1. We think that the District Judge is right in the view he has taken as to the legality of the act of the defendant complained of as wrongful by the plaintiff. The plaintiff held a license for a gun under the Arms Act, which was to expire on the 31st of December, 1900. Some time before that date, i.e., on the 1st October, 1900, the plaintiff applied to the District Magistrate for a renewal of the license and for an additional license for fresh arms. The application was forwarded for enquiry by the Police and the result of it was that the Police recommended that the license already held by the petitioner should be cancelled and that his application for a fresh license should be refused. Acting upon that recommendation, the District Magistrate passed an order cancelling the plaintiff's license and declining to grant a license for fresh arms. This order was forwarded to the District Superintendent of Police with a direction that it should be communicated to the plaintiff and that the gun he held under the cancelled license should he attached. The District Superintendent sent the order on to the Chief Constable with a direction that it should be communicated to the plaintiff and that such arms as there might be should be attached. The Chief Constable forwarded the order to the defendant, who was the 'officer in charge of the Police Station with jurisdiction over the place where' the plaintiff lived, and instructed him to carry out its terms. Accordingly on the 30th of December, 1900, the defendant, accompanied by a Panch whom he had collected for the purpose, went to the plaintiff's house and communicated to him the contents of the District Magistrate's order and called upon him to give no the gun which ha held under the cancelled license. The plaintiff immediately produced a gun. What happened 'afterwards is deposed to as follows by the plaintiff: 'Imam, defendant, said: 'Though you have tendered this gun I have yet to soaroh your house.' At the time my house was searched I had some guests from Mohili, &c.;, and some Gosha women.' The defendant's version is this: 'He,' i.e., the plaintiff, 'produced a gun as soon as I went to his house. He said 'This is my gun.' I at once suspected that he had another gun. I immediately made a search.... I did not find a gun. I thought the order of the District Superintendent of Police was sufficient. The gun be delivered to me was not the gun I had seen him carrying before. That was quite different with brass ornaments and in good condition with ivory inlaying; I told him to produce his proper gun. He said he had none.' In his cross-examination the defendant states that he searched because' he suspected the plaintiff's real gun was in the house, and that he concealed the order of the District Superintendent of Police to authorize a search.
2. The order of the District Superintendent of Police does not in terms authorize a search, but his direction that 'such guns as there may be should her attached' may be taken as implying that the defendant should do all that might be necessary for the purposes of the attachment and that is substantially the defendant's case. His defence is that he made the search of the plaintiff's house in obedience to a duty imposed on him by law and prescribed by the orders of his superiors and that, therefore, he is protected. The law applicable to such a case is explained by Lord Watson in Allen v. Flood (1898) A.C. 1 where he says: 'There is a class of case which have sometimes been referred to as evidencing that a bad motive may be an element in the composition of civil wrong: but in these cases the wrong must have its root in an Act which the law generally regards as illegal but excuses its perpetration in certain exceptional circumstances from considerations of public policy. These are well known as cases of privilege, in which the protection which the law gives to an individual who is within the scope of these considerations consists in this, that he may with immunity commit an Act which is a legal wrong and but for his privilege would afford a good cause of action against him, all that is required in order to raise the privilege and entitle him to protection being that he shall Act honestly in the discharge of some duty which the law recognises and shall not be prompted by a desire to injure the person who is affected by his Act. Accordingly in a suit brought by that person, it is usual for him to allege and necessary for him to prove an intent to injure in order to destroy the privilege of the defendant.' The decision then of the present case turns upon two questions: first, was the defendant Acting in the discharge of some duty which the law recognised when he searched the plaintiff's house; second, if he was, is it proved by the plaintiff that he Acted dishonestly and was prompted by a desire to injure the plaintiff
