Authored By : Akram, Pal

Akram, J.

1. This appeal by the plaintiff arises out of an action indamages for malicious prosecution and wrongful arrest. The plaintiff is aretired Sub-Inspector of Police, a practising mukhtear and Secretary of theMukhtears Bar Association. Defendant 1 is a member of the Indian Civil Serviceand was the Sub-divisional Magistrate of Brahmanbaria up to 20th December 1936,defendant 2 was the Court Sub-Inspector of Brahmanbaria but he died during thependency of the suit, defendant 3 one Chand Ali, and defendant 4 one Abu Meanare laborers . Briefly stated, the plaintiffs case was that on 5th April 1935,a society was formed under the name and style of the Brahmanbari Co-operativeRural Re-construction Society, Ltd., and was registered under Act 3 of 1912.Defendant 1 was the chairman of the society, the society thereafter undertookthe re-excavation of a khal, known as the Kurulia khal and accordingly (16thand 17th December) certain persons on behalf of the society went to make analignment and while doing so included in it a strip of land (about 12 cubits inwidth) belonging to the plaintiff and cut down some of his bambeo clumps anddamaged some of his mustard crops; that later on (23rd December) an Amin of theSarail Estate, named Atul Chandra Shome, appeared with a number of laborers andbegan to encroach further upon the plaintiffs lands, the plaintiff protested,but it was of no avail and more damage was done, that on 26th December 1935, ameeting of the society was held in which defendant 1 acting as presidentdirected that those present should commence re-excavation of the khal from 1stJanuary 1936 and threatened saying that "the absentees would be beatenwith shoes and canes and harassed," that the co-villagers of theplaintiff, Basu Mean and others, sought his advice (27th December 1935) and hetold them that no one could take away anothers lands by force or compel him towork against his will, that this was reported to defendant 1 who made up hismind to misuse his power as Sub-divisional Officer and teach the plaintiff alesson and accordingly on 28th December 1935, defendant 1 with a number of menproceeded along the khal and on arriving opposite the plaintiffs house sentfor the plaintiff and, when he came, gave a push to him and then questioned inan angry tone why he objected to his land being demarcated, that the plaintiffthereupon attempted to explain his position saying that he was not living underHitlers Government but under British Administration but defendant 1 becameenraged and pointed out that he was the Sub-divisional Officer and when theplaintiff replied that at the time, defendant 1 was the chairman of the RuralRe-construction Society, he called the plaintiff badmash, scoundrel and allegedthat he abused people. When plaintiff asked whom he had abused defendant 1pointed to one Kala Gazi, who on being questioned said that he had been abused.

2. Defendant 1 after that continued his abusive language andfinally ordered two bye-standers to arrest the plaintiff and take him toBrahmanbaria Jail. Chand Ali and Abu Mean (defendants 3 and 4) then arrestedthe plaintiff and took him to the jail, the jailor however refused to admit theplaintiff without a warrant and the plaintiff was kept at the jail gate until 6P.M. When defendant 1 arrived he took the plaintiff into a vacant room at thejail gate, abused and threatened him again and suggested that he shouldapologize, but as the plaintiff refused to do so, defendant 1 caused Chand Ali(defendant 3) to make a false verbal complaint to the effect that the plaintiffhad abused him, took down his complaint in writing and then called upon theplaintiff to plead to a charge under S. 504, Penal Code. When the plaintiffraised objection to the form of the trial, defendant 1 directed that he shouldbe confined in jail and released upon furnishing bail of Rs. 5000. Theplaintiff remained detained in jail from 28th December 1935, till 2nd January1936 when he was produced before Mr. A. Rahman who released him on bail, thecase was then adjourned to 23rd January upon application being made for movingthe High Court under S. 526, Criminal P.C. The records were received back fromthe High Court on 5th June and on the 6th order was passed directing theplaintiff to appear on the 15th. This order however was not communicated to theplaintiff and he therefore left for Mymen singh and Comilla and only on hisreturn home on 17th June got a notice dated 8th June handed over by his son,directing the plaintiff to attend Court on 15th June. He attended Court on the17th but got no information as to the order passed on the 15th, he then appliedfor copies which were supplied on the 18th and came to know from these that anon-bailable warrant of arrest had been issued against him on 15th June. Hethen went to Comilla where he fell ill and therefore sent an applicationsupported by a medical certificate for adjournment but defendant 1 refused togrant the application and on the date fixed, 25th June, issued a proclamationand a writ of attachment holding that the plaintiff was an absconder, theplaintiff arrived home on 29th June and was placed under arrest on the nextday. On 1st July 1936, the plaintiff was taken to the house of defendant 1 whotaunted, humiliated and tortured him and then transferred the case to Mr.Aminulla, Deputy Magistrate, First Class, who released the plaintiff on bail ofRs. 250. The plaintiff then on 8th July, applied to the District Magistrate,Tipperah, for a transfer of the case, this was finally granted and the case waswithdrawn to the file of the Additional District Magistrate. On 11th September1936, the prosecution was withdrawn at the instance of the Crown onadministrative grounds. The plaintiff asserted that defendant 1 and notdefendant 3 (Chand Mean) was the real prosecutor, that the prosecution wasmalicious and without any reasonable or probable cause and had terminated inhis favour, that he was entitled therefore to damages to the extent of Rs. 2500for malicious prosecution and for wrongful arrest.

