Seshagiri Aiyar, J.
1. The plaintiff impounded the defendant's cattle. Thereupon the latter complained under Section 20 of the Cattle Trespass Act. But the plaintiff was acquitted. The present suit is for damages for malicious prosecution on the ground that the defendant instituted proceedings falsely and maliciously. Both the Courts below have held that such a suit would not lie. Hence this second appeal.
2. It is not with reference to criminal proceedings alone that a suit for malicious prosecution lies. An action will lie for the institution of bankruptcy proceedings, for filing an ungrounded petition to wind up a corporation, for procuring the arrest of a. person even for a civil debt and for instituting proceedings to declare a person a lunatic. (See Whitworth v. Hall 2 B. & Ad 695, The Quartz Hill Gold Mining Company v. Byre (1883) 11 Q.B.D. 674, Metropolitan Bank v. Pooley (1886) L.R. 10 A.C. 210 and Lockenour v. Sides 57 Ind. 360). But neither would an action of this nature lie for all criminal prosecutions. A man may be prosecuted for driving a motor car without lights, for laying down a drain in an improper manner &c.; If the prosecution fails in such cases, the prosecutor will not be held liable for malicious prosecution.
3. Lord Davey explained in Allen v. Flood (1898) A.C. 1 at 172, on what basis, an action for malicious prosecution rests : 'In my opinion the some-what anomalous action for malicious prosecution is based on the same principle (referring to defamation). From motives of public policy the law gives protection to persons prosecuting, even where there is no reasonable or probable cause for the prosecution. But if the person abuses his privilege for the indulgence of his personal spite, he loses the protection and is liable to an action, not for the malice, but for the wrong done in subjecting another to the annoyance, expense and possible loss of reputation of a causeless prosecution.' This is also the view of Lord Herschell (see page 125). Sir F. Pollock in his book on Torts says that this is the true foundation of the action. According to these authorities, the gist of the action is not the prosecution, but the aspersion on character or reputation which the prosecution involves.
4. I shall now proceed to consider the present case in the light of the above principles. The proceedings under the Cattle Trespass Act are of a criminal nature ; but no imprisonment is provided for the offence under Section 20. A fine in the nature of a solatium is to be levied. A complaint under Section 20 is included in the definition of the term 'offence' (section 4(O) of the Code of Criminal Procedure). Under Section 260 Clause (m) it is triable summarily. Therefore all the ingredients of a criminal prosecution are to be found with reference to the complaint; but the question still remains whether a complaint of this nature involves moral turpitude or stigma on character. In the well-known case of Quartz Hill Gold Mining Company v. Eyre (1883) 11 Q.B.D. 674 Brett, M.E. and Bowen, L.J. accepted the dictum of Lord Holt in Saville v. Roberts (1698) 1 LD. Raym. 374 as practically exhausting the classes af cases for which a suit for malicious prosecution would lie. There must be in the previous proceedings either (a) damage to a man's reputation, or (b) danger to his liberty, or (c) damage to his property. There can be no question in this case of danger to a man's liberty. Under Section 386 of the Code of Criminal Procedure, if the fine that was imposed is not paid, there may be a distress of property : see par Lord Justice Buckley in Wiffen v. Bailey and Romford Urban Council (1915) 1 K.B. 600. The accused is not liable to be sent to jail. It is conceivable that Clause (c) may cover this case. As Lord Justice Bowen says, as the theory is that in ordinary Civil actions, the costs awarded to a successful litigant are intended to compensate him for the trouble incurred by him, there will be no action for malicious prosecution in such cases. See also per Buckley, L.J. in Wiffen v. Bailey and Ramford Urban Council (1915) 1 K.B. 600. In the present case, no costs could have been awarded to the accused under the Cattle Trespass Act; and probably, if the claim for costs were one of the items of the claim for damages, it may be open to argument that there was probable damage to property within the dictum of Lord Holt. But, in the present case, although the claim for such costs was in the plaint, it was advisedly given up in appeal. It is not, therefore, necessary to consider this question further.
5. The only other ground on which the action can be sustained is that the plaintiff's reputation suffered by the complaint under Section 20 of the Cattle Trespass Act. It certainly looks as if it would be straining the language too far to say that an injury to a man's reputation has been done by accusing him of having improperly and maliciously impounded the cattle of the complainant. A great deal will depend upon the position in life of the man who has been thus accused and upon the motive and status in life of the accuser. I am not prepared to hold that an accusation of this kind is not covered by the head of 'damage to reputation'. Mr. Justice Mookerjee in C.H. Crowdy v. Reilly (1913) 17 C.W.N. 554 seems inclined to give an extended application to the principle.
6. The District Munsif in paragraph 14 of his judgment says that there has been enmity between the plaintiff and the defendant for some years. It may be that the prosecution was started with intent to harm the reputation of the plaintiff. The Munsif has, however, held that there was no malice or want of probable and reasonable cause for the complaint by the defendant. The District Judge has expressed no' opinion on the facts; but the evidence has been placed before us and on reading them (see Section 103 of the Code of Civil Procedure), I see no reason to differ from the conclusion of the District Munsif. I would, therefore, dismiss the Second Appeal with costs.
Napier, J.
7. I agree with my learned brother that this appeal-should be dismissed and I entirely concur with him as to the principles governing suits for maliciously setting the law in motion (vide my judgment in Ramaswami Aiyar v. Govinda Pillai (1916) 30 M.L.J. 180), but I would go rather further than he does in applying those principles to a suit for maliciously proceeding under Section 20 of the Cattle Trespass Act. The Court of appeal in England has, in Quartz Hill Gold Mining Company v. Eyres (1883) 11 Q.B.D. 674 and Wiffen v. Bailey and Ramford Urban Council (1915) 1 K.B. 600, accepted the proposition that where it is based on damage to a person's reputation, it must be something serious, the words of Holt, C.J. in Savile v. Roberts (1698) I. Ld. Raymond's Reports 378, being 'as if the matter whereof he is accused be scandalous'; and Bowen, L.J. in the Quartz Hill Gold Mining Company case 2 at page 892 draws an analogy between such cases and spoken slander, giving as examples, charges that a man has been guilty of an indictable offence which is criminal and scandalous in its character and involves the loss of liberty or fair name. Accepting this explanation as to what is meant by damage to fair name, I cannot regard a charge of illegal distraint of cattle as coming within the mischief of the principle.