3. The solution of the first of these two questions depends not merely on the fact that the defendant was Acting under the orders of his superiors which he was bound to obey, but also on the law in accordance with which those orders were given. Section 50 of the Bombay Police Act, which was cited by the learned Government Pleader in support of the defendant's action, speaks of orders lawfully issued by a superior Police officer to a subordinate. On the facts here it is dear that the plaintiff's license was cancelled, and that on learning of its cancellation the plaintiff was bound, under Section 16 of the Arms Act, to deposit his gun 'without unnecessary delay,' with the defendant who was the officer in charge of the nearest police station. The defendant had a right to demand the gun, the license of which had been cancelled, and it is not contended for the plaintiff that when it was demanded the plaintiff could not produce it and give it up to the defendant. Nor could such contention avail the plaintiff, having regard to the fact that when he was called upon to give up his gun, the license of which had been cancelled, he did produce one. So far then the defendant was Acting in the discharge of a duty recognised by law; and it is not alleged that there was anything wrongful in that. The gun produced by the plaintiff was admittedly useless; and the defendant's case is that suspecting that the plaintiff was not producing the real gun for which be had held a license, he caused a search of the house to be made. Under Section 165 of the Criminal Procedure Code a Police officer in charge of a police station is authorized to make a search during an investigation when he considers that the production of a thing is necessary to the conduct of an investigation into any offence which he is authorized to investigate, and there is reason to believe that a person to whom a summons or order under Section 94 of the Code might be issued will not produce the thing. The District Judge has held that it was under this section that the defendant Acted in searching the plaintiff's house. That section requires, before it can be brought into operation, that there must be an offence which the Police officer is authorized to investigate. According to the District Judge, as Boon as the defendant suspected that the plaintiff was not producing the real gun, there was, in the defendant's opinion, an offence committed, and he could Act under Section 165 of the Criminal Procedure Code. We agree with the District Judge in that view. A public functionary, authorized by a statute to make a search, must, in exercising that authority, Act within the limits allowed by the statute itself. If a Police officer suspects that an offence has been committed which he is authorised to investigate he ban make a search under Section 185. It cannot be contended that he is to exercise no judgment, no discretion whatever; if it were not allowed 'he could not discharge his duty without great peril and apprehension, if in consequence of a mistake, he became liable to an action' per Lord Tenterdan in Cullen v. Morris (1819) 2 Sta 577. But the suspicion that there is an offence to investigate and therefore a search to make must be formed honestly. While it must be left to the judgment of the Police officer making a search under Section 165 to decide whether there is such an offence calling for a search, if, instead of a mere mistake in forming his judgment, it is shown that that judgment was not formed honestly but with an intent to injure the party subjected to the search, he cannot invoke the protection of that section, and it must follow that he was using his authority unlawfully.
4. The onus of proving that the defendant did not act honestly but with intent to injure lies on the plaintiff. In other words, the plaintiff must show that in purporting to Act under Section 165, Criminal Procedure Code, the defendant Acted intentionally without just cause or excuse. It K contended this is shown by the evidence proving that the plaintiff's relations with the Police were strained; that the defendant had reported that the plaintiff was not a fit person to hold a license under the Arms Act; that the defendant marched to the plaintiff's house with a Panch and made the search Boon after he had communicated to the plaintiff the fact of the cancellation of his license; that he concealed from the plaintiff the order of the District Superintendent of Police, and that he made the search at a time when the plaintiff had guests and Gosha women in his house. These facts, it is urged, indicate malevolence on the defendant's part and prove that the search was made more with a view to annoy the plaintiff and out of spite than with an honest desire to procure the gun, the license of which had been cancelled. But the defendant was Acting in obedience to the lawful order of his superiors that the gun in question should be attached. It is not alleged that the defendant personally bore any malice towards the plaintiff. On the other hand, it is admitted that be was a new arrival in the village where the plaintiff lived. The gun produced by the plaintiff was old and useless--a circumstance which might well have led the defendant to suspect that the plaintiff was not producing the real gun. On the evidence, therefore, as a whole, we cannot hold that the defendant is proved to have acted with an intent to injure the plaintiff. We must, therefore, confirm the decree with costs.