Mookerjee, J.@mdashThis is an appeal by the Plaintiffs in a suit for damages for malicious prosecution. The suit has not been tried on the merits. After the first witness for the Plaintiffs had been examined, the Subordinate Judge stopped the investigation of the facts and heard arguments on the preliminary objection that the plaint did not disclose any cause of action and that the suit as laid was not tenable. He decided this point against the Plaintiffs and dismissed the suit. On the present appeal the question for consideration, consequently is whether the Plaintiffs have any cause of action, and for this purpose we must assume that the allegations of the Plaintiffs are well founded in fact. According to the Plaintiffs, who are wealthy landlords in the district of Champaran, the first Defendant, who was formerly in their employ and had been dismissed for misconduct, preferred a complaint against them before the Magis-trate-in-charge of Motihari on the 9th July 1910. In this petition, he stated that the Plaintiffs had ordered their servants to surround and beat the complainant on the 6th July 1910 and not to allow him to go to Motihari. He prayed that security and recognizance bond might be taken from them, as otherwise his life and property would be in danger. "The Magistrate examined the complainant on oath, who gave details of the incidents mentioned in his petition, and stated additional facts in support thereof. He prayed" finally that proceedings under sec. 107 of the Criminal Procedure Code might be taken against the present Plaintiffs and their servants. The Magistrate, thereupon, recorded an order in the order-sheet in the following terms : "To Babu N.G. Basak for enquiry and report by 19th July ''''The Deputy Magistrate, to whom the matter was made over for enquiry and report, issued notice to the parties on the 14th July 1910, to be ready with their evidence at the Madhuban Police-station on the 17th July. On the date fixed, he examined nine witnesses for the first party complainant and ordered that those witnesses be cross-examined and the witnesses for the second party examined and cross-examined at the Motihari Court on the 21st July. The order-sheet, with these orders recorded thereon by the Deputy Magistrate, was put up before the Magistrate-in-charge on the 19th July (the date fixed for the submission of the report); the latter officer recorded the following order thereon : " Put up on 24th July 1910." On the 21st July five witnesses for the first party were examined and seven were cross-examined; at the same time, the 23rd July was fixed for the examination of the witnesses of the second party. On that date, the examination of the witnesses was completed. The Government Pleader appeared on behalf of the Petitioner, and as he prayed for time to be ready for the argument, the 26th July was fixed for the next hearing. The arguments were heard on that date, and on the 28th July the Deputy Magistrate submitted his report. The report is not on the present record, but we find that the Magistrate-in-charge considered it on the 2nd August 1910 and passed his orders. He expressed the opinion that the Deputy Magistrate had held a fuller enquiry than he had intended; his intention had been that the enquiry should be of an executive rather than of a judicial nature. It may be observed parenthetically that the order recorded by the Magistrate-in-charge, when he sent the matter for enquiry and report to the Deputy Magistrate, gives no indication of such intention, and on the 19th July, when the order-sheet was placed before him, with the orders recorded thereon by the Deputy Magistrate for the examination of witnesses of both parties, he did not instruct the Deputy Magistrate to make his enquiry of a summary character. However that may be, on the 2nd August, the Magistrate accepted the report and came to the conclusion that even a prima facie case had not been made out. He added that the Petitioner, on his own showing, was an unfaithful and treacherous servant and a thoroughly unprincipled man, whose statements required very strong corroboration, and that he had made a number of misstatements and an intentional concealment of material facts. In this view, the Magistrate declined to proceed further on the application and directed that it be filed. On the 4th April 1911, the Plaintiffs instituted the present suit for damages for malicious prosecution, on the allegation that the charges brought against them by the first Defendant in his petition and his statement before the Magistrate, on the 9th July 1910, were false, and had been made maliciously and without reasonable and probable cause. The Subordinate Judge has held that the action does not lie, as there was no prosecution of the Plaintiffs by the Defendant. We are clearly of opinion that this view cannot possibly be supported. On behalf of the Respondent, a strenuous endeavour has been made to support the decree of the Subordinate Judge from three points of view, namely, first, that an application to the Magistrate to take proceedings under sec. 107 of the Criminal Procedure Code was not a " prosecution "; secondly, that if it be assumed to be a "prosecution," no prosecution was commenced, as no process was issued by the Magistrate against the Plaintiffs, and thirdly, that if it be assumed that a prosecution was commenced, it was not actionable, as the Plaintiffs did not suffer any damage therefrom.
