1. This appeal arises out of a suit for damages for malicious prosecution upon the following facts. In a previous suit in which one Bola Nath was defendant the plaintiff who is a pleader practising in Habigunj in the district of Sylhet filed a written statement accompanied by a vakalatnama on 16th February 1923 purported to have been signed by Bhola Nath and some other defendants. The vakalatnama showed that it was accepted by the plaintiff' on the 7th February 1923 which was the date of the vakalatnama. On 28th February 1923 the plaintiff reported to the Court that his client Bhola Nath had died. In May 1923 the defendant applied to the Munsif for sanction under Section 195, Criminal P.C., to prosecute the plaintiff, his clerk and defendants 30 and 33 on the allegation that the signatures of Bhola Nath on the wrtiten statement and the vakalatnama were forgeries since he had died on 3rd February 1923. The application was registered as a miscellaneous case and the plaintiff was directed to show cause. On 9th June 1923, the data of the hearing of the case, the plaintiff filed certain papers from the criminal Court to show that Bhola Nath was alive on 7th February 1923. On the next date of the hearing, that is, 30th June 1923, the defendant applied for time to summon his witnesses. On 21st July 1923 be again applied for time, to file certified copy of the death register; and again on 4th August he applied for time for the same purpose, but his application was rejected and the case dismissed,. Thereafter the plaintiff instituted the present suit for recovery of damages for malicious prosecution and defamation. One of the points of law raised by the defence was that the suit for damages for defamation was not maintainable. A preliminary issue was framed and the Munsif, who heard it decided that the plaintiff was not entitled to recover damages for defamation. The case was again finally heard by the same Munsif and the plaintiff's suit was decreed for Rs. 250 with costs. On appeal by the defendant the learned Subordinate Judge confirmed the decree and hence this second appeal by the defendant.
2. The first point raised by the learned advocate on behalf of the appellant is that there was no prosecution within the meaning of the law such as to give rise to the plaintiff's claim for damages for malicious prosecution. It is argued that a mere application for sanction to prosecute is not a prosecution No authority has been cited in support of this proposition. But several cases have been placed before us in which it has been held that a mere filing of a petition in a criminal Court for necessary action on which no action was taken or which was-dismissed is not prosecution giving rise to the plaintiff's claim for damages. The view expressed in the reported cases is not consistent on this point and so far as this Court is concerned it was authoritatively laid down by Jenkins, C.J. in Golapjan v. Bhola Nath (1911) 38 Cal. 880 that dismissal of a complaint under Section 203, Criminal P.C. does not give rise to a right to claim compensation for malicious prosecution. This view is supported by the opinion expressed by Fletcher, J. in De Rozario v. Gulab Chand Anandaji (1910) 37 Cal. 358 and by the English authorities and by most of the text writers on the law of Torts. In Yates v. The Queen (1885) 14 Q.B.D. 648 on which reliance has been placed by a decision of this Court upon this point, Brett, M.R. observed, apparently by way of an obiter, at p. 657:
For my own part I consider that laying the information before a Magistrate would not be-the commencement of the prosecution because the Magistrate might refuse to grant a summons, and if no summons, how could it be said that a prosecution against any one ever commenced.
3. Cotton, L.J. -in the same case expresed his opinion thus:
It cannot be said that prosecution commences-before a person is summoned to answer a complaint.
4. The law has thus been laid down in Clerk and Lindsell on Tort, 7th Edn. at p. 637 where the dictum of Brett, M.R. in Yates v. The Queen (1885) 14 Q.B.D. 648 has been approved and quoted:
A Justice of the peace can only take action on an information laid before him. If he thinks that it discloses ground for believing that an offence has been committed, he either issues a warrant for the arrest of the incriminated party or a summons commanding his attendance. But until he issues such summons or warrant the prosecution cannot be said to begin. The gist of the action for malicious prosecution is that the defendant set the Magistrate in motion.
