Ameer Ali, J.
1. In this case there must be a decree for the plaintiff, and I assess the damages at Rs. 3,000. Para, (1) of the plaint reads as follows:
The defendant, on 3rd January 1930, maliciously and without reasonable or probable cause, preferred a charge of perjury against the plaintiff before this Honourable Court and made the application-copy whereof is filed herewith and obtained a Rule, copy whereof is filed herewith, and, on 18th March 1930, obtained the order, copy of which is filed herewith, and caused the plaintiff to be sent for trial on the charge referred to in the said order of 18th March 1930, above-mentioned, in the Court of the Chief Presidency Magistrate, Calcutta, and to be arrested and imprisoned, and caused wide publicity to be given to the same in order to cause loss and damage to the plaintiff. The plaintiff was kept in custody until the plaintiff was released on bail and furnishing security to the extent of Rs. 500 on 7th April 1930.
2. Paragraph (2) refers to the appeal from the order of 18th March 1930. Para. (3) mentions the discharge of the plaintiff as the result of the decision of this Court on appeal.
3. The short facts are as follows: The plaintiff gave certain evidence on 2nd December 1929, in an examination under Section 36, Presidency-towns Insolvency Act, the insolvency being that of one Khemkarandas Khemka. The plaintiff had previously, as the gomasta of Kanhayalal Sureka, the grand-father of the present defendant, verified the plaint in a suit in the High Court upon certain hundis. The evidence in the proceedings in insolvency was connected, in a manner which need not be discussed, with the facts mentioned in the plaint. The defendant applied before this Court,. on the Original Side, on 3rd January 1930, setting out some of the answers given by the plaintiff in the examination under Section 36, Insolvency Act, and setting out para. 5 of the plaint, to which I have referred, and prayed for a rule under Section 476, Criminal P.C., calling upon the plaintiff to show cause why a complaint should not issue against him for perjury. A rule was issued and the plaintiff filed an affidavit in opposition, in which, among other things, ha set out various incidents from which the hostility of the present defendant to the plaintiff might be gathered and contended, that no prima facie, or any case of perjury could be founded upon the materials placed before the Court. The Court, on 18th March 1930, made an order, the formal part of which was, according to the form now in use, to the following effect:
That the Court being of the opinion that it is expedient in the interests of justice that an enquiry should be made upon the offences, etc., which appear to have been committed by the said Nagarmull Chaudhuri, etc., this Court doth hereby record a finding to that effect and doth hereby order that a complaint in respect thereof be made in writing signed by the Hon'ble LortWilliams, J,
4. I imagine that a complaint was drawn up and signed by the Judge and forwarded to the police Court. In some cases, I believe, that the original order is used as a complaint. In my view, it makes no difference. The police Magistrate, on receipt of the order or a complaint in pursuance of the order, took action and issued a warrant for the arrest of the plaintiff. This appears from the written statement. How a warrant came to be issued in this case does not appear, but it is in evidence that the defendant accompanied the police officers and, in fact, identified the plaintiff and gave him in charge. In this connection, I enquired whether Mr. Khaitan, who appears for the plaintiff, desired to take the alternative line of 'false imprisonment' and pointed out that, although the fact was stated, such a cause of action should be separately pleaded. Moreover, the concise statement describes the suit as one for 'wrongful and malicious prosecution.' In the result, Mr, Khaitan, although he desired not specifically to abandon any cause of action which might appear in this plaint, proceeded before me on the basis of malicious prosecution.
5. The issues which normally arise in a case of malicious prosecution are as, follows: 1. Was the plaintiff prosecuted? 2. Was the plaintiff prosecuted by the defendant? 3. Did the proceedings come to a conclusion and to a conclusion in favour of the plaintiff? 4. Had the defendant reasonable and probable cause? 5. Was the defendant actuated by malice? If any of these elements are absent, the suit fails. Mr. N.N. Bose, who appeared for the defendant, raised one issue only and that by way of demurrer, namely, Does the plaint disclose a cause of action?' He did not desire to contest the case on the other issues. It soon became apparent that Mr. Bose, under the one issue raised by him, really desired to argue the first three issues above indicated, i.e., 1. that the plaintiff was not prosecuted; 2. that the defendant was not the prosecutor; 3, that the proceedings did not terminate in an acquittal. I allowed this course.