2. In support of the first contention that an application to a Magistrate to take proceedings under sec. 107 of the Criminal Procedure Code is not a prosecution, reliance has been placed upon the decision in Kandasami v. Subramania (13 Mad. L. J. 370 (1902)) where it was ruled that to sustain an action for damages for malicious prosecution, there must have been a prosecution by the Defendants of the Plaintiffs for an offence. We are not prepared to accept this view. We adhere to the opinion expressed in Crowdy v. O''Reilly (17 C. W.N. 554 : S.C. 17 C. L. J. 105 (1912)) that the term " prosecution " should not be interpreted in the restricted sense in which it is used in the Code of Criminal Procedure, and that a proceeding maliciously taken against a person to compel him to furnish surety to keep the peace may be made the foundation of a suit for damages for malicious prosecution. It is worthy of note that the Defendant invited the Magistrate to take action under sec. 107 of the Criminal Procedure Code, and an order under that section may ultimately lead to the detention of the person, called upon to furnish security, under the circumstances mentioned in sec. 123 [Hopcroft v. Emperor (13 C. W.N. 151 : s.c. I.L.. 36 Cal. 163 (1908))]. It is further clear that the Defendant stated facts to the Magistrate, which, if true, rendered the Plaintiffs liable to prosecution for wrongful restraint and criminal intimidation. We feel no doubt whatever that the action taken by the Defendant amounted to prosecution of the Plaintiffs, so as to entitle them to claim damages in an action for malicious prosecution. The first ground assigned by the Respondent in support of the view of the Subordinate Judge, consequently, fails.
3. In support of the second contention, that no prosecution was commenced against the Plaintiffs, because process was not issued against them by the Magistrate, reference has been made to the decisions in Meeran v. Ratnavelu (De Rozario v. Gulab (I.L.R. 37 Cal. 358 (1910)) and Golap v. Bholanath (15 C.W.N. 917 : ILR 38 Cal. 880 (1911)). The first of these cases, Meeran v. Ratnavelu(I.L.R. 37 Mad. 181 (1912)), supports the contention of the Respondent, but we are not prepared to accept it as well-founded on principle. In that case on receipt of a complaint the Magistrate issued only a notice to the accused that a preliminary enquiry would be held at a certain time in the matter of the complaint. The accused was represented by counsel at the preliminary enquiry, and the complaint was ultimately dismissed under sec. 203 of the Criminal Procedure Code. The accused then brought a suit for damages for malicious prosecution. Bakewell, J., held that the procedure adopted by the Magistrate was not authorised by the Code, and could not therefore be attributed to the Defendant so as to render him responsible for any damage caused thereby to the Plaintiff. He also added that the prosecution of an accused commences with the issue of process after the complaint has been entertained by the Magistrate, and the prior proceedings constitute at most an attempt by the complainant to prosecute the accused. We are not prepared to agree with either of the reasons assigned in support of the conclusion that a suit for damages for malicious prosecution was not maintainable. As regards the first reason, it is plain that if a person, maliciously and without reasonable and probable cause, sets the machinery of the criminal law in motion, he is responsible for the consequences and cannot escape liability on the ground that the action taken by the Court was such as he did not intend or was erroneous in law. As was said in Parli v. Reed (30 Kansas 534; 2 Pacific Rep. 635), where this precise question was raised, a void process, procured through malice, and without probable cause, is even more reprehensible, if possible, than a lawful process on a complaint which charges a criminal offence. Similarly, it was ruled in Potter v. Gjertsen (37 Minn. 386; 34 N. W. 746), that if the complainant procures the process to issue, he ought to be responsible for all the consequences, even though the facts stated in his complaint do not justify it. In Pippet v. Heam (5 B. & Ald. 634 (1822)), the Court observed : " Whether the indictment be good or bad, the Plaintiff is equally subjected to the disgrace of It and put to the same expense in defending himself against it." As regards the second reason, it is equally plain that with a view to determine whether a suit for damages for malicious prosecution lay, the prosecution commenced as soon as the complaint was made to the Magistrate. The prosecution might be infructuous, if, for instance, no notice was served upon the accused. In such a contingency, the action for damages for malicious prosecution would fail, not because there was no prosecution commenced, but because there was no damage done to the Plaintiff. Reliance has also been placed upon the decisions in De Rozario v. Golapchand (5), and Golap Jan v. Bholanath (6). These cases are clearly distinguishable. In the former case, a complaint was lodged before the Magistrate, who sent the case to the Police for enquiry and report. The complainant informed the Police Inspector that he would not proceed with the case. The complaint was subsequently dismissed by the