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Anowar HussaIn and anr. Vs. Ajoy Kumar Mukherjee and ors. - Court Judgment

LegalCrystal Citation
Subject;Criminal
CourtGuwahati High Court
Decided On
Case NumberFirst Appeal Nos. 14 and 18 of 1954
Judge
ActsJudicial Officer's Protection Act, 1850 - Sections 1; Code of Criminal Procedure (CrPC) , 1898 - Sections 156(3), 190, 200, 202 and 204; Limitation Act, 1908 - Schedule - Articles 2 and 19
AppellantAnowar HussaIn and anr.
RespondentAjoy Kumar Mukherjee and ors.
Appellant AdvocateR.C. Choudhuri, Adv. in F.A. No. 14 of 1954, G.K. Talukdar, Adv. and R.K. Goswami, Jr. Govt. Advs. in F.A. No. 18 of 1954
Respondent AdvocateS.K. Ghose, Adv. in F.A. No. 14 of 1954 and R.K. Goswami, Jr. Govt. Adv. in F.A. No. 18 of 1954
DispositionAppeal dismissed
Excerpt:
- - 3,000/-with one surety of like amount. i fail to see under strength of what the accused has been sent up. he claims that he is a person of high social status and he and his family enjoy the esteem and regard of a large number of people in the locality; all that they did was perfectly justified by law and in bona fide discharge of their lawful duties. ' their substantial averment as contained in paragraphs 6 and 9 of the written statement may be as well reproduced here :6. that the plaintiff was arrested by defendant no. 4, he was of opinion that he had acted in good faith on the assumption that the chit handed over to him by the sub-divisional magistrate was in the nature of a lawful warrant and that he was bound to execute such a warrant as an officer subordinate to the..... sarjoo prosad, c.j.1. these two appeals arise out of the same action for recovery of damages for false imprisonment. first appeal no. 14 of 1954 has been presented by anowar hussain, the defendant no. 3 in the action, while the other appeal, first appeal no. 18 of 1954 is by the plaintiff, ajoy kumar mukherjee. 2. on the night of 17th march, 1950, at about 10-30 p. m., the plaintiff ajoy kumar was arrested at his house at barpeta by the circle inspector of police, bhupati ranjan chakravarty (defendant no. 4). the arrest was made on the authority of a chit (ext. a) prepared and signed by anowar hussain, the then sub-divisional magistrate of barpeta, and handed over by the former earlier at his bungalow at about 10 p. m., to the circle inspector for execution. after his arrest, the.....
Judgment:

Sarjoo Prosad, C.J.

1. These two appeals arise out of the same action for recovery of damages for false imprisonment. First Appeal No. 14 of 1954 has been presented by Anowar Hussain, the defendant No. 3 in the action, while the other appeal, First Appeal No. 18 of 1954 is by the plaintiff, Ajoy Kumar Mukherjee.

2. On the night of 17th March, 1950, at about 10-30 p. m., the plaintiff Ajoy Kumar was arrested at his house at Barpeta by the Circle Inspector of Police, Bhupati Ranjan Chakravarty (defendant No. 4). The arrest was made on the authority of a chit (Ext. A) prepared and signed by Anowar Hussain, the then Sub-divisional Magistrate of Barpeta, and handed over by the former earlier at his bungalow at about 10 p. m., to the Circle Inspector for execution. After his arrest, the plaintiff was taken in custody to the thana lock-up, where he was confined for the night. On the following morning he was produced before the Sub-divisional Magistrate who remanded him to custody.

An attempt was made before that officer to have him released on bail that clay, but the lawyers concerned were directed to approach the Deputy Commissioner of Kamarup, A. C. Bhattacharjee (defendant No. 2), who was then camping at Barpeta. The Deputy Commissioner in his turn referred the bail petition for disposal to the Sub-divisional Magistrate and eventually, the plaintiff was released on' bail on 20-3-1950. Sri J. 'Barua (P. W. 1), the Magistrate who enlarged the plaintiff on bail, recorded the following order on that date:

'Accused may go on Town bail of Rs. 3,000/-with one surety of like amount. It is reported he fainted for 3 hours in Hajat yesterday. Seen report of the Sub-divisional Medical Officer. Fix 28-3-1950. Ask officer-in-charge, Barpeta Police Station to report any breaches of the bail.'

It appears that no case had been ever instituted against the petitioner either by the polic or on any complaint lodged before the Sub-divisional Magistrate. From time to time on various dates the plaintiff had to appear before successive Magistrates, who adjourned the matter awaiting investigation report from the Police. Eventually on 27-5-1950, the Magistrate Sri J. Barua, inter aha passed the following order:

'....... Judging from the papers it seems to me that a great confusion exists amongst police officers about the case. It is surprising that the officer-in-charge should refer to the C. I. as authority for the arrest and the latter to the Sub-divisional Officer. No case also seems to have been registered at the Police Station. I fail to see under strength of what the accused has been sent up. No F. I. R. is also traceable in Court Office in which accused has been named. I find no justification for holding accused within the jurisdiction of Court under the present charge. Police to report by 31-5-1950 why accused should not be discharged.'

This was followed by another order on the 31st, resulting in the discharge of the accused. The order runs thus:

'Seen report of C. I. (B); dated 31-5-1950 forwarded through Sub-divisional Police Officer (B).

It has been reported that although the accused was arrested on a written order of Sub-divisional Officer (B).

On investigation it has been found that 'there is no material to substantiate the charge' and C. I. (B) has no objection to his discharge. On the face of such a report, I find no reason to hang on the case. The accused is so discharged.'

The initials 'C. I.' presumably mean Circle Inspector, while the letter 'B' within brackets means Barpeta. On the above facts, the plaintiff instituted the suit for damages for false imprisonment making amongst others the State of Assam (defendant No. 1) as party defendant to the suit, after serving the requisite notices under the law.

3. The plaintiff alleges that his arrest, detention and imprisonment were reckless and malicious and without any lawful excuse or justification calculated mainly to insult and disgrace him. He claims that he is a person of high social status and he and his family enjoy the esteem and regard of a large number of people in the locality; he has also considerable landed property with both Hindus and Muslims as his tenants; and that he has been associated with a number of public institutions.

He states that in view of his unimpeachable character and integrity, when the unfortunate communal riots broke out in the Barpeta sub-division in the early part of March, 1950, he was selected as a member of the Peace Committee formed by the Government in co-operation with the other leading non-officials of the locality. As an active member of the Peace Committee, he had serious differences with Anowar Hussain (defendant No. 3) the then Sub-divisional Magistrate of Barpeta, and incurred his displeasure at a meeting of the Committee held in the middle of March over which the officer had presided. His unlawful arrest and detention he attributes to the consequent malice and personal grudge of the officer and not in accordance with any procedure established by law.

4. The plaintiff further stated that tor some time past he had been suffering from heart trouble and at the time of arrest, he had barely recovered from the after-effects of a recent attack of that ailment. In that shattered state of health his arrest and detention led to violent and serious reactions, so much so that he fainted in the Hajat and remained unconscious for a long time and the medical officer, who examined him on the morning of 18-3-1950, advised his immediate removal to a hospital for treatment. Despite all this, the plaintiff was not released until 20-3-1950. He accordingly claimed damages to the tune of Rs. 20,000/-making all the defendants jointly and severally liable.

5. The defendants including the State of Assam filed a joint written statement in which their main plea in defence was that they 'never intended to cause any mental or bodily pain or inflict any disgrace or indignities upon the plaintiff. All that they did was perfectly justified by Law and in bona fide discharge of their lawful duties.'' They having 'no malice against the plaintiff and all their actions being bona fide they are fully protected by Law.' Their substantial averment as contained in paragraphs 6 and 9 of the written statement may be as well reproduced here :

'6. That the plaintiff was arrested by defendant No. 4, at the instance of defendants 2 and 3 as there were sufficient reasons based on credible informations and reasonable suspicions that the plaintiff was concerned in some cases committed y certain sections of the local majority community on the lands belonging to the plaintiff and such incidents led to serious disturbances.

XX X

9. That the case against the plaintiff was investigated carefully and the same had to be postponed from time to time till the completion of the investigation but ultimately for want of conclusive evidence against him, he was discharged by Mr. A. K. Roy, Magistrate, 1st Class at Barpeta on 31-5-1950. The plaintiff was all along on bail from 20-3-1950 till 31-5-1950.'

6. The learned Subordinate Judge, who tried the suit, decreed the claim for damages against the defendant No. 3 only for a modified sum of Rs. 5,000/-, but dismissed the suit in favour of the other defendants. The defendant No. 3 has, therefore, preferred the appeal (First Appeal No. 14 of 1954) disputing his liability, while the plaintiff has preferred the other appeal (First Appeal No. 18 of 1954) in respect of the liability or the other defendants and the quantum of damages claimed.

7. It is worth while at this stage to refer to some of the material findings of the learned Subordinate Judge, who appears to have dealt with the case with care and ability. The learned Subordinate Judge has found that the arrest and detention of the plaintiff, which was at the instance of the defendant No. 3 alone, was reckless and without any lawful excuse and that the Sub-divisional Magistrate in directing his arrest was not acting in the discharge of any judicial duty or in the exercise of any lawful authority.

He farther found that there was no complaint or ejahar or police report against the plaintiff on which the officer could take cognisance and indeed on his own admission, he never took cognisance of any such case against the plaintiff. He, therefore, held that the defendant No. 3 was not protected under the provisions of the Judicial Officers' Protection Act, 1850 (Act No. XVIII of 1850. He also found that the plaintiff was a gentleman of high social position and status and that there were differences and altercations between the plaintiff and the defendant No. 3, the Sub-divisional Magistrate at a meeting of the Peace Committee held on the 9th or 10th of March, preceding the date of his arrest, in which the plaintiff was present as a member and the Sub-divisional Magistrate happened to be presiding.

He also found that at the time of his arrest the petitioner was in a shattered condition of health. He was suffering from heart trouble and his trouble was aggravated on account of the arrest, so much so that he fainted in the lock-up and the medical authorities advised his removal to a hospital, which was not done; and that although on account of his status he was placed in the 'A' class of under-trial prisoners, yet this classification was meaningless, because there was no such facility in the lock-up, and the lock-up which actually could provide accommodation for about 30 persons, contained as many as 133 persons on 18-3-1950. He accordingly held that the defendant No. 3 was personally liable for payment of damages to the extent of Rs. 5,000/- to the plaintiff.

In regard to defendant No. 2 the learned Subordinate Judge held that he had nothing to do in fact with the arrest of the plaintiff. The recital in the written statement, which was filed with the other defendants in common, did not fit in with the actual evidence on record, which proved that the defendant No. 2 never specifically ordered the arrest of the plaintiff. In regard to defendant No. 4, he was of opinion that he had acted in good faith on the assumption that the chit handed over to him by the Sub-divisional Magistrate was in the nature of a lawful warrant and that he was bound to execute such a warrant as an officer subordinate to the Sub-divisional Magistrate.

He, therefore, thought that this officer acted in good faith and was entitled to protection. So far as the State is concerned, he pointed out that in the written statement there was no repudiation of liability on the part of the State for the action of its subordinate officers, nor even in the arguments there was anything urged about the specific liability of the State. The learned Subordinate Judge, however, on his own investigation of the matter found that in the absence of any proof of special authorisation by the State, the State could not be made liable for the impugned act of the defendant No. 3; and if this defendant did not act judicially or in the exercise of any lawful authority, it could not be assumed that the State had any vicarious responsibility in the matter or impliedly authorised its officers to tact illegally. On the above findings, he decreed the suit us already stated.

8. First Appeal No. 14 of 1954 : It would be convenient to dispose of the appeal preferred by the defendant No. 3, because the crucial question involved in the case is whether the arrest of the plaintiff was in the exercise of any lawful authority, that is, in accordance with the procedure established by law or in the exercise of any judicial function; and whether the officers concerned were entitled to protection under the Judicial Officers' Protection Act. The determination of the above points will depend largely upon the evidence of the officers concerned and much of the other material on record may appear to be superfluous.

These officers knew better than anybody else the circumstances under which the plaintiff's arrest and detention was ordered; and we have to examine the justification, which they have pleaded in defence of the action taken against the plaintiff. In face of their positive evidence no speculation is permissible, as indeed it is not permissible in any other case. The learned Counsel for the appellant, the defendant No. 3, contends that the learned Subordinate Judge was in error in holding that the arrest of the plaintiff was not in the exercise of any lawful authority.

He submits that under the Code of Criminal Procedure, the Sub-divisional Magistrate had ample jurisdiction to order the arrest of the plaintiff and even if in the exercise of that jurisdiction there was some irregularity, that would not affect the validity of the arrest so as to entitle the plaintiff to claim that the attachment of his person was without any legal justification. He also urges that in any case the learned Subordinate Judge should have held that the Judicial Officers' Protection Act, 1850 (Act No. XVIII of 1850), afforded complete immunity to the defendant No. 3.

The learned counsel has also referred to a number of decisions on these points. These submissions, therefore, will have to be considered in their proper set up.

9. The law recognises a well known distinction between actions for malicious prosecution and those for false imprisonment. In the case of the former, the plaintiff can succeed only if he proves both malice and want of reasonable and probable cause in respect of the proceedings instituted against him, whereas in an action for false imprisonment just as in all other cases of trespass to person or property, the liability is created in general even-by honest and inevitable mistake. Unlike the case of malicious prosecution, it is not necessary for liability that the arrest should have been malicious.

It is enough if it was without reasonable and probable cause and the burden of proving the exist ence of reasonable and probable cause is on the defendant. In other words, where a person alleges that he had been falsely imprisoned and if it is proved that actually he was so arrested and detained, the burden of proving justification for the arrest and detention would lie upon the defendant. Any interference with a man's personal liberty is prima facie wrongful and therefore, has to be justified. The position in the case of malicious prosecution is quite different inasmuch as a person is prima facie entitled to set a Court of justice in motion and the person complaining against that act has to show that the initiation of the proceedings was malicious and there was non-existence of any reasonable and probable cause.

Keeping in mind the above principles one has

to determine whether in this case the plaintiff was

in fact arrested, whether the arrest was at the

instance of any or all the defendants as claimed

by him and whether the justification pleaded by'

the defendants was sufficient to give them immu

nity against the claim for damages at the instance

of the plaintiff.

In this case, it is not disputed that the plaintiff was arrested and that the arrest was made on the strength of a chit written by the Sub-divisional Magistrate (defendant No. 3) and signed by him (Ext. A). It runs as follows :

'C. I. Barpeta,

Deputy Commissioner has ordered the arrest of Shri Ajoy Mukherjee - a resident of this town at once under Section 436 Indian Penal Code.

Please take necessary action immediately.'

It was handed over by the Magistrate to the Circle Inspector, Barpeta (defendant No. 4) for execution, who treated it as a regular warrant of arrest in conformity with the Criminal Procedure Code and effected the arrest. There is an endorsement on that chit made by the Circle Inspector (defendant No. 4) showing that the person was 'arrested at 10-30 P.M.--17th March, 1950 and takes in custody'. The chit was not on any printed form, nor did it bear the seal of any Court. The relevant portion of the Circle Inspector's evidence is that oh the 17th March, 1950, he was called by the Sub-divisional Magistrate to bis bungalow at about 10 P.M. when the Sub-divisional Magistrate and the Deputy Commissioner Sri A. N. Bhattacharjee (defendant No. 2) were both together.

The Sub-divisional Magistrate then gave him the order (Ext. A) to arrest Sri Ajoy Mukherjee of Burpeta. The whole chit was written and signed by the Sub-divisional Magistrate. The Deputy Commissioner was present there. The Inspector then went to the house of the plaintiff accompanied by a Head Constable at about 10-30 P.M. and after showing him the order in question, he took him in custody and brought him to the thank and kept him in the thana lock-up for the night.

If the evidence of the Circle Inspector on the point that the Deputy Commissioner was also present at the time is correct, then the Deputy Commissioner (defendant No. 2) also cannot avoid responsibility for the arrest. The Inspector's evidence is also in conformity with the pleading in the joint written statement of the defendants that the arrest of the plaintiff was at the instance of the defendants Nos. 2 and 3; but, I agree with the learned Subordinate Judge that the averment in the pleading has to be tested in the light of the evidence. I would have been slow to discard the testimony of the Circle Inspector on the point, but for the reasons which I will presently indicate.

The evidence of the Deputy Commissioner (who was examined on commission) shows that he came to know of plaintiff's arrest and detention the day after his arrest and had no knowledge of it earlier. He deposed that he did not mention any names of persons to the Sub-divisional Magistrate to be arrested. He is definite that he did not issue any order for plaintiff's arrest to the Sub-divisional Magistrate either in writing or verbally. It is, therefore, obvious that he could not have been present there at the time when the defendant No. 3 directed the arrest of the plaintiff.

Though in this case even the evidence of the Deputy Commissioner is not above reproach and I am inclined to agree with the estimate of the learned Subordinate Judge that the witnesses for the defendants have indulged 'in answering in a dubious manner' and taken 'shelter under want of knowledge or information instead of replying definitely'; yet if one had to choose between the testimony of the Circle Inspector on the one hand and that of the Deputy Commissioner on the other, one would normally prefer the evidence of the latter, who was a much more responsible officer; but here there is another substantial reason why the Deputy Commissioner's evidence on the point has to be accepted.

It is to be noticed that the evidence of the Circle Inspector is not borne out, but to a large extent is contradicted by the evidence of the Sub-divisional Magistrate himself, who says that 'he received orders from the then Deputy Commissioner, Kamarup for issuing orders of arrest of the plaintiff. It has a verbal direction through the Inspector of Police as far as I remember'.

It is difficult to believe that if the Deputy Commissioner was actually present at the time, the Sub-divisional Magistrate would get verbal directions from him through the Circle Inspector. Even the Sub-divisional Magistrate does not say that the Deputy Commissioner was present when he drew up the order contained in Exhibit A. The evidence of course shows that the Deputy Commissioner was camping at the time in Barpeta but it does not appear that he was directly concerned with the order of arrest.

I must assume, therefore, that the order of arrest was given by the Sub-divisional Magistrate himself and not at the instance of the Deputy Commissioner, though the Sub-divisional Magistrate wrongly stated in Exhibit A that the Deputy Commissioner had ordered the arrest of the plaintiff.

