M.H. Beg, J.
1. The State of U. P. has appealed against a decree for damages assessed at Rs. 500/- awarded to the two plaintiffs-respondents, Tulsi Ram and Sri Prakash, in the following circumstances: The plaintiffs-respondents were prosecuted, together with three other persons, for offences punishable under Sections 148/323/324/325/307 I. P. C. in the Court of Sessions at Oral in the year 1955. Tulsi Ram was acquitted by the Court of Sessions on 12-11-1955, but Shri Prakash and three others were each sentenced to three years1 R. I. and also ordered to pay fines of Rs. 25/- each. As a result of an appeal filed in this Court, Shri Prakash was also acquitted.But, the convictions of the other three persons, namely, Parsole, Badri and Mangal were affirmed by this Court. The orders of this Court authorised the arrest of three persons only, that is to say, Parsole, Badri and Mangel. These orders were duly certified under Section 425 (1), CR. P. C. and sent to the Sessions Court.
It appears that, from the Court of Sessions necessary directions were sent to the District Magistrate, who forwarded them to the committing Magistrate, a Judicial Officer, to see that the orders' of this Court were complied with. This meant that all that the Judicial Officer had to do was to issue warrants of arrest if the convicted persons did not surrender so that the orders of this Court, as communicated to the Sessions Court, may be duly complied with. The Judicial Officer had to perform a purely ministerial function to see that the directions of this Court were duly carried out It was his legal duty to carry out the directions given to him through the District Magistrate who had sent the orders of this Court to the Judicial Officer for compliance. In attempting to comply with the orders sent the Judicial Officer was negligent. He permitted his Ahalmad to make out warrants of arrest and then signed whatever was placed before him by the Ahalmad. The Ahalmad had, for unexplained reasons, made out warrants of arrest against five persons, that is to say, the three persons whose convictions were upheld by this Court as well as the plaintiff, Tulsi Ram, who had been acquitted by the Court of Sessions in 1955, and Shri Prakash who had been acquitted by this Court on 7-2-1958, although the Judicial Officer's order itself authorised issue of warrants against three convicted persons only.
The result was that the plaintiffs-respondents were arrested by the police of Jalaun on 6-3-1958 at village Shahzadpur at about 10 A. M. and were taken hand-cuffed from their village to the police station, Jalaun, for a distance of about six miles. They were lodged in the police lock-up at about 2 P. M. and then suddenly released at 3 P. M. The plaintiffs stated that on 6th of March, 1958. fell the important festival of Holi and that they were arrested before their relations and friends and fellow villagers and that this caused much humiliation, disgrace, physical discomfort, and mental suffering to them for which they claimed Rs. 2000/- as damages.
2. The learned Munsif had dismissed the suit of the plaintiffs on the ground that the Judicial Office, Sri Nem Chand Jain who was impleaded as a co-defendant and is respondent no. 3 in the appeal before me, was protected by theJudicial Officers' Protection Act of 1850. As the Judicial Officer was held to be protected, the learned Munsif also dismissed the suit against the State of U. P. on the ground that the State could not be vicariously responsible for an act of a Government servant who was protected. The lower appellate Court had endorsed the view of the learned Munsif that the Judicial Officer was protected. But, it held that the State of U. P. was Vicariously liable for the negligence of the Ahalmad. It, therefore, allowed the appeal of the plaintiffs-respondents and awarded Rs. 500/- as damages to them. The State of U. P. has appealed. The Judicial Officer, impleaded as a respondent, has not put in appearance.
3. It has been contended on behalf of the State that the Judicial Officer was carrying out a direction of law contained under, Section 425. Cr. P, C. The citation of Section 425. Cr. P. C. is certainly erroneous. This provision merely lays down that the orders of this Court on appeal shall be certified by this Court to the court by which ' the conviction and sentence awarded was recorded or passed. In the instant case, the offences and sentences appealed against were those of the Court of Sessions. The Judicial Officer was, therefore not acting under Section 425, Cr. P. C. but he was purporting to carry out a direction sent to him from the Court of Sessions through the District Magistrate. It may be assumed that this was done under the relevant rules for that purpose. Therefore, it could be held that the Judicial Officer was carrying out a duty imposed upon him by law to carry out direction of the Sessions Judge. It did not, however, follow that he was performing a judicial function.
4. Learned counsel for the State has contended that since the Judicial Officer was carrying out a direction of law, the State of U. P. could not be held to be liable. He placed reliance on: Mohammad Murad v. Govt. of U. P. 1955 All LJ 697 = (AIR 1956 All 75) and on United Provinces v. Kasturi Lal Ralia Ram. 1960 All LJ 529. In the last mentioned case, the decision of this Court was affirmed by the Supreme Court in Kasturi Lal Ralia Ram v. State of U. P., AIR 1965 SC 1039. Learned counsel for the State also cited State of Bihar v. N. P. Jain. AIR 1963 Pat 290. On the other hand, learned counsel for the plaintiffs-respondents relied on State of Rajasthan v. Mst. Vidhyawati, AIR 1962 SC 933. The propositions contained in the cases mentioned above and their applicability in the instant case may now be considered.
