Punjab-Haryana High Court
Inder Singh Anup Singh vs Harbans Singh Anup Singh on 18 June, 1954
Equivalent citations: AIR1955P&H139, 1955CRILJ989, AIR 1955 PUNJAB 139
JUDGMENT Harnam Singh, J.
1. In Civil Revn. No. 12 of 1954 it is said that to sustain an action for malicious prosecution there must have been a 'prosecution for an offence by the defendant of a plaintiff without reasonable and probable cause.
2. In -- 'Kandasami Asari v. Subramania Pillai', 13 Mad LJ 370 (A), Benson and Bhashyam Aiyangar JJ. were of the opinion that a suit for malicious prosecution can be brought only when there has been a 'prosecution for an offence' and as proceedings under Section 107 of the Code do not involve any such prosecution, they cannot afford a cause of action for a suit for malicious prosecution.
3. Plainly, Section 107 of the Code is preventive and not punitive. Section 117(2) of the Code provides 'inter alia' that where the order made under Section 112 of the Code requires security for keeping the peace, enquiry shall be made, as nearly as may be practicable, in the manner prescribed by the Code for conducting trials and recording evidence in summons cases. That being the position of matters, it is plain that proceedings under Section 107 of the Code are of a quasi criminal nature.
4. In -- 'C.H. Crowdy v. L. O'Reilly', 18 Ind Cas 737 (Cal) (B), Mookerjee J. said: "I am not prepared to accept the contention that an action fur damages tor inaiicions prosecution should lie only when the original proceeding was a 'prosecution' in the sense in which the term is used in the Code of Criminal Procedure; it is not essential that the original proceeding should have been of such a nature as to render the person, against whom it was taken, liable to be arrested, lined or imprisoned."
5. In 18 Ind Cas 737 (Cal) (B) Beachcroft J. concurring with Mookerjee J. said; "I quite agree with him that the term 'prosecution' ought not to be interpreted in the restricted sense in which it is used in the Code of Criminal Procedure."
6. In the present case the defendant applied that the plaintiff should be proceeded against under Section 107 of the Code. In those proceedings the plaintiff was arrested and kept in confinement for one day.
7. In -- 'Chiranji Singh v. Dharam Singh', AIR 1921 All 173 (1) (C), Tudball and Rafique JJ. allowed the rule laid down in -- 'C. H. Crowdy v. L. O'Reilly (B)'.
8. In considering the matter I prefer to follow 'C. H. Crowdy v. L. O. Reilly (B)'. If so, I repel the contention that in suit for malicious prosecution there is no cause of action when proceedings were taken against the plaintiff by the defendant under Section 107 of the Code.
9. In the result, Civil Revn. No. 12 of 1954 fails and is dismissed.
10. Parties are left to bear their own costs in this Court.