1. The plaintiff in this case alleges that the defendant preferred a complaint in the Presidency Magistrate's Court charging the plaintiff with the offence of defamation, which on the 30th July last was dismissed, under Section 203 of the Criminal Procedure Code, after a preliminary inquiry, and prays for damages for the malicious prosecution of the plaintiff.
2. Upon the case coming on for settlement of issues counsel for the defendant argued that the plaint does not disclose a cause of action, becausee the facts averred show that that there was no prosecution by the defendant. It is admitted that no process was issued to compel the attendance of the plaintiff before the Magistrate, but the latter issued a notice (Exhibit A) to the plaintiff and held an inquiry under Section 202 of the Code, and after hearing counsel for both parties dismissed the complaint.
3. The notice recites that the defendant had filed an information and complaint before the Magistrate, charging the plaintiff with the offence of having defamed the former and praying that a summons might issue against the latter, and continues as follows:-- 'Notice is hereby given that a preliminary inquiry will be held in the matter of complaint at this Court at 11 A.M. on the third day of July 1912.'
4. The document is thus a mere intimation that the Magistrate intends to take action upon the complaint, and does not amount either to a summons or to an invitation to the party charged to appear or take any other step in the matter; moreover, it is not included in the fifth schedule of the Code as one of the forms to be used by the Court, nor does it appear to be prescribed or contemplated by the Code of Criminal Procedure, 1898. Nevertheless, upon receipt of a formal document of this kind the party affected by the complaint might well think it expedient to appear and be represented by his legal adviser on the day-mentioned; and if he did so appear, he would naturally desire to be heard and possibly to adduce evidence. Chapter XVII of the Code is entitled 'Of the commencement of proceedings before Magistrates,' and read together with chapter VI 'Of processes to compel appearance,' shows that proceedings ordinarily begin with the issue of a summons or warrant. Prior to the issue of process, the Magistrate has to satisfy himself that there are sufficient grounds for setting the law in motion [Section 204 (1)], and for that purpose he is bound to examine the complainant (Section 200), and may postpone the issue of process while he inquires into the matter himself or a local investigation is made by another person (Section 202).
5. It appears to me that the object of the procedure prescribed by chapter XVI, which is entitled 'Of complaints to Magistrates,' is the separation of unfounded from substantial cases at the outset, and to prevent innocent persons from being brought into the Police Courts and subjected to the annoyance of frivolous charges, and that this object is frustrated by the procedure adopted in this case.
6. In a warrant case such as this is, the Magistrate may issue a summons to the accused to appear [Section 204 (1)], and may discharge the accused at any stage of the case [Section 253 (2)]. Having regard to this provision and the sections of the Code abovementioned, I am of opinion that the hearing in this case by the Magistrate was not authorised by the Code, and cannot therefore be attributed to the defendant so as to render him responsible for any damage caused thereby to the plaintiff. I am also of opinion that these provisions show that the prosecution of the accused commences with the issue of process, after the complaint has been entertained by the Magistrate, and that the prior proceedings constitute at most an attempt by the complainant to prosecute the accused.
7. I do not think it necessary to discuss the English and Indian cases which have been cited, since they are fully dealt with in two decisions of the Calcutta High Court,--DeRozario v. Gulab Chand Anundjee I.L.R. (1910) Calc. 358 and Golap Jan v. Bholanath Khettry I.L.R. (1911) Calc. 880 with which I entirely agree.
8. For these reasons I am of opinion that the plaint discloses no cause of action and accordingly dismiss the suit with taxed costs. I certify for Counsel.
9. Attorneys for the defendant: Grant and Greatorex.