3. Defendant 1 in his written statement denied inter ahathat he was the real prosecutor or that he was actuated by malice or acted inany manner mala fide in respect of the judicial proceedings. His case was thatwhen the Amin and his laborers went to the locality on 23rd December 1935finally to demarcate the new alignment, the plaintiff came out of his house,had a look at the map and then abused the Amin and his men in filthy languagewhich might have led to a breach of the peace if they had not restrainedthemselves, that the Amin, Chand Ali and other labourers, on 24th December1935, came to defendant 1 and made a verbal complaint against the plaintiff foran offence under S. 504, Penal Code, and defendant 1 told them to wait as hethought that he would better talk to the plaintiff and tell him not to behavein that fashion, that on the 26th a public meeting was called to which all theleading gentlemen were invited, in that meeting the people volunteered forgetting various blocks excavated, that on 28th December 1935, defendant 1 wentto inspect the Khal and when he arrived at village Ulchapara, Chand Alirepeated his complaint against the plaintiff, the defendant thereupon sent hisorderly to call the plaintiff who came after some delay and, when asked why hehad abused Chand Ali made an insolent gesture, and said that he would notanswer the question. The defendant then reminded the plaintiff that he wasbefore the Sub-Divisional Officer to whom a complaint had been made by the Aminand Chand Ali for a criminal offence and that he could take cognisance at oncebut the plaintiff questioned the defendants authority and dared him to do hisworst and after this continued to behave in such a manner that there was noother alternative left for the defendant but to take cognisance of the offenceunder s. 504, Penal Code, that the defendant therefore after doing so in hiscapacity of a Magistrate ordered the laborers who were with him to arrest theplaintiff. The day being a holiday defendant directed that the plaintiff shouldbe taken to the sub-jail; the defendant after finishing the inspection of theKhal, arrived at the sub-jail about an hour later and then sent for his benchclerk and recorded the statement of the complainant under S. 200, Criminal P.C.The defendant had been acting throughout judicially and was protected under theJudicial Officers Protection Act (18 of 1850). It is not necessary for theappeal before us to set out here the course which the proceeding under S. 504,Penal Code, took subsequent to the arrest. It will be sufficient to state thatthe case against the plaintiff was withdrawn on 11th September 1936.

4. The trial Court on the evidence adduced held thatdefendants 3 and 4 were not the prosecutors and dismissed the suit as againstthem. It however found that defendant 1 was the prosecutor and was liable forcompensation for malicious prosecution though not liable in respect of theclaim for wrongful arrest. It accordingly decreed the suit in part for Rs. 1200as against defendant 1. Defendant 2, as already stated, had died pending thesuit. Against that decision defendant 1 filed an appeal (No. 7 of 1939) and theplaintiff filed a cross-objection against rejecting certain evidence tenderedby him, and also preferred a substantive appeal (No. 8 of 1939) againstdefendant 1 only regarding the dismissal of the claim for illegal arrest. TheCourt below decreed defendant 1s appeal (No. 7 of 1939) and dismissed theplaintiffs cross-objection and appeal (No. 8 of 1939). From this decision theplaintiff has preferred the present appeal. It has been urged before us by thelearned advocate for the appellant:

(1) That the inferences drawn by the Court below areincorrect and that the findings arrived at are unwarranted and unjustified onthe evidence on the record. In the appeal (No. 7 of 1939) before the lowerappellate Court the findings of the learned District Judge were as follows:

(a) There can be no doubt whatever in my opinion and findingthat Chand Ali, accompanied by the amin and other persons, went to defendant1s house on the morning of 24th December and made a complaint. In view of thisfinding, the whole edifice of the plaintiffs case falls to the ground as doesa house built of playing cards when blown upon by the wind. Not only has theplaintiff failed to prove that Chand Ali did not make a complaint and that hehad no reasonable and probable cause to make a complaint, but defendant 1 hasproved beyond ail reasonable doubt that Chand Ali had very definite grounds fora complaint and actually made one on 24th December. It was, of course, a verbalcomplaint.