10. It is submitted for the appellant whether the arrest of the plaintiff was at the instance of the Deputy Commissioner or at the instance of the Sub-divisional Magistrate, in either case the Magistrate was acting under the authority of law as such and had justification in doing so. It is urged that the chit in question (Ext. A) was in the form of a warrant as contemplated by Section 75 of the Code of Criminal Procedure. Section 75 requires that every warrant of arrest issued by a Court under the Code shall be in writing, signed by the presiding officer, or in the case of a Bench of Magistrates, by any member of such Bench; and shall bear the seal of the Court.

The order of arrest was not in the printed form, but written on a piece of paper by the defendant No. 3, who signed it. It did not also bear the seal of any Court. These irregularities, however, could be condoned if actually the officer acted within the authority of law in issuing the warrant in question.

The significant words in Section 75 are that the warrant contemplated therein is issued by the Court of a Bench or Magistrates and bears the seal of the Court. In other words, it is a judicial act to be performed by the officers concerned. We have therefore, to see what were the powers of the Magistrate under the Code to direct the arrest of the plaintiff and whether he actually did so in the exercise of those powers.

That he was the Sub-divisional Magistrate is not in question, but a distinction has to be made between his individual and arbitrary acts and those which he does in the exercise of his judicial powers. On behalf of the Magistrate, special reliance has been placed on Section 65 of the Code of Criminal Procedure. Under this section.

'any Magistrate may at any time arrest or direct the arrest, in his presence, within the local limits of his jurisdiction, of any person for whose arrest he is competent at the time and in the circumstances to issue a warrant.'

It is contended that the section gave ample authority to the Magistrate to direct the arrest of the plaintiff. The section is plain enough. It simply authorises the Magistrate to direct the arrest of any person in his presence, provided at the time the Magistrate is so competent to do. The question of the Magistrate's competence is, therefore, the material question. Here Section 65 has no application, because the Magistrate did not order plaintiff's arrest in his presence. One has, therefore, to look to the other provisions of the Code to find under what circumstances the Magistrate is competent to order arrest and Section 65 does not by itself solve the problem. For the plaintiff, it has been rightly contended that the Magistrate was not competent to issue warrant of arrest except under the special provisions of Section 55 of the Code of Criminal Procedure or where he has already taken cognisance of a case under Section 204 of the Code.

There is no question that Section 55 had no application to the arrest and detention of the plaintiff. The only other provision therefore, under which the Magistrate could issue warrant for the arrest of the plaintiff is Section 204 of the Code. The section provides that if in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding, that summons or warrant should issue, the Magistrate may issue warrant if he thinks fit for causing the accused to be produced before him. Section 65 deals only with the eventuality where the Magistrate so competent orders arrest in his own presence; but that must again relate back to the circumstance under which he is competent to issue a warrant of arrest within the meaning of Section 204.

Where, therefore, a Magistrate has not taken cognizance of any case against an accused, he has no power to issue any summons or warrant for his appearance or production The provisions for taking cognizance of offences are contained in Section 190 of the Code of Criminal Procedure, which are the conditions requisite for initiation of proceedings. Under this section, the Sub-divisional Magistrate is competent to take cognisance of any oifence-

'(a) upon receiving a complaint of facts which constitute such offence;

(b) upon a report in writing of such facts made by any police-officer.

(c) upon information received from any person

other than a police-officer, or upon his own know

ledge or suspicion, that such offence has been com

mitted.'

Taking cognisance of course is not defined in the Code of Criminal Procedure, but it must be adequately established that before any Magistrate takes cognisance of an offence under Section 190 of the Code, he must not only have applied his mind to the contents of the petition or the police report or the information, which he possesses as the case may be but he must have done so for the purpose of proceeding in a particular manner as indicated in the subsequent provisions of the Code.

Taking cognisance in other words is a judicial act on the part of the officer concerned wherein he applies his mind to the facts and circumstances of the case, in order to take action against an individual alleged to be involved in the offence. Where on the face of the record the Magistrate has not done anything of the kind, the Code will not empower him to act under Section 204 so as to order the arrest and detention of a person, nor would Section 65 be attracted to such a case. Section 75 itself shows that the warrant is to be signed by the presiding officer of the Court and should bear the seal of the Court.

The emphasis, therefore, is on the word 'Court' and not merely on the person, who presides in that Court. In other words, it is only as a judicial officer that the Magistrate could issue warrants under section 75 after taking cognisance as provided under Section 190 of the Code.

11. In this case, the categorical admission of the Sub-divisional Magistrate is that he did not take cognisance of any case against the plaintiff. To quote his own words-

'My order for arrest of the plaintiff was not the outcome of any complaint of which I took cognizance or of any police report. It was mainly due to the order of the Deputy Commissioner. I cannot say if there was any complaint by the party to the Deputy Commissioner or if any report by the Police. I cannot say from what source the Deputy Commissioner made the order of arrest of the plaintiff.'

Clearly, therefore, on his own admission he was not acting judicially in the matter at all. He says that he was merely acting as if he were an agent of the Deputy Commissioner. He does not even know on what asis or from what source the Deputy Commissioner gave him the alleged order of arrest of the plaintiff. He knew or should have known that in directing the arrest of an individual he was taking a perilous step and unless justified by law, he could not do so.

Even assuming as he says that he was acting on the verbal orders of the Deputy Commissioner, he had still to satisfy himself about the actual facts before assuming the judicial responsibility with which he was vested under the Code; but on his own showing the action which he took, was beyond the purview of the Code and was his individual and arbitrary act; not a judicial act at all. I have no doubt that the Magistrate knew the law on the subject and the mere fact that he mentioned in Exhibit A, the Deputy Commissioner as having given the order of arrest, will not absolve him of the responsibility.

It is practically admitted on all hands that there was no ejahar, no Police report or any regular complaint filed by any one against the plaintiff on which the officers could take cognisance. Bhupati Ranjan Chakravarty, the Circle Inspector (defendant No. 4), says that shortly after he joined at Barpeta in the last week of February, 1950, communal disturbances started there. The trouble arose between the immigrants on the one side and Assamese Hindus and Tribals with some Bengali Hindus on the other and as a result of the disturbances, about 400 houses were burnt in the Sub-division. He himself supervised a number of cases in which First Information Report was lodged; but he admits that plaintiff's name was not mentioned in any of those cases as suspected by the complainants, who were all Muslims. The defendant No. 3 also says that there were many arson cases in the locality, but he could not say if in any of the 'ejahars' the plaintiff's name was mentioned.

There was thus no foundation in fact for cognisance of any offence under clauses (a) and (b) of Section 190 of the Criminal Procedure Code on which the officers could take action against the plaintiff.

12. It is, however, urged that there was confidential and credible information in possession of the Sub-divisional Magistrate and the Deputy Commissioner on which it was open to those officers to take cognisance of an offence against the plaintiff under clause (c) of Section 190 and direct his arrest. This argument ignores the statement of the officers themselves that they never purported to do anything of the kind. The Sub-divisional Magistrate has said that his order for the arrest of the plaintiff was not the outcome of any such complaint of which he took cognisance and the positive statement of the Deputy Commissioner is that he did not issue any orders for the arrest of the plaintiff, either verbal or in writing.

It is therefore, quite unnecessary to examine all that evidence on which the defendants rely in support of the above contention. These officers knew best what they were doing and it is not open to any other witness now to explain their conduct; but, since evidence has been led on the point and both the learned Subordinate Judge and the parties have taken pains to refer to that evidence, it is worthwhile examining the same as briefly as I can. The evidence of course reveals that the situation at the relevant time in the Barpeta Sub-division was abnormal due to communal disturbances.

I have already referred to the evidence of the Circle Inspector on the point. The situation was sufficiently serious to necessitate the presence there of the Chief Minister and the then Parliamentary Secretary, Sri M. M. Choudhury, who has been examined for the defendants. The Government of course gave directions for prompt action against the wrongdoers and for restoring peace and order; but, it is admitted that the Chief Minister did not mention any names of persons to be arrested (vide Deputy Commissioner's evidence). The Sub-divisional Magistrate says :

'I had series of confidential information regarding the conduct of the plaintiff in respect of the communal disturbances and his complicity and his suspicious movements. I had serious complaints against the plaintiff A. K. Mukherjee regarding his indirect complicity in inciting the people in driving out his Muslim tenants (by setting fire to their houses).'

But in cross-examination he gives up the show when he says :

'I had confidential reports from Dhemarkur that the plaintiff was indirectly driving out his tenants. I don't remember the persons who reported me these incidents. I never made any notes of these incidents. I had been to Dhumarkar, I cannot say if those people who gave these informations were Ms tenants; I did not refer these allegations to the police. I directed them to give me written complaints but which they did not. I directed them to file 'either ejahar' or to lodge written complaint to me. I do not know if those people filed any 'ejahars' to the Police but they did not make any written complaints to me.'

This is the importance which the officer himself, who was in charge of law and order in the sub-division, attached to those so-called confidential reports. He even says that he did not suggest to the Deputy Commissioner that a formal order for arrest should be made after an enquiry, because according to him, it was not at his suggestion that the order for arrest of the plaintiff was made. It stands to reason that if actually there were confidential information against the plaintiff, the Sub-divisional Magistrate would not treat those reports so lightly and would not take serious notice of them. He even says that he had no knowledge if any case was started against the plaintiff, since he was very busy with other works.

The communal disturbances at that time were occupying the attention of almost every responsible officer and it is difficult to believe the assertion of this witness, who was the Sub-divisional Magistrate of the place that other works would engage his attention more than the suppression of these disturbances and the action to be taken against the persons really responsible for them.

On his own showing, therefore, it is obvious that there was no ground for even reliable suspicion against the plaintiff. It is important to remember that the witness refers to confidential reports from Dhemarkur from where the plaintiff was alleged to be driving out his Muslim tenants, by indirectly inciting people to burn their houses. In contrast to this vague and unsatisfactory statement of the officer, we have overwhelming positive evidence on record consisting of respectable and independent witnesses and even the Muslim tenants of the plaintiff to show how the plaintiff tried to save the situation and earnestly solicited the help of the authorities.

I will refer to this evidence at a later stage, when I discuss the plaintiff's evidence on the point. The Deputy Commissioner is also equally vague on the subject. He says that he received some reports from the local people of position about the plaintiff's complicity in the communal disturbances and also in the commission of cognisable offences and he named certain persons from whom he got information. He says that in his opinion the reports seemed to be credible and on consultation with the Sub-divisional Magistrate, he asked him to take suitable action in the matter; but, he admitted that the reports were verbal and that the persons, who reported to him, were not willing to give him anything in writing. The Deputy Commissioner says that he asked those persons to report to the Police, but there is no such report against the plaintiff.

He also admits that there were general instructions to the Police to take ejahar from persons whose houses were burnt after his arrival at Barpeta. We have seen that though there were several ejahars, there is no evidence of any ejahar at any stage having been lodged against the plaintiff. Two out of three persons named by the Deputy Commissioner, Sri A. K. Das, M.L.A, and Sri Bangshidhar Choudhury, a member of the local Bar, from whom he is said to have learnt about the complicity of the plaintiff in the communal disturbances have been examined in the case. Their evidence is hearsay.

They in turn say that they got reports from panic-striken Muslim immigrants that the plaintiff threatened them by saying that there was danger of their houses being burnt, if they remained and asked them to quit. The evidence of Bangshidhar Chou-dhury is not free from bias as he may not be well disposed towards the plaintiff due to several litigations pending between them.

13. The source from which these persons derived their knowledge and information was never tested inasmuch as none of the persons from whom they alleged to have got complaints was ever examined. In fact the only person whom Sri Akshoy Kumar Das names is one Matior Rahman of Kaya-kuchi side, who is said to have left for Pakistan. Sri Bangshidhar names also one Abdul Bank, but none of these people was examined. As admitted by Sri Bangshidhar, there was no arson case at Kayakuchi.

For the defendants, stress has been laid on the evidence of Sri M. M. Choudhury, the then Parlia-mentary Secretary, but the knowledge of Sri Chou-dhury is equally vague and indefinite. He had to admit in cross-examination that he did not know the names of those who gave information against Ajoy Babu (plaintiff) nor could he say if he knew those people. According to him, those people complained against many persons, but he could not give any details of those other persons. He further says that the reports did not mention any date and particulars of the incidents.

He appears to have practised law at Barpeta for some years and although the witness denied the suggestion that the plaintiff was opposed to him during: the last general elections, he admitted that the plaintiff had been occupying a rented quarter of his opponent. The evidence of this witness, therefore, is not of any assistance to the defendants. A few other witnesses for the defendants, namely Ibrahim Sheikh, Jabedulla alias Jabed Ali and Golap Mia speak of some meeting held at the Dhumarkar school on the day previous to the burning of the houses in the Dhumarkar Hat. They alleged that at the meeting the plaintiff asked them not to use force or oppose? the assailants if attacked, as they would not be able to cope with them.

The evidence of these witnesses does not inspire much confidence; but even if any value is attached to their evidence, it does not go far enough to suggest that the plaintiff was responsible for any offence or incited incendiarism. The witnesses on the contrary admit that the plaintiff Ajoy Bubu was the owner of the Dhumarkar Hat which was burnt.

Ibrahim Sheikh appears to have filed the complaint (Ext. B) about setting fire to his house, but there is no suggestion therein of plaintiff's complicity in the matter. Therefore, so far as their evidence goes, they say nothing against the plaintiff except what he is alleged to have spoken at the meeting the day previous to the burning of the hat. On the contrary, the evidence of several other witnesses goes to support the plaintiff that he tried to help his tenants during the disturbances.

I will briefly refer to that part of the evidence. Hazrat Ali Sarkar, a member of the Barpeta Local Board, says that the Muslim tenants of Khorma Hat, which belongs to the plaintiff, about 300 to 400 in number, brought the plaintiff to the place and Ajoy Babu encouraged them not to be afraid and that he would try to save them, though he was not sure whether he would be able to cope with the situation, having regard to the magnitude of the disturbances.

The witness is, however, positive that he could gather from the conduct of the tenants that they had faith in the plaintiff. Darbesh Ali Sarkar was a member of the Managing Committee of Bhowanipur H. E. School. He says, he was present at the meeting held at Khorma Hat during the disturbances. When the Dhumarkar Hat was burnt they informed the plaintiff about their fear and requested him to come. The plaintiff went there with the Sub-Inspector and armed constables.

He felt sorry at the incident at Dhumarkar Hat and advised them not to be afraid and to offer opposition to people trying to create mischief and not to leave their houses. The witness says that they had all faith in him and they used to address him as 'Prabhu and Hazur' and held him in high esteem. Jalimuddin Mia, admitted by defendants witness Ibrahim Sheikh to be a Matbor of Katlagaon of which the plaintiff was the proprietor, says that ho and many Muslims about 200 to 300 immigrants, were the tenants of the plaintiff in Katlagaon and its neighbourhood.

He says that during the disturbances of 1950 and before the burning of the Dhumarkar Hat they sent Kurpan and Gofar to bring the plaintiff. The plaintiff went there, spoke to them and encouraged them to remain there without fear. None complained against the plaintiff and he definitely says that during the disturbances the plaintiff helped the Muslims very much. Two other respectable witnesses like Sri Debendra Nath Uzir and the Magistrate Sri J. Barua have testified to what the plaintiff did on the occasion of those disturbances. Sri Debendra Nath Uzir has been practising at Barpeta for the last 30 years. He was a member of the Provincial Congress Working Committee till 1938.

He was also a member of the District Congress Working Committee of which he sometimes acted as the Secretary and since 1933 he had been also acting as the Secretary of the Harijan Sevak Sangh and President of the Sevak Sangh. He is also connected with other public institutions. He states that the plaintiff had hats at Dhumarkur and Kharma, where he has also kutchery. He along with the plaintiff and one Shyama Charan Das, B.L., Pleader, went to Dhumarkur Hat where they convened a meeting and asked the Muslims, who were the tenants of the plaintiff, not to be panicky and assured them of all Police and military help.

After the meeting, they returned from there and accompanied by a Sub-Deputy Collector from Bhowanipur, they went to Barpeta Road where they met the Deputy Commissioner, the Superintendent of Police the Sub-divisional Magistrate and the Assistant Commandant Sri S. K. Choudhury and requested them all to send military force at once to Dhumarkur. He and Mr. B. C. Dutta, the Sub-deputy Collector even submitted a written report to the Deputy Commissioner, which the Deputy Commissioner handed over to the Sub-divisional Magistrate for taking action; but, it appears that these steps were not taken in time and the Hat was destroyed.

The witness further says that next dav, the plaintiff called him at the office of Sri J, Barua, Extra Assistant Commissioner, where he reported apprehension of disturbances at Kharma Hat also, the officer being then in charge of the sub-division. This officer ordered the Police Officer-in-charge, Barpeta to proceed at once to Kharma Hat. Later, in the day according to the witness, the plaintiff appeared much upset and again approached Sri Barua with the witness, whom he informed that the Dhumarkur Hat was burnt down that morning and no military help was rendered by the Sub-divisional Magistrate or the other authorities in spite of the earnest request which the witness and the plaintiff had made to save the place. Sri J. Barua, the Magistrate, fully supports Mr. Uzir on this point.

He says that during the relevant period the plaintiff approached him to quell immediately the communal riots and incendiarism, which was reported to be in progress at Dhumarkur Hat. The plaintiff also requested him to deal with the riot which was reported to have extended towards Kharma Hat, when the Magistrate directed the officer-in-charge of the Police station with some armed personnel to deal with the situation.

He further says that the majority of the people on that side were Muslim immigrants. We have thus the vague nature of the evidence on behalf of the defendants and the positive evidence of these witnesses in favour of the plaintiff.

14. On behalf of the defendant No. 3, there

was some argument advanced that when the De

puty Commissioner observed that on receipt of

those verbal reports from certain persons, he had

consultation with the Sub-divisional Magistrate and

asked him to take suitable action, it should be as

sumed that he had taken cognisance of the case.