Magistrate. A fresh complaint was made through another person and was also dismissed. Fletcher, J., held that as the matter was sent to the Police for enquiry and report and no process was issued by the Magistrate, the prosecution was not commenced. In the present case, notice was issued upon the Plaintiffs by the Deputy Magistrate, evidence was taken on both sides and the Government Pleader appeared in support of the application by the complainant. Obviously the Plaintiffs in the case before us were in a very different position in the Criminal Court from that occupied by the Plaintiff in De Rozario v. Golapchand (I.L.R. 37 Cal. 358 (1910)). The case of Golap Jan v. Bholanath (15 C.W.N. 917 : ILR 38 Cal. 880 (1911)) also is distinguishable on the facts. But it must be conceded that there are observations in both the judgments, which tend to support the contention of the Respondent. In Golapjan v. Bholanath (15 C.W.N. 917 : s.c ILR 38 Cal. 880 (1911)), Woodroffe, J., is reported to have observed as follows :- "If there is a prosecution, the commencement is the laying of the complaint, but it does not follow that that would be the commencement, if the prosecution falls through." With all respect, we are unable to accept the view indicated ''''therein. Surely, the point of commencement of a prosecution is independent of the result of the prosecution. The prosecution- that act of the prosecutor which renders him liable to be cast in damages, if malicious and not based on reasonable and probable cause-commences when the prosecutor has taken the initial step, namely, has made his complaint to the Magistrate. The prosecution may fail at one or other of various stages, but that cannot affect the time of commencement of the prosecution. The action of damages for malicious prosecution is not a creature of any statute and it is rather wide of the mark to investigate the precise meaning of the expression " prosecution " in the Criminal Procedure Code, or the exact point of time, when a prosecution may be said to commence within the meaning of that Code. A prosecution exists where a criminal 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; thus, a person, who lays before a Magistrate an information stating that he suspects and has good reason to suspect another or who prefers a bill against him before a grand jury, is engaged in a prosecution (Laws of England, Ed. Halsbury, Vol. XIX, Art. 1433). From this point of view, the rule recognised in Ahmed Bhai v. Framjee (I.B.R. 28 Bom. 226 (1903)), namely, that a prosecution commences when a complaint is made, is reasonable. Fletcher, J., refused to accept this View, because it is based on Clarke v. Postan (6 C. & P. 423(1834)) which, according to him, has been questioned in Yates v. Queen (14 Q.B.D. 648 (661) (1886)) and is supported possibly by a dictum in Gregory v. Darby (2 C. & P. 749 (1836)). Neither of these cases is binding as an authority in this Court, and they are of value, only in so far as they give reasons for the respective views. Bosanquet, J., ruled in Clarke v. Postan (6 C. & P. 423 (1834)) that there is a prosecution, if a charge is made to the Magistrate with a view to induce him to entertain it; it is not necessary to show that it was taken down in writing and acted upon, by the Magistrate. In Yates v. Queen (14 Q.B.D 648(1885)) the question arose under sec. 3 of the Newspaper Libel and Registration Act, 1881, which enacts that no criminal prosecution shall be commenced against any proprietor, publisher or editor for any libel published in his newspaper, without the written fiat or allowance of the Director of Public Prosecutions in England or Her Majesty''s Attorney-General in Ireland being first had and obtained. The Court of Appeal held that the commencement of a prosecution by a criminal information is the filing or exhibiting the information, and, that, therefore, the fiat of the Director of Public Prosecutions need not be obtained until the moment before that has been done. Cotton, L.J., considered the question, which, he said, was material, though not essentially necessary, to determine, namely, when can a criminal prosecution be said to be commenced when it is by way of criminal information. On behalf of the Plaintiff in error, it was said that the first application for the rule nisi is such commencement. Cotton, L.J., observed that the application to the Court was merely to direct a criminal information to be exhibited, and many things might have to be done before a prosecution could be instituted, as, for instance, the allowance of the Director of Prosecutions must be obtained. Reference was made to the decision in Clarke v. Postan (6 C. & P. 423 (1834)) on which reliance had been placed to show that prosecution by means of proceedings before a Magistrate commenced when the information was first laid before him. It was pointed out that, in that case not only had an information been filed, but the Plaintiff had been summoned before a Magistrate to answer a charge made against her, so that it was not laying an information or making a charge, but the summons before the Magistrate which ought to be considered the commencement of the prosecution. The conclusion, if one may say so without disrespect, does not follow from the premises. It is plain, however, that the actual