W. Broome, J.
1. Sri. M. C. Gupta, City Magistrate of Moradabad, asks for action to be taken againstthe respondent Laxmi Narain Singhal for contempt of court in respect of a notice under Section 80 C. P. C. Which he served on the Magistrate on 8-3-1960, while a case under Section 107 Cr. P. C. was pending against him in the Magistrate's court.
2. The basic facts of the case are as follows. On 9-2-1960 the Magistrate passed orders against Laxmi Narain Singhal under Section 117 (3) Cr. P. C. requiring him to furnish an interim personal bond for Rs. 1,000/- with two sureties of Rs. 1,000/-each for keeping the peace until the conclusion of the . inquiry and directing that he be detained in custody until such bonds were executed. Two sureties were produced that very day, but the learned Magistrate was not satisfied that they were either reliable or solvent and after making certain inquiries, postponed the matter to the following day (10-2-1960) for arguments. On that day, however, fresh sureties were furnished, which were accepted, and Laxmi Narain Singhal was thereupon released.
3. The notice under Section 80 C. P. C., signed by the respondent On 7-3-1960, and served on the Magistrate on 8-3-1960, has been appended as Annexure C to this complaint. It accuses the Magistrate of bad faith, insinuating that he was personally interested in one of the parties to the dispute out of which the proceedings under Section 107 Cr. P. C. arose, and asserts that his refusal to release Laxmi Narain Singhal after the sureties had executed their bonds was illegal and mala fide. The notice calls upon the Magistrate to pay Rs. 200/- to Laxmi Narain Singhal as damages for wrongful confinement, failing which he is threatened with a suit for recovery of this amount.
4. It appears that this notice was followed upon 9-5-1960 with the filing of suit No. 200 of 1960 in the court of the Munsif, Moradabad, claiming compensation from Sri M. C. Gupta for the mala fide and wrongful confinement of the plaintiff Laxmi Narain Singhal.
5. In the counter-affidavit filed by 'him in this Court Laxmi Narain Singhal, besides reiterating the allegations contained in the notice under Section 80 C. P. C. regarding the mala fide refusal of the Magistrate to accept the two sureties who were offered on 9-2-1960 and the postponement of consideration of their acceptability till the following day, has introduced the further, allegation that on 9-2-1980, when the Magistrate showed reluctance to accept the sureties in question, his two counsel Sri Zaka Ullah Khan Advocate and Sri Matru Lal, retired Public Prosecutor, themselves offered to stand as sureties, but the Magistrate declined to consider their offer. I understand that this fresh allegation (which is not to be found in the Section 80 notice) was not mentioned in the plaint of the suit as originally filed, but that the plaint has subsequently been amended so as to incorporate this fresh cause of action.
6. The fundamental question is whether in the circumstances, of this case the serving of the notice under Section 80 C. P. C. on the Magistrate by Laxmi Narain Singhal amounts to contempt or not. I am satisfied that there may be cases in which the service of such a notice on a Magistrate by a person who is being tried or proceeded against in that Magistrate's court will not necessarily constitute contempt. The test is whether the person concerned has any valid cause of action against the Magistrate on which he can legally base a suit; for if he is legally entitled to file a suit, the essential preliminary for which is the service of a notice under Section 80 C. P. C., it would obviously amount to stifling his legitimate remedy if he were held to be precluded from serving the notice. The crux of the matter therefore is whether the respondent in the present case could legally file a suit against the Magistrate.
7. The Judicial Officers' Protection Act, 1950, 1 provides as follows :--
'No Judge, Magistrate, Justice of 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 judicial duty, whether or not within the limits of his jurisdictions; Provided that he at the time, in good faith, believed himself to have jurisdiction to do or order the act complained of.'
This section affords protection to a Judge or Magistrate acting judicially in two classes of cases: (a) in respect of acts done or. ordered to be done within the limits of his jurisdiction, and (b) for acts done or ordered to be done outside the limits of his jurisdiction. In the first class of cases the protection afforded by the Act is absolute and the officer concerned will not be liable to be sued, whether or not he has acted erroneously, irregularly or even illegally or in bad faith, vide the Division Bench decision in Teyen v. Ramlal, ILR 12 All 115, whereas in the second class of cases protection can be claimed only if the officer in good faith believed himself to have jurisdiction to do or order the act complained of.