But, this argument is futile in view of the evidence

to which I have already referred where the Deputy

Commissioner admitted that he did not mention any

names of persons to the Sub-divisional Magistrate

to be arrested, nor did the Chief Minister and he

did not issue any order for the plaintiff's arrest to

the Sub-divisional Magistrate either in writing or

verbally.

The justification pleaded by the defendant No. 3 for the arrest of the plaintiff, therefore, cannot be entertained. I have already referred to the positive evidence regarding the part played by the plaintiff in trying to help his Muslim tenants. I realise that if actually the officers had proceeded according to law in directing the arrest of the accused, the mere fact that on later investigation it was revealed that the plaintiff was innocent, would not affect the legal position; and the officer directing the arrest could still plead justification in view of the knowledge which he possessed at the time of the arrest in question. It is obvious that the existence or non-existence of reasonable cause must be judged not by the event, but by the party's means of knowledge at the tune; but the evidence here leads to the inference that in directing the arrest, the defendant No. 3 did not act in any responsible manner and in the exercise of any lawful authority.

The analysis of the evidence shows that there was not even credible information against the plaintiff on which any responsible Magistrate could have acted and in fact none of these officers did act upon any such information. The Sub-divisional Magistrate says, he did not and so does the Deputy Commissioner; and yet the naked fact remains that the plaintiff was arrested.

On the above state of the evidence, I have no hesitation in accepting the finding of the learned Subordinate Judge that the arrest of the plaintiff at the instance of the defendant No. 3 was not in the exercise of any lawful authority : it was reckless and without any lawful excuse.

15. I am also inclined to think that there is much substance in the plaintiff's assertion that the conduct of the defendant No. 3 in directing his arrest was not free from improper motive. The officer admits that as the Sub-divisional Magistrate of Barpeta, he presided at the instance of Sri D. Uzir, B. L., over a Peace Committee meeting in the first part of March in which the plaintiff was also present; but, he denied having had any differ-ence or altercation with the plaintiff in any such meeting.

The fact that there were such differences and alterations between the two is established beyond any doubt on the evidence on record. Three members of the local Bar, Sri Mahendra Nath Das, Sri Dhaniram Talukdar and Sri Dabendra Nath Uzir have consistently deposed to that effect and corroborated the plaintiif on the point. It is in evidence that the Peace Commit Lee was formed on the 1st or 2nd of March, 1950 and there was a meeting on the 9th or 10th March over which the Sub-divisional Magistrate presided. It is better to quote Sri Uzir as to what transpired at the meeting :

'About 9th or 10th March, 1950, Sub-divisional Officer Mr. 1 Hussain called the Peace Committee through me at his office. In that meeting an alter-ation took place between the Sub-divisional Offieer and the plaintiff Mr. Mukherjee regarding accusations of the Hindus by the Sub-divisional Officer. Both of them were excited and Sub-divisional Officer remarked, Mr. Mukherjee, remember arms of law are long enough to catch hold of any man however high he may be.' I interfered and requested the Sub-divisional Officer to stop all altercations and to give us directions to stop further disturbances. Programmes were chalked out there then.'

Only about a week after, on the 17th, the plaintiff was arrested in the circumstances already discussed.

16. The learned Counsel for the appellant submits that the Sub-divisional Magistrate in any event i,s entitled to immunity under the Judicial Officers' Protection Act, 1850 (Act No. XVII of 1850). The Preamble of the Act shows that the legislation is meanu for the greater protection of Magistrates and others action indicially. The only section in the Act runs as follow:

'No Judge, Magistrate, Justice of the Peace, Collector or other person acting judicially shall be liable to be sued in any Civil Court for any act done or ordered to be done by him in the discharge of his judicial duty, whether or not within the limits of his jurisdiction : Provided that he at the time, in good faith, believed himself to have jurisdiction to do or order the act complained of; and no ofiicer of any Court or other person, bound to execute the lawful warrants or orders of any such judge, Magistrate, Justice of the PEACE. Collector or other person acting judicially shall be liable to be sued in any Civil Court, for the execution of any warrant or order, which he would be bound to execute, if within the jurisdiction of the person issuing the same.'

On the face of the section itself, this section can afford no protection to a Judge or Magistrate for his private or individual act if the act is not done judicially or in the discharge of his judicial duty. This is the very essence of the protection afforded by this section. A person may be a Magistrate or a Judge, but he cannot take shelter under the provisions of this Act, unless the act complained of wns in the course of his judicial duties and not merely some act performed by him arbitrarily or in some other capacity, without any sanction of the law.

In the present case, the Magistrate, although he was the Sub-divisional Magistrate at the time was not acting judicially as a Magistrate within the provisions of the Code of Criminal Procedure or in the exercise of any authority conferred on him by the Code. The act, as I have shown, was an act for which there was no warrant in law at all. He himself says that he did not exercise any judicial function in the matter.

He had taken no cognisance of any case and in ordering the plaintiff's arrest, he was merely doing what the Deputy Commissioner has ordered him to do. This cannot mean that he was performing any judicial function in issuing the warrant in question, nor can he take the plea that he was an officer of the Court of the Deputy Commissioner or a person bound to execute his order. The Deputy Commissioner himself has stated that he had nothing to do with the warrant of arrest issued against the plaintiff and in fact he came to know of it the day after his arrest.

Under these circumstances, it cannot be argued with any show of reason that the Sub-divisional Magistrate (defendant No. 3) was acting either judi-cially or in the discharge of his judicial duties and therefore, the protection under the section, which is rightly guaranteed to Magistrates and persons acting judicially, was not available.

The section lays special stress upon the words 'acting judicially' and 'any act done or ordered to be done by him in the discharge of his judicial duty.' I should in this connection deal with a few of the cases to which the learned Counsel has referred in support of his contention. They are all cases where the officers acted in the discharge of their judicial duty. In Sewalram Agarwalla v. Abdul Majid, AIR 1938 Cal 177 (A), the Sub-divisional Officer, who had powers to issue an order for search and seizure under Section 96 of the Code of Criminal Procedure, issued such an order, without issuing a search warrant in the required form as given in the Code, for search and seizure of some tins of adulterated mustard oil and ghee from a certain shop in connection with an alleged offence under Section 272, Indian Penal Code, of which he had taken cognisance.

It was held that he was entitled to the protection claimed. What happened was that the officer had received complaints from various persons about noxious and adulterated mustard oil and ghee being sold and being exposed for sale by several traders in the Gaibanda town. The plain-tiff's firm was named in the petition as one of those dealing in these offensive articles and the defendant, therefore, made an order for a search and seizure of these articles at the premises of the plaintiff's firm.

He mode this order in writing on the body of the anonymous petition. He was, therefore, doing a judicial act and the mere fact that the search warrant was not issued in proper form did not affect his jurisdiction. The order for search and seizure was made under section 96 of the Criminal 'Procedure Code in the bona fide discharge rf his duly as a Magistrate, as he intended to hold an enquiry into an alleged offence under Section 272 of the Indian Penal Code of which he had taken cognisance under Section 190 (c) of the Code.

Therefore, the omission to issue a warrant for the search and seizure of the goods in regular form did not affect the jurisdiction of the Magistrate to order for the search. The defect, if any, related only to the particular manner in which he ought to have exercised jurisdiction and not to the jurisdiction itself.

17. The decision in Rohini Kumar v. Niaz Mahammad, AIR 1944 Cal 4 (B) refers to a case of malicious prosecution and wrongful arrest. The facts in that case show that the defendant had taken cognisance against the plaintiff of allegations made against the latter for an offence under section 504 of the Indian Penal Code and then ordered certain persons to arrest the plaintiff in his presence. It is true that the statement of the complainant was not recorded by the Magistrate immediately before the arrest, but in the circumstances, he did so about an hour later under Section 200 of the Code of Criminal Procedure.

The record, therefore, showed that the Magis

trate had been acting judicially and it could not

be held in the circumstances that the arrest of the

plaintiff at the instance of the Magistrate was

without any lawful authority, The learned Judges,

therefore, held on the relevant findings of the

Courts below that the defendant was entitled to

protection.

18. Kendall, J. in Sheo Baran Singh v. Lachmi Narain, AIR 1933 All 749 (C) referred to the underlying principle in Section 1 of the Judicial Officers' Protection Act and referred to the very valuable dictum of Crompton, J. in Fray v. Blackburn, (1863) 3 B and Section 576 : 122 ER 217 (D) as follows :

'It is a principle of our law that no action will lie against a Judge of one of the superior Courts for a judicial act, though it be alleged to have been done maliciously and corruptly; therefore, the proposed allegation would not make the declaration good. The public are deeply interested in this rule, which indeed exists for their benefit and was established in order to secure the independence of Judges and prevent their being harassed by vexatious actions.''

19. The same principle was reiterated by Fal-shaw, J. in Behari Lal v. State of Punjab, AIR 1953 Punj 188 (E), where the learned Judge observed that if the act complained of against a judicial officer in in its nature judicial and within his jurisdiction, he is not liable to be sued even though the act was done maliciously.

It is only when a judicial officer does something beyond his jurisdiction that any question of malice or reasonable and probable cause arises. The Act of 1850 was only introduced to protect officers from the consequences of acts done beyond their jurisdiction, but without malice and in good faith, the absolute protection as regards acts done within their jurisdiction still being maintained. In that context, the learned Judge relied upon the observations of Sir John Edge, C. J. in Teyen v. Ramlal, ILR 12 All 115 (F) :

'However hard it may be upon the plaintiff to have no redress by suit for the grossly irregular and oppressive act of the defendant, it is of the utmost importance to the public and to the State that the protection afforded by Act 18 of 1850 should not be cut down to meet hard cases, and that Judges, Magistrates and others who have to exercise judicial duties for the benefit of the community should be able to act without the constant fear before them that if they happen to act irregularly or without full legal justification for the act done or ordered to be done by them they will have to answer in damages to the person injured.'

20. These cases, therefore, do not help the contention of the learned counsel on the facts revealed in the present case. That the said statute (Act XVIII of 1850) affords no protection if the act is not authorised by law at all and the act was attributable to the officer in his individual capacity and not in the discharge of his judicial duties is clearly illustrated in the case of Sinclair v. Broughton, 9 Ind App 152 (G) in which the Judicial Committee pointed out that there is no law, which authorizes the Police or a Magistrate in the exercise of police duties, or an officer in command of a cantonment, in consequence of a bona fide belief that a person is danger-ous by reason of actual lunacy, to put him into confinement in order that he may be visited and examined by medical officers. Neither the police nor a Magistrate in the exercise of police duties could with immunity under Act XVIII of 1850 direct the arrest of a person in the exercise of police powers or merely by virtue of his executive authority, unless the officer in question was acting judicially.

In the present case, the order sheet (Ext. 1) itself shows that no cognisance was ever taken, no case was ever instituted against the plaintiff and although from time to time several Magistrates appear to have dealt with the matter, ending finally in the release order by Sri A. K. Roy on 31-3-1950, yet there was never any order of regular transfer of any case to any of these Magistrates to give them jurisdiction to deal with the matter as such. I cannot, therefore, entertain the contention of the learned counsel that the act of the defendant No. 3 was in the exercise of any lawful authority or that he was entitled to protection under the Judicial Officers' Protection Act.

21. The learned counsel has further urged that the plaintiff's claim was barred by Article 2 of the In dian Limitation Act, 1908 (Act IX of 1908) in which the period of limitation for claiming compensation 90 days, when the act or omission takes place; be Article 2 refers to compensation for doing or for omit-ting to do an act alleged to be in pursuance of any enactment in force for the time being in India. It can have no application to the present case. The learned counsel for the plaintiff respondent is right in con tending that the specific article applicable to the case is Article 19 of the Limitation Act, which refers to compensation for false imprisonment.

Under that Article, the period is one year from the date when the imprisonment ends. That being so, the claim for compensation is not barred by limitation. The non-applicability of Article 2 of the Limitation Act is illustrated by the decision in Punjab Cotton Press Co., Ltd. v. Secy, of State, AIR 1927 PC 72 (H). In that case, the canal authorities cut the bank of a canal to avoid accident to the adjoining railway and not to the canal with the result that the plaintiff's adjacent mills were damaged. It was held that Article 2 did not apply as the act alleged was not done in pursuance of any enactment.

22. For the above reasons, I hold that the decree of the learned Subordinate Judge must be affirmed, and the appeal dismissed with costs.

23. First Appeal No. 18 of 1954.--I will now

turn to the other appeal, which has been filed by the

plaintiff. The two questions which arise in this appeal

relate to the liability of the other defendants against

whom the suit has been dismissed and the quantum

of damages.

24. The case of defendant No. 2, the Deputy Commissioner, I have discussed earlier and it seems to me that he cannot be held responsible for the arrest of the plaintiff, which was entirely at the instance of the Sub-divisional Magistrate, the defendant No. 3. The mere statement in paragraph 6 of the written statement that the arrest of the plaintiff was at the instance of both the defendants will not necessarily fix the lesponsibility on this defendant, when the evidence adduced in the case does not lead to that conclusion.

From what has been discussed above, it is clear that the defendant No. 2 did nothing in the matter of the plaintiff's arrest nor did he issue any orders in that behalf. Therefore, so far as he is concerned, no question arises whether he did or did not act judicially in the matter. I have held earlier that the liability rested with the defendant No. 3 for the arrest of the plaintiff, as he did not act judicially and his order was altogether unauthorised. I have also held that in directing the arrest he was actuated with some improper motive or grudge against the plaintiff.

The question then is about the liability of the State on account of the high-handed or unauthorised conduct of its servant, the defendant No. 3. Here again, the written statement has created some difficulty and has been rightly commented upon by the learned Subordinate Judge. The Court has further pointed out that it appears even in the course of the arguments nothing was specifically said about the liability of the State and the case appears to have been presented in common on behalf of all the defendants without any differentiation between them.

The learned Subordinate Judge, however, after an investigation of the matter by himself, held that in law the State could not be made liable for the act of its servants unless it had been expressly authorised by the State. It is contended by Mr. Ghose that in view of the pleading this distinction between the liability of the State and its servants was not open to be canvassed at all. I am not inclined to entertain this argument of the learned counsel.

In law, there is a clear-cut distinction between acts done by the Crown or the State in pursuance of industrial or commercial ventures, which it might carry on just in the same manner as any other private individual and acts done by the State in the exercise of its Governmental or sovereign powers, which could not be lawfully exercised save by the sovereign authority or by persons to whom that sovereign authority might lawfully delegate those powers.

Where, therefore, acts are done by the State or its employees in the process of commercial or industrial undertakings and ventures or operations of that kind, the question of vicarious liability of the State might well arise as in the case of any other employer where the act is done in the course of employment, even though forbidden by the employer; but, acts done in the exercise of sovereign or Governmental powers such as making a treaty or commandeering private property for war purposes or quelling disturbances by force, to preserve the security of the Stale stand on an altogether different footing. Such acts are not justiciable in Courts of law and the immunity of the State is almost unquestioned.

There are other classes of acts which are done under the sanction of certain municipal laws or statutes and in the exercise of powers conferred thereby. These again may be sub-divided under two heads : (1) those consisting in detention by the State of land, goods or chattels belonging to the subject; and (2) those done by officers of the Crown in the discharge of their official duties. In regard to acts under the first sub-head, an action would lie in the Courts in India; so also a petition of rights could be presented against the Crown to the Courts in England.

In respect of acts falling under the second subhead, no action would lie against the State, except where it can be proved that the impugned act had been expressly authorised by the State or that the State had profited by its performance. The reason why no right of action lies in such cases except on proof of special authorisation by the State is that, in the absence of such proof, the act is considered to have been done in exercise of the power or the discretion vested in the officer by the relevant law and not in pursuance of any implied authority derived from the Government.

In such cases, the principle of vicarious liability cannot apply to the State, merely because the officer happens to be a servant of the State; the officer is expected to function under the law in questior and if he does not do so and he acts arbitrarily, the responsibility for the act will rest on him and will not be extended to the State unless expressly authorised by the latter.

The relevant municipal law or its statute may curtail or enlarge the scope of the officer's authority. The above principles nave been elaborately dis-cussed in Udaycnand Mahtab v. Province of Bengal, 51 Cal WN 537 (I) and followed in Maharaja Bose v. Governor-General-in-Council, AIR 1952 Cal 242 (J), Union of India v. Ram Kamal Bezbarua, AIR 1953 Assam 116 (K). In the last mentioned case it was held that the State incurred no liability although the fish in the plaintiff's fishery were alleged to have been lost due to the wanton acts of the troops, who were then in occupation of the fishery for the efficient and successful prosecution of the War.

There is no evidence in this case that the State Government ever authorised the unlawful action of the defendant No. 3. It is true that the State has not expressly repudiated the conduct of the defendant No. 3 in directing the arrest of the plaintiff and it is unfortunate that a common written statement was filed on behalf of the defendants when their liabilities could be differentiated; yet, that fact alone will not make the State liable.

The arrest in question was not legal and not in accordance with any procedure established by law and the defendant No. 3 at whose instance the arrest was made, was not acting judicially or in exercise of any lawful authority. Therefore the defendant No. 3 was rightly held to be liable in the circumstances, but the State could not be liable for the tortious acts of its officer. The officer concerned in this case did not exercise his power or discretion vested in him by law, but acted beyond the scope of his authority.

25. The next question is whether the defendant No. 4 can be held liable. The learned Subordinate Judge has exempted this defendant also on the ground that he acted in good faith and he acted on the impression that the order made over to him for the arrest cf the plaintiff was a lawful warrant of arrest, which the Sub-divisional Magistrate was entitled to issue in his judicial capacity, and as a subordinate officer he was bound to execute the same. The learned Subordinate Judge held that in the circumstances, this defendant was protected under the Judicial Officers' Protection Act.

26. Good faith or bad faith is hardly any consideration in determining the liability of a person in a case of false imprisonment. An officer may be acting in complete bad faith, but if he acts in his judicial capacity, he will be entitled to claim protection so long as the matter is within his jurisdiction; but, if the officer arrests a man without any lawful justification or authority and his act is without jurisdiction, he cannot claim immunity merely because he may have done so in complete good faith. The question of good faith or mala fide may be relevant consideration affecting the quantum of damages, but not in determining the liability of the individual Concerned. In this case, it has been already held that the defendant No. 3 was not acting judicially in directing plaintiff's arrest.

