JUDGMENT

Bennet, J. - This second appeal by the Defendant has been referred to a Bench of two Judges by a learned single Judge because a difficult question of law is involved. The facts which have been found in the present case are that the Defendant made a complaint in the criminal court against the Plaintiff under Sections 449 and 506 of the Indian Penal Code, and also asked for security to keep the peace to be taken u/s 107 of the Criminal Procedure Code. The Sub-Divisional Magistrate did not issue any summons or other process to the accused, but he called u/s 202 of the Code of Criminal Procedure for a report from the police, and the sub-inspector made an inquiry and sent a report and after receiving that report the Sub-Divisional Magistrate went to the village of the parties himself and went to the house of the accused and held an inquiry. He came to the conclusion that the complaint lodged by the Defendant was false, and he dismissed this complaint u/s 203 of the Criminal Procedure Code. The accused then filed the present plaint.

2. The question which has arisen in second appeal is whether a suit for damages for malicious prosecution will lie where no process has been issued by the Magistrate for the attendance of the person accused-On this point there are a number of conflicting rulings, but the weight of authority of the courts in India is that no such suit for damages lies. This; view has been taken in the following rulings: DeRozario v. Gulab Chand Anundjee ILR (1910) Cal. 358., Golap Jan v. Bholanath Khettry ILR (1911) Cal. 880., Sheikh Meeran Sahib v. Ratnavelu Mudali ILR (1912) Mad. 181. and Subhag Chamar v. Nand Lal Sahu ILR (1928) Pat.. 285. On the other hand the Plaintiff Respondent relied on the following rulings: Bishun Persad Narain Singh v. Phulman Singh (1914) 19 C.W.N. 935., Bishan Singh v. Ram Bahal Roy (1920) 64 IC 741. Gur Saran Dass v. Israr Haider ILR (1927) Luck. 746., Ahmedbhai v. Framji Edulji ILR (1903) 28 Bom. 226. and Imperatrix v. Lakshman Sakharam ILR (1877) 2 Bom. 481.

3. Now in some of the rulings on which the Plaintiff relies the proposition enunciated by the Plaintiff does not find full support. Thus in Bishun Persad Narain Singh v. Phulman Singh (5), at page 939 it is stated: "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." The view of damages taken by the Calcutta High Court in this case is that the damages should be material, that is that the Plaintiff should show that he suffered damages by having to defend himself in the criminal courts. It is true that under English law the case is apparently otherwise. In Halsbury's Laws of England, volume 19, paragraph 1443 it is stated: "To succeed in an action for malicious prosecution a Plaintiff must prove . . . (v) that the Plaintiff has suffered damage; unless, indeed, the proceedings necessarily import damage to his fame or person." And in paragraph 1470 it is stated: "To support an action for malicious prosecution or other malicious legal proceedings, one of three heads of damage must be proved, if not implied by law:

(i) Damage to a man's fame, as where the matter of which he is accused is scandalous;

(ii) Damage done to the person, as where his life, limb, or liberty is endangered; or

(iii) Damage to his property, as where he is put to the expense of acquitting himself of the crime with which he is charged.

4. Now in India it is only damage under the second and third heads which has been considered sufficient to start an action for malicious prosecution. If damage to a man's reputation was considered sufficient to start a suit for malicious prosecution, then the position would arise that damage to reputation could be the basis of a suit for malicious prosecution although such damage could not be the basis of a sui