5. The same view has been taken in Madras in the case of Nurse v. Rustamji Dorabji A.I.R. 1924 Mad. 565. In C.H. Crowdy v. O'Reilly (1913) 17 C.L.J. 105 and Bishnu Pergash v Phulman Singh (1914) 20 C.L.J. 518 it is expressly laid down that a prosecution for the purpose of a suit for damages for malicious prosecution begins as soon as information is laid before the Magistrate. The same view has been expressed in Ahmedibhai v. Framji Edulji (1904) 28 Bom. 226. It is not necessary to pursue this matter further as the question raised in those cases does not affect that which presents itself for determination in the present case. It is (accordingly necessary to determine the meaning of 'prosecution.' In Halsbury's Laws of England Vol. 19, p. 670 'prosecution' is thus defined:
A prosecution exists where a original charge is made before a Judicial Officer or Tribunal, and any person who makes or is actively instrumental in the making or prosecuting of such a charge is deemed to prosecute it and is called the prosecutor.
6. The expression 'criminal charge' has been used in view of the decision in Raysan v. South London Tramways Co. (1893) 2 Q.B. 204. In that case the question was whether proceedings taken against any person for having travelled in a carriage or in tramways avoiding or attempting to avoid payment of fare thus rendering himself liable to a penalty not exceeding 40 shillings are proceedings in respect of a criminal offence so that a suit for damages for malicious prosecution could lie against the accuser. Lord Esher M.R. decided that the proceedings were in respect of a criminal offence so that an action for criminal prosecution would lie. The learned Master of the Rolls however, cautiously observed:
Now there can be no doubt that if what was done to her was to take criminal proceedings against her and if the criminal process was carried on without reasonable and probable Cause and maliciously then her action would lie. I am not prepared to say that, if the proceedings taken against her in this case were not criminal proceeding, the action would not lie if those proceedings were taken without reasonable and probable cause and maliciously.
7. In Quartz Hill Gold Mining Co. v. Eyre (1883) 11 Q.B.D. 674 'criminal charge' has been defined as including all indictments involving reputation or possible loss of property to the person. In Balbhadra Singh v. Budri Shah A.I.R. 1926 P.C. 46 Viscount Dunedin in pronouncing the judgment of the Judicial Committee observed:
In any country where, as in India prosecution is not private, an action for malicious prosecution in the most literal sense of the word could not be raised against any private individual. But giving information to the authorities which naturally leads to prosecution is just the same thing. And if that is done and trouble caused the Act ion will lie.
8. The definition of prosecution is not confined to prosecution before a Magistrate or a criminal Court. If a judicial tribunal is moved which has the power to take criminal action against the person charged the requirement of law is satisfied and a claim for damages for malicious prosecution will arise. In Clerk and Lindsell on Torts, at p. 637, there will be found the following passage:
To prosecute is to set the law in motion and the law is only set in motion by an appeal to some person clothed with judicial authority in regard to the matter in question.
9. In the present case the application was made to the Munsif for sanction under Section 195, Criminal P.C. The Court was moved to grant sanction to prosecute the plaintiff in this case and if the application were granted the plaintiff would have been liable to prosecution. Some difficulty in applying the law as laid down arises in this case owing to the fact that after obtaining such sanction the defendant might or might not have gone to the criminal Court and prosecuted the plaintiff. But the proceedings relating to the granting of the sanction, though they may not lead to imposition of fine or imprisonment, render the person charged liable to fine or imprisonment and therefore come within the meaning of the term. It is with diffidence that I venture to take this view and if the matter were res integra I am not sure what opinion I might form upon this point; but the question was raised and decided in a very recent case of this Court in Narendra Nath De v. Jyotis Chandra Pal A.I.R. 1922 Cal. 145. In that case the defendant had impugned the genuineness of the copy of the will filed by the plaintiff and applied for sanction to prosecute. It was said, following the dictum of Mookerjee, J., in Crowdy v. O'Reily (1913) 17 C.L.J. 105, that the maintainability of a suit for malicious prosecution does not depend on there having been a prosecution in the sense in which the term is used in the Code of Criminal Procedure. It was further observed:
We hold that in the present case the allegations in the plaint that the defendant maliciously and without just, reasonable and probable cause instituted proceedings for sanction, and that the plaintiff was obliged to defend the case are sufficient to disclose a cause of Action.
10. Even if the proceedings for sanction to prosecute before the Munsif are regarded as civil proceedings they may sustain an action for malicious prosecution as involving false imputations touching the plaintiff's business reputation as a professional man : Quartz Bill Mining Co. v. Eyre (1883) 11 Q.B.D. 674, per Bowen, L.J., at p. 691:
The word 'prosecution' includes such civil Act ions as may be the subject of a suit for malicious prosecution: Bigelow on Torts, p. 204.