5. In Mohd. Murad's case. 1955 All LJ 697 = (AIR 1956 All 75) (supra) the plaintiff had filed a suit against the Government of U. P. because certain jewellery deposited in court belonging to a minor, which had to be duly locked up, was stolen. In that case, this Court had confirmed the findings of the two courts below that a District Judge and his Nazir were guilty of negligence in not taking steps to ensure that the jewellery was kept safely. It does not appear from the facts stated there that the plaintiff had impleaded either the District Judge or the Nazir as defendants. This Court, however, held, dismissing the second appeal of the plaintiffs that Where a Government servant acts in performance of duties imposed upon him by law, the master has no right either to control him or to give him any instructions. On this ground, the liability of the Government of U. P. was negatived. The case is no authority for contending that the actual wrong-doer who had been negligent was not responsible simply because he was a Government servant.
6. In Kasturi Lal's case, AIR 1965 SC 1039 (supra), a Division Bench of this Court followed Mohd. Murad's case, 1955 All LJ 697 = (AIR 1956 All 75) (supra). The State of U. P. was absolved from liability for the actions of police officers who, in the exercise of their statutory duties, had seized some gold belonging to the plaintiff and kept it in the malkhana. The gold was misappropriated by a police officer who fled to Pakistan so that he could not be personally made liable although a criminal case was started against him. When this case went up to the Supreme Court, Gajendragadkar, C. J., giving the judgment of the Court, held as follows:--
'If a tortious act is committed by a public servant and it gives rise to a claim for damages, the question to ask is: was the tortious act committed by the public servant in discharge of statutory functions which are referable to, and ultimately based on, the delegation of the sovereign powers of the State to such public servant? If the answer is in the affirmative, the action for damages for loss caused by such tortious act will not lie. On the other hand, if the tortious act has been committed by a public servant in discharge of duties assigned to him not by virtue of the delegation of any sovereign power, an action for damages would lie.''
The earlier decision in the case of AIR 1962 SC 933 was distinguished on the ground that there the liability of the State for the acts of a motor driver arose out of performance of non-sovereign or non-governmental duties. Inother words, the ordinary rule of the liability of the master for the tortious acts of the servant committed in the course of his employment was, in cases of government servants, restricted to those cases where the action could be correlated with commercial or non-governmental activities 'which have no relation with the traditional concept of governmental activities in which the exercise of sovereign power is involved.' Their Lordships observed:
'It is necessary to limit the area of these affairs of the State in relation to the exercise of sovereign power so that if acts are committed by Government employees in relation to other activities which may be conveniently described as non-governmental or non-sovereign, citizens who have a cause of action for damages should not be precluded from making their claim against the State.'
7. In Mst. Vidhyawati's case, AIR 1962 SC 933 (supra), the Supreme Court had discussed the principle of Immunity of the Crown under the English law. It had pointed out that it arose out of the maxim, which was peculiar to British law, that the King could do no wrong. Hence, if any wrong was done by any of the King's servants, the servant was held liable in his personal capacity. It then referred to the Crown Proceedings Act, 1947. It is note-worthy that this law was enacted in order to provide adequate relief to subjects who were injured by the acts of Government servants as sufficient compensation from the actual wrong-doors may not be obtainable. The Supreme Court observed here:--
'In India ever since the time of the East India Company, the sovereign has been held liable to be sued in tort or in contract, and the common law immunity never operated in India. Now that we have, by our Constitution, established a Republican form of Government, and one of the objectives is to establish a Socialistic State with its varied industrial and other activities employing a large army of servants, there is no justification, in principle or in public interest, that the State should not be held liable vicariously for the tortious act of its servant.'
The liability of the Secretary of State, it was pointed out, had been made co-extensive with that of the East India Company by the provisions of Section 65 of the Act of 1858.
8. It may be that the distinction between the sovereign or governmental and non-sovereign functions of the State is sometimes difficult to make out. Perhaps the doctrine of the immunity of the State, when it is exercising sovereignpowers, has some resemblance with the plea of an 'act of State' which is not available to the State against its own citizens. It may also appear that this immunity of the State for the exercise of its sovereign powers appears also akin to the English rule under which the Crown, being the formal representative of sovereign authority, could not be held liable for damages before statutory provision was made for it. But if the rule is there, as it certainly is after its enunciation by the Supreme Court, the State cannot be held liable for a tortious act of a government servant committed in the exercise of what may be called a governmental or sovereign function. In other words, the injured citizen is left, in such cases, only to his remedy by way of damages against the Government servant who may have committed the wrongful act.