It could not be held therefore, that the order which the defendant No. 4 had been directed to execute was a lawful warrant. Apart from the fact that the order (Ext. A) was not in the regular printed form and did not bear the seal of the Court--which may be treated as mere irregularities--, what is important is to notice that on the face of it, it showed that the order of arrest had been given by the Deputy Commissioner; but the Deputy Comis-sioner had not signed the order as a Court.

The order was prepared and signed by the Sub-divisional Magistrate himself purporting to do so on behalf of the Deputy Commissioner. On the face of it, therefore, it was not a lawful order within the meaning of the Code. The latter part of Section 1 of the Judicial Officer's Protection Act cannot, therefore, be attracted to the case. Even there, the essential requirements are that the orders or warrants should be lawful orders or warrants issued by any Judge or Magistrate, etc., acting judicially. It is only then that the subordinate officer of the Court, who is bound to execute such an order or warrant can claim protection.

In this case, unfortunately, both these essentials are found lacking. It is true that the Circle Inspector of Police took it as a lawful warrant of arrest within the meaning of the Criminal Procedure Code and as such he thought that it was his duty to execute the same. His good faith, therefore, will not by itself offer him protection. As a cautious Police Officer, he could have easily found on a bare perusal of the document that it was not a lawful order, nor was it issued by the Magistrate in his judicial capacity.

In the circumstances, I regret, I am unable to

agree with the learned Subordinate Judge about the

liability of this defendant. I hold that this defen

dant is also liable for the illegal arrest. I think how

ever, that having regard to the circumstance the fact

that he acted in good faith and felt himself bound

to carry out the orders of his superior, will have to

be taken into account in fixing the damage claimed

against him, I will, therefore, now pass on to the

question of damages.

27. The finding of the learned Subordinate Judge that the plaintiff was a respectable person of nigh social status has not been seriously challenged. There is overwhelming evidence on record to prove these facts, and even the defence evidence points to the respectability and high position of the plaintiff. The Sub-divisional Magistrate him elf says that he knew the plaintiff to be a gentleman and he classified him as a Class I prisoner on account of high social status, though the classification meant not advantage to the plaintiff, because of lack of facilities in the jail lock-up.

The plaintiff was arrested at about 10-30 in the night when he was about to go to bed. It has been adequately proved by medical evidence that the plaintiff had been then suffering from heart trouble and that he had only lately recovered from a heart attack. At the tune of his arrest he was, therefore, in a very unsatisfactory state of health. As a result of the arrest, his heart trouble got aggravated and he actually fainted in the lock-up on the following morning of the 18th March. These facts are amply borne out by the two doctors, who attended on the plaintiff.

In view of his condition of health, Dr. D. K. Barua, who was then the Assistant Surgeon of the Barpcta Civil Hospital and was in charge of the Barpeta jail lock-up at the relevant time, examined him on the morning of the 18th March after the arrest and submitted his report (Ext. 6), which shows that the plaintiff had recurrence of heart troubles and he recommended his immediate removal to the hospital for treatment and for his being sent to headquarters for better treatment, when he would Be fit for travel. His family physician Dr. Jiban Chandra Medhi speaks of his chronic heart dicease and the attack from which he suffered about a month before the disturbances and the consequent aggravation of the trouble due to his arrest.

In spite of the recommendation, however, of the jail doctor, the plaintiff was not removed. The Magistrate (defendant No. 3) feigns ignorance of these facts, but even the order sheet (Ext. 1) shows that there was report that the plaintiff had fainted for three hours. He was kept confined in the lockup, which ordinarily could contain only 30 persons, while there were as many as 133 persons in the lock-up at the time.

I have also shown that in spite of the denial of the defendant No. 3, there were serious differences between him and the plaintiff at a meeting of the Peace Committee only about a week earlier which points to the conclusion that there was substance in the complaint of the plaintiff that the Sub-divisional Magistrate acted mala fide in directing his arrest. These circumstances undoubtedly make out a strong case for serious notice of the conduct of the defendant No. 3 in assessing the amount of damages. Damage in such cases of tort should be commensurate with the injury, and annoyance caused to the person concerned and especially where it is a case of official high-handedness damages should be exemplary.

The question, therefore, which has been seriously pressed for our consideration is whether in this case we should not assess the amount of damages at a much higher figure than what the trial Court has done. The plaintiff claimed a sum of Rs. 20,000 oit account of damages, while the Court decreed damages to the extent of Rs. 5,000 only. The assessment of damages more or less is a matter of judicial discretion to be exercised by the Court on a review of all the relevant circumstances bearing on the point: the status of the plaintiff, the damage or discomfort or inconvenience caused and the contu-macious or malicious conduct of the defendant.

If, therefore, the Court in assessing the amount of damages had lost sight of any of the relevant considerations, this Court in appeal would have been perfectly justified in interfering with the exercise of that discretion. Otherwise, although, speaking for myself, I may have been inclined to assess damages at a higher amount, I do not think that when toe trial Court had exercised its judicial discretion in the matter and thought that a sum of Rs. 5,000 would be sufficient to meet the ends of justice, I should substitute my own discretion in the matter.

I, therefore, hesitate to interfere with the amount of damages adjudged against the defendant No. 3 and would leave the decree as it stands. But, in so far as the defendant No. 4 is concerned, I think, I should assess the amount of damages payable by him. I have already discussed the circumstances under which he effected the arrest of the plaintiff and I think that so far as this officer is concerned, it would be enough if I decree the claim against him to the extent of Rs. 1,000 only. The paintiff would be entitled to recover the amounts ecreed severally from the defendants concerned.

28. I would accordingly allow this appeal only to the above extent; but having regard to the circumstances of the case, the plaintiff would be entitled to proportionate costs of the appeal from the defendant No. 4. In other respects, parties will bear their own costs of this appeal.

H. Deka, J.

29. These are two connected appeals,--No. 14 of 1954 being filed by Anowar 'Hussain and No. 18 of 1954 being filed by Ajoy Kumar Mukherjee, against the same judgment and decree passed by Shri R. Medhi, Subordinate Judge, Lower Assam Districts at Gauhati in Money Suit No. 31 of 195X of his court brought by Ajoy Kumar Mukherjee. Anowar Hussain was defendant No. 3 and against him a decree has been passed for Rs. 5,000/- personally with proportionate costs thereon inclusive of the cost of the commission issued by the plaintiff.

Ajoy Kumar Mukherjee instituted the suit for recovery of compensation of Rs. 20,000/- for alleged false imprisonment against four defendants the State of Assam and the three Government employees--A. C. Bhattacharjee, who was serving at the material time as the Deputy Commissioner of Kamrup, Ano-war Hussain serving at the material time as the Sub-divisional Officer, Barpeta and B. R. Chakrabarty, Inspector ot Police serving at the time as the Circle Inspector of Police at Barpeta.

The plaintiff's case was that be was a person of high social status with considerable landed property and that Anowar Hussain the Subdivisional Officer, Barpeta out of personal grudge issued a c it of arrest of the plaintiff on the night of 17-3-1950 and he was actually arrested 0:1 the force of thatt chit by defendant No. 4 who was the then Circle Inspector and detained the plaintiff in the thana lock-up for the 'night and he was thereafter put in Hazat, from where he was released on bail on the 20th March following.

It was further suggested that the Deputy Commissioner defendant No. 2 Mr. A. C. Bhattacharjee was a party to this arrest and the chit on the strength of which the plaintiff was arrested, was purported to be issued at the direction of the Deputy Commissioner Mr. Bhattacharjee. The plaintiff further alleged that he had been suffering from heart trouble for a long time prior to the arrest and that his trouble aggravated while he was in the police custody and placed in local jail where he suffered many inconveniences. The plaintiff alleged that the arrest, detention and imprisonment of the plaintiff were reckless, malicious and without any lawful excuse or legal justification and calculated to insult and disgrace him.

His case further was that the State Government was legally liable for the plaintiff's false imprisonment caused by defendants 2 to 4 acting in the course of their employment under the Government of Assam and that the State Government by their conduct had in effect ratified the actions of other defendants who are Government employees.

The malice alleged against defendant No. 3--Anowar Hussain was that the plaintiff was a member of a Peace Committee formed at the instance of the Government of Assam in co-operation with some non-official influential men of the locality and that in the middle of March 1950 the plaintiff had altercation with defendant No. 3 where some matters were discussed in the meeting and as such incurred his displeasure. The four defendants filed a joint written statement stating that the suit was not maintainable in law and it was vexatious in character and barred by limitation. Defendant No. 3 categorically denied that the plaintiff had any serious difference or altercation with the defendant No. 3, though he admitted that on one occasion he presided over a peace committee which however was not sponsored by the Government. The defendants case is that the plaintiff was arrested by defendant No. 4 at the instance of the defendants No. 2 and 3 as there were sufficient reasons based on credible information and reasonable suspicion that the plaintiff was concerned in some cases committed by certain sections of the local majority community on the lands belonging to the plaintiff and such incidents led to serious communal disturbances in the month of March, 1950.

Defendants denied the allegation that the arrest of the plaintiff was reckless, malicious and without any lawful excuse and that it was calculated to insult and disgrace the plaintiff. According to them the plaintiff was in normal health at the time of arrest but he developed some symptoms of illness after arrest and removal to custody and he was given the best medical help that was available and was released on bail on 20-3-1950. The defendants denied any liability to pay any compensation as alleged or the story of false imprisonment as pleaded by the plaintiff. According to them what they did was periectly justified by law and in bona fide discharge of their lawful duties.

They had absolutely no malice against the plaintiff and all their actions being bona fide and in discharge of their duties, they were fully protected by law. There was no tortious act as alleged and the plaintiff was discharged as soon as it was evident that no reliable evidence could be procured for the prosecution of the plaintiff in connection with the charge for which he was arrested. On the above pleadings the following issues were framed:

1. Is the suit maintainable in law? Is it barred by limitation ?

2. Does the plaintiff hold high position in society Were there differences and altercations between the plaintiff and the defendant No. 3 as alleged in the plaint?

3. Was the plaintiff arrested at the instance of defendants Nos. 2 and 3? If so, were there sufficient reasons based on credible information and reasonable suspicions that the plaintiff was concerned in cases under Section 436, Indian Penal Code.

4. Whether the plaintiff's arrest was malicious, reckless and without any lawful excuse?

5. Was the plaintiff in normal health at the time of his arrest?

6. Were the plaintiff's arrest, detention and remand according to procedure established by law or whether these were contrary to the provisions of Arts. 21 and 22 of the Constitution of India?

7. Is the defendant No. 1 liable for the tortious acts, if any, of its Officers?

8. Were the defendants Nos. 3 and 4 discharging their lawful duties in arresting the plaintiff? If so, are they protected under the law?

9. Is the notice legally valid and was it duly served on the defendants?

10. What relief, if any, is the plaintiff entitled to?

The learned Subordinate Judge practically decided all the issues in favour of the plaintiff except issue No. 7 and partially issue No. 8 and held that defendant No. 3--Anowar Hussain--was liable to pay the plaintiff compensation which he assessed at Rs. 5,000/- and decreed the same against him with proportionate cost. He held in substance that the suit was maintainable and it was not barred by limitation. He found that the plaintiff held high position in society and his arrest and detention was due to grudge on the part of defendant No. 3. He found that there was no sufficient reason for arrest and detention of the plaintiff and that his arrest was malicious, reckless and without anv lawful excuse.

In his opinion under the facts and circumstances of the case the plaintiff's arrest was illegal and his detention and remand could not be said to have been made according to procedure established by law. In his view the arrest, detention and remand of the plaintiff were contrary to the provisions of Arts. 21' and 22 of the Constitution and the plaintiff succeeded in establishing a case of false imprisonment as alleged by him which amounted to a tortious act. He however exempted defendants 1, 2 and 4 from any liability and ascribed the responsibility exclusively to defendant No. 3 for the false imprisonment as found by him.

He held that the notice was duly served and the plaintiff was entitled to a compensation of Rs. 5,000/- and not Rs. 20,000/- as claimed by him in the plaint. The defendant No. 3--Anowar Hussain--has appealed against the decree passed against him and Ajoy Mukherjee, the plaintiff, has appealed against this judgment for relief against defendants 1, 2 and 4 and for the balance of his claim which has been dismissed. Before entering into the merits of the case, 1 might set out my views in brief, on the facts based on the evidence in the case and the law applicable to the circumstances of the case and they are as follows :

(1) that the suit is barred under the provisions of the Judicial Officers Protection Act (Act XVIII) of 1850;

(2) that there was no cause for relief against any of the defendants including defendant No. 3;

(3) that compensation if any, should be de

creed not against defendant No. 3 alone but against

defendant No. 1 if at all, since the other defendants,

who were Government employees, acted in dis

charge of their official duties;

(4) that there was no false imprisonment of the plaintiff as alleged and there was no case for payment of any compensation, as claimed.

30. Now I shall be giving the reasons for my views. The facts admitted are that the plaintiff is a man of some social standing and position with some landed properties, a part of which was tenanted by a large body of Muslim immigrants who originally came from the East Bengal. It is also admitted that there was a communal riot which flared up in the Barpeta Sub-division in the early part of March, 1950 in the course of which houses of those immigrant Muslims were set fire to and a large body of them had to leave their hearth and home in Assam and leave for Pakistan.

The plaintiff admits to have gone to the place of occurrence more than once but with a view to quieten his tenants and remove their fears whereas it is alleged by the defendants that he had indirectly taken part in fanning the communal not and getting rid of his Muslim tenants with a view to accommodate new comers from East Bengal who were Hindus. It is also admitted that he was put under arrest on the night of 17th March, 1950 by defendant No. 4--the Police Inspector--at the instance of defendant No. 3 who was the Sub-divisional Magistrate at the time. It is also a matter of record that the accused was let out on bail on 20-3-1950 and the case against him was finally struck off and he was discharged on 31-5-1950 by Mr. A. K. Roy acting as the Sub-Divisional Magistrate of Barpeta. The detention of the accused in the Hajat is also admitted and that he had suffered in health is also evidenced by the medical evidence produced.

In these circumstances we have to examine whether the order of arrest issued by the Sub-divisional Magistrate was an act by him in the discharge of his judicial duty and defendant No. 4 arrested the plaintiff is executing the lawful warrant or order of the Magistrate which he would be bound to execute as an act within the scope of his duty as a police officer. And once the arrest is justified,--there can be no question as to the legality of detention that followed.

31. The plaintiff has tried to show that it was out of malice and ill will that defendant No. 3 issued the chit or warrant of arrest Ext. A on the evening on 17-3-1950 to have him arrested on a charge under Section 436, Indian Penal Code and the learned Subordinate Judge accepted that version to be correct. I am of the opinion that this was a clever manoeuvre only to raise an atmosphere of suspicion against defendant No. 3, and to allege illegal motive whereas he had none. This allegation of malice has no basis whatsoever and the evidence would hardly justify a finding that the defendant No. 3 the Sub-divisional Magistrate acted with any mala fides in the matter.

The plaintiff alleged that there was a Peace Committee formed at the instance of the Government ot Assam in co-operation with the non-official influential men of the locality and that he was an active member of the said committee and in that capacity he had serious difference with Mr. Hussain, the Sub-divisional Officer of Barpeta. No document is produced to prove that the so-called peace committee was formed at the instance of the Government and Mr. Hussain denies that there was any such peace committee formed at his instance or at the instance of the Government, whereas he says in his deposition in court that he did not constitute any peace committee for preservation of peace at Barpeta but at the request of Mr. D. Uzir (D.W.2) he presided over a peace committee meeting formed by the local public towards the first part of March, 1950 and that was the only occasion when he attended any such peace committee meeting.

Mr, Mahendra Mohan Chaudhury who was at the time a Parliamentary Secretary to the Government, says in his deposition that they (the Government, I suppose) could not form any peace committee at Barpeta as the people were in high nerves-then, though the people were consulted to form a peace committee and also a relief committee but that did not materialise. Therefore even if there were any peace committee it had no Government sanction and it was purely a non-official body where possibly the non-Congress people predominated as would appear from the evidence, led by the plaintiff.

The only prominent members there seem to be the three prosecution witnesses Dhani Ram Talukdar. Mahendra Nath Das and Debendra Nath Ujir and the plaintiff. The allegation is that in the meeting of the peace committee which was presided over by Mr. Hussain, the plaintiff charged the Sub-divisional Officer about the policy followed by him and Ajoy Baau all ged that it was of a com-munal nature and tried to illustrate the same by saying that Hindus were arrested but none from the Muslim Camp. The Subdivisional Officer then got agitated and tried to show that he was not acting on communal bias and lastly the Sub-divisional Officer said to the plaintiff that, 'the arms of law arc long enough to reach any person whoever he may be'.

This is what P. W. 6 the Secretary of the Peace Committee deposed and the very sentence is almost repeated by the plaintiff. I do not find anything unnatural or overbearing in this utterance. Mr. Dhani Ram Talukdar says in his deposition that the Sub-divisional Officer was not a member of the Peace Committee but he presided over some one or two of the meetings. This only supports the defendant's case that no peace committee was organised by the Government or was formed at the instance-of the Government in which case it was likely that the Sub-divisional Officer would have been a member thereof, if not the president. Mr. Talukdar was not present in the peace committee where the altercation is said to have taken place.

In the language of D. W. 2 Debendra Nath Uzir what the Sub-divisional Officer is alleged to have stated in an excited mood was-- 'Mr. Mukher-jee remember arms of law are long enough to catch hold of any man however high he may be'. The witness deposed to have requested the Sub-divisional Officer 'to stop all alternations and give them directions to stop further disturbances' and programmes were then chalked out in the matter. The evidence would therefore clearly establish that even if there were some altercation or some degree of heat was generated in the meeting, it was all quietened and there was nothing left over for the defendant No. 3 to get irritated or pursue vengeance.

Mr. Uzir further said that they had two or three other meetings which were held in private houses including his and the Sub-divisional Officer was not present in any of those meetings. From this it is clear that it was a sort of private affair with which the Sub-divisional Officer was not directly associated and therefore even if there was any heat in a meeting, there was no reason for the Sub-divisional Officer to take any offence and from the statement ascribed to him it is clear that he did not place any extra importance on himself except that he spoke of taking legal measures when necessary. In those circumstances, it is too far-fetched to ascribe any illegal motive to the Sub-divisional Officer from the arrest of the plaintiff a few days later.

