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L. Ram NaraIn Singh Vs. A. Sen - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad High Court
Decided On
Case NumberFirst Appeal No. 69 of 1946
Judge
Reported inAIR1958All758; 1958CriLJ1278
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 54, 65 and 167; Defence of India Act, 1939 - Sections 15, 17(1) and 130A; Indian Penal Code (IPC), 1860 - Sections 52; Judicial Officers' Protection Act, 1850 - Sections 1; Defence of India Rules, 1939 - Rule 81
AppellantL. Ram NaraIn Singh
RespondentA. Sen
Appellant AdvocateSatish Chandra, ;J.S. Gupta and ;S.D. Agarwala, Advs.
Respondent AdvocateN.D. Pant, J.S.C. and ;A.C. Mukerji, Adv.
DispositionAppeal dismissed
Excerpt:
(i) criminal - arrest by magistrate during investigation - sections 51, 65 and 167 of criminal procedure code, 1898 - no express provisions - however magistrate can issue warrant - clearly authorized to arrest the person. (ii) arrest in good faith - sections 17(1) of defence of india act, 1939 - arrest by magistrate - report - contravention of brick and cement control order - magistrate acted with care - held that officer acted in good faith - - he recommended prosecution of the appellant. 2,000/-.5. after this, it appears that sri sen asked for a further report from balbir prasad, which was submitted by him on the 11th september, 1944. in this report balbir prasad stated that he had again seen the house of the appellant in the company of a number of persons, whose names were given,.....m.l. chaturvedi, j. 1. these two appeals arise out of two suits brought by the appellant lala ram narain against sri a. sen and sri baltair prasad for recovery of rs. 10,000/- as damages for false imprisonment. 2. in august, 1944 sri a. sen was working as the district supply officer in agra and sri balbir prasad was working as an inspector under him. the district magistrate of agra had promulgated a brick and cement control order under rule 81 of the defence of india rules on the 31st march, 1944. this brick and cement control order was in supersession of a previous one promulgated in december, 1943. by the order of the 31st march, 1944, which is the control order with which we are concerned in these appeals, the district magistrate prohibited any person or local body from using or.....
Judgment:

M.L. Chaturvedi, J.

1. These two appeals arise out of two suits brought by the appellant Lala Ram Narain against Sri A. Sen and Sri Baltair Prasad for recovery of Rs. 10,000/- as damages for false imprisonment.

2. In August, 1944 Sri A. Sen was working as the District Supply Officer in Agra and Sri Balbir Prasad was working as an Inspector under him. The District Magistrate of Agra had promulgated a Brick and Cement Control Order under Rule 81 of the Defence of India Rules on the 31st March, 1944. This Brick and Cement Control Order was in supersession of a previous one promulgated in December, 1943. By the order of the 31st March, 1944, which is the control Order with which we are concerned in these appeals, the District Magistrate prohibited any person or local body from using or causing to be used pucca bricks and cement in the construction of any building or part thereof in the district of Agra, without first obtaining a permit for the same from the District Magistrate or the District Supply Officer.

The expression 'construction of building' was declared to include alterations in and replacement of the existing structure of a building, but it did not include minor repairs, meaning repairs in which more than 1,000 bricks or more than one bag of cement were not needed. Any person contravening the provisions of the Order was liable to imprisonment for a term which might have extended to three years or to fine or both.

3. On the 25th August, 1944 Mohammad Zamir Bux, who was an inquiry Inspector in the Rationing and Supply Department, came to know that the plaintiff-appellant was making some constructions in his house. He informed Lal Bahadur, the senior Town Inspector, of the constructions and they both went to the shop of Lala Ram Narain. They stated that the appellant admitted that he was making the constructions but also said that he would apply for obtaining the permit from the District Magistrate soon. Lal Bahadur accordingly made a report the same day to the Area Rationing Officer, Sri Amir Singh, informing him that the appellant had been making new constructions on the third storey and that he had told Lal Bahadur and Zamir Bux that he had applied for permission and was making the constructions in anticipation of the sanction.

He recommended prosecution of the appellant. Sri Amir Singh, in his turn, forwarded the report on the 28th August, 1944 to the District Supply Officer, Sri A. Sen, for taking necessary action, On receipt of the report Sri A. Sen asked Sri Balbir Prasad to make an enquiry and report. Balbir Prasad says that he went to the house of the appellant and wanted the appellant to show him the constructions, but the appellant refused to do so, in spite of the fact that he showed his identity card to the appellant. The appellant denies that Balbir Prasad showed his identity card. Balbir Prasad then sent for the Sub-Inspector of Police and when the Sub-Inspector arrived, the appellant agreed to show the new constructions to Balbir Prasad.