(b) I find then that Chand Ali did in fact report todefendant 1 what took place on 23rd December and that, on the basis of thatreport defendant 1 took cognizance of an offence punishable under S. 504, PenalCode.

(c) It is clear that defendant 1 having taken cognizance ofthe complaint made on 24th December enquired at Uehapara into the facts allegedby Chand Ali. He was acting as a Magistrate and when the plaintiff refused toco-operate in the enquiry, defendant 1 acted under his ordinary powers andcaused him to be arrested.

(d) It was perhaps unnecessary for defendant 1 to recordChand Alis statement at that stage of the proceedings, for he had alreadytaken cognizance under S. 190(1)(c), Criminal P.C., but that is of no possibleconsequence here. Judicial errors have judicial remedies. I find that there isnothing in the evidence which proves affirmatively that defendant 1 was thereal prosecutor and there was no reasonable and probable cause for theinstitution of proceedings. On the contrary, I find expressly and definitely onthe review of the evidence adduced by both parties, that there was reasonableand probable cause and that the real prosecutor was Chand Ali.

(e) I find-to reiterate once again-that the plaintiff hascompletely failed to prove that defendant 1 was the real prosecutor, that theprosecution was instituted against him without any reasonable or probable causeand that the prosecution was instituted with a malicious intention, that is,not with the mere intention of carrying the law into effect, but with anintention which was wrongful in point of law. As a corollary I find that therewas no wrongful arrest and that all the acts done by defendant 1 were done byhim in his capacity of a Magistrate. I find also that the allegations in theplaint are malicious, false and libelous and that they were made without anyjustification whatsoever.

The above findings were arrived at after a fullconsideration, and discussion in great detail, of the evidence adduced by theparties and I do not see how we are entitled to interfere with them bearing inmind the observations of their Lordships of the Judicial Committee in (29) 16: A.I.R 1929 P.C. 190 : 117 I.C. 1 : 25 N.L.R. 121 : 56 I.A.280 : 33 C.W.N. 893 (P.C.), Ramji Patel v. Raokishore Singh. The findings areall findings of fact and no error of law or of procedure by the learned Judgein respect of them has been brought to our notice by the learned advocateappearing for the appellant. In my opinion, the above findings are sufficientto dispose of the present appeal on the merits as concluded by the findings ofthe final Court of facts.

(2) Next it has been argued that the Court below erred inlaw in holding that the suit in respect of the claim for compensation formalicious prosecution was barred by limitation under Art. 23 and also Art. 2,Limitation Act, on the basis that the suit must be regarded to have beeninstituted not on the date when the plaint was originally presented (2ndJanuary 1937) but on the date when application for its amendment was made (30thMay 1938). It appears that the word "malicious" was omitted after theword "false" in Para. 44 of the plaint and the expression "maliciousprosecution" after the words "illegal arrest" in Para. 45. Inthe original plaint the cause title however showed that the suit was one inrespect of malicious prosecution, para. 49 of the plaint also made reference tomalicious prosecution and further more, issue 5 was joined on the assumptionthat there was a Claim for compensation for malicious prosecution. We are ofopinion that the original plaint read as a whole indicated, though faintly,that the suit was one for compensation for false and malicious prosecution andthat the amendment has not in any manner changed the character of the suitdepriving the defendant of his valuable right of setting up the bar oflimitation. Remembering that pleadings drafted in mofussil in this country arenot to be too strictly construed ((34) 21 : A.I.R. 1934 P.C.130 : 149 I.C. 480 : 9 Luck 178 : 61 I.A. 224 : 38 C.W.N. 806 (P.C.),Shomeshwar Dutt v. Tribhuwan Dutt). I hold that the amendment of the plaint wasrightly allowed by the trial Court and that it did not amount to introducingnew matter or new cause of action. In my opinion the suit should be taken tohave been instituted on 2nd January 1937. It also seems to me that this part ofthe claim would be governed by Art. 23 which is the more specific article andnot by Art. 2, Limitation Act, which applies to cases of compensation for doingor for omitting to do an act pursuant to an enactment, i.e., where thedefendant acts under colour of statute. This part of the suit therefore in viewof the frame of the suit in respect of compensation for malicious prosecution,fell, in my opinion, under Art. 23, Limitation Act, and was not barred bylimitation. The other portion of the claim, viz., for compensation for illegalarrest however, in my opinion, falls within the scope of Art. 2 and is as suchbarred by limitation.

