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 (1912) I.L.R. 37 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 (1925) I.L.R. 49 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 (1929) I.L.R. 57 Cal. 25 where the following dictum of Sir Lawrence Jenkins, C. J., in Golap Jan v. Bholanath Khettry (1911) I.L.R. 38 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 Jan's 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 (1940) 2 M.L.J. 556.
5. The third difficulty in the plaintiff's 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; but in order to prove the same one must be able to put those allegations in evidence. If they are found to have been made on an occasion which is found to be absolutely privileged, as held in Sanjivi Reddi's case, they could not be permitted to be referred to and the contention raised by learned Counsel for the respondent must be for that reason alone repelled. My attention was drawn by him to the Full Bench decision in the Sessions Judge of Tinnevelly v. Sivan Chetty (1909) I.L.R. 32 Mad. 258. It has no application as the only question raised in that case was whether a person giving false information about an alleged offence to a Village Magistrate could be prosecuted for an offence under Section 211 Indian Penal Code. I am not concerned here whether the defendants had committed an offence under Section 211 or not. As the making of a false charge or the institution of a criminal proceeding with intent to injure knowing that there is no just or lawful ground for such a charge or proceeding is itself an offence, the reference to the charge made by a person or to the proceeding taken by him cannot obviously fall within the doctrine of absolute privilege applied by the learned Chief Justice, to Sanjivi Reddi's case. But the position becomes changed when one comes to deal with the charge or complaint in a collateral proceeding such as a civil suit for damages for defamation. The Full Bench decision would therefore have no application to this case. Reliance was again placed on behalf of the respondent on Peria Goundan v. Kuppa Goundan (1919) 37 M.L.J. 234. The facts of that case do not seem to have been given in the report very fully. I sent for the original records and found that the plaintiff was actually prosecuted by the police in that case and a charge was framed against him by the Deputy Magistrate of Salem but he was eventually acquitted. It is clear in those circumstances that the plaintiff was actually prosecuted and a suit for damages for malicious prosecution was if I may say so with respect rightly held to be maintainable.
6. For the above reasons I am constrained to accept the appeal and dismiss the suit, but in the circumstance's of the case I leave the parties to bear their own costs throughout.
(Leave refused).