The main legal point established in the judgment is that the limitation period for a suit for malicious prosecution begins from the termination of the prosecution proceedings, and there is no actual prosecution until the issuance of process against the accused person.

Grille, J—The plaintiff brought a suit against the defendant, Remington Band Inc., for damages for malicious prosecution and slander and for wrongful removal of a typewriting machine from his possession. Damages for the wrongful removal were claimed at Rs. 120 and damages due to slander and malicious prosecution in the Court of the Chief Presidency Magistrate, Calcutta, at Rs. 300. The plaintiff has failed in both the Courts below and has preferred a second appeal. I am not concerned with the actual merits of the case since the only point for consideration is one of limitation. The complaint was lodged by the defendant in the Court of the Chief Presidency Magistrate, Calcutta, on 2nd June 1936 and a search warrant in respect of the typewriter, the contract regarding the purchase of which was the subject of dispute between the parties, and in respect of which a civil suit is going on in another Court, was issued and the machine was actually seized from the plaintiff's possession on 15th July 1936. No process-against the plaintiff was issued, and on 6th August 1936 the complaint was dismissed under Section 203, Criminal P.C. The plaint has been filed on 4th August 1937. The lower Appellate Court has held, agreeing with the trial Court, that so far as the claim for damages in respect of the wrongful removal of the typewriter is concerned, Article 29, Limitation Act, applies and that the suit is barred by time. In respect of the claim for damages for malicious prosecution the lower Appellate Court held, agreeing with the trial Court, that as no process had been issued against the plaintiff, there had been no prosecution and so far as the claim in respect of the libel was concerned, that this was out of time as the alleged libel was contained in the complaint and that the suit was filed more than a year after that time. It is to be noted that there has been no separate claim with regard to the libel and the malicious prosecution respectively.

2. It is not seriously contended that the claims in respect of the wrongful removal of the machine and of the libel are not time-barred. But it is contended that the suit for malicious prosecution is within time as under Article 23, Limitation Act, time only begins to run from the termination of the prosecution proceedings, and that as these did not terminate until 6th August 1936, the suit is within time. The point then is whether there has been an actual prosecution or no. A decision of the Divisional Bench of this Court in Kodulal v. Kallulal,1987 20 NLJ 261 has been cited. It is however of no avail to the plaintiff-appellant, since the opinion relied on, namely, that the malicious prosecution begins when proceedings are instituted in a Court, had reference to a case which certainly was not dismissed under Section 203, and the actual point determined was whether the malicious prosecution began when the proceedings were instituted in Court or when the complaint was placed in the hands of the police. The decisions which were followed by the Divisional Bench were actually cases in which proceedings in the Criminal Court terminated by a dismissal of the complaint under Section 203, and in Gowri Singh v. B. Venkanna,1986 AIR(Rang) 95 it was held that until there has been an issue of process against a person, there is no prosecution of that person and no suit for damages for malicious prosecution can lie. In Zahiruddin Mohammad v. Budhi Bibi, 1933 AIR(Pat) 292 although this principle was cited with approval, it was nevertheless held in that particular case that a suit for damages for malicious prosecution would lie, as despite the fact that the proceedings terminated by a dismissal of the complaint, the Court had nevertheless directed the issue of process against the accused person although in fact process had not issued, the order being contermanded on the appearance of the plaintiff in the civil suit. voluntarily in the Criminal Court before the process could be issued. It was held even