point required for decision in Yates v. Queen (14 Q.B.D. 648 (1885)) is of no assistance in the determination of the question raised before us. On the other hand, the case of Rex v. Willace (1 East P.C. 186 (1797)) clearly assists the contention of the Appellants. The case arose under sec. 9 of 8 and 9 of W. III, C. 26, which provided that no prosecution shall be commenced for an offence under the statute after the expiry of three months from the commission of the offence. Willace was apprehended on the 5th May 1797 for an alleged offence under the statute, carried before a Magistrate and committed to jail by warrant, dated 8th May. The Assizes at Durham were held on the 8th August, so that more than three months had elapsed between the commission of the offence and the preferring of the indictment. The Judges, at a conference, unanimously held that the information before the Magistrate was the commencement of the prosecution. The decision in Thorpe v. Priestnall ([1897] 1 Q.B. 159) also supports the contention of the Appellants; there Wright, J., pointed out that Reg. v. Brooks (2 C. & K. 402(1847)) is to the same effect as Rex v. Willace (1 East P.C. 186(1797)) and Willes, J., observed that the passages in the judgments in Yates v. Queen (14 : Q.B.D. 648 (1885)) which tended the other way, only amounted to dicta, as the decision in that case related to a prosecution for libel by a criminal information filed by order of the Court. It is worthy of note that the view taken in Clarke v. Postan (6 C. & P. 423 (1834)) is consistent with that adopted in Dawson v. Vansandau (11 W.R. (Eng. 516 (1863)) by Cockburn, C. J., and Crompton and Blackburn, JJ. Fletcher, J., concedes in De Rozario v. Golapchand (I.L.R. 37 Cal. 358 (1910)) that Thorpe v. Priestnall ([1897] 1 Q.B. 159) shows that once summons is issued, the commencement of prosecution must be deemed to be the laying of the information or the making of the complaint. But if this is so, it is plainly logical to hold that the prosecution commences with the complaint irrespective of the result of the prosecution or of the stage at which it may fall through. We must accordingly adhere to the view taken in Crowdy v. O''Reilly (17 C.W.N. 554 : S.C. 17 C. L. J. 105 (1912)) that there may be said to have been a prosecution, even though no action at all has been taken against the Plaintiffs. Here, however, the Plaintiffs were, as we know, drawn into the enquiry. Notice was given to them, by the Deputy Magistrate, of the enquiry directed by the Special Magistrate. The terms of the notice are not known, as a copy is not in the record, but we shall assume that it merely gave the Plaintiffs an opportunity to appear and to be heard. The Plaintiffs did, as a matter of fact, appear and produce evidence. If they had not appeared, they would have run the risk of either a prosecution or a proceeding under sec. 107. The Defendant, at any rate, cannot be heard to urge that the Plaintiffs need not have appeared before the Deputy Magistrate at that stage; it is not open to him to suggest that his complaint was so manifestly false and frivolous that the Plaintiffs might have safely allowed the enquiry, whereof they had notice, to proceed ex parte. In our opinion, there is no escape from the position that there was a prosecution against the Plaintiffs from the 9th July 1910, when the complaint was made to the Magistrate, to the 2nd August 1910, when the Magistrate decided not to proceed against the accused. The second ground cannot, therefore, be supported.
4. In support of the third contention, viz., that the prosecution initiated by the Defendant was not actionable, reference has been made to ''Kandasami v. Subramania (18 Mad. L.J. 370 (1902)). That case is clearly distinguishable; the report does not show that the Plaintiff was in any way injured by the proceeding taken against him. In the case before us, the Plaintiffs assert that the proceedings have caused them loss, pecuniary and otherwise. This evidently is a question of fact which requires investigation. The third ground cannot consequently be supported.
5. In the view we take of the matter, it is not necessary to discuss at length the contention of the Appellants that they are entitled to recover damages for defamation. It may be conceded that the claim was made, though not very explicitly, in the plaint, but the question was not raised in the issues, and although the suit did not come on for trial, till more than ten months had passed after the settlement of issues, no attempt was made in the interval to have them amended. In these circum-stances the Subordinate Judge rightly refused to entertain the question of damages for defamation, which was sought to be raised in his Court for the first time in the course of argument at the trial. The result is that this appeal is allowed, the decree of the Subordinate Judge discharged, and the case remanded to him for trial on the merits as a suit for damages for malicious prosecution. The Plaintiffs are entitled to their costs in this Court; they will also have hearing fee in the Court below, which we assess at ten gold mohurs. Under sec. 13 of the Court Pees Act, we direct that the amount of the Court-fee paid by the Plaintiffs on the Memorandum of Appeal presented to this Court be refunded to them.
