1. This is a suit brought by one Golap Jan against Bhola Nath Khetry. The suit is a suit for malicious prosecution.
2. The question that has been argued before me is whether the plaint discloses any cause of action.
3. The circumstances out of which this case arises are that Golap Jan was a wrestler or an employer of wrestlers and Bhola Nath is a young man of considerable means and apparently of sporting tastes and he agreed with Golap Jan that they should conduct a wrestling entertainment on the Howrah maidan, Golap taking an active part in obtaining wrestlers and Bhola Nath financing the undertaking. After the show had taken place, Golap alleged that Bhola Nath had collected a large sum of money from the gate-money and that he had not rendered an account or given Golap his share. Golap caused a letter of demand to be written claiming a share of Rs. 30,000 alleged to have been collected. This letter is dated the 25th March. On the 29th March 1909, Bholanath laid a complaint in the Calcutta Police Court for criminal breach of trust in respect of Rs. 1,700 said to have been paid to the plaintiff Golap to pay wrestlers which is alleged to have been misappropriated by the plaintiff. What is alleged to have occurred in the Police Court was this: On an application to the Presidency Magistrate, he, following a practice very common in the Police Court founded on 202 of the Criminal Procedure Code, referred the matter to the police for enquiry. An enquiry was held and as the result of that enquiry the Magistrate after hearing the report refused to issue process on the ground that the case was a civil one. After this Golap filed a suit claiming damages for malicious prosecution and the question is whether such a suit will lie under the circumstances. By Mr. Chaudhuri it is argued that a prosecution under the Criminal Procedure Code, commences when the complaint is filed. In support of that contention he has in his favour two decisions of the Bombay High Court. On the other hand Fletcher, J., has held, following Yates v. Queen 14 Q.B.D. 648, that the prosecution does not commence till process is issued. Fletcher is decision is reported in De Rozario v. Golab Chand, Anundjee 37 C 358 : 6 Ind. Cas. 877. The Bombay decisions are both of them to some extent obiter dicta, Imperatrix v. Lakshmans akharam 2 B. 487, being in connection with a criminal prosecution and involving a discussion as to the sanction necessary before prosecution could take place. In the later Bombay case Ahmedbhai v. Framji 28 B. 226 : 5 Bom. L.R. 940, it is stated in the judgment that a prosecution commences from the filing of the complaint and an action for malicious prosecution will lie even if the Court does not entertain the complaint. But though there is this statement in the judgment, in fact the Court had entertained the complaint and proceeded with regard to some, at any rate, of the charges. I am asked in this state of the authorities to dissent from Fletcher, J.'s decision and concur with that of the Bombay Court. In a case of this kind where the matter has been recently decided by a Judge sitting on the Original Side, I do not think it is for me to go further into the matter. There is, no doubt, some force in what Mr. Chaudhuri says that if a complaint is lodged and a police enquiry directed under 202 of the Criminal Procedure Code, there is, to all intents and. purposes, or may be, a trial before the Police Officer or Inspector. He points out that in this particular case evidence was given. An attorney appeared and witnesses were examined and one knows that as a matter of fact in these cases of Police enquiry people are often put to a considerable amount of trouble and no little expense for which they have some claim to be compensated if the complaint is groundless and malicious. Or. the other hand, an action for malicious prosecution is, if I may so describe it, an imported action from English Law and it is recognised that by that action a man has certain remedies by way of a suit for malicious prosecution provided his adversary has succeeded in initiating a prosecution against him by getting a Magistrate to issue process but not otherwise. It is stated in Addison's Torts that the proceedings commence when the complaint is filed, but this, as pointed out by Fletcher, J., is not correct on the English authorities. It may be that there is a wrong for which a party has a remedy if process is actually issued against him. It may be, on the other hand, that he is without remedy and suffers no wrong provided a man simply lodges a complaint against him before a Magistrate on which no action is taken. This may be one of the things which though unpleasant and possibly expensive is a 'damnum sine injuria' such as accidental injury. It may be that the law considers the Magistrate is a sufficient protection and that the complainant is only liable if he in effect misleads the Magistrate, not otherwise. The point is not certainly so clear in favour of Mr. Chaudhuri's present contention that I feel myself in any way called upon to express an opinion one way or the other. If the matter was res Integra' and to be dealt with on first principles, it would be an arguable question with a good deal to be said on both sides as to whether in India an action for malicious prosecution or an action analogous thereto ought not to lie under the circumstances of this case and that before Fletcher, But the question having once been decided on the Original Side of this Court, in my opinion, the only place where the matter can be properly farther agitated is the Court of Appeal.
4. [Mr. Bose :--I would ask your Lordship to make an order that the plaint is rejected under Order VII, Rule 11. Gunga Narain Gupta v. Tilukram Chowdhry 15 C. 533]. That is not a proper order in this case; the case is in the list for final disposal. It should be dealt with so as to finally dispose of it. It should not be left open to the plaintiff to bring another suit.
5. I have given the parties an opportunity of placing, their evidence before the Court with a view to enable the Appeal Court to deal with the whole matter but both parties agree that this course would not be a convenient one for them. A considerable amount of evidence might be taken which would be wasted and both parties are desirous that I should simply give my judgment at this stage without taking evidence on the point raised. If the matter goes to the Court of Appeal and my judgment is corrected, the case will come back and evidence can then be brought forward. Having regard to the circumstances, it seems that this course will be the one most convenient for all parties and as both parties 'desire that evidence should not be offered, I see no objection to that course. The action will be dismissed with costs on scale No. II.