32. Let me now come to the question of arrest and detention of the plaintiff and see how far they were judicial actions. The Sub-divisional Officer handed up a chit to defendant No. 4--the Police Inspector on the evening of 17-3-1950 (Ext. A) and it is worded as follows:

'C. I. Barpeta.

Deputy Commissioner has ordered the arrest of 'Shri Ajoy Mukherjee--a resident of this town, at once under Section 436, Indian Penal Code.

Please take necessary action immediately.

Sd. A. Hussain, S. D. O.    

17-3-50.'  

There was an endorsement on it to the effect_

'Arrested at 10-30 P.M.--17th March 1950 and taken in custody.

Sd. B. R. Chakrabarty,

C. I. (B).      

17-3-50.'    

It is not disputed that though this chit was not in the prescribed form of warrant of arrest, it served as a warrant of arrest and it was so executed. Defendant No. 4 B. R. Chakrabarty states in his deposition about the arrest of the plaintiff as follows :

'On 17-3-1950 I was called by the Sub-divisional Officer to his Bungalow at about 10 P.M., and the Sub-divisional Officer and the Deputy Commissioner Sri A. N. Bhattacharjee were there together. Sub-divisional Officer gave me the order Ext. A to arrest Sri Ajoy Mukherjee of Barpeta under Section 436, Indian Penal Code. The whole chit was written and signed by the Sub-divisional Officer. Deputy Commissioner was present there. I went to the house of the plaintiff Ajoy Mukherjee with a Head Constable and reached his house at about 10-30 P.M. I called the plaintiff and he came out.

He asked me as to what happened and then I said that he was to be arrested under Sub divisional Officer's order and showed him the chit. He read the order and asked me to wait, so that he might call his neighbour Shri Dhaniram Talukdar, pleader. Dhaniram Talukdar came within 5 or 7 minutes and read the order. After that I took him in custody and brought him to thana and kept him in Thana Lock-up. ........ I made over the plaintiff to the Officer-in-charge with the order of the Sub-divisional Officer.'

This fact is practically admitted bv the Plaintiff and his witnesses but the plaintiff said that the order was neither shown to him nor read over to him which is not worth acceptance, since he was an educated man and there was no reason to withhold the order from him and there was nothing shady in the conduct of the police officer and that he did it in the discharge of his official duty is not denied. He in his deposition gives a picture of the rioting and arson that took place at me material time and proves beyond doubt that the atmosphere was very tense and the officers in charge of peace and order were highly exercised.

Reports of disturbance from different sides reached the thana. The disturbance was between the immigrants (Muslims) on the one side and Assamese Hindus and tribals with some Bengali Hindus on the other side. He visited the affected locality in the Sub-division beginning from Barpeta Road and about four hundred houses were burnt. He supervised the investigation of some arson cases of which he gives the number. Arson was a common charge and 17-3-1950 was the date of occurrence in all those cases. In connection with the disturbance the Chief Minister, the Parliamentary Secretary Shri Mahendra Mohan Choudhury, the Deputy Commissioner and the Superintendent of Police, Kamrup, went there and later on the Governor and the Inspector General of Police also went there.

They convened many meetings to devise ways and means to stop the disturbance. The police however, received written reports about the occurrence at the thana on 19th, 20th and 21st March, 1950 and these complaints were all from the Muslims. He further deposed that on 18-3-1950 at 8-30 A.M. he directed the Officer-in-charge of the Barpeta Police Station to produce the plaintiff before the Sub-divisional Officer which was done. A regular order-sheet was drawn up and the plaintiff (accused) was remanded to police custody till he was let off on bail three days later.

This witness wrote to the Sub-divisional Police Officer on 31-5-1950 recommending Ajoy Mukherjee's discharge as there was no material against him, and the same day action was taken and the accused was discharged. This would clearly show that there was nothing wrong or illegal in the detention of the plaintiff if his arrest was justified or was a judicial act, however irregular. That there was no malice is evidenced from the further fact that at the same time when the plaintiff was arrested, there were several other Hindu gentlemen of the town and outside, who were placed under arrest and detention under similar circumstances they being Achyuta-nanda Kakati, Balabhadra Pathak, Sadhu. Madhu, Narayan Chandra Das and others inducting some member of the so-called Peace Committee as deposed to by the Secretary, P. W. 6.

33. Much criticism has been levelled against the form of the order of arrest issued by the Sub-divisional Magistrate. One is that no case was mentioned in connection with which the arrest was directed, and secondly that the Sub-divisional Magistrate did not issue the order at his own initiative. No matter at whose instance the order was issued, the responsibility was his, which he cannot avoid. Now the question is as to whether he could pass this order and if he did, whether it was outside his jurisdiction and was an illegal act, which is the finding of the learned Subordinate Judge. Mr. Chau-dhury for the appellant (defendant No. 6) argued that this order was under Section 65, Criminal Procedure Code which entitled the Magistrate at any time to arrest or direct the arrest, in his presence, within the local limits of his jurisdiction, of any person for whose arrest he is competent at the time and in the circumstances to issue a warrant.

34. In my opinion this case does not come under Section 65 Criminal Procedure Code but comeg under Section 204, Criminal Procedure Code, as contended by Mr. R. K. Goswami, Junior Advocate for the State. It has been contended on behalf of the plaintiff respondent that this section comes into play only after cognizance has been taken by the Magistrate but in this case no cognizance was taken and as such the order of arrest could not have been one under Section 204, Criminal Procedure Code. 1 propose to discuss later what amounts to cognizance in law but here I would only indicate my view that in the facts and circumstances of this case there was cognizance taken of an offence under section 436, Indian Penal Code, against the piaintiff (irrespective of what defendant No. 3 deposed) and the order of arrest was within his competence and fully within his jurisdiction.

This order was passed in the capacity of a Magistrate and in connexion with a judicial proceeding contemplated against the plaintiff as an accused who was suspected of taking part in or of abetting others to commit an offence of arson. In other words, this order of arrest was a judicial order passed in the discharge of his duties as a Sub-Divisional Magistrate and the form of the order was immaterial, the purpose being quite obvious. In case this order was within the jurisdiction of the Magistrate, there was nothing wrong with the detention and there was no false imprisonment of the plaintiff as alleged.

35. False imprisonment means the total restraint of a person's liberty of movement for any time however short without any lawful excuse. To constitute an actionable tort in the shape of false imprisonment there must not only be an imprisonment, the imprisonment must further be false, the word 'false' signifying the unlawful character of the restraint. Where the restraint is not unlawful, it will not sustain an action for damages. These are the accepted principles, vide Robinson v. Balmain New Ferry Co. Ltd, 1910 AC 295 (L). The principle is further discussed in several reported cases and the view held is that the onus is on the defendant to prove that the detention was authorised by law.

The defendants have tried to show in this case that the arrest and detention of the plaintiff were not only a judicial act, but it was perfectly lawful and done in the clue exercise cf the power vested in the Sub-Divisional Magistrate. I snail revert to this point a little later.

36. Let me now consider how far the case is hiT by the provisions of the Judicial Officers Protection Act, 1950, and whether the defendants can ask for any immunity from bring sued in the civil court. It is an one paragraphed Act and runs as follows :

'An Act for the protection of Judicial Officers. For the greater protection of Magistrate and others acting judicially; It is enacted as fellows :

1. No Judge, Magistrate, Justice of the Peace, Collector or other person acting judicially shall be liable to be sued in any Civil Court lor any act done or ordered to be done by him in the discharge of his judicial duty, whether or not within the limits of his jurisdiction: Provided that he at the time, in good faith, believed himself to have jurisdiction to do or order the act complained of: and no officer of any Court or other person, bound to execute the lawful warrants or orders of any such Judge, Magistrate, Justice of the Peace, Collector or other person acting judicially shall be liable to be sued in any Civil Court, for the execution of any warrant or order, which he would be bound to execute, if within the jurisdiction of the person issuing the same.''

One of the decisions bearing on this Act is reported in AIR 1944 Cal 4 (B), where Pal, J., analysed the requirements of the section and observed as follows :

'The plaint itself disclosed that the defendant 1 is a Magistrate. The question, therefore, is whether the allegations made in the plaint disclose: (1) that the defendant was acting judicially while ordering the arrest of the plaintiff; (2) that he made that order in the discharge of his judicial duty; (3)(a) that he believed himself to have jurisdiction to order the act, (b) that the belief was in good faith. As regards the third of the above requirements it must be noticed that actual existence of jurisdiction to do or to order the doing of the act is not necessary. The belief of the defendant that he had jurisdiction to order the arrest and detention of the plaintiff would suffice provided this belief was in good faith.'

Applying these tests as laid down let us first consider whether the defendant No. 3 was acting judicially while ordering the arrest of the plaintiff, and he made that order in the discharge of his judicial duty and whether he believed himself to have jurisdiction to order the arrest and that belief was in good faith.

37. Section 190(1) Criminal Procedure Code provides as follows:

190. (1) Except as hereinafter provided, any Presidency Magistrate, District Magistrate or Sub-divisional Magistrate, and any other Magistrate specially empowered in this behalf, may take cognizance of any offence-

(a) upon receiving a complaint of facts which constituted such offence;

(b) upon a report in writing of such facts made by any police officer;

(c) upon information received from any person other than a police-officer, or upon his own knowledge or suspicion, that such offence has been committed'.

This section clearly provides that a Sub-divisional Magistrate may take cognizance of any offence upon, information received from any person other than a police officer or upon his own knowledge or suspicion that such offence has been committed and upon taking cognizance, he can take such further steps as are provided in sections that follow. Section 204, Criminal Procedure Code provides that if in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding and the case appears to be one in which according to the fourth column of the Second Schedule warrant should issue in the first instance, he may issue a warrant for causing the accused to be brought to appear at a certain time before such Magistrate having jurisdiction. An offence under Section 436, Indian Penal Code is one in which warrant may be issued under the fourth column of the second schedule and therefore a Magistrate on taking cognizance of an offence under Section 436, Indian Penal Code, can issue warrant at the first instance as in the present case and he would be acting within his jurisdiction in so doing.

Therefore once we hold that there were materials before the Magistrate to take action under Section 204, he could do so on taking cognizance of the matter. The evidence here is copious on the point that the plaintiff Ajoy Kumar Mukherjee was suspected of having complicity in the offence of arson in connection with the communal rioting and if the Magistrate believed bona fides or even suspected him of being involved in such offence, he could issue a warrant or a chit for arrest which practically satisfied the terms of a warrant and therefore there was nothing illegal in his action, once we can see that he took cognizance of an offence under Section 190(1)(c) of the Criminal Procedure Code and the only contention against the Sub-divisional Officer exercising cognizance is that there was no written complaint before him at the time he issued the chit Ext. A, for the arrest of the accused.

We have therefore to examine whether it could be said that the Sub-divisional Officer had taken cognizance of an offence under Section 436, Indian Penal Code as against the plaintiff and issued the writ of arrest. It is not of much consequence even if the Sub-divisional Officer used the name of the Deputy Commissioner. The defendant No. 3 must be considered liable for the order that he issued, no matter whether at his own instance or at the instance of the Deputy Commissioner, since the chit was his with the direction of plaintiff's arrest and his order was put into execution. Much of the confusion has arisen in this ease on a wrong motion as to what would amount to 'cognizance' in the rye of law and the statements of the witnesses (or the parties) have been taken too literally.

The word 'cognizance' came up for consideration by the Supreme Court in the case of 'R. R. Chari v. The State of Uttar Pradesh' reported in AIR 1951 SC 207 (M). Their Lordships however quoting Section 190 of the Criminal Procedure Code commented that it is clear from the wordings of the section that the initiation of the proceedings against a person commences on the cognizance of the offence by the Magistrate under one of the three contingencies mentioned in the section. The first contingency evidently is in respect of non-cognizable offences, the second is on a police report and the third is when the Magistrate himself takes notice of an offence and issues the process.

Therefore in their Lordships view taking notice of an offence (for the purpose of trial) amounts to cognizance. In this connection their Lordships referred to the case of 'Gopal Marwari v. Emperor, reported in AIR 1943 Pat 245 (SB)(N) wherein it was observed that the word 'cognizance' is used in the Code to indicate the point when the Magistrate or a judge first takes judicial notice of an offence. It is a different thing from the initiation of proceedings. Their Lordships however referred in this connection to the decision of Das Gupta, J. in the case of 'Supdt' and Remembrancer of Legal Affairs, West Bengal v. Alani Kumar' reported in AIR 1950 Cal 437 (O) and approved of the observation made by the learned Judge in that case which was as follows:

'What is taking cognizance has not been defined in the Criminal Procedure Code and I have no desire to attempt to define it. It seems to me clear however that before it can be said that any Magistrate has taken cognizance of any offence under Section 190(1) (a) Cr. P. C. he must not only have applied his mind to the contents of the petition but he must have done so for the purpose of proceeding, in a particular way as indicated in the subsequent provisions of this Chapter, proceeding under Section 200 and thereafter sending it for inquiry and report under Section 202. When the Magistrate applies his mind not for the purpose of proceeding under the subsequent sections of this Chapter but for taking action of some other kind e. g., ordering investigation ...... under Section 156 (3), or issuing a search warrant for the purpose of the investigation he cannot be said to have taken cognizance of the offence.'

38. In this matter the intention of the Sub-divisional Magistrate was obvious. He wanted to proceed against the accused to bring him to trial in connection with an offence under Section 436, Indian Penal Code and issued warrant of arrest for securing his presence, which he could do under Section 204, Criminal Procedure Code. This position is clear from the order sheet of the Criminal case (Ext. 1) started against the accused. When on 18-3-50 Ajoy Kumar Mukherjee was produced under arrest, he was remanded to custody by Mr. Hussain--the Sub-divisional Magistrate--who took cognizance of the case. Subsequent orders in the proceeding would clearly show that the plaintiff was in the position of an accused in connection with a case under Section 436, Indian Penal Code.

It would make no difference in the eye of law if there was no written report or complaint against the accused or which much is sought to be made of--since the Magistrate could take cognizance of an offence under Section 190(1)(c), Criminal Procedure Code on his own knowledge, information or even suspicion. It cannot be said therefore that the action of the Magistrate was without jurisdiction or he had not acted judicially in the matter of directing the arrest of the accused, on the reports that he received about the activities of the accused in connexion with rioting and arson that was at its zenith at the time.

39. Another criticism levelled against this order of arrest is that a case ought to have been first registered against the accused and then a warrant issued but I find no legal sanction for this proposition. In Dalu Gour v. Moheswar Mahato, AIR 1948 Pat 25 (P), Das J. (as he then was), while considering the question of cognizance observed as follows:

'The expression 'cognizance' has not been defined in the Code. There are several decisions to the effect that taking cognizance does not involve any formal action, or indeed action of any kind, but occurs as soon as a Magistrate, as such, applies his mind to the suspected commission of an offence (vide the observations made in Surindra Mohan v. Emperor, ILR 37 Cal 412 (Q) and Hafizar Rahman v. Aminal Hoque, 44 Cal WN 1114: (AIR 1941 Cal 185) (R).'

40. It appears clearly from the evidence on record that the Sub-divisional Officer had strong suspicion about the complicity of the accused in the communal trouble involving arson and he could therefore legitimately act upon the said information or the suspicion to bring him to trial and that is what he did and preliminary to the trial issued a warrant of arrest against the accused. In the circumstances of the case, as will appear from the evidence on record, the Sub-divisional Magistrate had reasonable cause for honest belief that he had jurisdiction to act in the manner as he did--and his action was bona fide.

I disagree with the learned Subordinate Judge that the arrest was without reasonable and probable cause or that the action of the Sub-divisional Magistrate was reckless arbitrary and all that. The learn-ed Subordinate Judge failed to appreciate properly the evidence on the point--and he was more swayed by the feeling that the defendant 3 was inimical to the plaintiff. Once we find that the Magistrate was acting judicially and within his jurisdiction and in good faith, he is fully protected un-der the Judicial Officers' Protection Act, which extends immunity not only to the judicial officer or the-Magistrate concerned, but to such other persons as well who carry out the lawful order in the discharge of their official duties.

In this case the defendant No. 4 the Police Inspector, was carrying out only his duty when he arrested the accused on the strength of the chit on warrant issued by the Sub-divisional Magistrate. Therefore the acts of both these officers were fully justified and they were protected from being sued in the civil court as provided under the aforesaid Act. The learned Subordinate Judge does not find any liability against the Deputy Commissioner (defendant No. 2) and in this court also nothing substantial has been pressed against him. He took no independent action, that is clear and there is no cause for damage against him or against the State Government.

41. I might now give a short summary of the evidence regarding the legitimate suspicion that the Subdivisional Magistrate had against the complicity of the accused in the offence for which he was arrested and sought to be brought to trial. The defendant No. 3 himself deposes that he had a series of confidential information regarding the conduct of the plaintiff in respect of the communal disturbances and his complicity and his suspicious movement. He further states that he had serious complaints against the plaintiff Ajoy Kumar Mukherjee regarding his indirect complicity in inciting the people in driving out his Muslim tenants by setting fire to their houses. He further stated that he had occasions to discuss with the Deputy Commissioner regarding the plaintiff and it was after that that the order of the arrest of the plaintiff was issued.

He says categorically that he had informations of the plaintiff's activities from personal and confidential enquiries and he was satisfied that legitimate cause existed for the arrest of the accused. Therefore no matter what he understood by the words--'taking cognizance' just as a layman does, (which even Judges have found difficult to define)--the legal cognizance was there when he proposed to take action against the plaintiff for the supposed commission of an offence and ordered his arrest--whether at his own initative or at the instance of the Deputy Commissioner as he puts it who was his immediate superior. I have not the least doubt that the action was taken after joint deliberation between himself and the Deputy Commissioner and with the knowledge and consent of the latter as is clear from what defendant No. 4 deposed.