6. (1) Was the plaintiff prosecuted? On the first point, Mr. Khaitan contended that there was a prosecution in two places, first in the High Court and secondly in the police Court. With regard to the High Court, it is clear that there were proceedings under Section 476, Criminal P.C. It is true that these proceedings were in a civil Court. Mr. Khaitan contended that, notwithstanding this, they are criminal proceedings, and, though not a prosecution within the strict language of the Criminal Procedure Code, they can yet; constitute a prosecution for the purpose of founding an action 'for malicious prosecution.' He has referred me to the following cases, which I give in order of date. The old English cases Quartz Hill Gold Mining Co. v. Iyre (1883) 11 QBD 674, C.H. Crowdy v. L.O. Reilly (1913) 18 IC 737, Bishun Persad Narain Singh v. Phulman Singh (1915) 27 IC 449, Narendra Nath De v. Jyotish Chandra Pal AIR 1922 Cal 145 and Rabindra Nath Das v. Jogendra Chandra : AIR1928Cal691 . I notice that in Nagendra Nath v. Basanta Das : AIR1930Cal392 , Mukerji, J., without differing from the earlier decisions, was not prepared, without further consideration, to endorse the view therein expressed, namely, that proceedings of the nature in question can found an action. I propose to follow them and to hold that the proceedings before Lort-Williams, J. in this Court constitute a prosecution' in the sense indicated.
7. As to the proceedings in the police Court, Mr. Bose was inclined to contend that, until further steps were taken, they could not be considered to be a prosecution, but in point of fact his argument on this point became lost in his argument on the next issue, i.e., that the defendant was not the prosecutor. Mr. Khaitan cited Bishun Persad v. Phulman Singh (1915) 27 IC 449 and Musa Yakub Mody v. Manilal Ajitrai (1902) 29 Bom 368. In my view, after the Magistrate issued the warrant and the warrant was executed, there is no doubt that the proceedings in the police Court constituted a prosecution such as to found an action for malicious prosecution: see Clerk & Lind-sell on Torts, 582 and 583, etc. I must not be taken to hold that these proceedings might not equally be considered a prosecution before the issue or execution of the warrant. It is not in this case necessary to decide.
8. (2) Was the defendant the prosecutor? As regards the High Court proceedings, there is no question. As regards the police Court proceedings, the matter is more difficult. In this connexion, Mr. Khaitan has cited the rulings of the Judicial Committee in Gaya Prasad v. Bhagat Singh (1908) 30 All 525 and in Balbhaddar Singh v. Badri Sah AIR 1926 PC 46 also in Venkatappayya v. Ramhrishmamma : AIR1932Mad53 . Mr. Bose relies upon De Rozario v. Gulab Chand (1910) 37 Cal 358 and Golap Jan v. Bholanath (1911) 38 Cal 880, both on the first issue that there was no prosecution and also read with Section 478 for the argument that at any rate since the change in procedure which took place in 1923, the proceedings after the civil Court has sanctioned the prosecution cannot be regarded as a prosecution by a private individual.
9. In my opinion, so far as proceedings for malicious prosecution are concerned, in a proper case such proceedings can be regarded as a prosecution by the individual, notwithstanding that the Judge has granted sanction and notwithstanding that the Judge baa signed the complaint. I hold that, in case where sanction has been obtained by the defendant maliciously and without reasonable and proper cause and by false evidence, the prosecution which ensues is to be regarded as a prosecution by the individual. In this connexion I consider portions of the judgment in FitzJohn v. Mackinder (1861) 9 CBN S 505 to be very much in point. There A, a party to a suit in a civil Court, gave evidence, suggesting that his opponent B had committed perjury. The Judge believed A and ordered A to enter into a recognizance to prosecute B for perjury (this being the practice obtaining under the relevant statute). B was tried and acquitted. B brought an action for malicious prosecution against A. A's defence was based upon the contention that the prosecution was not the prosecution of the party but that of the Judge. On this point there was some difference of opinion, but all agreed that, it the original order for prosecution is obtained by the false evidence or fraud of the party, with the intention that a prosecution should follow, then the prosecution is to be regarded as that of the party. I find therefore that the prosecution not only in the High Court, but in the police Court, was by the defendant.
10. (3) Did the proceedings come to a conclusion in the plaintiff's favour? The plaintiff was arrested and kept in custody for 21 hours and then released on bail. After his release, the Court on appeal, set aside the order of the Court on the original side. Therefore there was no complaint upon which the Magistrate could proceed, and the plaintiff was discharged. It was contended that this is not a termination of the proceedings in favour of the plaintiff such as is required by law. I am not of that view. In my opinion, the situation is analogous to that arising where the complaint fails by reason of some technical defect, or where the Magistrate himself refuses to proceed with the prosecution. These findings dispose of the issue raised on behalf of the defendant in its widest possible form.
11. The plaintiff has given evidence, which roughly corresponds with the statements contained in the original affidavit before this Court. I accept it. I find that the defendant in this case acted both maliciously and without justification or reasonable and probable cause. I have already mentioned the damages which I am prepared to allow. The suit will be decreed for that sum with costs.