Alfred Henry Lionel Leach, C.J.
1. The appellant sued the respondent in the District Court of Trichinopoly for damages for malicious prosecution. The learned District Judge dismissed the suit on the ground that the complaint did not justify the institution of criminal proceedings. The learned District Judge here erred and for reasons which I shall state the case must be remanded to the District Court for disposal according to law.
2. There is no doubt that in 1928 enmity did exist between the appellant and the respondent and had existed for a considerable time. The appellant is the Village Munsif of Elayaperumanallur, and the respondent is his cousin residing in the same village. In the house of the appellant is a family idol and at certain seasons of the year offerings are made by the villagers to this idol. These offerings are divided among nine sharers, representing three branches of the appellant's family. The respondent is one of the sharers. Whether the division of these offerings was the cause of enmity between the parties does not appear. On the 14th March, 1928, the respondent submitted a petition to the Sub-Divisional Magistrate, Ariyalur, stating that there was a rumour current in the village that the appellant had hidden certain treasure trove which had been discovered on the land of one Dasi Gnanambal and asking the Sub-Divisional Magistrate to inquire into the matter. Whether the Magistrate directed the Tahsildar to inquire into the matter is not disclosed, but we do know that the Tahsildar went to the village and made an investigation. Subsequently, the Police Inspector was authorised by the Sub-Divisional Magistrate to make an inquiry. The Police Inspector searched the appellant's house and found certain old jewellery in a brass pot which appeared to be an old one. The jewellery was seized by the police, but no further action was taken. On the 8th July, 1928, the respondent presented a petition (Ex. B) to the Deputy Magistrate in which he accused the appellant and five others, whose names were given, of having suppressed the finding of treasure trove. As the learned District Judge has held that this petition did not justify the institution of criminal proceedings it is necessary to examine it. The petition opens as follows:
About 7 or 8 months ago, the undermentioned persons and certain other persons were ploughing, for wages, the patta land opposite to the house of Dasi Gnanambal in Gangaikondapuram village. At that time, a brass vessel buried under the earth struck against a plough share. The persons who were there conspired together and took possession of the treasure trove and the undermentioned persons arranged to sell some of the jewels such as valuable diamond set jewels, gold blocks, jewels, etc., of olden days which cannot be had in these days. This information leaked in the village and I sent a petition to your honour immediately.
3. The petition then proceeds to make reference to the Tahsildar's investigation and to the search conducted by the Police, and concludes as follows:
This is a case where the Government stands to gain much. If your honour should personally take up the matter for enquiry, I am prepared to produce proper witnesses, that is to say, those who saw the treasure trove being dug out and those who purchased the articles. As the Police did not take proper interest in this case, they referred the matter. I therefore pray that your honour may specially take up this petition for enquiry.
4. On the same date the respondent addressed another petition, to the Sub-Magistrate, Udayarpalayam. This petition was somewhat differently worded, but made the same accusations. The complaint to the Deputy Magistrate, Ariyalur Division, was forwarded to the Sub-Magistrate for disposal. The Sub-Magistrate then recorded a sworn statement from the respondent. This statement was to the effect that the appellant and others whose names were mentioned had found treasure and had suppressed their discovery. As the result of the complaint and this sworn testimony a charge was framed against the appellant under Section 20 of the Indian Treasure Trove Act, 1878, which makes it a criminal offence to suppress the finding of treasure. The punishment may extend to imprisonment for one year, and power is given to inflict a fine as well. The proceedings before the Magistrate resulted in the discharge of the appellant. Thereupon the respondent filed an application for revision of the order of discharge, but this was also dismissed. The appellant then filed the suit out of which this appeal arises claiming Rs. 3,100 as damages for malicious prosecution.
5. The criminal proceedings having ended in the discharge of the appellant he is entitled to succeed in his suit if he can show that the proceedings were instituted maliciously and in the absence of reasonable and probable cause. The learned District Judge has not considered the question of malice or of the want of reasonable and probable cause. As I have indicated he came to the conclusion that Ex. B (referred to in the judgment wrongly as Ex. C) did not amount to a complaint or a petition justifying criminal proceedings and dismissed the suit. The learned District Judge would appear to have overlooked definition of 'complaint' in Section 4 of the Criminal Procedure Code. The definition is as follows:
'Complaint' means the allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown has committed an offence, but it does not include the report of a police officer.
6. The intention of the respondent in filing Ex. B, was to induce the Sub-Divisional Magistrate to charge the appellant with an offence under the Indian Treasure Trove Act, 1878. It had the desired effect and therefore it is impossible to say that the respondent did not institute or cause criminal proceedings to be opened against the appellant.
7. The appeal succeeds and the case will be remanded to the trial Court to decide the issues framed with regard to malice, want of reasonable and probable cause and damages. The appellant is entitled to his costs of the appeal and also to the refund of the court-fee. The costs in the lower Court will be made costs in the cause.