1. This is an appeal by the plaintiffs in a suit for damages for malicious prosecution. The facts of the case are with sufficient clearness set out in the judgment of the trial Court and have been summarized by the Court of appeal below. The Courts below have directed themselves rightly as to the essentials in an action for damages for malicious prosecution.
2. The first essential and the main factor to be taken into consideration in a case of this description is that plaintiff was prosecuted by the defendant. Was there a prosecution which would sustain a claim for damages as made in the suit? On this part of the case the learned District Judge has adverted to the facts about which there is no doubt or dispute : defendant 1 at the direction of defendant 2 lodged an information to the police charging plaintiffs and defendant 3 with theft. The allegations made were enquired into, the plaintiffs being examined by Police Officers. The Circle Officer reported the case to be false, and the Deputy Superintendent of Police reported the same as mistake of fact.
3. The information to the police appears to have been lodged on 5th September and on 19th September 1923 the date on which the District Magistrate ordered the information to be entered as mistake of fact defendant 1 filed a petition of objection against the non-submission by the police of charge sheet under Section 379 and Section 342, I.P.C., with a prayer either that the police be directed to submit a charge-sheet or that the complainant be allowed to prove his case. The petition to the District Magistrate which has been read to ma in its entirety reiterated the charges made in the information to the police and the Magistrate in disposing of the same, recorded the following order: 'The complainant declined to be examined. Dismissed under Section 203. Section 379 mistake of fact.' In support of the appellant's contention before me that in view of the materials on the record, regard being specially had to what has been set out above there was prosecution in the present case.
4. It has been urged that there having been an information to the police accusing the plaintiffs of theft and evidence having been produced before the police to prove the case of theft and a-petition having been filed before the Magistrate reiterating the charge of theft, defendants 1 and 2 should be held to have prosecuted the charge against the plaintiffs. Reliance has been placed on behalf of the appellants to the decisions in Bishun Pergash Narayan Singh v. Phulman Singh  27 I.C. 449, Satya Neranjan Chakravarti v. Sarajubala Debt , Jogendra Nath v. Emperor  33 Cal. 1, Rabindra Nath Das v. Jogendra Chandra : AIR1928Cal691 and Ahmedbhai v. Fremji Edulji  28 Bom. 226, in support of the position that on the facts and in the circumstances of the present case there was prosecution as contemplated by law, and that the plaintiff's were prosecuted by defendants 1 and 2. The learned advocates appearing for the respondents on the other hand strenuously argued that the facts of the case do not lead to the conclusion that there was a prosecution and that defendants 1 and 2 had not prosecuted the plaintiffs. The learned advocates for the respondents have argued that the decision relied upon by the other aide do not apply to the facts of the present case, and that the preponderance of authority is in favour of their contention. They have relied on the decisions in De Rozario v. Gulab Chand  37 Cal. 358, Golap Jan v. Bholanath Khettry  38 Cal. 880, Nagendra Nath v. Basanta Das : AIR1930Cal392 and Ishuri v. Muhammad Hadi  24 All. 368, in support of their position that there was no such prosecution in the case as could entitle the plaintiffs to recover damages for a malicious prosecution. On-a consideration of the decisions of Courts placed before me, it appears to me that the rule of practical application deducible from them is that the question whether there was such prosecution as could be the foundation for a claim for damages for malicious prosecution, and the further question whether the plaintiff in an action for damages for malicious prosecution was prosecuted by the defendant, are questions to be determined on the particular facts and circumstances of a case. There is no doubt as to the proposition that a prosecution exists when a criminal charge is made before a tribunal Bishnu Narain Singh v. Phulman Singh  27 I.C. 449, Nagendra Nath Ray v. Basanta Das Bairagya : AIR1930Cal392 . The prosecution, i.e., the act of the prosecutor which renders him liable to be cast in damages, viz., malicious and not based on reasonable and probable cause, commences when the prosecutor has taken the initial step Bishun Prasad Narayan Singh v. Phulman Singh  27 I.C. 449. In the present case, on the facts found by the lower Courts, there is ample justification for the view taken by the lower Court; and irrespective of the complaint or the information to the police that there was a prosecution in the present case, and the plaintiffs were prosecuted by defendants 1 and 2 in the suit.
5. After the disposal of the main head so far as the factors determining the question of maintainability of a suit for damages for malicious prosecution were concerned in the manner aforesaid, it is necessary to discuss the other essentials which must co-exist in order to sustain such an action. That the prosecution terminated in favour of the plaintiffs there can be no doubt the Magistrate's order on 19th September 1923, was one of dismissal of the complainant's case and as such was a determination of the prosecution in favour of the plaintiffs. That the prosecution, so far as the charge of theft was concerned, was without any reasonable and probable cause, has been concurrently found by the Courts below and that question therefore is not open for discussion in this appeal. The same remark applies to the establishment of the facts of malice on the part of defendants 1 and 2 in the suit. On the question of damage although the learned District Judge in the Court of appeal below has differed from the trial Court in material particulars, the learned Judge has held that there was inconvenience suffered by the plaintiffs and the plaintiffs might be entitled to get nominal damages only. The learned advocate for the plaintiffs-appellants has represented to me that his clients would be satisfied with nominal damages.
6. One other aspect of the case however, which has been dealt with by the learned Judge in the Court below under the head of malice and want of reason able and probable cause and upon which his decision is against the plaintiffs, remains to be considered. The question decided against the plaintiffs, and the question that has been raised in this appeal by plaintiffs, relate to this: that there having been one single prosecution upon a single succession of occurrence if one of allegations, namely the allegation of assault was not malicious, the prosecution based upon a single set of circumstances could not be found to be malicious at all. The point as decided by the learned Judge is in my judgment well settled by authority in favour of the plaintiffs-appellants.
7. So far as Courts in England are concerned it is taken to be settled that if a man were prosecuted on a charge which was divisible in its nature, and contained several parts, and absence of reasonable and probable cause was shown for one part of the charge he was entitled to succeed even though it appeared that as to the other part or parts of the charge, reasonable and probable cause existed: see Clerk and Lindsell, Law of Torts, 7th Bdn., p. 651. In India the position has been correctly indicated by the Bombay High Court in Ahmedbhai v. Framji Edulji  23 Bom. 226, where the learned Judges, following the decisions in Reed v. Taylor  4 Tanut 616, and Ellis v. Abrahams  8 Q.B. 709 laid down the rule that where charges are made before a Magistrate, for some of which there is, while for others there is not, a reasonable and probable cause, an action for malicious prosecution will lie. The present case is to my mind stronger than the one decided by the learned Judge of the Bombay High Court and the learned District Judge's decision on this aspect of the case cannot therefore be supported and must be overruled.
8. In view of the conclusions I have come to, the decree of the lower Court must be set aside. The plaintiffs' suit must be decreed and their claim for damages for malicious prosecution allowed. The plaintiffs will be allowed only nominal damages as against defendants 1 and 2, who are both liable for the same, the amount of such damages being fixed at Rs. 10 only.
9. Defendants-respondents 1 and 2 will pay the plaintiff's costs in all the Courts.