JUDGMENT Sulaiman, J.
1. This is a plaintiff's appeal arising out of a suit to recover damages for malicious prosecution. Both the Courts below have dismissed it on the ground that it is barred by limitation. The only question that arises for consideration in this appeal is one of limitation.
2. A complaint under Section 500, I.P.C., was filed by the defendant against the plaintiff in the Court of a Magistrate on 26th May 1924. By an order dated 8th August 1924, the accused was discharged The defendant filed an application before the Sessions Judge for ordering further enquiry under Section 436, Criminal P.C. Notice was issued to the accused to appear and show cause why a retrial should not be ordered. On cause being shown the application was ultimately dismissed on 25th October 1924. The present suit was instituted on 24th October 1925, i.e., more than one year after the order of discharge but within one year of the dismissal of the application by the Sessions Judge.
3. Article 23, Lim. Act, admittedly applies to this case, and under it one year is to be calculated from the date "when the plaintiff is acquitted or the prosecution is otherwise terminated." This was not a case of acquittal at all. We have to see when the prosecution terminated. Obviously the article implies the final termination.
4. The word 'prosecution' has not been defined in any statutory enactment. It is undoubtedly a word of much wider scope than a trial or even an enquiry by a Magistrate. Murray's New English Dictionary explains the word 'prosecution' as meaning in strict technical language a proceeding either by way of indictment or information in the criminal Court in order to put an offender on his trial, the exhibition of a criminal charge against a person before a Court of justice, and in general language the institution and carrying on of legal proceedings against a person.
5. The question before us is whether an application for further enquiry and for ordering a retrial under Section 436, in the exercise of the revisional jurisdiction of the Sessions Judge can be deemed to be either a continuation of the prosecution or a fresh prosecution in itself. There are two cases in favour of the view taken by the Courts below and there is no direct authority against that view. In Narayya v. Seshayya [1900] 23 Mad. 24, it was held that a suit brought within one year from the dismissal of a revision petition filed against an order of acquittal but more than one year after the acquittal was barred by limitation. The judgment is very brief and no detailed reasons are given. The case may also perhaps be distinguished on the ground that the District Magistrate to whom the application in revision had been made from the order of acquittal had himself no jurisdiction to order any further enquiry or retrial or set aside the acquittal; at best he could report the case to the High Court., Moreover in a case where the prosecution ended in acquittal the language of Article 23 leaves no room for argument, as it provides specifically that limitation is to run from the date of acquittal. It is not, therefore, necessary to consider when the prosecution 'terminated.' It is only in cases which ended otherwise than in acquittal that it falls to be considered as to when the prosecution terminated. Purushottam Vithal Das v. Raoji Hari A.I.R. 1922 Bom. 209 is a direct authority in support of the view that limitation begins to run from the order of the discharge and the subsequent revision proceedings do not in any way affect the matter.
6. Now there is plenty of authority that the word 'prosecution' has a very wide significance and does not merely mean an actual trial or an enquiry which may result in a conviction and the imposition of imprisonment or fine. In the case of C.H. Crowdy v. L.O. Reilly [1913] 17 C.W.N. 554 it was laid down that an action for damages would lie in the case of an application under Section 107 of the Code and that it was 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, fined or imprisoned. The same view was followed by the Calcutta High Court in Bishun Pershad Narain Singh v. Phulman Singh [1915] 19 C.W.N. 935. It was there remarked that the term 'prosecution' should not be interpreted in the restricted sense in which it is used in the Criminal Procedure Code and that if a person maliciously and without reasonable and probable cause sets the machinery of the criminal law in motion, he is responsible for the consequences. This view was accepted by our High Court in Mohammad Nizullah Khan v. Jai Ram [1919] 41 All. 503 where an action was held to lie on account of an application for binding down to keep the peace under Section 107, Criminal P.C.
7. Indeed, there is one case which has gone still further. Narendra Nath De v. Jyotish Chandra Lal A.I.R. 1922 Cal. 145, was a case where the defendant had applied to the Court of the Munsif under Section 195 of the old Criminal P.C., for sanction to prosecute the plaintiff. Although the application for sanction was a preliminary or initial stage in a criminal prosecution and was actually filed in a civil Court, the learned Judges held that the claim for damages for malicious prosecution was maintainable. They held that as the proceedings for sanction had been instituted maliciously and without just reasonable or probable cause they gave rise to a sufficient cause of action. It seems to us that an application in revision for ordering an enquiry or a retrial is on a much stronger footing than a mere application for sanction to file a complaint. If the latter is deemed to be a prosecution, much more should be the former.
