The court established that a prosecution must have reasonable or probable cause and discussed the application of Section 350 of the Madras District Municipalities Act in determining the requirement of notice and the conditions for instituting a suit for damages against a Municipal Officer.

King, J.

1. The appellant in this Second Appeal was a member of the Municipal Council, Coonoor. The Council had farmed out the right to collect fees on cart stands in Coonoor to one Fakeer Muhamad, and it appears that the appellant refused to pay Fakeer Muhammad certain fees which were demanded by him. Fakeer Muhammad took the matter to the respondent who was then the Chairman of the Coonoor Municipality and after exhausting every attempt to induce the appellant to pay the fees to Fakeer Muhammad, the respondent finally prosecuted him before the Bench Magistrate of Coonoor under Sch, IV, Rule 30, Sub-rule 2 read with Section 344 of the Madras District Municipalities Act. The Bench Court acquitted the appellant on the ground that the fees were due not to the Council but to the contractor and therefore Section 344 of the Act did not apply. The appellant thereupon filed a suit against the Chairman (respondent) for damages for malicious prosecution in the Court of the Subordinate Judge, Nilgiris. The Subordinate Judge held that the prosecution was malicious and overruled the objection raised by the Chairman that under Section 350 of the Act he had not been given the requisite notice before the institution of the suit. Damages were awarded to the extent of Rs. 200. Upon appeal the learned District Judge of Coimbatore reversed both these findings and he held that the prosecution was not malicious and was not instituted without reasonable or probable cause and also that under Section 350 the suit would not lie as no notice was given to the Chairman. The appellant has again brought up these two issues in this Second Appeal.

2. Section 350 which lays down the conditions under which notice is requisite, runs as follows, omitting all the unnecessary words:

No suit for damages shall be instituted against any Municipal Officer in respect of any act done in pursuance or execution or intended execution of this Act or any rule, by-law, regulation or order made under it.

3. In support of the appeal we have been referred to an English Decision reported in G. Scammell and Nephew Ltd. v. Hurley (1929) 1 K.B. 419. That is a decision in which there came for consideration a clause in the Public Authorities Protection Act which is drafted in exactly the same way as the material clause in Section 350 of the District Municipalities Act and in discussing that clause quotation was made from a judgment of Blackburn,. J. delivered in Selmes v. Judge (1871) L.R. 6 Q.B.C. 724 in which the learned Judge says,

I agree that if a person knows that he has not under a statute authority to do a certain thing, and yet intentionally does that thing, he cannot shelter himself by pretending that the thing was done with intent to carry out that Statute.

4. Now, the respondent in his own evidence in the suit now in question has admitted that he knew that Section 344 did not authorise him to prosecute the appellant. It is found no doubt by the learned District Judge that in the ordinary sense of the word there was no malice and that the motives of the respondent were good. But it is perfectly clear from his own evidence, and it cannot be challenged, that the respondent was-definitely aware that in filing this complaint he was doing something which the Act did not permit him to do. It seems to us then that the dictum of Blackburn, J., must be taken to apply to the facts of this case, and that it is impossible for the respondent to argue with any hope of success that in authorising a prosecution which he knew he was not permitted to authorise, he was intending to execute any portion of the District Municipalities Act. It is impossible that any one can intend to do a thing which he knows he is not doing. As against this, however, we have been referred on behalf of the respondent to a ruling reported in Koti Reddi v. Subbiah (1918)34MLJ494 . In that case a public officer was held to be entitled to notice of a suit under Section 80 of the Civil Procedure Code, even though in