The defendant No. 2--Mr. A. N. Bhattacharjee--the Deputy Commissioner--who was examined on commission, stated that he received some reports from local people of position against the plaintiff about his complicity in the communal disturbances and also in the commission of some cognizable offences and he had actually named some of those persons, and also from some of the plaintiff's tenants whose houses had been burnt during the communal disturbances. He believed those reports to be credible and he consulted the Subdivisional Officer, Barpeta and told him about the reports that he had received and also about the reports made to the Chief Minister in his presence. The Subdivisional Officer said that he had also received similar reports against the plaintiff. He admits to have asked the Subdivisional Officer to take suitable action in the matter.

He further states that they the and the Sub-divisional Officer) received direction several times from the local Government to take prompt action against the wrong-doers in these communal disturbances and take suitable action to restore peace and order and the Chief Minister who was there on the spot, also gave similar direction for taking action. Though he denies (for reasons best known to him) that he gave specific direction for the arrest of the accused, or had any knowledge of it prior to the morning of 18-3-50 his evidence and the pleadings read as a whole would leave one with the impression that he was a party to take suitable action against the plaintiff and cause his arrest on the night of 17th March, 1950 and the order was issued to his knowledge and in his presence as is depend to by defendant No. 4.

The further fact that he reported about the arrest of the plaintiff to the Chief Minister and Mr. M. M. Choudhury. Parliamentary Secretary, the day following the arrest at Barpeta Road, a few miles away from Barpeta would clearly support the version that the Subdivisional Officer acted in full co-operation wirh the Deputy Commissioner, who approved of the stops taken by him. The bail petitions made to him would only corroborate this view. His deposition would clearly establish that the Subdivisional Officer acted in good faith and with a view to bring offenders to trial which amounted to taking cognizance in law. Mr. Mahendra Mohan Choudhaury, who was the Parliamentary Secretary at the time and a Minister of the Assam Government at the time he was examined, deposed as following:

'When I was camping at Barpeta with the then Chief Minister of Assam late Gopinath Bardoloi, verbal complaints were made by the people or Bhawanipur side including Kaya Kuchi, Khalma, Dhupalpara and the suburbs that Ajoy Babu incited people to commit violence and to drive out Muslim immigrants by setting fire to their houses. To me these informations were credible and on those statements the Chief Minister directed the Deputy Commissioner, Kamrup and the Subdivisional Officer to take actions.'

The allegations against the plaintiff were repeated by P. W. 2 Bangshidhar Choudhury--an Advocate--who was President of the District Congress Committee, Barpeta and was the Chairman of the Barpeta Local Board. He spoke of the allegations made by the Muslim immigrants against the plaintiff to the effect that many persons including the plaintiff threatened them with danger and asked them to leave Assam as they would be harassed by the Hindus if they remained in Assam and they would be so harassed by burning of houses and other mischiefs. This gentleman however was not a person on good terms with Ajoy Kumar Mukherjee--the plaintiff, but Mr. Akshay Kumar Das who was Chairman of the Local Board at the time of the communal rioting, deposed in similar strain and he supported what Mr. Bangshidar Choudhury had said.

He said that there were allegations to the effect by the Muslim immigrants in the affected locality that the plaintiff Ajoy Mukherjee threatened them and stated that there was danger for them if they remained there and asked them to quit and there was danger of their houses being burnt and other troubles. He stated that the Deputy Commissioner and other officers then discussed the matter and decided to make some arrests and within two or three days thereafter Ajoy Mukherjee was arrested. It cannot be said in these circumstances that the arrest of Ajoy Mukherjee was purely an act of vindictiveness or a result of personal grudge or that it was a reckless act as viewed by the learned Subordinate Judge. There are some tenant witnesses who come and say that in the public meeting he asked them not to resist if somebody wanted to oust them. On the other hand plaintiff's evidence is to the effect that he had the best intention and wanted to keep his Muslim tenants in peace and made serious efforts to see that the rioting ebbed and they were not affected.

It is not for us to judge as to whether the plaintiff was guilty of complicity in the offence of which he was suspected or whether the allegations that were made against him were true, but we have just to see whether the Subdivisional Officer acted with bona fides and with the belief that he had jurisdiction to so act. On the basis of the evidence and the statement of the plaintiff to the effect that there was communal rioting and several houses of the Muslim tenants were burnt, and that he had moved about in the locality (may be with good intention) it cannot be said that there was no legitimate ground for suspicion against him and that the action of the Subdivisional Magistrate in the matter of arresting him was anything hut bona fides. There is however something damaging against the plaintiff as deposed to by his witness P. W, 10 Mr. A. K. Roy--the Magistrate who was in charge of Rehabilitation. He stated that the plaintiff requested him to provide a wagon for the safe departure of some of his Muslim tenants to border stations who were panick-striken and wanted to go away and that it was two or three days before his arrest. This might be what he desired.

42. Mr. Goswami for the State Government contended that the words 'acting judicially' in Act XVIII of 1850 applied only to the persons of other categories than a Judge, Magistrate etc. and this expression as such had no application to the Magistrates and judicial officers who are protected automatically for any order passed in a judicial capacity. This may not be quite correct,--the preamble itself having indicated that the Act was meant for the protection of Magistrates and others acting judicially. I think with a view to get protection under this act the Judge or the Magistrate must also act judicially in passing an order that is impugned. It has been held in some of the English cases that in case of the higher judiciary the presumption is that the order was judicial unless it is proved to the contrary but in case of subordinate judiciary and others the onus is on the officer or persons to show that they acted judicially.

43. The self-same section came for consideration in the case reported in AIR 1938 Cal 177 (A) disposed of by Nasim Ali and B. K. Mukherjea JJ. and their Lordships while interpreting this section observed as follows:

'By this section a judicial officer is protected if he made the order in the discharge of his judicial duties whether or not within the limits of his jurisdiction provided that he at the time, in good faith, believed himself to have jurisdiction to pass the order. The word 'jurisdiction' in the section is to be taken in the sense of authority or power to act in the matter and not in the sense of authority or power to do an act in a particular manner. Even if the order of a judicial officer is not within the limits of his jurisdiction, he would still be protected, if ab the time of making the order he believed in good faith that he had jurisdiction to make the order.'

Their Lordships in this respect relied on the decision of the Allahabad High Court reported in ILR 12 All 115 (F). This case has been followed in series of cases and it was a judgment of Edge C. J. sitting with Tyrrell J. The material observations occurring in that judgment run as follows:

'The protection to such officer or person afforded by the section was not against suits for executing lawful warrant or orders, but against suits for executing warrants or orders which were not lawful, provided that such warrant or order was issued by a judicial officer in a matter within his jurisdiction, and not merely in a matter in which such judicial officer had authority or power to issue the particular warrant.'

If therefore, for argument's sake we hold that the Subdivisional Magistrate had issued the warrant of arrest prior to his taking cognizance in the matter, as contended on behalf of the plaintiff, even then he would be protected under this Act of 1850. Here of course as a matter of fact I have found that the learned Magistrate had jurisdiction and he had issued the warrant of arrest in exercise of his lawful authority and in good faith. I have already referred to the judgment of Pal J. in Rohini Kr. Chakra-barty's case (B) and in my view all the tests set out in that judgment have been fully satisfied. In these circumstances the defendants 3 and 4 are protected under this Act from being sued in a civil court for what they have done. I have already mentioned that nothing particular is brought home against defendant No. 2 and that the defendant No. 1 had no part to play independently. Therefore the plaintiff's suit as a whole should fail against all the defendants because of the bar under the Judicial Officers' Protection Act. The learned Subordinate Judge erred in holding that the Act had no application to the facts of this case.

44. Once we come to the finding that the action of the defendant No. 3 was justified in law and the defendant No. 4 had only carried out his lawful order as is found by the learned Subordinate Judge, there was no case of false imprisonment made out by the plaintiff and he could not have sued for any compensation,--the arrest and detention being lawful. The appreciation of the circumstances by the learned Subordinate Judge was not at all correct.

45. The other point that we have to consider is the liability of defendant No. 1 the State Government in case any case of compensation is made out against the defendant No. 3, as found by the learned Subordinate Judge, In the written statement the defendant No. 1 has taken full responsibility for the acts done by the Government employees respondents 2, 3 and 4 and now they cannot resile from the position and say that they are not responsible for the action of the defendants, even though they have tried to argue that the Government is not liable for the tortious acts of its employees. Evidence on record strongly supports the plea that defendant No. 3 took action against the plaintiff in the bona fide discharge of his official duties, if not at the instance of the State Government and his action was fully ratified and supported.

Mr. Goswami has relied on various rulings in support of his contention that the State Government cannot be so bound but they do not fit in with the facts of this case. I feel no necessity to go into any of those cases since the facts are different and there had been no ratification of the employees' acts in any of those cases as has been done in this case. Therefore if at all there should be a decree against any of the defendants acting within the scope of their employment, the Government would be liable, but in the facts of this case as I have already diseussed,. I find that there was no cause for any relief against any of the defendants as the plaintiff failed to make out a case of false imprisonment on which his claim for compensation rests.

46. The greater part of the evidence led by the plaintiff is with a view to show that the plaintiff is a man of position and that he was put in prison out of malice and as a result of an illegal action on the part of defendant No. 3, working in co-operation with defendants 2 and 4. In my view the evidence in the case does not justify any allegation of arrest of the plaintiff without reasonable and probable cause or that the action of the defendants 3 and 4 were either high-handed, arbitrary or illegal. There were sufficient reasons based on credible informations for the Subdivisional Magistrate and the Deputy Commissioner for entertaining suspicion as to the complicity of the plaintiff in the offence of rioting and arson and it was only in discharge of their legal duties that the arrest of the plaintiff was ordered for and executed. I find no justification for the finding of the learned Subordinate Judge that there was no sufficient reason for plaintiff's arrest and detention or that it was malicious, reckless and without any lawful excuse.

47. I do not think that I should devote much space to the consideration as to whether the compensation of Rs. 5000/- was adeauate which formed the subject-matter of the plaintiff's appeal, since in my view he was nnt entitled to any compensation at all. But assuming he was so entitled, Rs. 5000/- is more than enough as has been decreed.

48. I do not find much substance in the point I of limitation argued by the Junior Advocate for the State Government

49. I have already held for the reasons given that the arrest and detention of the plaintiff were done in due process of law and they were not contrary to the relevant provision of the Constitution, as pleaded.

50. The result therefore is that the appeal on behalf of the defendant No. 3 succeeds and that on behalf of the plaintiff fails. The plaintiff's suit is dismissed with costs to the defendants all through and defendant No. 3 alone will be entitled to cost in the appeal filed by him against the plaintiff. Respondent No. 1--the State Government alone will be entitled to cost in the other appeal.

(There being a difference of opinion the case was referred to Mehrotra J.)

G. Mehrotra, J.

51. These two appeals arise out of a suit for recovery of Rs. 20,000/- as damages for false imprisonment. First Appeal No. 14 of 1954 has been filed by Anowar Hussain who was defendant No. 3 in the case and (hereinafter will be called the appellant) while the other appeal No. F.A. 18 of 1954 is by the plaintiff Ajoy Kumar Mukherjee (hereinafter called the plaintiff). Anowar Hussain challenges the decree of the trial Court by which the suit has been decreed against him for a sum of Rs. 5,000/-. The other appeal is by the plaintiff against the order dismissing the suit against the State--Defendant No. 1 in the suit and Sri A. C. Bhartacherjee, Secretary to the Government of Assam in the Revenue, Agricultural and Forest Departments, Shillong and Bhupati Ranjan Chakravarty, Inspector of Police, Barpeta, who were defendants No. 2 and 4 respectively.

52. The facts giving rise to the present suit are that on the night of 17-3-1950, the plaintiff--Ajoy Kumar Mukherjee was arrested at his house at Barpeta by the Circle Inspector of Police--Bhupati Ranjan Chakravarty--defendant No. 4 at about 10-30 P.M. This arrest was made on the authority of an order issued Tinder the signature of the appellant, the then Sub-divisional Officer of Barpeta. This order is alleged to have been handed over by the appellant earlier at about 10 P.M. to the Circle Inspector of Police for execution.

After the arrest, the plaintiff was taken in custody to the Thana lock-up where he was confined for the night. On the next morning he was produced before the Sub-divisional Officer who remanded him into custody. The first attempt was made to get him released on bail before that officer, but the lawyers of the plaintiff were directed to approach the Deputy Commissioner, defendant No. 2 who was at that time camping at Barpeta. The bail application was refer-red to the Sub-divisional Magistrate by the Deputy Commissioner and eventually the plaintiff was released on bail on 20-3-1950. Bail was granted by the following order made by Sri J. Barua, Magistrate:--'Accused may go on Town bail of Rs. 3,000/- with one surety of like amount. It is reported he fainted for three hours in Hajat yesterday. Seen report of the Sub-Divisional Medical Officer. Fix 28-3-1950. Ask officer-in-charge, Barpeta Police Station to report any breaches of the bail.' The plaintiff had to appear before the Magistrate on suc-cessive dates and eventually on 27-5-1950 the Magistrate Sri J. Barua passed the following order : 'The papers show that there was a good deal of confusion amongst the police officers about the case. It was surprising that the Officer-in-charge should refer to the Circle Inspector as authority for the arrest and the latter to the Sub-divisional Officer. No case seems to have been registered at the Police Station, and I find no justification for the accused being sent up.' No First Information Report was traceable in the office. Under the circumstances, he was of opinion that there was no justification for holding the accused within the jurisdiction of the Court for trial under the present charge. Police was-to report as to why the accused should not be discharged. On 31-5-1950, after seeing the report of the Circle Inspector of Police that on investigation, no material was found to substantiate the charge and there being no objection by the Circle Inspector, he discharged the accused.

53. The present suit was filed by the plaintiff on the allegation that his arrest, detention and imprisonment were reckless and malicious and without any lawful excuse or justification and calculated mainly to insult and disgrace him. He asserts that he is a person of high social status and he and his family enjoy the esteem and regard of a large number of people in the locality. He has also considerable landed property with both Hindus and Muslims as his tenants and he had been associated with a number of public institutions.

He further states that due to his unimpeachable character and integrity, when the last communal riots broke out in the Barpeta Sub-division in the early part of March, 1950, he was selected as a member of the peace committee formed by the Government in co-operation with the other non-officials of the locality and as an active member of the peace committee, he had serious differences with Anowar Hussain, the then Sub-divisional Officer, Barpeta and incurred his displeasure in a meeting held in the middle of March on which this officer had presided.

He attributed his arrest and detention to the consequent malice and personal grudge of the officer and in contravention of the procedure established by law. He was suffering from heart trouble and in that shattered state of health, his arrest and detention led to violent and serious reactions so much so that he fainted in the Hajat and remained unconscious for a long time and the Medical Officer examined him on the morning of 18-3-1950 advised his immediate removal to a hospital for treatment. Inspite of this, he was not released until 20-3-1950. On these facts, he claimed damages to the tune of Rs. 20,000/- making all the defendants jointly and severally liable. The liability has been denied by all the defendants inter alia on the grounds of fact and law.

The trial Court dismissed the suit as against all the other defendants except the appellant, the then Sub-divisional Officer, Barpeta against whom the suit was decreed for Rs. 5,000/-. In the first appeal, there has been a difference of opinion between the two learned Judges of this Court. My Lord the Chief Justice is of opinion that the appeal of the defendant No. 3 should be dismissed and that the appeal of the plaintiff should be allowed against defendant No. 4 and assessed the damage to be awarded against him to be Rs. 1,000/-. My Lord Mr. Justice Deka is of the opinion that the appeal of defendant No. 3 should be allowed and the plaintiff's suit should be dismis-missed against him also with costs.

54. The allegations on which the claim of the plaintiff is based are specified in para 6 of the plaint. It is stated therein that the arrest, detention and imprisonment of the plaintiff was reckless, malicious and without any lawful excuse or legal justification and calculated to insult and disgrace him. The arrest purports to be in connection with a case under Section 436, Penal Code which was quite vague & fictitious.

A general written statement was filed on behalf of the defendants and in para 6 of the written statement, it is urged that the plaintiff was arrested by defendant No. 4 at the instance of defendants Nos. 2 and 3 as there was sufficient reason based on credible informations and reasonable suspicions that the plaintiff was concerned in some cases committed by certain sections of the local majority community on the lands belonging to the plaintiff and such incidents led to serious disturbances. It is denied that the arrest was reckless, malicious and without any lawful excuse. The Slate took the defence that it cannot be held liable for the alleged tortious acts of its officers in arresting the plaintiff.

The defendants Nos. 2 and 3 denied the liability on the ground taat the arrest was lawful and in the bona fide discharge of their lawful duties. The protection under the Judicial Officers Protection Act was: not pleaded in express terms, but the trial Court considered it and the plaintiff does not contend that the defendants should not be allowed to plead the bar of the said Act. The defendant No. 3 has stated in his statement that he did not constitute any Peace Committee for the preservation of peace at Barpeta at the time of 1950 communal disturbances, but at the request of Sri D. Uzir, he presided over a meeting towards the first part of March, 1950. The plaintifl Ajoy Mukherjee is known to him.

He saw him in the meeting, but he denied that he had any differences with the plaintiff and had altercation with him in the meeting. Regarding the circumstances under which the arrest was ordered by him, he has stated that he was receiving complaints regarding the conduct of the plaintiff in respect of the communal disturbances and his complicity and his suspicious movements. He had serious complaints against the plaintiff regarding his indirect complicity in inciting the people in driving out his Muslim tenants by setting fire to their houses.

He received orders from the then Deputy Commissioner, Kamrup for the arrest of the plaintiff. That order was a verbal one through the Inspector of Police as far as he remembered and in execution of that order, he issued the chit Ex. A. He further stated that on the day following the arrest of the plaintiff when some lawyers approached him at his bungalow for his release, he directed the lawyers to approach the Deputy Commissioner who was then camping at Barpeta.

55. In cross-examination, he has stated as follows :--

'I had confidential reports from Dhemarkar that the plaintiff was indirectly driving out his tenants. I do not remember the persons who reported me these incidents. I never made any notes of these incidents. I had been to Dhemarkar I cannot say if those people who gave these informations were his tenants. I did not refer these allegations to the police. I directed them to give me written complaints which they did not. I directed them to file either ejahar or to lodge written complaint to me.