(3) Next it has been contended that as the plaint itselfdoes not disclose that the illegal arrest was made by defendant 1 in hiscapacity of a Magistrate, the order dated 2lst February 1939, deleting theportion of the claim for illegal arrest upon the finding that it was notmaintainable in view of the provision of Act 18 of 1850 could not be sustained.As regards this contention it is disclosed from the plaint paras. 9, 12 and 17 thatthe arrest was ordered by defendant 1 in his capacity of a Magistrate and it isso found by both the Courts below-it is apparent that the arrest was made as ajudicial act and was within the competence of the Magistrate, the ordertherefore dated 2lst February 1939 deleting, from the plaint the portioncontaining the claim for compensation for wrongful arrest as not maintainablein view of Act 18 of 1850 was rightly made: vide (90) 12 All. 115 : 1890A.W.N. 32, Teyen v. Ram Lal. These contentions by the appellant relating tolimitation and also to maintainability of the suit mentioned above do not seemto me to be of much importance any longer for the purpose of the presentappeal. In view of the findings on the merits arrived at by the Court below, theyhave become now merely of academical interest and are of no practical value tothe appellant.

(4) Lastly it has been pointed out that no objection beingtaken in the written statement on the basis of s. 270(2), Government of IndiaAct (1935), and no issue being framed upon it, the Court of appeal below was inerror in holding that absence of good faith not being established by theplaintiff, the section operated as a bar to the maintainability of the suit. Asalready observed, I do not think it would serve any useful purpose to go intoand deal with contentions of this nature in the present appeal and we thereforerefrain from deciding this point. The appeal is concluded by findings of factand is accordingly dismissed with costs.

Pal, J.

5. The cases of the respective parties are given by mylearned brother in his judgment and I need not repeat them here. Theplaintiffs claim in the suit was laid on two distinct counts, viz., (1)compensation for illegal arrest and false imprisonment, (2) compensation for amalicious prosecution. As regards his claim for compensation for illegal arrestand false imprisonment, defendant 1 pleaded protection under the JudicialOfficers Protection Act (Act 18 of 1850) and filed an application for thestriking out of the relevant paragraphs from the plaint. The learnedSubordinate Judge having rejected this application of the defendant, the matterwas brought before this Court and this Court ultimately made the followingorder:

If the Subordinate Judge finds that upon the case made inthe plaint defendant 1 is entitled to the protection of the Judicial OfficersProtection Act with regard to that portion of the claim which relates toillegal arrest he may make a proper order striking out those portions of theplaint which relate to such claim. If, on the other hand, he finds thatdefendant 1 is not entitled to such protection, he will proceed to deal withthe suit according to law.

6. Thereupon the learned Subordinate Judge heard this matteron 21st February 1939, as a preliminary issue taking the facts to be as theyappeared in the plaint, and held that defendant 1 was protected by the JudicialOfficers Protection Act and thus was not liable for the alleged illegalarrest. Pursuant to the above order of this Court he accordingly struck out theportions of the plaint which related to this claim. Thereafter the hearing ofthe suit so far as the claim for compensation for malicious prosecution isconcerned commenced on 22nd March 1939, and the claim was decreed in part bythe learned Subordinate Judge as against defendant 1 on 1st May 1939. Defendant1 preferred an appeal from this portion of the decree and the plaintiffpreferred an appeal from the order dated 2lst February 1939, evidently treatingthat as a decree dismissing his claim for wrongful arrest and as a part of thefinal decree in the suit. This was Appeal No. 8 before the District Judge. Theappeal preferred by defendant 1 from the decree against him for compensationfor malicious prosecution was Appeal No. 7. In disposing of Appeal No. 8 thelearned District Judge observed as follows:

It is contended in this Court that no matter what. may bethe findings and the result of Appeal No. 7 this Court, in dealing with AppealNo. 8 is obliged to deal with the order of the learned Subordinate Judge takingthe facts to be as they appear in the plaint At the very outset, it may be saidthat it would be merely absurd to forget all the findings arrived at in AppealNo. 7 and to proceed to deal with Appeal No. 8 as if the tort of maliciousprosecution had never been tried. It has been found that defendant 1 acted onthe basis of a report made by Chand Ali, that he went out to enquire into thecircumstances of the abuse, and the breach of the peace which nearly followedin consequence of it, and that, as a Magistrate, he ordered the arrest of theplaintiff. Now these findings are binding on the plaintiff and are resjudicata. It is merely absurd to suggest that in spite of these findings theCourt should proceed to decide whether the suit should continue in so far asthe tort of wrongful arrest was concerned. It would be impossible to try thetort of wrongful arrest without retrying the issues which have already beenheard and determined.

