JUDGMENT

1. This is an action brought for damages for malicious prosecution by reason of proceedings instituted by a certain Mohammedan gentleman, now the defendant, against several Hindus, including the present plaintiff, for an order u/s 107 of the Criminal Procedure Code. It is found as a fact that the defendant set the law in motion (of that there is abundant evidence on the record) in the Magistrate's Court, in which these proceedings were brought. It is also found that the proceedings determined in favour, of the plaintiff. It is quite true that the Magistrate in whose Court the proceeding was brought made an order binding over the present plaintiff in the large sum of Rs. 2,000 in his own security and a further surety of Rs. 1,000. That proceeding is not subject to appeal. But proceedings were brought in order to have it reviewed, which proceedings were described as a revision before the District Magistrate.

2. For the purpose of this case it is not necessary to discuss the appropriate, procedure u/s 125 by which a District Magistrate is empowered to cancel a bond taken u/s 107. It ii sufficient to say that the revision was heard and adjudicated upon without objection by the present defendant. It was heard upon the merits and the order of the Magistrate directing the present plaintiff to furnish security was set aside. The plaintiff has, therefore, established, which it was necessary for him to do in such a suit as this, that the proceedings determined in his favour. Both Courts have found that there was an absence of reasonable and probable cause.

3. Accepting the contention of the appellant that this is a mixed finding of law and fact with which we could interfere in second appeal, it is sufficient to say that we see no reason in law for differing from the view taken by both the lower Courts and that in fact there was abundant evidence of an absence of reasonable and probable cause. There is a concurrent finding of both Courts of malice on the part of the defendant and damages have been assessed upon what is clearly a legal basis. The only question, therefore, left is whether the second ground of appeal is a good ground for holding that there is no cause of action. That ground raises this Question, that proceedings u/s 107 of the Criminal Procedure Code to keep the peace are not criminal, and an action for malicious prosecution will not lie. That ground raises two questions which really we think at this time of day are hardly open to argument. An action for malicious prosecution is not necessarily confined to criminal proceedings. It has always been held that strictly civil proceedings cannot be made subject of such an action, because the successful party in a civil proceeding is supposed to be indemnified by the order for costs which he gets in the end. But the English authorities have always re-cognized, and there are instances in India where the same view has been taken, namely, in cases of attachment either before or after judgment under the Civil Procedure Code, vide Palani Kumarasamia Pillai v. Udayar Nadan 2 Ind. Cas. 345 : 32 M. 170PC and Vaidinadier v. Krishnasami Iyer 19 Ind. Cas. 665 : 36 M. 375PC : 24 M.L.J. 515, where such proceedings are brought maliciously and without reasonable and probable cause, that the person against whom they are brought can, if they determine in his favour, sue the complainant for any damage suffered by him.

4. It is not necessary to decide what is the character of proceedings u/s 107. They are undoubtedly in their nature criminal. It may or may not be an offence, according as people choose to look at it, for a person to be in a condition of mind in which he is likely to disturb the public peace. But the proceeding is one prescribed by and taken under the Code of Criminal Procedure and all the proceedings, the machinery and the result of that section are, in their nature, penal. It is sufficient to say that in the case of such proceedings the Magistrate may issue a warrant for the ar