I do not know if those people filed any eiahar to the police but they did not make any written complaints to me. I did not take cognizance of the complaint made to me. My order for arrest of the plaintiff was not the outcome of any complaint of which I took cognizance or of any police report. It was mainly due to the order of the Deputy Commissioner. I cannot say if there was any complaint by the party to the Deputy Commissioner or if any report by the police. I cannot sav from whit source the Deputy Commissioner made the order of nrrest of the plaintiff. I had occasion to dicuss with the Deputy Commissioner regarding the plaintiff.

It is after that that the order of the arrest of the plaintiff was made. I did not suggest to the De-puty Commissioner that a formal order for arrest to be made after an enquiry. It was at my suggestion that the order for his nrrest was made. I cannot say if the Deputy Commissioner took cognizance of the case.'

The Deputy Commissioner, who had been examined has stated as follows :

'I received some reports from local people of position against the plaintiff about his complicity in the communal disturbances, and also in the commission of some cognizable offences. As far as I remember I got the reports from Sri Madhu Sudhan Das, the then Secretary, District Congress Committee of Barpeta and Sri Akshay Charan Das, the then Chairman, Barpeta Local Board and Sri Bangshidhar Choudhury, the then President, Barpeta District Congress Committee and also from some of the plaintiff's tenants whose houses have been burnt during the communal disturbances.

The said reports from those persons were cre

dible in my opinion. After that on receipt of those

reports, I consulted Sub-divisional Officer, Barpeta

and told him about the reports that I had received

and also about the reports made to the Hon'ble

Chief Minister in my presence. The Sub-divisional

Officer said that he had also received similar reports

against the plaintiff. We discussed the matter and

I told the Sub-divisional Officer to take suitable ac

tion in the matter.

We received directions several times from Government for taking prompt action against the wrong-doers in these communal disturbances and to take suitable action to restore peace and order and also the then Hon'ble Chief Minister who was on the spot, gave directions for taking similar action.'

In cross-examination he has stated that all the reports to him were verbal. Ho only remembered the substance of those reports and not the full contents. He did not keep any note of them. The directions he gave to the Sub-divisional Officer were also verbal. He was at Barpeta at that time for about a week.

He further stated that the Chief Minister did not issue any direction for the arrest of the plaintiff. Sri Mohendra Mohan Choudhury, who was the Parliamentary Secretary to the Government of Assam at the time was also examined and he stated that when he was camping at Barpeta with the then Chief Minister of Assam late Gopinath Bardoloi, verbal complaints were made by people from Bhabanipore side including Kaya Kuchi, Khalma Dhupalpafa and the suburbs that Ajov Babu incited people to commit violence and to drive out Muslim immigrants by setting fire to their houses. To him those informations were credible and on those statements, the Chief Minister directed the Deputy Commissioner and the Sub-divisional Officer to take actions.

He further stated that he did not know the names of any of those who gave informations against the plaintiff. He could not say if he knew those people. Those people complained against many and no detail list of those persons could be given by him. A number of other persons were also arrested.

56. Defendant No. 4: Sri Bibhuti Ranjan Chakravarty stated that he was in March, 1950 the Circle Inspector of Police at Barpeta. There was communal disturbances after his joining in March. He went to mofussil to quell the disturbance. He also investigated some arson casps. On 17th March he was called by the Sub-divisional Offirer to his Bunglow at about 10 P. M. and the Sub-Divisional Officer and the Deputy Commissioner--Sri A. N. Bhattacherjee were there together.

Sub-divisional Officer gave him the order Ex. A to arrest Sri Aioy Mukherjee of Barpeta under Section 436, Indian Penal Code. The whole chit was written and signed by the Sub-divisional Officer, Deputy Commissioner was present there then went to the house of the plaintiff, Ajoy Mukherjee with a head constable find reached his house at about 10-30 p. m. He called the plaintiff who came out. The plaintiff asked him as to what happened and then be told him that he was to be arrested under the orders of the Sub-divisional Officer. Ex. A was not in printed form; but he considered the chit to be enough to arrest the plaintiff.

57. Sri Akshay Kumar Das is the witness No. 1 for the defendant who was the Chairman of the Local Board in 1950 has stated that there was tense communal riot in Barpeta Sub-division in the first week of March. For quelling the disturbance, the then Chief Minister, the Parliamentary Secretary and the Deputy Commissioner and the Superintendent of Police were there. There were consultations for 2 or 3 days. A number of complaints were made to the effect that the persons of Bhabanipur were creating disturbance and damaging the house by setting fire. On that the discussion was held and some arrests were made. He also complained against the plaintiff from reports that he had from others of Bhabanipur area, but he did not remember from whom he received the informations.

58. The next witness is Sri Bangshidhar Choudhury who is an advocate and was the President of the District Congress Committee of Barpeta at that time. He also deposed about the high tension prevailing at that time due to the communal disturbances and also to the effect that certain reports were received against the plaintiff's men. During the communal disturbance, he accompanied the Chief Minister and the Deputy Commissioner in visiting the affected areas. The immigrants who approached the officers and the non-officials complained against the plaintiff. No written reports were however taken.

59. The next witness is Ibrahim Sk. He has stated about the communal disturbance in that area in March, 1950, but he could not say who set fire to the houses. The next witness is Jabedulla who lived about half a mile away from Dhumarkar. He has stated about the communal disturbance at Barpeta Sub-division in March, 1950 when houses of the Muslims were burnt; but his house was not burnt. The next witness is Golap Mia. He has only generally deposed about the communal disturbance that took place.

The next witness is J. Barua, Magistrate who passed the relevant orders in this case. The next witness is Dr. D. K. Barua. He has proved Ex. 6, the report which he submitted about the physical condition of the plaintiff when he was in the lockup. The next witness is Sri Bipin Behari Chakra-varty who was the Prosecuting Sub-Inspector at the relevant time at Barpeta. He stated that he investigated the case against the plaintiff and there was no ejahar against the plaintiff and the plaintiff was discharged on the report of the Circle Inspector of Police.

60. Plaintiff's witness No. 4 Dhaniram Taluk-dar who is a lawyer and was the Chairman of the Local Board for 15 years stated that he was the President and also Secretary for sometime of the Barpeta Congress Committee. He spoke about the status of the plaintiff. On 17-3-1950 at about 10-30 p. m. the 'Circle Inspector of Police arrested the plaintiff in his presence, when he asked him as to why the plaintiff was arrested, the Inspector replied that he did not know that; but he was arresting the plaintiff under orders or the Sub-divisional Officer.

61. Janaki Mohan Sarma is the another witness of the plaintiff who has also spoken about the status of the plaintiff. Mahendra Nath Das, a practising lawyer deposed about the incident which happened in the Peace Committee meeting. He stated that himself and the plaintiff were the members of the Peace Committee and attended a meeting which was presided over by the Sub-divisional Officer and in the meeting there were some charges and counter-charges and at the end, according tohim, the Sub-divisional Officer told the plaintiff that the arms of law were long enough to deal with any man, whoever he might be.

The next witness is Hazrat Ali. He deposed about the meeting at Khorma Hat Khola over the plaintiff's land. The plaintiff, according to this witness, said nothing in that meeting. The next witness is Darbes Ali. He also deposed that the plaintiff never incited people to burn down the houses of his Muslim tenants. Then there are a number of other witnesses who have said that they were the tenants of the plaintiff and the plaintiff had asked them to be firm and not to leave their places. That the plaintiff was arrested on 17-3-. 1950 at his house has not been denied.

That the defendant No. 4 made the arrest under the orders of the appellant--the Sub-divisional Officer--is also not denied. That there was a communal disturbance in the Barpeta Sub-division in March, 1950 as a result of which a number of houses were burnt also cannot be seriously disputed. It is aslo not disputed that there was high tension prevailing in Barpeta at that time and that the situation was such that the Chief Minister, the Parliamentary Secretary and the Deputy Commissioner had personally reached the place in order to quell the communal disturbances and to maintain the peace.

62. The question for determination is how far the arrest of the plaintiff was lawful and how far the defendants are entitled to protection under the Judicial Officers' Protection Act. That the plaintiff is a man of high social status cannot be denied. That is however a question relevant in con-nection with the assessment of the damages. False imprisonment means the total restraint of a person's liberty without lawful justification. The word 'false' in that phrase signifies the unlawful character of the restraint.

False imprisonment is a tort and in an action for damages for this tort, the plaintiff should prove (a) his imprisonment and (b) that it was caused by the defendant or his servants acting in the course of their employment. On the proof of these facts, his case is complete and it is then for the defendant to prove a lawful justification and not for the plaintiff to prove its absence. In the present case, it is admitted that the plaintiff was arrested by defendant No. 4 under the orders of the appellant and defendants have pleaded lawful justification and protection under the Judicial Officers' Protection Act.

The onus is on the appellant to establish that his action was justified under law. The preamble of the Judicial Officers' Protection Act (hereinafter called the Act) and Section I read as follows :

'For the greater protection of Magistrates and others acting judicially, it is enacted as follows : (1) No Judge, Magistrate, Justice of the Peace, Collector or other person acting judicially shall be liable to be sued in any Civil Court for any act done or ordered to be done by him in the discharge of his judicial duty, whether or not within the limits of his jurisdiction : Provided that he at the time, in good faith, believed himself to have jurisdiction to do or order the act complained of, and no officer of any Court or other person, bound to execute the lawful warrants, or orders of any Judge, Magistrate, Justice of the Peace, Collector or other person acting judicially shall be liable to be sued in any Civil Court for the execution of any warrant or order, which he would be bound to execute if within the jurisdiction of the person issuing the same.'

Therefore, before any protection under this section can be available to the appellant it is necessary for him to establish that he was a magistrate and that he ordered the arrest in discharge of his judicial duty. If the order is found to have been passed by him in the discharge of his judicial duty and is within the limits of his jurisdiction, it affords a complete protection to him. But even if the order has been passed by a magistrate in the discharge of his judicial duty, but is beyond the limits of his jurisdiction he has further to establish that at the time of the passing of the order he in good faith believed himself to have the jurisdiction to do or order the act complained of.

On the proof of the bona fide belief, he is entitled to the protection under the section. In the present case, it is admitted that the defendant No. 3 was a magistrate at the time when the order of the arrest was issued by him on 17-3-1950. It is to be examined firstly if he passed me order in the discharge of his judicial duty and secondly assuming that he did it in the discharge of his judicial duty, whether he did it within the limits of his jurisdiction. The next step will be to find out if, even assuming that he went beyond his juris-diction, he bona fide believed to have the jurisdiction to make the order.

The words 'in the discharge of his judicial duty' have been used to my mind in contradistinction to the exercise of the administrative or executive duty. Whether the act was done in the discharge of judicial duty, can be primarily determined by the nature of the order passed. The magistrate when passing an order of arrest cannot be said to be exercising his mere executive power. He purported to act judicially.

In the case of the Collector of Sea Customs, Madras v. P. Chithambaram reported in ILR 1 Mad 89 (FB) (S) Sir Walter Morgan, C. J., construing the Act XVIII of 1850 observed as follows :

'These issues were on the assumption that the Collector acted judicially, properly regarded by the Court below as immaterial. His act being in its nature judicial, if we assume in his favour that he acted within his jurisdiction, this would not, in my judgment, render him liable to suit, even though the act was done maliciously; if on the other hand, he acted without jurisdiction, his liability would depend not on whether the act was malicious and without reasonable and probable cause, but on whether it was within the protection of Act XVIII of 1850.'

63 One of the tests therefore will be to see the nature of the act done by the magistrate in order to arrive at the conclusion whether the act was done* judicially and in the discharge of his judicial function or not. In my opinion it can legitimately be said that the magistrate when he passed the order of arrest he purported to act in the discharge of his judicial duties as opposed to executive or administrative duties. The question still remains whether the act was done within the limits of his jurisdiction or outside the limits of his juris-diction.

The sense in which the word 'jurisdiction' has been used in Section 1 of the Judicial Officers' Protection Act, was laid down in the earliest case of the Allahabad High Court, Teyen v. Ram Lal, reported in ILR 12 All 115 (F). Sir John Edge, C. J., in that case held that 'the word 'jurisdiction' is used in Act XVIII of 1850 in the sense in which it was used by the Privy Council in Calder v. Hal-kety 2 Moo Ind App 293 (T). It means authority or power to act in a matter and not authority or power to do an act in a particular manner or form' Prior to the Act XVIII of 1850, the acts which afforded jurisdiction to the judicial officers in India

were in the following terms : 'And whereas it is reasonable to render the provincial magistrates, as well native as British subjects, more safe in the execution of their office, be it enacted: That no action for wrong or injury shall lie in the Supreme Court against any person whatsoever exercising a judicial office in tne country courts for any judgment, decree or order of the said Court, nor against any person for any act done or in virtue of the order of the said court.' This section was interpreted by the Judicial Committee in the case referred to above of Calder v. Halket (T).

The Judicial Committee considered that the object of that section was to protect Judges of the native courts from actions for things done within their jurisdiction, though erroneously or irregularly done, leaving them liable for things done wholly without jurisdiction. This Act not only protects the Judicial Officers from suits for acts done or ordered to be done by them in discharge of judicial duties within the limits of their jurisdiction, but extended the protection.

According to the Judicial Committee this Act further protected them from suits for acts done or ordered to be done by them in discharge of judicial duties, without the limits of their jurisdiction, provided that in such case the officer at the time of doing the act or ordering to be done in good faith believed himself to have Jurisdiction to do or order the act complained of. The Allahabad case has been followed in a number of decisions of various High Courts.

In the case reported in AIR 1944 Cal 4 (B), it was held by the Calcutta High Court that when the arrest was made as a judicial act and was within the competence of the Magistrate a claim for compensation for wrongful arrest is not maintainable. In the case reported in AIR 1953 Punj 188 (E), it was held as follows :

'If the act complained of against a judicial officer is in its nature judicial and within his jurisdiction he is not liable to be sued even though the act was done maliciously. It is only when a judicial officer does something beyond his jurisdiction that any question of malice or reasonable and probable cause arises. The Act of 1850 was only introduced to protect officers from the consequences of acts done beyond their jurisdiction, but without malice and in good faith, the absolute protection as regards acts done within their jurisdiction still being maintained.'

No objection therefore can be taken to the proposition that the acts done by the officers within their jurisdiction in the discharge of their judicial functions are absolutely protected.

It also cannot be seriously contended that the word 'jurisdiction' does not connote form or manner in which the act is to be done, but relates to the power, the scope and the ambit of the autho-rity. The difficulty however arises when the law is to be applied to the facts of the case. The facts and circumstances of each case will have to be examined in order to ascertain whether the act was within or without the jurisdiction of the officer concerned.

That the magistrate had power to issue warrant of arrest in certain circumstances also may not be questionable; but when the exercise of tne power depends upon the existence of certain condition precedent, the existence or non-existence of the condition precedent in substance affects the jurisdiction of the authority and deals with the power to act and does not only relate to the manner and the form in which the power is to be exercised. We will have therefore to examine the circumstances under which the order for the arrest was issued in order to ascertain whether the order was within the limits of the jurisdiction of defendant No. 3 or wholly outside his jurisdiction.

64. Before a case comes to trial, there is an

earlier stage of investigation. The police which is

primarily the agency through which the investiga

tion is done has got power to arrest a person with

out a warrant who has been concerned in any

cognizable offence or against whom a reasonable

complaint has been made or credible information

has been received or a reasonable suspicion exists

of his having been so concerned. There are other

circumstances enumerated under section 54 of the

Criminal Procedure Code which authorise a police

officer to make an arrest without warrant. It is

however obligatory on the police officer making

such an arrest, not to detain any person for a period

longer than 24 hours.

He has to produce the arrested person before the Magistrate in order to get an order of remand within that period. Section 75 of the Criminal Procedure Code provides that every warrant of arrest issued by a court under this Code shall be in writing, signed by the presiding officer or in the case of a Bench of Magistrates, by any member of such Bench and shall bear the seal of the court. (2) Every such warrant shall remain in force until it is cancelled by the court which issued it, or until it is executed.

When an offence has been committed in the presence of a magistrate within the local limits of his jurisdiction, he has been given power under section 64 Criminal Procedure Code either himself to arrest the offender or to pass an order for the arrest of such an offender. Section 65 of the Criminal Procedure Code also authorises a magistrate to direct the arrest in his presence of any person for whose arrest he is competent at the time to issue a warrant. Under Section 156 of the Criminal Procedure Code, power has been given to an officer of police to investigate any cognizable offence without the order of a magistrate or on the order of any magistrate empowered under Section 190.

65. It is therefore clear that the investigation can be started by police on its own motion or it can be ordered by the magistrate empowered under Section 190 to take cognizance of the case, in respect of a cognizable offence. During the investigation, it is open to the police to arrest a person with the obligation to produce him before the magistrate for obtaining the necessary orders of re-mand within 24 hours. The final report of investigation is to be submitted to the magistiate.

Section 190 of the Criminal Procedure Code lays down I be condition requisite for initiation of proceedings and is in the following terms :

'(1) Except as hereinafter provided any Presidency Magistrate, District Magistrate or Sub-divisional Magistrate and any other magistrate specially empowered in this behalf may take cognizance of any offence (a) upon receiving a complaint of facts which constitute such offence; (b) upon a report in writing of such facts made by any police officer: (c) upon information received from any person, other than a police officer or upon his own knowledge or suspicion that such offence has been committed.' Section 204 of the Criminal Procedure Code lays down that 'if in the opinion of a magistrate taking cognizance of an offence there is sufficient ground for proceeding and the case appears to be one in which according to the fourth column of the second schedule, a summons should issue in the first instance, he shall issue his summons for the attendance of the accused.

If the case appears to be one in which according to that column, a warrant should issue in the first instance he may issue a warrant or if he thinks fit, a summons, for causing the accused to be brought or to appear at a certain time before such Magistrate or (if he has not jurisdiction himself) some other Magistrate having jurisdiction.'

It is unnecessary to deal with other sections empowering the magistrate to order the arrest of an offender as it has not been seriously contended that the power in the present case should have been exercised or in fact was exercised under any other section of the Criminal Procedure Code except under Section 204.

