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inder Singh Anup Singh Vs. Harbans Singh Anup Singh - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Revn. No. 12 of 1954
Judge
Reported inAIR1955P& H139; 1955CriLJ989
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 107
Appellantinder Singh Anup Singh
RespondentHarbans Singh Anup Singh
Appellant Advocate Daljit Singh, Adv.
Respondent Advocate K.L. Jagga, Adv.
DispositionRevision dismissed
Cases ReferredC. H. Crowdy v. L. O. Reilly
Excerpt:
.....taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. the legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. it is well settled that the definition of judgment in section 2(9) of c.p.c., is much wider and more liberal, intermediary or interlocutory judgment fall in the category of orders referred to clause (a) to (w) of order 43, rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide..........subramania pillai', 13 mad lj 370 (a), benson and bhashyam aiyangar jj. were of the opinion that a suit for malicious prosecution can be brought only when there has been a 'prosecution for an offence' and as proceedings under section 107 of the code do not involve any such prosecution, they cannot afford a cause of action for a suit for malicious prosecution.3. plainly, section 107 of the code is preventive and not punitive. section 117(2) of the code provides 'inter alia' that where the order made under section 112 of the code requires security for keeping the peace, enquiry shall be made, as nearly as may be practicable, in the manner prescribed by the code for conducting trials and recording evidence in summons cases. that being the position of matters, it is plain that proceedings.....
Judgment:

Harnam Singh, J.

1. In Civil Revn. No. 12 of 1954 it is said that to sustain an action for malicious prosecution there must have been a 'prosecution for an offence by the defendant of a plaintiff without reasonable and probable cause.

2. In -- 'Kandasami Asari v. Subramania Pillai', 13 Mad LJ 370 (A), Benson and Bhashyam Aiyangar JJ. were of the opinion that a suit for malicious prosecution can be brought only when there has been a 'prosecution for an offence' and as proceedings under Section 107 of the Code do not involve any such prosecution, they cannot afford a cause of action for a suit for malicious prosecution.

3. Plainly, Section 107 of the Code is preventive and not punitive. Section 117(2) of the Code provides 'inter alia' that where the order made under Section 112 of the Code requires security for keeping the peace, enquiry shall be made, as nearly as may be practicable, in the manner prescribed by the Code for conducting trials and recording evidence in summons cases. That being the position of matters, it is plain that proceedings under Section 107 of the Code are of a quasi criminal nature.

4. In -- 'C.H. Crowdy v. L. O'Reilly', 18 Ind Cas 737 (Cal) (B), Mookerjee J. said: 'I am not prepared to accept the contention that an action fur damages tor inaiicions prosecution should lie only when the original proceeding was a 'prosecution' in the sense in which the term is used in the Code of Criminal Procedure; it is not essential that the original proceeding should have been of such a nature as to render the person, against whom it was taken, liable to be arrested, lined or imprisoned.'

5. In 18 Ind Cas 737 (Cal) (B) Beachcroft J. concurring with Mookerjee J. said; 'I quite agree with him that the term 'prosecution' ought not to be interpreted in the restricted sense in which it is used in the Code of Criminal Procedure.'

6. In the present case the defendant applied that the plaintiff should be proceeded against under Section 107 of the Code. In those proceedings the plaintiff was arrested and kept in confinement for one day.

7. In -- 'Chiranji Singh v. Dharam Singh', AIR 1921 All 173 (1) (C), Tudball and Rafique JJ. allowed the rule laid down in -- 'C. H. Crowdy v. L. O'Reilly (B)'.

8. In considering the matter I prefer to follow 'C. H. Crowdy v. L. O. Reilly (B)'. If so, I repel the contention that in suit for malicious prosecution there is no cause of action when proceedings were taken against the plaintiff by the defendant under Section 107 of the Code.

9. In the result, Civil Revn. No. 12 of 1954 fails and is dismissed.

10. Parties are left to bear their own costs in this Court.


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