said to have commenced. If the person, complained against, is asked to attend the enquiry then only the question of da-mages will arise. Thus, it appears there are three stages in such a proceeding, namely, the preliminary stage where the Magistrate is left to enquire to find out whether there was a prima facie case against the person complained against, without requiring his attendance at the enquiry; then the next stage is, if there is sufficient evidence of prima facie case, then a charge is to he framed; then the last stage is, if the charge framed is not proved then the complaint is- to be dismissed,--if proved, the Magistrate shall issue summons for the attendance of the accused; and it is not until then that the prosecution can be said to have commenced,
If is significant that the word 'accused' has been purposely avoided in Chapter XVI 'Of Complaints to Magistrates' -- the word used instead therein is 'person complained against.'' It is not until the commencement of proceedings before Magistrates with the issue of process under Section 204 in Chapter XVII that the person 'complained against' becomes and is described as 'accused''; and then under Section 205 a Magistrate may dispense with the personal attendance of such person, who, by then, has become an 'accused'.
Then, with regard to revision stage of the proceedings, before the learned Sessions Judge, under Section 436 Criminal Procedure Code, Mr. Asok Das's contention is that the proviso to Section 436 makes it clear that, if it is a case of revision against dismissal of complaint under Section 203, then, no notice need be issued to the person complained against but if it is a case of discharge under Section 253 then notice is obligatory.
Thus the substance of Mr. As ok Das's contention is that the persons complained against, in this case, were not, in fact, required to attend the enquiry, nor, under the law their presence necessary at the enquiry before the Magistrate; that even the revision under Section 436 could be decided ex parte, without giving them opportunity to show cause why direction of further enquiry should not be made.
5. Tliere is, indeed, great substance in Mr. Asok Das's contentions based on principles which are fundamental. Although allowing a person complained against, to appear and to hear what he has to say while the proceedings are at the stage contemplated by Section 202, might turn the scale and satisfy the Magistrate, that there was no case for issuing process under Section 204, yet such a procedure is entirely unwarranted by the Code and the practice of summoning a person complained against, at the stage marked by Section 202 has much greater danger than safeguards to him; he is obviously not bound to appear even if in-vlted or given an opportunity to do so; if he does not appear it is likely to weigh against him with the Magistrate; if he does he runs the danger of being committed to a statement of his case before he knows with definiteness what exactly is laid to his charge.
The object of Section 202 is to prevent harassment of innocent persons by an indiscriminateissue of processes, in case where there is no sufficient ground for proceeding against them; unless and until a Magistrate is satisfied that there is in his judgment sufficient ground for proceeding he should not compel the person complained against, to appear before him; it is to enable him to see that there is sufficient ground for proceeding that he is authorised to hold an enquiry by himself or by a subordinate Magistrate or by a police Officer Or by any other fit person; the object of the section will be defeated if the person complained against is made to appear under Section 202.
The practice of issuing notice to the person complained against, under Section 202 is not illegal but is highly undesirable, as it defeats the specific object of Section 202 and might prejudice the person complained against, if the complaint is dismissed under Section 203. The dismissal of a complaint under Section 203 is before the appear-ance of the person complained against.
Then again, in the context of Section 436, the expression 'person who has been discharged'. refers to a person, who has been discharged under Section 209, 253 or 259. A person, against whom no process has been issued under Section 204, cannot be a discharged person and, therefore, no notice to him is necessary when the District Magistrate or the Sessions Judge or the High Court directs further enquiry into a complaint dismissed under Section 203.
6. In view of the position that ILR 38 Cal 880 referred to above, has been followed in some Courts in India and dissented from, in others, and further, because the question arose whether in the said Calcutta case, the correct principle was applied, -- their Lordships of the Privy Council examined the position of the authorities in Mahomed Amin v. Jogendra Kumar, AIR 1947 PC 108, where their Lordships laid down that the test is whether . such proceedings have reached a stage at which damage to the plaintiff, results.
This Privy Council test has been followed by different High Courts in their application of the same, to the particalar facts of such case. Thus, it is that both sides, in the present case, rely on the Privy Council decision; and both sides claim that the decision supports their respective rival contentions. From the facts of the Privy Council case, it appears that the enquirying Magistrate, by a letter, gave the plaintiff notice that a criminal case has been instituted against him by the defendant complainant, that it had been referred to the Magistrate for enquiry and that the enquiry would be held on a particular date ' mentioned in the letter; that in pursuance of the said notice, the plaintiff attended with his counsel; that the Magistrate took cognizance of the complaint, examined the complainant on oath and held the enquiry in open court under Section 202 which the plaintiff attended and at which, -- as the learned Judge trying the suit found, -- the plaintiff had incurred costs in defending himself; that the plaint alleged, institution of criminal proceedings of a character, necessarily involving damage to reputation and gave particulars for special damage alleged to have been suffered by the plaintiff.
