A suit for damages for malicious prosecution is not maintainable when the plaintiff was not prosecuted, and there is an absolute privilege of statements made in a complaint to a Magistrate or police officer.

Abdur Rahman, J.

1. The only question to be determined in this appeal is whether a suit for damages for malicious prosecution would be maintainable when no summons was issued to the plaintiff on a verbal complaint made against him to a Village Magistrate charging him with the offence of robbery. The facts may be briefly stated. Defendants 1 and 2 were stated to have lost some sheep on the 8th of September, 1934. They went on the next day to the village Magistrate of Mudukulathur and made a statement to him that certain persons including the plaintiff had taken away their sheep by force. The facts stated. by the defendants would have made the persons charged liable to be prosecuted for robbery. The Village Magistrate sent a report on the same day to the police and to the Stationary Sub-Magistrate. The Magistrate appears to have ordered an enquiry by the police which made a report on the 15 th January, 1935 that the complaint made by the defendants 1 and 2 was false and that no-robbery had taken place in fact. He (the Magistrate) thereupon declined to take any further action and the proceedings were dropped. During the enquiry conducted by the police, the plaintiff was not even summoned. He says that he was not called by the police as he had apprehended an arrest and run away after he came to know of the complaint. The plaintiff brought a suit for damages for malicious prosecution on these allegations. If was decreed by the District Munsif of Paramakudi and the decree was confirmed by the Subordinate Judge of Ramnad, at Madura. The question to decide is whether in those circumstances an action for damages was competent.

2. From the facts which have been given above it would be clear that the plaintiff was not prosecuted and he could not for that reason, bring an action for damages for malicious prosecution. If any authority is required for that view, it would be found in Sheik Meeran Sahib v. Ratnavelu Mudali I.L.R.(1912)Mad. 181 : 25 M.L.J. l and ,in a later, decision of a Division Bench of this Court in Sanjivi Reddy v. Koneri Reddi I.L.R.(1925)Mad. 315 : 50 M.L.J. 460. These two decisions were followed by Sir Owen Beasley in Arunachalam Mudaliar v. Chinnusamy Chetty (1926) 24 L.W. 22.

3. But it has been contended on behalf of the respondent that his suit was not one in respect of malicious prosecution but for bringing a false charge which is different from either defamation or malicious prosecution. This was attempted to be supported by a decision in Nagendra Nath Ray v. Basanta Das Bairagya I.L.R.(1929)Cal. 25 where the following dictum of Sir Lawrence Jenkins, C. J., in Golap Jan v. Bholanath Khettry I.L.R.(1911) Cal. 880 was cited with approval. The dictum of the learned Chief Justice was as follows:

There are certain wrongs akin to malicious prosecution which entitle the person aggrieved to sue, as for instance, malicious abuse of the process of the Court, malicious arrest, malicious search and malicious execution.

4. This does riot however remove the real difficulty. The statement or complaint to a police officer is not first of all covered either by the kindred wrongs mentioned by Sir?Lawrence Jenkins in Golap Jans case or by other well known actionable wrongs such as those of false imprisonment etc. And, secondly, statements made in a complaint to a Magistrate or even to a police officer which could only be made with a view to their being repeated on oath before the Magistrate were held in this Presidency to be absolutely privileged. : This was held by Sir Murray Coutts Trotter, C.J. in Sanjivi Reddy v. Koneri Reddy (1925) 50 M.L.J. 460 : I.L.R. 49 Mad. 315 and followed by my learned brother King, J. recently in Bapalal & Co. v. Krishnaswami Iyer AIR1941Mad26 .

5. The third difficulty in the plaintiffs way appears to be insurmountable even if the allegations made by the defendants 1 and 2 in their statement to the Village Magistrate are held to be defamatory. Defamation is undoubtedly one of the actionable wrongs; b