7. Mr. Chakrabarty appearing for the appellant before uscontends: (1) that so far as the plaintiffs case for wrongful arrest isconcerned, the learned District Judge went wrong in disposing of it on theevidence in the case for malicious prosecution; (2) that the matter having beendisposed of by the Court of first instance only on the issue whether theJudicial Officers Protection Act (Act 18 of 1850) was a bar to themaintainability of the suit in this respect and that Court having heard anddecided this as a preliminary issue taking the facts to be as alleged m theplaint, the learned District Judge in disposing of Appeal No. 8 went wrong ingoing beyond the allegations made in the plaint and in taking intoconsideration the evidence adduced in the case for malicious prosecution; (3)that the facts given in the plaint did not bring defendant 1s acts in thisrespect within the protection of the Judicial Officers Protection Act andconsequently the plaintiff is entitled to a hearing of his claim in thisrespect on its merits; (4) that even if the case be decided on the evidencealready on record in connection with the case for malicious prosecution theplaintiff is entitled to a decree inasmuch as (a) the factum of arrest andimprisonment of the plaintiff at the instance of defendant 1 is admitted, and(b) defendant 1 has failed to establish any justification for this action whichis prima facie wrongful.

8. As regards the first two points urged by Mr. Chakrabartyit must be confessed that the judgment of the learned District Judge entitlesthe appellant to raise these contentions. This Court directed the preliminaryissue raised to be heard and decided only on the basis of the allegations madein the plaint and the learned Subordinate Judge decided that preliminary issueas directed by this Court If this decision was wrong the plaintiff would primafacie be entitled to a hearing of the case on the merits. A case for wrongfularrest and one for malicious prosecution do not stand on the same footing forthe purpose of disposal on the merits. An arrest is prima facie wrongful andrequires to be justified by the defendant Freedom of the person is a veryvaluable right recognised by the system of law under whose protection theplaintiff lives. This freedom includes immunity not only from the actual applicationof force, but from every kind of detention and restraint not authorised by law.The infliction of such restraint is the wrong of false imprisonment. Anyinterference with a mans personal liberty is prima facie wrongful and,therefore, has to be justified. As regards malicious prosecution, however, theposition is quite different. Any one is prima facie entitled to set a Court ofjustice in motion, and consequently the person complaining of such action mustprove affirmatively the non existence of any reasonable and probable cause forit. In this particular case most of the material common incidents for the twocases have been found against the plaintiff in relation to his claim forcompensation for malicious prosecution on the ground of his failing to adducesufficient evidence in proof of the same. A finding arrived at thus will be ofno help to the defendant in the case for false imprisonment, the onus in thatcase being on him to justify his action. In these circumstances it wouldcertainly be unfair to drive the plaintiff out of Court on the so-calledconclusions of fact arrived at by the Court of appeal below in the case formalicious prosecution, if the decision of the learned Subordinate Judge on thepreliminary issue be found unsupportable on the allegations made in the plaint.Section 1, Judicial Officers Protection Act (Act 18 of 1850) stands thus:

No Judge, Magistrate... acting judicially shall be liable tobe sued in any civil Court for any act done or ordered to be done by him in thedischarge of his judicial duty.... Provided that he at the time, in good faith,believed himself to have jurisdiction to do or order the act complained of;...