8. In the present instance I am satisfied that the act ordered to be done by the City Magistrate, i. e. detaining the respondent in custody from 9-2-1960 to 10-2-1960, was clearly within his jurisdiction. Section 117(3), Cri. P. C. provides :
'Pending the completion of the inquiry under Sub-section (1) the Magistrate, if he considers that immediate measures are necessary for the prevention of a breach of the peace Or disturbance of the public tranquillity or the commission of any offence Or for the public safety, may, for reasons to be recorded in writing, direct the person in respect of whom the order under Section 112 has been made to execute a bond, with or without sureties, for keeping the peace or maintaining good behaviour until the conclusion of the inquiry, and may detain him in custody until such bond is executed or, in default of execution, until the inquiry is concluded.'
Under this section the Magistrate was fully empowered to demand a bond with sureties from Laxmi Narain Singhal and to order his detention in custody until such bonds were executed.
9. The main ground taken by Laxmi Narain Singhal in the notice under Section 80 C. P. C. as the basis for challenging the action of the Magistrate was that as soon as the required bonds were written out and signed by the two sureties who came, forward on 9-2-1960, 'execution' of the bonds was complete, and that the Magistrate was bound under Section 117 (3) to release the respondent from custody without further ado. It is obvious, however, that this is not a correct reading of the section. The mere drafting, writing out and signing of the bonds is not enough: they must also be presented by persons whom the Magistrate considers to be fit to stand as sureties. This is clear from Section 122, Cri. P. C. which lays down that :--
'A Magistrate may refuse to accept any surety offered ............ on the ground that such suretyis an unfit person for the purposes of the bond:
Provided that, before so refusing to accept..... he shall either himself hold an inquiry on oath into the fitness of the surety, or cause such inquiry to be held and a report to be made thereon by a Magistrate subordinate to him.'
It was just such an inquiry as is envisaged by Section 122 that the Magistrate embarked on in the present case on 9-2-1960, He felt unsatisfied regarding the fitness and solvency of the persons who were offering themselves as sureties and consequently declined to accept them then and there but instead, after having allowed the proposed sureties to be cross-examined, postponed consideration of the matter to the following day. In such circumstances it is obvious that there was no acceptance of the proposed sureties as fit persons and therefore it cannot be said that any bonds had been executed as required by Section 117(3), Cri. P. C. It follows that the suggestion made in the notice under Section 80, C. P. C. that merely because the proposed sureties had signed their bonds, the Magistrate acted illegally or without jurisdiction in continuing to detain the respondent in custody, as entirely without force.
10. An attempt has also been made to argue that if the Magistrate was not satisfied with the sureties who were offered, he should straightaway have rejected them on 9-2-1960; and that he had nojurisdiction to postpone the matter for consideration to the following day. But I see no force in this line of argument either. No Judge or Magistrate can be obliged to give immediate orders on any matter if in the exercise of his discretion he thinks it necessary to postpone the case to another date; and there can be no doubt that he has full jurisdiction to order postponement of the matter in such circumstances.
11. The Magistrate's action in detaining the respondent in custody has also been assailed on the ground that when his two lawyers personally offered to stand as his sureties, the offer was summarily turned down by the Magistrate.
The learned Government Advocate has objected that this plea was not taken at all in the notice under Section 80, C. P. C. and therefore should not be considered in the present proceedings; but since it appears to have been included (by a subsequent amendment of the plaint) as a cause of action in the suit that was filed in pursuance of the notice, I do not think it proper to exclude it from consideration. It can be argued that if the suit is found to be maintainable on any ground, whether specifically mentioned in the notice under Section 80, C. P. C. or not, the respondent must be deemed to have had a legal remedy against the Magistrate and in such circumstances the issue of notice to the Magistrate under Section 80, C. P. C., being merely a prelude to the enforcement of that legal remedy would not amount to contempt.