8. In the case of Gaya Prasad v. Bhagat Singh [1908] 30 All. 525, persons whose names did not appear on the face of the proceedings as complainants but who were directly responsible for the charge and for the production of evidence and for the conduct of the case before the police and in the Court were held to be liable for damages in action for malicious prosecution, Similarly their Lordships of the Privy Council in the case of Balbhaddar Singh v. Badri Sah A.I.R. 1926 P.C. 46, held that a man who had given information to the authorities which naturally led to the prosecution, even though he himself was not, in the most literal sense of the word, the prosecutor was liable in an action for malicious prosecution for damages on account of the information supplied by him which caused trouble.
9. When the application under Section 436 is preferred before a Sessions Judge and notice to show cause has been issued, the Judge has himself power to make further enquiry into the case of the accused person who has been discharged or direct any subordinate Magistrate to make such enquiry. While such a proceeding is pending before a Sessions Judge the accused, in our opinion, is being prosecuted and in order to save himself from a retrial he must satisfy the Judge that there is no case against him. Taking the word "prosecution" in its wider sense we fail to see why it should not include a criminal proceeding of this nature before a Sessions Judge or a High Court. If this view were not to be accepted the result would be that the discharged person would be compelled to institute his suit for damages oven though the matter is still sub judice and is being considered by the Sessions Judge or by the High Court. It seems extraordinary that a plaintiff should be compelled to sue while it is yet a question whether his retrial is not going to be ordered. Of course as soon as the order of discharge was passed the prosecution in the Magistrate's Court terminated. If no further proceedings are taken the prosecution must be deemed to have terminated on that date. But if, as a matter of fact, the matter is taken up in revision to a higher authority which has power of interference and proceedings sanctioned by the Criminal Procedure Code are being pursued, the prosecution can no longer be said to have finally terminated. Its final termination would be only when the proceedings in revision have come to an end in favour of the discharged person.
10. One may take the case of a Government appeal from an acquittal as an illustration. The order of acquittal terminates the prosecution for the time being. The filing of an appeal does not ipso facto vacate that order; and yet while the appeal is pending it can hardly be said that the prosecution has terminated. We think that in the same way while a revisional application is pending the prosecution must be deemed to be still continuing and not finally terminated.
11. It has been suggested that inasmuch as a further enquiry cannot be claimed in revision as of right and as there is no statutory period of limitation fixed for an application for revision, time should not be extended after the order of discharge. As a matter of practice revisions are not admitted when the application is very stale and irrespective of the question whether the Sessions Judge exercises his discretion ultimately or not, the complainant has no grievance if while his application for further enquiry is pending it is considered that his prosecution of the accused is still continuing. It is only after the dismissal of such an application that the accused is freed from the worry of the criminal proceedings, and is in a position to think of a civil suit for damages.
12. As a matter of fact it is conceivable that the original complaint might have been filed on the basis of information received from certain witnesses or documents believed to be genuine and, therefore, might not be without reasonable and probable cause, in which case no suit for damages would lie on account of that. But in the course of the trial it may be disclosed that the oral evidence was false and perjured or that the documentary evidence was forged, resulting in the discharge of the accused. If the complainant persists in taking the matter up to the revisional Court without any reasonable and probable cause there seems no reason why he should not be liable for damages on account of the latter proceedings, though there was no such liability on account of the earlier one.
13. Differing from the views expressed by the learned Judges of the Bombay High Court we would hold that the prosecution finally terminated when the application in revision was dismissed and that the present plaintiff, if he can make out a case of malicious prosecution which was false and without reasonable and probable cause, is entitled to damages not only on account of the proceedings in the Magistrate's Court but also the revisional proceedings before the Sessions Judge. The latter has given him just as good a cause of action as the former. The appeal is allowed, the decree of the lower appellate Court is set aside and the suit is remanded under Order 41, Rule 23 to that Court for disposal. The costs will abide the event and will be on the higher scale.