The order is sought to be justified on the ground that it was a warrant issued under section 04 of the Criminal Procedure Code. If the defendant succeeds in establishing that the order in the present case was within the jurisdiction of the magistrate, inasmuch as the conditions for the exercise of the powers under Section 204 existed in the present case, he can legitimately argue that the defects of form will not deprive him of the protection under the Act. The condition precedent for the exercise of the power under Section 204 is taking cognizance of an offence and unless a cognizance had been taken, the magistrate had no power to issue a warrant of arrest or direct the arrest of the offender under Section 204 of the Criminal Procedure Code.

It will have to be seen therefore whether the cognizance in this case had been taken or not. Section 190 which I have already quoted earlier lays down three conditions for the initiation of the proceedings. It is not disputed that in the present case, there was no complaint filed by any party against the plaintiff. It is also not disputed that there was no police report on which the cognizance was taken by the magistrate. The only question is therefore whether the cognizance was taken in this case by the magistrate on receiving the information from any person other than a police officer or upon his own knowledge that such an offence had been committed by the plaintiff.

66. The word 'cognizance' has nowhere been defined. It is not a word which is of definite import. It has been laid down by their Lordships of the Supreme Court in the case reported in AIR 1951 SC 207 (M) that before it can be said that any magistrate has taken cognizance of any offence under Section 190, he must have applied his mind to the offence for the purpose of proceeding in a particular way as indicated in the subsequent provisions of the Chapter i.e. proceeding under Section 200 and thereafter sending it for inquiry and report under Section 202. When the magistrate applies his mind not for the purpose of proceeding under the subsequent sections of the Chapter but for taking action of some other kind, ordering investigation under Section 156 (3) or issuing a search warrant for the purpose of the investigation, he cannot be said to have taken cognizance of the offence.

In the Supreme Court case, the applicant was being prosecuted under sections 161 and 165, Indiar Penal Code read with Sec. 6 of the Prevention of Corruption Act. On 22-10-1947 the police applied to the magistrate, Cawnpore for the arrest of the petitioner on suspicion that he was guilty of the offences under Sections 161 and 165. On the 27th, the applicant was arrested on the issue of a warrant by the magistrate. On 1-12-1947 the petitioner was produced for trial before the Special Magistrate who granted bail.

The police continued their investigation and on 6th December sanction was granted by the State Government to prosecute the applicant One of the points taken was that no sanction of the State Government had been obtained before the initiation of the proceedings against him and as such no proceedings could go on against the offender without such a sanction from the State Government under Section 197, Criminal Procedure Code having been obtained prior to the initiation of the proceedings. The argument was that the proceedings commenced on the date when the petitioner was arrested and admittedy on that date mere was no sanction of the State Government. In this connection, it was held by the Supreme Court that particular offence under Sections 161 and 165 of the Indian Penal Code in view of the provisions of the Prevention of Corruption Act are regarded as cognizable offences.

The only limitation was that the investigation had to be done by the Deputy Superintendent of Police and that an order of arrest had to be obtained from the magistrate. It was held that the arrest in this case was not ordered by the magistrate on taking cognizance of the offence, but it was for the purposes of the investigation only.

The following observations made by Dasgupta, J., in the case reported in AIR 1950 Cal 437 (O), were approved by their Lordships of the Supreme Court :

'What is taking cognizance has not been defined in the Criminal Procedure Code and I have no desire to attempt to define it. It seems to me clear however that before it can be said that any magistrate has taken cognizance of any offence under Section 190 (1) (a), Criminal Procedure Code, he must not only have applied his mind to the contents of the petition, but he must have done so for the purpose of proceeding in a particular way as indicated in the subsequent provisions of this Chapter proceeding under Section 200 and thereafter sending it for inquiry and report under Section 202.

When the magistrate applies his mind not for the purpose of proceeding under the subsequent sections of this Chapter but for taking action of some other kind e.g. ordering investigation ... under Section 156 (3), or issuing a search warrant for the purpose of the investigation he cannot be said to have taken cognizance of the offence.'

The crucial test therefore will be whether the magistrate applied his mind for the purpose of proceeding with the case, or for taking action of some other Kind. The circumstances and the facts of each case will have to be examined to ascertain whether in that particular case, the action was taken by the magistrate which can be called an action of some other kind and not one taken with a view to proceed further with the case.

67. So far as the defendant No. 3 himself is concerned I have already referred to his statement wherein he has categorically stated that he did not take any cognizance of the complaints made to him. He has emphasised the fact that the order of arrest of the plaintiff was not the result of taking cognizance or of any malice, but it was on the orders of the Deputy Commissioner. Even assuming therefore that he had certain reports, made against the plaintiff to him, the foundation of the order of arrest was not these reports, but the order of the Deputy Commissioner. He never appears to have applied his mind to the specific allegations against the plaintiff for the purpose of proceeding with the matter, but he just carried out the orders of his superior officer.

It was contended by the State counsel that the magistrate when he made this statement may, on an erroneous view of law, have thought that he did not take cognizance, but if the facts justify a conclusion that he had sufficient materials in his possession on which he could legitimately suspect the plaintiff to be an offender, when he ordered the arrest of the plaintiff he really took cognizance of the case. It is further argued that the cognizance itself may have been based on the direction of the Deputy Commissioner, but none-the-less, when the defendant issued the order of arrest, he purported to take cognizance of the matter. It is not necessary, according to the State Counsel, that there should be a time lag between the two acts i.e. the taking of cognizance and the order of arrest.

The magistrate after receiving informations made up his mind that it is a case which requires investigation by a court of law and with a view to proceed further with the matter, he made the order of arrest. The two acts may simultaneously be done and it cannot therefore be said that the cognizance had not been taken in the present case. It was also contended that cases where the magistrate applies his mind to take action of some other kind namely the order directing investigation or issuing a search warrant, it may be open to argue that these acts need not have been done after the cognizance had been taken, but when the order of arrest is only permissible after taking cognizance, the order of arrest itself will indicate that the cognizance had been taken.

The argument on the face of it is very plausible. But to my mind, the circumstances of each case will have to be examined. In cases where the magistrate orders the arrest of a person, simpliciter it can be argued that the order was preceded by a subjective determination of the magistrate to take action in the matter on account of certain informations in his possession, and therefore the cognizance had been taken. But here, the language of the order itself points to the contrary conclusion. The order is in the following terms:

'C. I. Barpeta, Deputy Commissioner has ordered the arrest of Shri Ajoy Mukherjee a resident of this town at once under Section 436, Indian Penal Code. Please take necessary action immediately.'

This order clearly points to the conclusion that up to the stage of the passing of this order, the magistrate had not applied his mind at all to the reports in his possession and had not taken steps with a view to proceed further in the matter in view of these reports. It was at the dictation of his superior officer that he had issued this order.

It is also capable of the interpretation that the magistrate simply intended to inform the police officer of the wishes of the superior officer and directed him to take necessary steps immediately. By the words 'necessary action', the magistrate only meant that the police officer may exercise his own powers and arrest the man. This interpretation will mean that the order was not one of arrest by a warrant and it thus could not be a warrant under Section 204 Cr. P. C. It will therefore be clearly beyond the limits of his jurisdiction.

68. As I have already pointed out therefore on the face of it, the order does not disclose any jurisdiction. The jurisdiction to issue warrant of arrest depended upon the taking of the cognizance and the order on the face of it does not disclose that the cognizance had been taken. On the contrary it points to the conclusion that the action was taken on the direction of the Deputy Commissioner. The evidence on the record also does not show that any cognizance had been taken. The order was passed on 17-3-1950. The arrest was made on the same day. On the 18th March, the plaintiff was produced under arrest and the appellant ordered remand to custody.

On the same day later, an order was passed by Sri J. Barua, Magistrate that the prisoner was allowed the facility of having uncooked food brought in. This order was passed in the absence of the trying magistrate. On the 20th March, it is found that the Magistrate Sri J. Barua granted bail to the plaintiff of Rs. 3000/- of one surety of like amount. In the order-sheet he said as follows:

'Seen report of the Sub-divisional Medical Officer. Fix 28-3-1950. Ask Officer-in-charge, Bar-peta Police Station to report any breach of the bail.'

How the matter came up before him when the trial magistrate was different does not appear from the order-sheet. On 20-3-1950, as no report had been received from the investigating officer, 15th April was fixed.

Then on the 15th, 20th April was fixed as no report had been received till then. On 20-4-1950, the case met with the same fate and 12-5-1950 was fixed. On that day the police submitted a report to the effect that the investigation was not complete and 26th May was fixed. All these orders had been passed by Sri A. K. Roy, Special Magistrate. On the 27th May, an order was passed by Sri J. Barua in the following terms:

'Seen police report. Officer-in-charge reports that there is no case against the accused person in Barpeta Police Station but the forwarding report submitted by officer-in-charge, Barpeta Police Station shows that he was arrested and forwarded in a case under Section 436, Indian Penal Code. C. I. (B)'s report, dated 7-5-1950 shows that Officer-in-charge (B) was told by him and Sub-divisional Police Officer (B) the details behind the arrest of this person but officer-in-charge has not mentioned anything about this.

A petition filed by accused was sent to C. T. (B). on 23-5-1950 for a report but the same has not yet been returned. Judging from the papers it seems to me that a great confusion exists amongst police officers, about the case. It is surprising that the Officer-in-charge should refer to the C. I. as authority for the arrest and the latter to the Sub-divisional Officer. No case also seems to have been registered at this Police Station. I fail to see under strength of what the accused has been sent up. No F. I. R. is also traceable in court office in which accused has been named. I find no justification for holding accused within the jurisdiction of court under the present charge. Police to report by 31-5-1950 why accused should not be discharged.'

The order dated 31-5-1950 runs as follows:

'Seen report of C. I. (B) dated 31-5-1950 forwarded through Sub-divisional Officer (B). It had been reported that although the accused was arrested on a written order of Sub-divisional Officer (B), on investigation it has been found that 'there is no material to substantiate the charge' and C. I. (B) has no objection to his discharge. On the face of such a report. I find no reason to hang on the case. The accused is so discharged.'

The order sheet shows an utter state of confusion. Nobody appears ready to take up the responsibility of the arrest of the plaintiff. Whether sufficient materials were found on investigation enough to proceed against the plaintiff or not and whether he was entitled to a discharge or not are not matters for consideration in the present case; but the order-sheet does show that at no stage it was asserted that the order of arrest was made by the Sub-divisional Magistrate under Section 204 Cr. P. C. after he had taken cognizance of the offence. The magistrate does not purport to have exercised his powers under Section 204 Cr. P. C. either. No other section as the source of the appellant's power to order arrest has been pointed out and the act was thus beyond the limits of his powers.

69. The other circumstance which points to the conclusion that the magistrate did not take cognizance of the case is that when the lawyers approached him for grant of bail on the next day, he directed them to approach the Deputy Commissioner. In his statement, the magistrate has stated that one or two lawyers requested him on the day following the arrest of the plaintiff and informally approached him at his Bungalow about the plaintiff's release on bail and they were directed to 'approach the Deputy Commissioner, Kamrup who was then camping at Barpeta.

On the 18th March, the plaintiff was remanded to the custody under orders of the defendant No. 8 as evidenced by the order-sheet of that date. If he had taken cognizance of the matter, there was no necessity for him to have directed the lawyers to approach the Deputy Commissioner for bail and he himself when he ordered the plaintiff to be remanded to the custody could have dealt with the question of the grant of bail. No further proceedings were taken by him. It is therefore clear that the cognizance had not been taken by defendant No. 3.

It is true that the Judicial Officers wnen they are acting within their jurisdiction have to be protected. In order to maintain their independence of action, it is very necessary that they should not be subject to harassment by people by being forced to go to courts to defend themselves for every action of theirs. But it is equally important that the liberty of the citizens should be jealously guarded and any reckless or arbitrary act of an officer should not be countenanced. The Constitution has recognized the right of personal liberty as a fundamental right, it is therefore essential that the personal liberty of a citizen should not be trifled with. The Code of Criminal Procedure has laid down the circumstances under which the order of arrest could be made by a magistrate and any action taken by the magistrate beyond the provisions of the Code will be without jurisdiction and can even be regarded as one where the magistrate is not in the strict sense acting judicially.

70. The next question to he considered is whether the defendant bona fide believed that he had jurisdiction to order the arrest and as such he is protected. To satisfy this requirement, a groundless belief formed from ignorance or rashness will not be sufficient. The belief will have to be entertained in good faith. These words were meant to require an honest pursuasion founded, after fair enquiry and consideration, upon what might mistakenly, either in point of law, or fact, be considered a reasonable or probable ground, by a person possessing ordinary qualifications for the office held by the magistrate sought to be made liable. The belief must appear to have been trustworthy to his mind. The belief cannot be said to have the quality of trustworthiness unless it rested upon some ground which might be thought a reasonable or probable foundation for it in the judgment of a man of ordinary capacities.

The belief is a mental condition and is subjective. This defence depends upon the existence of a particular state of mind which preceded and was the motive spring of a particular act. It is manifest that in such cases, the conclusion of a human tribunal upon such a matter will of necessity be liable to a greater error. Being bound, however, to come to a conclusion, it must do so by a deduction from the external act, together with all its attendant circumstances. Bad Faith ought generally to Be inferred from negligence and particularly in a case where there is a gross negligence. Ordinarily if there is no reasonable ground for committing an error, it can be assumed that the error was not committed in good faith.

71. The magistrate was an experienced magistrate and he knew the law. From the circumstances, it is clear that he did not purport to issue any warrant under Section 204 of the Criminal Procedure Code. It is also clear from the order and his own statement in court that he did not ever think that he had taken cognizance of the case. It is therefore difiicuit to accept the contention of the defendant that he bona fide in good faith believed that the order was within the limits of his jurisdiction. He is therefore not entitled to protection under the Judicial Officer's Protection Act.

72. So far as the liability of defendant No. 2 is concerned, it was not very seriously pressed before me. Moreover in his statement, he has denied that he ever issued any specific instruction to the defendant No. 3 to arrest the plaintiff, which I have no doubt to disbelieve. The arrest could not be said to have been made at his instance and under his orders. He therefore cannot be held liable lor the wrongful arrest of the plaintiff.

73. As regards the liability of the State, it is true that in written statement, no specific plea has been taken on behalf of the State in defence, but the court below has considered the question of the liability of the State distinct from other defendants and I see no reason not to consider the question of the State's liability independent of the liability of the other defendants. There is a distinction between the acts done by the State in pursuance of industrial or commercial ventures which the State carries on as any other private individual and in the exercise of its sovereign powers.

It is however not necessary to go in details as to the liability of the State to be sued in a court of law in respect of the sovereign acts. It is sufficient to say that the State will not be responsible for the tortuous acts of its subordinates unless it can be said that the impugned act has been expressly au- thorised by the State. The question of the State's liability was however not very seriously pressed by the plaintiff-appellant and it is not necessary to refer to numerous authorities on that piont.

74. The next question is about the liability of defendant No. 4. The trial court held that he was not liable on the ground that he acted in good faith and in obedience to the order of arrest passed by the Sub-divisional Officer. He bona fide thought that he was bound to execute the order which was issued by the magistrate in his judicial capacity. In my opinion, defendant No. 4 is proetctcd under Judicial Officers Protection Act. It is true that good faith or bad faith is hardly relevant for determining the liability of officers for false imprisonment and the trial court was not right in holding defendant No. 4 not liable on the ground that he acted in good faith but in my judgment, on the proper interpretation pf the Act, the defendant No. 4 will not be liable.

Section 1 of the Act deals with the protection of Judges, Magistrates, Judicial Officers as well as the executive officers who have to obey the orders of judicial officers and to execute lawful warrants. As I have already held the magistrate is absolutely protected if in discharge of his judicial duties, he acts within his jurisdiction. In cases where he acts outside the limits of his jurisdiction, he is protected if he bona fide believed that he had jurisdiction, but the excctuive officers are protected if they carry out the orders of judicial officers, magistrates and judges if they execute lawful warrants or carry out lawful orders which he would be bound to execute if within the jurisdiction of the person issuing the same.

This to my mind means that even though the order be beyond the limits of the magistrate's jurisdiction, the officers executing it will be protected if the order is such that had it been passed by the magistrate within the limits of his jurisdiction he was bound to obev. In interpreting S. 6 of Con-stables Protection Act of 1750, it was held by the King's Bench Division (Horsfield v. Brown (1932) 1, K. B. 355 at p. 369 (U)) that if the constable acts in obedience to the warrant, then, though the warrant be an unlawful warrant, he is protected by the statute of 1750, but if the warrant be a lawful warrant and he executes it in an unlawful way then no action is maintainable against the magistrate, but an action is maintainable against the constable.

This proposition is established by the decision of Lord Mansfield in Money v. Leach (1765) 3 Burr 1742 (1768) (V), where he said:

'Where the justice cannot be liable the officer is not within the protection of the Act.' In Price v. Messenger (1800) 2 Bos and P 158 (W) Lord Eldom, then holding the office of Chief Justice in the Court of Common Pleas said 'The public interest requires that officers who really act in obedience to the warrant of a magistrate should be protected. In such cases therefore the law has provided that the remedy of the party grieved shall be confined to the magistrate, as well where he has granted a warrant without having jurisdiction, as where the warrant which he has granted is improper.'

Section 6 of the English Statute is as follows:

'No action shall be brought against any constable, headborough or other officer, or against any person or persons acting by his order and in his aid, for anything done in obedience to any warrant under the hand or seal of any justice of the peace.'

As I have held that the appellant is not protected, it is not necessary to go into the question whether the defendant No. 3 was motivated by any malice in the present case and it is not necessary to examine in detail the evidence led by the plaintiff as regards the incident which took place in the meeting of the Peace Committee.

75. As regards the quantum of damages, I am in agreement with the view expressed by my Lord the Chief Justice and I see no reason to interfere with the amount of damages awarded by the trial court against the defendant No. 3.

76. In the result, therefore, I dismiss both the

appeals--No. 14 of 1954 filed by defendant No. 3

and No. 18 of 1954 filed by the plaintiff with costs.

The suit against defendants Nos. 1, 2 and 4 stands

dismissed and the decree for Rs. 5000/- against

defendant No. 3 is maintained.


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