9. The plaint itself discloses that defendant 1 is aMagistrate. The question, therefore, is whether the allegations made in theplaint disclose: (1) that the defendant was acting judicially while orderingthe arrest of the plaintiff; (2) that he made that order in the discharge ofhis judicial duty; (3)(a) that he believed himself to have jurisdiction toorder the act, (b) that the belief was in good faith. As regards the third ofthe above three requirements it must be noticed that actual existence ofjurisdiction to do or to order the doing of the act is not necessary. Thebelief of the defendant that he had jurisdiction to order the arrest anddetention of the plaintiff would suffice provided this belief was in goodfaith. There may be some difficulty as to the exact meaning of this requirementregarding good faith. Belief itself is a mental condition and is subjective.A question may arise whether in order to see whether a person believedsomething in good faith it is necessary to see whether there existed anyreasonable cause for this belief or whether it would suffice if he himselfthought that there was reasonable cause. A further question may arise if we areto apply the subjective test, namely, whether this test would apply to allcases irrespective of the question whether the defendant is a magistrate, apolice officer or a private individual. It may be that in some of these casesthere will be no justiciable issue at all, the act being an executive act notopen to legal review. The most stringent construction against the personsseeking the protection of the section will be to require objective existence ofreasonable cause to support belief in good faith, to read the section asimposing an objective condition precedent of fact, namely, the existence ofreasonable cause to supply grounds of the officers honest belief. Section 65,Criminal P.C., empowers any magistrate to arrest in the following terms:

Any Magistrate may at any time arrest or direct the arrest,in his presence, within the local limits of his jurisdiction, of any person forwhose arrest he is competent at the time and in the circumstances to issue awarrant.

10. Section 204 of the Code enacts when a Magistrate canissue a warrant. The section says:

If in the opinion of a Magistrate taking cognizance of anoffence there is sufficient ground for proceeding, and.... if the case appearsto be one in which, according to that column (Fourth column of Sch. 2) awarrant should issue in the first instance, he may issue a warrant.....

11. The allegations made in para. 11 of the plaint show thatthe plaintiff knew that defendant 1 was the Sub-Divisional Magistrate and thathe was reminded by defendant 1 of this fact. In para. 12 of the plaint theplaintiff gives the incident leading to his arrest under the order of defendant1. The allegations made therein disclose: (1) that defendant 1 had beeninformed by one Kala Gazi that the latter had been abused by the plaintiff; (2)that Kala Gazi reiterated this information on the spot in the presence of theplaintiff. The allegations of Kala Gazi, if established, would constitute anoffence under S. 504, Penal Code. Column 4 of Sch. 2 referred to in S. 204,Criminal P.C., quoted above, mentions this S.504, Penal Code, as a case inwhich warrant should issue in the first instance, Section 190(1)(c) of the Codeenacts that

any....Sub-Divisional Magistrate....may take cognizance ofany offence upon information received from any person other than a policeofficer, or upon his own knowledge or suspicion that such offence has beencommitted.

12. According to the allegations made in the plaint therewas this information received from a person other than a police officer. Itwould be competent for the Sub-Divisional Magistrate to take cognizance of theoffence on this information and as soon as he would take such cognizance hewould be competent to direct the arrest of the accused in his presence. Nodoubt the plaint also says that these allegations of Kala Gazi were false. Butthat allegation of the plaintiff even if communicated to the Magistrate thenand there would not disentitle the Magistrate to take cognizance of the offenceunder S. 190(1)(c), Criminal P.C. The place was admittedly within the locallimits of the Magistrates jurisdiction. In these circumstances the very factsstated in the plaint would disclose reasonable cause supplying the ground for honestbelief of the Magistrate that he had jurisdiction to act in the manner he didon that occasion. The learned Subordinate Judge took this view, and, in myopinion, he correctly held that so far as this part of the plaintiffs claim isconcerned defendant 1 was within the protection of the Judicial OfficersProtection Act. The allegations m the plaint sufficiently support theconclusion that the defendant was acting judicially while ordering the arrestof the plaintiff and that he made that order in the discharge of his judicialfunction, though the action taken by him might not have been quite judicious.

13. In this view it becomes unnecessary for me to considerwhether the claim for compensation for false imprisonment would have beenbarred by limitation under Art. 2, Limitation Act. The learned District Judgeheld this article to be applicable to the claim Article 19 makes specificprovision for suits for compensation for false imprisonment Wrongful arrest anddetention constitute the injury of false imprisonment. Even if not, it iscertainly an injury to the person. It is certainly an infringement of the veryvaluable right of freedom. Article 22, Limitation Act, makes residuaryprovision for suits relating to such tortious acts. Coming now to the secondpart of the plaintiffs case, namely, his claim for compensation for maliciousprosecution, I would at the very outset strongly condemn the satirizing tone ofthe learned District Judges criticism of the judgment of the learnedSubordinate Judge The judgment of the learned Subordinate Judge hardly deservedsuch criticism and, in my opinion, such criticism ill suits the purpose ofadministration of justice.

