Court caseAIR 1947 PC 108

The defendant filed a criminal complaint before a magistrate accusing the plaintiff of an offence. The magistrate examined the complainant and, instead of issuing process at once, ordered an inquiry into the truth of the complaint under the Criminal Procedure Code. The plaintiff, learning of the complaint, appeared at the inquiry with a lawyer to defend himself and incurred expense in doing so. The magistrate then dismissed the complaint. The plaintiff sued for damages for malicious prosecution. The defence argued that no prosecution had ever begun, because the magistrate had never issued a summons or warrant against the plaintiff and the proceedings had not gone beyond the preliminary stage.

The Privy Council, in a judgment delivered by Sir John Beaumont, held that the action lay. The test was not whether the criminal proceedings had reached a stage at which they could correctly be described as a prosecution in a technical sense, but whether they had reached a stage at which damage to the plaintiff resulted. The plaintiff had been put to the expense of defending himself at the inquiry and his reputation had been exposed to the charge. The foundation of the action is the damage caused by setting the law in motion; once a complaint had been made to a judicial officer and the plaintiff had suffered damage in meeting it, the absence of a summons or warrant did not prevent the action.