12. Sri M. C. Gupta has denied that the respondent's lawyers offered themselves as sureties or that he refused to accept them; and the learned District Judge of Moradabad, Who was asked by me to conduct an inquiry into the matter, has come to the conclusion that actually no such offer was made. It is to be noted, however, that Sri Zaka Ullah Khan Advocate and Sri Matru Lal, Retired Public Prosecutor, have both sworn affidavits asserting that they did offer themselves personally as sureties for the respondent Laxmi Narain Singhal, when they found the Magistrate reluctant to accept the sureties who had been first proposed,
I do not consider it necessary, however, to give any finding on this question of fact, for even assuming that the respondent's allegations in this respect are true, his case is not materially furthered thereby. A Magistrate demanding a bond with sureties from a person under Section 117(3), Gri. P. C. 'may detain him in custody until such bond is executed'; and there is not the slightest suggestion that any bond was ever actually executed either by Sri Zaka Ullah Khan or by Sri Matru Lal. Even if it be a fact that Sri Zaka Ullah Khan and Sri Matru Lal suggested to the Magistrate that they were prepared to stand as sureties, this mere suggestion on their part would not be any sufficient reason for him to release Laxmi Narain Singhal from custody. Only if they had actually executed bonds and presented them before the Magistrate, would he have been bound to decide (if necessary after holding an inquiry under Section 122, Gri. P. C.) whether he considered them fit persons to act as sureties or not; and until that was done the Magistrate would not be required to pass any order ofrelease and his action in detaining the respondent! in custody would be fully in accordance with law.
13. My conclusion is therefore that even if the allegations of the respondent are accepted in toto, the Magistrate has committed no illegality and was acting fully within his jurisdiction in detaining the respondent in custody on 9-2-1960 and in not releasing him until acceptable sureties were eventually furnished on 10-2-1960; and no suit would lie against the Magistrate for acting in this manner. The question whether the Magistrate acted in good faith or not does not call for decision at all, for even if he acted in complete bad faith in doing what he did, he would be entitled to absolute immunity from suit, since the acts complained of were within the limits of his jurisdiction.
14. Learned counsel for the respondent has tried to argue that the respondent's suit cannot tail or be thrown out without the production of some evidence, and in this connection relies on the decision in Izzat Ali v. Muhammad Sharafatullah Khan, AIR 1917 All 355(2). That case, however, was one in which the plaint on the face of it disclosed a cause of action with which the Judicial Officers Protection Act had nothing to do. In the present case the plaint of the suit filed by the respondent is not before me, but I take it that it is based on the allegations made in the notice under. Section 80, C. P. C., supplemented by the allegations regarding the offer of the two lawyers to stand as sureties; and as already pointed out by me, even if all these allegations are accepted as proved, they make out no cause of action against Sri M. C. Gupta, who appears to be fully protected, having acted completely within his jurisdiction.
15. Reliance has also been placed on Udharam Vassanmal v. Grahams Trading Co. Ltd., AIR 1937 Sind 281 and Anowar Husain v. Ajoy Kumar Mukherji, AIR 1959 Assam 28. But those were cases in which the question of good faith required to be gone into and have no relevance for the decision of the present case, in which, as already pointed out, the question of good faith is quite immaterial, inasmuch as the act complained of was fully within the jurisdiction of the Magistrate concerned.
16. Finally, it is argued on behalf of the respondent that even if his suit is barred by the provisions of the Judicial Officers' Protection Act, mere notice under Section 80 is not subject to any such bar. But the only way to save the notice from being branded as contempt of court is to show that it is the prelude to the enforcement of a legal remedy in the shape of a legally maintainable suit. If no such suit lies, the notice cannot be looked upon as a preliminary step towards a suit but must be treated as a gratuitous attempt to interfere with the course of justice.
17. Accordingly, holding the respondent guilty of contempt of the court of the City Magistrate of Moradabad, I impose on him a fine of Rs. 300/-. In addition, he will be liable for the costs of the Government Advocate, amounting to Rs. 80/-.