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1947 Supreme(SC) 22
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
LORD UTHWATT, SIR MADHAVAN NAIR AND SIR JOHN BEAUMONT.
MOHAMED AMIN - Appellant
Versus
JOGENDRA KUMAR BANNERJEE - Respondents
On Appeal from the High Court at Calcutta.
Decided On : Mar. 26, 1947.
Solicitors for appellant:T. L. Wilson & Co. Solicitors for first respondent: W. W. Box & Co.
A suit for malicious prosecution is maintainable if criminal proceedings reach a stage where the plaintiff suffers damage (such as financial loss or loss of reputation), regardless of whether a formal summons was issued or a technical "prosecution" commenced under the criminal code.
Headnote:(A) Code of Criminal Procedure - Sections 190, 200, 202 and 203 - Malicious Prosecution - Suit for damages - Criminal complaint filed for cheating and criminal breach of trust - Magistrate took cognizance and conducted an inquiry under Section 202 - Accused attended the inquiry and incurred expenses - Complaint subsequently dismissed under Section 203 - Whether such proceedings, where no summons was issued under Section 204, constitute a prosecution for the purpose of a suit for damages - The action for malicious prosecution is based on the abuse of the process of the court and is designed to discourage the perversion of the machinery of justice - The test is not whether the proceedings have reached a technical stage of prosecution under the Code, but whether they have reached a stage at which damage to the plaintiff results.
(B) Damages - In an action for malicious prosecution, damages may be claimed for damage to the person, property, and reputation - Where a criminal charge involves scandal to reputation or possible loss of liberty, damage to reputation is naturally involved and may be presumed.
Facts of the case:
A criminal complaint was filed against the appellant alleging offences of cheating and criminal breach of trust. The magistrate took cognizance of the complaint and, instead of immediately issuing process, conducted an inquiry under Section 202 of the Code of Criminal Procedure. The appellant was notified of the inquiry, attended with counsel, and incurred costs in his defence. After the inquiry, the magistrate dismissed the complaint under Section 203, finding no case of a criminal nature. The appellant subsequently filed a suit for damages for malicious prosecution. The lower courts dismissed the suit on the ground that no formal prosecution had commenced as no summons had been issued.
Findings of Court:
The court found that the proceedings had reached a stage where the appellant suffered damage to his reputation and incurred financial costs. The trial judge had already found that there was no reasonable and probable cause for the proceedings and that the respondents were actuated by malice.
Issues: The main issue was whether criminal proceedings instituted before a magistrate under the Code of Criminal Procedure lay the foundation for a suit for damages for malicious prosecution even if the proceedings were dismissed before a formal summons was issued.
Ratio Decidendi: The court ruled that the action for malicious prosecution is a common law remedy for the abuse of the process of the court. The essential test is not the technical definition of "prosecution" within the criminal code, but whether the proceedings reached a stage where damage to the plaintiff occurred. While the mere filing of a complaint might not suffice if dismissed immediately, an inquiry conducted in open court which the accused attends and defends constitutes a sufficient stage to found an action for damages.
Result: Appeal allowed.
Legal Category Hierarchy
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tort
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malicious prosecution
- commencement of prosecution
- damages
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malicious prosecution
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practice and procedure
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criminal procedure
- complaints and inquiries
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criminal procedure
Judgement
Appeal (No. 5 of 1946) from a judgment and decree of the High Court in its civil appellate jurisdiction (February 1, 1945) affirming a judgment and decree of that- court in its original civil jurisdiction (March 31, 1943) dismissing the appellants suit for damages for malicious prosecution.
Law Rep. 74 Ind. App. 193 ( 1946- 1947) Mohamed Amin V. Jogendra Kumar Bannerjee
128
The following facts are taken from the judgment of the Judicial Committee. In March, 1940, an agreement was entered into between the appellant and the first respondent which was contained in certain letters whereby the appellant agreed to sell certain property to a company which was to be formed by the first respondent. The appellant alleged that subsequently an oral agreement was made between himself and the first respondent containing certain provisions which went beyond the written agreement. The third respondent company was incorporated on April 16, 1940, to carry out the purchase from the appellant, and certain property was transferred by the appellant to such company. Subsequently the appellant took the view that the terms of the oral agreement which he had made with the first respondent had not been carried out, and accordingly he refused to transfer the rest of the property included in the sale to the company. The dispute, as the learned trial judge in this suit had held, was of a purely civil character. On September 16, 1940, the second respondent, acting on behalf of himself and the first and third respondents filed a petition of complaint against the appellant in the court of the Police Magistrate at Sealdah, a suburb of Calcutta, under the provisions of s. 190 of the Code of Criminal Procedure. The petition, after setting out the facts relating to the dispute, alleged that as the accused had refused to deliver the remainder of the properties agreed to be sold he had committed an offence under s. 422 of the Indian Penal Code or s. 406 of the Code in the alternative, and asked that he might be summoned to answer the said charge. The charge was duly registered by the magistrate on September 16, 1940, as a charge of cheating under s. 420 of the Indian Penal Code, and it was not disputed that the charge was intended to be one of cheating under s. 420 or criminal breach of trust under s. 406.
The magistrate, having taken cognizance of the complaint, forwarded it to a Mr. N. N. Mukherjee for inquiry and report under the provisions of s. 202 of the Code. Mr. Mukherjee, by letter dated September 22, 1940, gave the appellant notice that a criminal case had been instituted against him by the second respondent, that it had been referred to the writer for inquiry, and that the inquiry would be held on October 25. For some reason, which had not been explained, Mr. Mukherjee did not hold the inquiry, and the magistrate than referred the matter to a Mr. Bannerjee, who also did not hold the inquiry. Thereupon the magistrate himself held the inquiry in open court. Notice of the inquiry was given to the appellant, who attended with counsel. At such inquiry the first respondent deposed that we have brought this case for cheating us against " the accused Md. Amin." On December 3, 1940, after the completion of the inquiry, the magistrate made an order, which concluded with these words " No case of cheating and, for the " matter of that, no criminal case of any nature could be made "out by the complainant.” He thereupon dismissed the complaint under s. 203 of the Code of Criminal Procedure.
On June 26, 1941, the appellant filed this suit against the respondents. The only effective defendants were Nos. 1 to 3 (respondents Nos. 1, 2 and 3). No relief was claimed against defendants (respondents) Nos. 4, 5 and 6. The plaintiff claimed certain relief arising out of the civil dispute with the respondents Nos. 1-3, but that part of his action was dismissed by the trial judge and was not the subject of appeal. The claim relevant to this appeal was for Rs. 28,500 for