14. To sustain his claim for malicious prosecution theplaintiff has to prove (1) That there was want of reasonable and probable causefor the prosecution (2) That the proceedings were initiated m a maliciousspirit, i.e., from an indirect and improper motive and not in furtherance ofjustice. We may assume in this case that the plaintiff was innocent and thathis innocence was pronounced by the tribunal before which the accusation wasmade There is again no question that the prosecution which is alleged to haveinjured the plaintiff was for an offence, a conviction of which would carryreprobation impairing the fair name of the person convicted.

15. As has been stated above, any one is prima facieentitled to set a Court of justice in motion. Prosecuting is not, thus, primafacie, a tort and is not a tort in itself. For reasons of public policy the lawgives protection to persons prosecuting, even where there is no reasonable andprobable cause for the prosecution. It is only when the person abuses hisprivilege for the indulgence of his personal spite that he loses the protectionand renders himself liable to action, not for the malice but for the wrong donein subjecting another to annoyance, expenses of a causeless prosecution andpossible loss of reputation. Want of reasonable and probable cause andexistence of malice must concur in order to constitute this wrong. If there isreasonable and probable cause for the prosecution then, even though theprosecution is started to satisfy a personal grudge and is prompted by maliceand the worst of motives the prosecutor will not be liable for an action formalicious prosecution. The learned District Judge in his case has found thatthere was reasonable and probable cause for the prosecution. If this findingstands then no other question will arise and the plaintiffs appeal must fail.

16. Mr. Chakrabarty appearing for the appellant contendsand, I must say, rightly contends, that the question whether or not there was areasonable or probable cause for the prosecution is a question of law to beinferred from certain facts. This contention of Mr. Chakrabarty is amplysupported by the highest authorities: see (1905) 1905 A.C. 168 : 74 L.J. P.C.62 : 92 L.T. 483, Cox v. English, Scottish and Australian Bank; (1938) 1938A.C. 305 : 107 L.J. K.B. 225 : 82 S.J. 192 : (1938) 1 All. E.R. 1, Harminan v.Smith. It therefore becomes necessary for us to see on what facts the learnedDistrict Judge has based his conclusion as to the existence of reasonable andprobable cause in this case. The learned District Judge has found: (1) That on23rd December, the plaintiff used disgraceful language and indulged in everyform of vulgarity of speech when addressing Chand Ali and that such languagewas sufficient even to lead to bloodshed; (2) That Chand Ali accompanied by theAmin and other persons went to defendant 1s house on the morning of 24thDecember and made a complaint. It was of course a verbal complaint; (3) Thatthe following statement of defendant 1 as to what he did on this complaint mustbe accepted as true:

Chand Ali made regular complaint to me as Sub-Divisional Magistrate.It was not my duty to record the statement. It was a report which constitutedan offence in which I was asked to take action. The Amin and other labourerscorroborated the statement of Chand Ali. I took cognizance of the offence thenand there. I wanted to enquire into the matter. I took the matter on its facevalue. I did not like to take any immediate action then. I told that I wouldnot do anything that would antagonise others. I wanted sympathy from all inthis great work. I deferred any action then and there. I thought of inquiringabout the truth or otherwise of the complaint and to have the mattercompromised, if possible. I did not take any action because I did not hear theother party. I thought that I will hear the other side before I take action.

17. All these are undoubtedly questions of fact and thefindings of the learned District Judge in respect of them are the result of hisappreciation of the evidence on the record. It is not disputed that there isevidence on the record in support of these findings. As regards the second ofthe above findings Mr. Chakrabarty refers us to the definition of the wordcomplaint in s. 4(1)(4), Criminal P.C., which defines the term as

the allegation made orally or in writing to a Magistratewith a view to his taking action under this Code that some person.... hascommitted an offence.

and points out from the evidence of defendants witness AtulChandra Som, accepted and relied on by the learned District Judge himself inhis judgment, that "Chand Ali said that he was a poor man and so he willnot lodge complaint in Court." Mr. Chakrabarty contends that this showsthat there could not have been any complaint before the learned Magistrate.The learned District Judge himself pointed out after the above finding that theword complaint there was used not in the sense in which it is used in theCriminal Procedure Code. Assuming that there was no complaint by Chand Aliwithin the meaning of the definition given in the Code, the second of the abovefindings will amount to saying that on 24th December, defendant 1 receivedinformation from Chand Ali that an offence under S. 504, Penal Code, had beencommitted by the plaintiff on 23rd December. Mr. Chakrabartys comment on the3rd of the above findings is: (1) that the statement as to taking cognizance onthe complaint of Chand Ali is inconsistent with what defendant 1 stated inparas. 16 and 24 of his written statement, (2) that the statement iscontradicted by the entry in the order-sheet of the criminal case and (3) thatthe very statement that defendant 1 was still thinking of settling the mattershows that till then he did not take cognizance of the offence.