It is on these facts that their Lordships thought that the action was well-founded and on the findings at the trial, the plaintiff was entitled to judgment. The Privy Council referred to the said Division Bench decision of the Calcutta High Court referred to above. Their Lordships of the Privy Council have not disagreed with the Calcutta decision, far from overruling it. The test-- laid down in the Privy Council judgment, delivered by 'Sir John Beaumont -- is whether the criminal proceedings 'have reached the stage at which damage to the plaintiff results'.
If the damage is invited by the plaintiff him-self, by his voluntary act of attending the enquiry, certainly the defendant complainant is not liable on the ground that volenti non fit injuria. Inother words, the alleged damage is the result ofhis own sole contribution and is self-inflicted,their Lordships of the Privy Council have onlygone to the extent of laying down that they werenot prepared to go so far as some of the Courts ofIndia in saying that the mere presentation of afalse complaint which first seeks to set the criminal law in motion will per se found an actionfor damages for malicious prosecution; and theirLordships further made it clear that if the Magistrate dismisses the complaint as disclosing nooffence with which he can deal, it may well bethat there has been nothing but an unsuccessfulattempt to set the criminal law in motion andno damage to the plaintiff results. Their Lordshipsdid not lay down that if the person complainedagainst, voluntarily attends an enquiry and therebysuffers damage to his reputation or otherwise, hewill be entitled to sue the, complainant for malicious prosecution. . ,
Thus, in my opinion, the substance of. the said Privy Council judgment, -- if correctly read and understood -- is that mere complaint, not followed by issue of process or notice, does not amount to prosecution and that if the person complained against, voluntarily incurs the risk in attending the enquiry arising out of the complaint,--the complainant is not liable for the consequence. If, indeed, the law was otherwise, then it would lead to an undesirable result in that nobody would make even a legitimate complaint against anybody on reasonable grounds; because thereby, if the person complained against, voluntarily oilers to attend the enquiry,--which, under the law, does not require his attendance, -- and thereby incurs costs, -- when he (the complainant) may be liable for malicious prosecution.
In this context, I think that the decision of the Calcutta High Court, -- in the case cited above, delivered by Sir Lawrence Jenkins, -- presents the correct view of the legal position on this poind and is still good law. In the Calcutta case, it was made clear that if the plaintiff was present and was represented by a pleader, that was not by compulsion of law but of his own free will; that the matters then had not advanced to the stage necessary to support a suit for malicious prosecu-tion; that the plaintiff can have no grievance as there was no interference with his property; that be did not become an accused and his freedom was not directly in jeopardy. It is to be noticed that the Privy Council only expounded and clari-fied the proposition laid down in the Calcutta decision which, being on principles, is still good law.
7. On the facts and in the circumstances of this case, it is not in evidence that the attendance of the plaintiffs was required at the enquiry before the Magistrate, --- nor is there any evidence on record, to show that any notice was issued to the plaintiffs, in the , subsequent stage in revision under Section 436.
Mr. R. K. Mohapatra, learned counsel for the plaintiffs, contended that an application was. made before the learned lower appellate Court for adducing additional evidence to show that notice was issued on the plaintiffs, both at the enquiry stage and also at the revision stage. The learned lower appellate Court, however, in his judgment did not refer to any of the documents-sought to be adduced as additional evidence before him.
Mr. Asok Das challenged the admissibility of these documents at the second appellate stage. In any event, the said documents were called for from the lower appellate Court, as requested by Mr. R. K. Mohapatra. In view of the objection, made on behalf of the defendant appellant, challenging the admissibility of the said documents; and further because, they do not appear to have been tendered and accepted by the Courts below, -- I do not think that this Court, in second appeal, can entertain the said documents, as evidence,
8. Upon due consideration of the facts and circumstances of the case, in the light of the legal position discussed above, I am of opinion that the plaintiffs had no cause of action for malicious prosecution, in that the complaint against the plaintiffs did not reach the stage of prosecution as to lay the foundation for a suit for damages for malicious prosecution. So, the decision of the learned lower appellate court is set aside; the decision of the learned Munsif is affirmed; and accordingly the suit is dismissed with costs.
9. The appeal is, therefore, allowed with costs throughout.