11. The first objection of the appellant must therefore be overruled.
12. The next ground on which the appeal is based is that it has been found in, the first judgment by the Munsif that the defendant had no ground for believing to be false the information he had received that Bhola Nath died on 3rd February 1923, It is contended that there was on this assumption no ground for holding that the action taken by the defendant was without reasonable and probable cause. There is no doubt that that observation was made in the judgment of the Munsif when he was trying the issue relating to the plaintiff's claim for damages for defamation. But when the same officer came to try the suit for damages for malicious prosecution he came to the conclusion that the defendant was not actuated by honest belief in making the application for sanction-and the reason given by him apparently supports his opinion. The learned Munsif, after discussing the evidence, enters another finding that the conduct of the defendant even if it was honest amounted to a continuance of the prosecution maliciously after he became aware of the real state of things. The learned Subordinate Judge on appeal had endorsed that finding in these words:
It appears to me to be clear in this case that the defendant rushed to Court with the false accusation, never believing that there was any truth in the same; and even when there was unimpeachable evidence on the record to show the nature of his indictment he persisted in pressing the charge.
13. These findings are on the face of them findings of fact and we cannot say in second appeal that they are not supported by the facts found by the Courts below. It is well established that a prosecution may not be entirely mala fide; but the continuance of such prosecution, after it was discovered that the facts upon which it was based are not true, may give rise to a claim for damages for malicious prosecution. This doctrine is based upon the dictum of Coburn, C.J., in Fitzjohn v. Mackinder (1861) 30 L.J.C.P. 257, where he says:
A prosecution though in the outset not malicious, as having been undertaken at the dictation of a Judge or Magistrate or if spontaneous. from having been commenced under a bona fide belief in the guilt of the accused, may nevertheless become malicious in any of the stages through which it has to pass if the prosecutor; having acquired positive knowledge of the innocence of the accused perseveres malo animo in the prosecution, with the intention of procuring per nefas a conviction of the accused.
14. This view has been adopted; in the-Town Municipality of Jambusar v. Girija Sankar Nasiram (1906) 30 Bom. 37 and by the Judicial Committee in Gayaprosad v. Bhakat Singh (1908) 30 All. 525 and also by this Court in Shama Bibi v. Chairman of Baranagorer Municipality (1910) 12 C.L.J. 410. It has been found by both the Courts below that the papers, of the criminal Court were produced by the plaintiff in the sanction matter on 9th June 1923 which clearly showed that Bhola Nath, who was the defendant, was. alive on 7th February 1923 on which date the written statement and the vakalatnama were purported to have been signed. In spite of those documents the defendant applied for time, on 30th June 1923, for summoning his witnesses thereby giving a clear indication that he meant to press his application for sanction. On two subsequent days he wanted time to file a certified copy of the death register presumably for the purpose of proving that Bhola Nath was not alive on the 7th February. In this case, however, the defendant has not attempted to prove that his case in the sanction matter-was correct. In his deposition he says, that he had no idea that the pleader and his clerk were in the conspiracy and also if Bhola Nath was not known to them they might have been deceived by anyone falsely personating Bhola Nath before them. He admits that he came to know from the papers of the criminal case that the information that Bhola Nath wag dead was not true. His subsequent conduct therefore amounted to continuing the prosecution maliciously though it might have been originally started under a bona fide mistake. With regard to the finding of malice and want of probable and reasonable cause, the findings of the Court below are clear and supported by the evidence in this case. Whatever ground of suspicion the defendant might have had against the other persons against whom he applied for sanction he could have no ground for asking for sanction to prosecute the plaintiff who is a respectable pleader as observed by the Munsif and who is not expected to have personal knowledge of matters relating to the identity of clients. The endorsement on the back of the vakalatnama showed that he had received it through another person. There cannot therefore be any reasonable or probable cause for asking permission to prosecute the pleader. As regards malice the finding of the Courts below is that at the time when he made the application, and after it, the defendant went about bragging that he had caught the pleader in a trap. One must not forget that in the original title suit the defendant was a plaintiff and for some purpose or other he thought it to be to his advantage to implicate the pleader.
15. Considering all the facts and circumstances of this case I think that the Courts below have taken a correct view of the matter and the appeal is therefore dismissed with costs.
16. I agree.