18. The offence complained of or reported, being one underS. 504, Penal Code, was certainly compoundable by the person insulted. I do notsee how that statement by defendant 1 detracts from his statement that he tookcognisance of the offence then and there. Taking cognizance of an offence is amental act. The person himself deposes as to the time when he took cognizanceof the offence and he is believed by the final Court of fact. It is difficultto see how we can interfere with this finding. The order sheet in the criminalcase does not show that it was only at the jail gate and only after recordingthe statement of Chand Ali that the Magistrate took cognizance of the offence.Section 190, Criminal P.C., lays down on what materials a Magistrate can takecognizance of an offence and s. 200 of the Code enacts that a Magistrate takingcognizance of an offence on complaint shall at once examine the complainantupon oath and the substance of the examination shall be reduced to writing andshall be signed by the complainant and also by the Magistrate. This may meanthat when cognizance is taken on complaint the factum of taking cognizance isnot to remain a mere mental act but must consist of the acts prescribed by S.200. It will not be necessary for me to consider this question in the presentcase. For our present purposes we are only concerned with seeing whether or notthere were materials in existence on which the criminal prosecution thatfollowed as a matter of fact can be said to have been started without anyreasonable and probable cause. I shall assume that when a Magistrate takescognizance of an offence otherwise than on complaint or police report, hestarts the prosecution and if he thus takes cognizance without any reasonableand probable cause, and prompted by malice, he renders himself liable to anaction for malicious prosecution.

19. That he took cognizance of the offence is an admittedfact. He says that he took cognizance on the complaint of Chand Ali under S.190(1)(a), Criminal P.C. He has been believed by the final Court of fact thathe took cognizance of the offence on the spot. Though he characterised theinformation received from Chand Ali as the complaint made by the latter, thisis not a question of fact. He chose to treat that information as complaintbut as a matter of fact it was not so. The fact however still remains that hetook cognizance of the offence on the materials received by him from Chand Alion 24th December. Mr. Chakrabarty contends that the reasonableness of the causemust be judged by the objective test and invites us to hold that judged by thistest the materials before defendant 1 did not supply any reasonable andprobable cause for the prosecution. Mr. Noad appearing for the respondentcontends: (1) That the test of reasonableness must be subjective; reasonableand probable cause means reasonably apparent to and relied on by theprosecutor; (2)(a) That even applying the objective test the above facts asfound by the final Court of fact are sufficient to establish reasonable andprobable cause; (b) that at any rate the existence of those materials beforethe defendant at the time when he took action would at least disprove thenegative, namely, want of reasonable and probable cause.

20. I am not sure whether the test "reasonably apparentto and relied on by the prosecutor" would not itself again involve thedetermination of the question whether a thing is reasonably apparent to theprosecutor when he himself thinks it to be reasonable or whether thatreasonableness again should have objective existence. But, in my opinion, thesecond contention of Mr. Noad must be accepted. On the facts found it isdifficult to say that it would have been without any reasonable and probablecause for any Magistrate to take cognizance of the offence and start theprosecution as was done by defendant 1. It may be that defendant 1 was promptedto take immediate action, having been enraged by the alleged effrontery of theplaintiff. It may also be that the subsequent steps taken by the defendant wereinjudicious. The spectacle of dispassionate justice and of calm adherence tothe law of the land never fails to produce its effect on the public mind and isparticularly admired in a guardian of law and order who can avoid being drivento action by an effrontery of the present type calculated only to touch onespersonal feeling of dignity. No wielder of any public power should regard theenjoyment of that power as an event in itself. At the same time it is difficultto say that there was no reasonable or probable cause for prosecution in thiscase even judged by the standard of what on similar materials an averageprudent man would do.

21. In the above view no other question really arises forour decision. As the prosecution cannot in this case be said to have beenwithout reasonable and probable cause, malice or no malice, the present actionmust fail. I, therefore, agree that the appeal must be dismissed with costs.

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Rohini Kumar Chakrabartyvs. Niaz Mahammad Khan(26.01.1943 - CALHC)