9. The exemption of the State from liability to pay damages for the tortious acts of its servants, where a Government servant is carrying out or purporting to carry out duties imposed by the law, has also been justified on the ground that in such cases the government servant purports to carry out duties imposed by the letter of the law and is controlled by the law and not by the State Government. This as already pointed out, still leaves the individual liability of the government servant committing the tortious act intact unless he is otherwise protected.
10. The courts below had heldthat the Judicial Officer was protected by the provisions of the Judicial Officers' Protection Act of 1850 which reads 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 such Judge, Magistrate. Justice of 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.'
Learned counsel for the plaintiffsrespondents has relied upon AnowarHussain v. Ajoy Kumar, AIR 1965 SC1651 to contend that an officer acting in executive capacity is not entitled to the protection conferred by Section 1 of the Judicial Officers' Protection Act. The Preamble of this Act says:
'For the greater protection of Magistrates and others acting judicially;...........
The latter part of Section 1, however, also covers executive acts of officers of Court and other persons who are bound to execute the lawful warrants and orders of Courts or persons acting judicially.
11. In the instant case, this Court had certified its decision to the Sessions Court under Section 425, Cr. P. C. The order of this Court was that one of the plaintiffs-respondents be acquitted. The other plaintiff-respondent had been acquitted long ago by the Sessions Judge of Orai. There was, therefore, no order of any court at all with regard to the plaintiffs-respondents which the Judicial Officer was bound to execute. The only function he had to perform was that of signing the warrants of arrest of those three convicted persons whose appeals had been dismissed by this Court and who had not surrendered. In the performance of this purely executive function, the Judicial Officer, who is impleaded as a respondent, alleged that he had been misled by the Ahalmad. He signed the warrants without looking into the orders of this Court or the directions of the sessions court or even his own orders.
I am unable to see how he was performing any judicial function or even a protected executive act. He was signing a document which he should have only signed after ascertaining whether the document had to be issued under the orders of this or any other Court. He was certainly not executing any order in signing warrants for those who had been acquitted. He failed to apply his mind to the facts of the case or to directions given to him. It cannot be said that he was protected at all by the Judicial Officers' Protection Act in signing warrants negligently.
12. It has been contended on be half of the State that the Ahalmad was the person really responsible and that he has not been impleaded. On theother hand, learned counsel for the plaintiffs-respondents relied on State of Rajasthan v. Rikhabchand Dhariwal, AIR 1961 Raj 64 where it was held, in a suit against the State Government for compensation for wrongful detention, that it was not necessary to implead, as a party, the Government servant under whose orders the plaintiff was detained when no relief was sought against him. In the instant case, the plaintiffs-respondents had actually impleaded the officer under whose orders the plaintiffs had been arrested and had sought relief aganst him too. The Ahalmad was merely purporting to carry out the directions of the Judicial Officer. The only authority he had could be the result of the directions given by the Judicial Officer to fill up the warrants for the signatures of the Judicial Officer. Even if the Ahalmad was negligent or dishonest the Judicial Officer himself was also liable for the wrong done to the plaintiffs-respondents by their wrongful arrest because the Judicial Officer negligently signed whatever was placed before him.
13. Learned counsel for the plaintiffs-respondents also relied upon Vanguard Fire and General Insurance Co. Ltd. v. Sarla Devi, AIR 1959 Punj 297 where it was held that a master was bound by the acts of his servant. In the instant case, I find that the Judicial Officer, who is a respondent cannot escape his liability. Even if the Ahalmad could be looked upon as a joint tortfeasor, the failure to implead him could not absolve the Judicial Officer from his liability.
14. Learned counsel for the State has also argued that the Judicial Officer should not be made liable as he is un-represented. The notice of the appeal was served upon him. But, no one has appeared on his behalf. No authority was cited before me to show that, while allowing an appeal of a defendant, a decree cannot correctly be passed against another defendant arrayed as a respondent. Powers conferred by Order 41, Rule 33, C. P. C. seem to be wide enough to enable this Court to alter the decree, in order to do complete justice, so that it is set aside against the defendant-appellant but passed against a defendant-respondent who should have been actually held liable. It only involves the substitution of one defendant by the correct one, on findings given, as the judgment debtor in the decree passed. It was not absolutely necessary, in view of the powers of this Court under Order 41, Rule 33, Civil P. C. for the plaintiffs-respondents to have appealed against the dismissal of their claim against the defendant-respondent.
15. The result is that I allow the appeal to the extent that I set aside the decree passed against the appellant, State of U. P. But, I pass a decree for Rs. 500/- in favour of the plaintiffs-respondents against the Judicial Officer, Sri Nem Chand Jain, respondent No. 3 instead. As no one has appeared on behalf of the Judicial Officer here I make no order as to costs in this Court. But, respondent No. 3 must pay the costs ofplaintiffs in proceedings in the courts below.