1. This preliminary issue which is whether there has been in law a prosecution, can be disposed of very shortly because there is a recent decision, Pedda Sanjivi Reddy v. Kondagari Koneri Reddi 93 Ind. Cas. 8 23 : 50 M.L.J. 460 : A.I.R. 1926 Mad. 521, of a Bench of this Court consisting of the Chief Justice and Mr. Justice Viswanatha Sastri which, in my view, concludes the whole matter.
2. The facts in this case are that the defendant filed a complaint before the Presidency Magistrate, George Town, Madras, charging the plaintiff with a criminal offence, viz., criminal breach of trust The Magistrate held an enquiry himself presumably under Section 202 of the Cr.P.C. after issuing notice to the plaintiff giving him an opportunity to attend the enquiry. In fact he did attend the enquiry and the result of it was that the Magistrate dismissed the charge. Accordingly this suit has been filed in this Court by the plaintiff claiming damages for malicious prosecution. These are the admitted facts.
3. What I have got to decide now as a preliminary issue is, when a prosecution starts. Clearly in this case no summons was issued by the Magistrate and according to Chap. XVII of the Cr.P.C., the proceedings before a Magistrate commence when a summons is issued in accordance with the provisions of that Chapter. It has been argued here that a prosecution commences as soon as a complaint hag been filed before a Magistrate, that that is all that the complainant can do and that the question as to whether or not it is a prosecution cannot depend upon the view that the Magistrate may take at any preliminary enquiry which he may deem fit to hold. Certainly, there might be a good deal to be said for that argument that in a case where a suit is brought for damages for malicious prosecution, the action would be from the time when the defendant sets the law in motion. However, any doubts that there may have been upon that question, have, as I have already said, been set at rest by an Appellate Bench of this Court and there is also a decision by Mr. Justice Bakewell in the case of Skeik Meeran Saib v. Ratnavelu Mudaly 21 Ind. Cas. 703 in which the facts were exactly similar to the facts of this case an d in which it was held that the prosecution did not start until process was issued by the Magistrate. The other decision, a decision of a Bench of this Court is Appeal No. 356 of 1924 [Padda Sanjivi Reddy v. Kandagari Koneri Reddi 93 Ind. Cas. 8 : A.I.R. 1926 Mad. 521 The facts of that cage were that the defendant presented a petition to the Deputy Magistrate of Adoni praying that the plaintiff and some others should be bound over under Section 107 of the Cr.P.C. The Magistrate on receipt of the petition sent it on to the Police for enquiry and report. The Police reported, after enquiry and after hearing what the petitioner had to say, that there was no foundation for the allegations in the petition. Thereupon the Magistrate dismissed it and refused to take any action under Section 107 of the Cr.P.C. The learned Chief Justice in giving judgment upon this point States as follows: 'No difficulty arises with regard to the claim for malicious prosecution. The short and sufficient answer to such a claim is that the plaintiffs were not in fact prosecuted' and he then proceeds to deal with the other claim in the suit, viz, for damages for defamation.
4. It seems to me that I cannot draw any distinction between that case and this and as this decision is binding upon me, I am bound to hold that in law there was no 'prosecution' of the plaintiff by the defendant. The result is that as there was no prosecution in law the plaintiff's claim for damages for malicious prosecution must fail and will, therefore, be dismissed with costs.
5. The counter-claim will be dealt with at a later date.