After seeing the constructions, Balbir Prasad made a report on the 29th August, 1944 in which he stated that six persons were working at the new constructions, when he saw the place. He also mentioned in the report the dimensions of the three walls which had been constructed and further said that more than 1,000 pucca bricks had been used in these constructions and the appellant had thus contravened the Brick and Cement Control Order of 1944.

This report was placed before Sri A. Sen on the 31st August, 1944 when he directed a notice. to Issue to Lala Ram Narain. The notice was accordingly sent stating that it was reported to Sri A. Sen that the appellant was making some constructions without obtaining any permission andthat the appellant should see Sri Sen on Saturday, the 2nd September, 1944, in connection with the above matter. This notice was served on the appellant on the 2nd September, 1944 and it is said that it was served at about 1 P.M.

4. The case of the appellant is that he was at that time busy with the Shradh ceremony of his grandfather and he wrote a reply to the notice stating that the appellant had not used any pucca bricks and cement in the new constructions and, therefore, it was not necessary for him to obtain a permission. He, however, expressed his willingness to see Sri Sen. Another date for the purpose might be fixed. This reply bears the date the 2nd September, 1944, but it appears from the statement of Balbir Prasad that the reply was seen for the first time in the office of the District Supply Officer on the 6th of September.

On the 4th September, the appellant went to the office of the District Supply Officer and applied for the grant of a permit for making certain constructions, without disclosing the previous history of the case. The Supply Officer granted him permission for the use of 5,000 bricks and 5 bags of cement. Before the permit was actually handed over to the appellant, Balbir Prasad came to know of this application for the grant of permit to the appellant and he immediately told Sri A. Sen that the appellant, who had obtained a permit, was the person against whom the enquiry had been made. Sri A. Sen then asked Balbir Prasad to put this down in writing and send for the appellant. Balbir Prasad took the appellant to Sri Sen.

According to Sri Sen and Balbir Prasad, the appellant was asked to show cause why his prosecution should not be ordered. But according to the appellant, Sri Sen asked the appellant to stand up and consider himself under arrest, as he had obtained the permit after concealing relevant facts. The appellant says that he had asked Sri Sen to give him a hearing, but Sri Sen asked the appellant to keep quiet and said that the appellant should stand in the corner. It has been stated by Sri Sen and Balbir Prasad that the appellant merely said that he had not contravened the order and, after this statement, Sri Sen declared the appellant to be under arrest and cancelled the permit which had just been granted to him.

Sri Sen had a telephone call sent to the Kot-wali to take the appellant to the lock up. A constable and a civic guard arrived and Sri Sen gave them an order in writing saying that the appellant had been arrested by Sri Sen for the contravention of the Defence of India Rules regarding the use of bricks, He was to be kept in the lock up till he produced suitable sureties. The constable and the civic guard then took the appellant to the lock up and he was released on bail, sometime in the afternoon, by the Sub-Inspector of Police after he had furnished security for Rs. 2,000/-.

5. After this, it appears that Sri Sen asked for a further report from Balbir Prasad, which was submitted by him on the 11th September, 1944. In this report Balbir Prasad stated that he had again seen the house of the appellant in the company of a number of persons, whose names were given, and that all the three latrines were in good condition and required no alterations and that they had been constructed with stone slabs and bricks in lime. This report was probably meant to show that there was no need for theappellant to obtain the permission for the use of 5,000 bricks and 5 bag of cement and that the constructions had already been completed, even though the permit for the purchase of the above material had been cancelled on the 4th September, 1944.

6. A formal complaint was submitted by Balbir Prasad for the prosecution of the appellant for the contravention of the Brick and Cement Control Order on the 19th September, 1944. Sri Sen forwarded the complaint to the District Magistrate for sanction to prosecute the appellant and the District Magistrate granted the sanction on the 20th September, 1944. On the 22nd September, 1944 the District Magistrate transferred the case for trial to another Magistrate, Sri R. R. Singh. It appears that another complaint was filed against the appellant for not showing the accounts to Balbir Prasad of the cycle business which the appellant was carrying on and his prosecution for that offence was also sanctioned.

Both the cases were tried by Sri R. R. Singh, who convicted the appellant of the commission of both the offences. We are concerned only with the offence for the contravention of the Brick and Cement Control Order. For this offence, the Magistrate sentenced the appellant to one month's R. I. and a certain amount of fine, and his brother Shiva Narain to a sentence of fine only. The appellant then filed an appeal and made an application for his release on bail. When the ball application came up before the learned Sessions Judge and he was about to pass an order for the grant of bail, Balbir Prasad told him that cases under Rule 81, D.I.R. having been included under Rule 130A, it was incumbent on the District Judge to give a notice to the Government pleader before allowing the application for ball.

He accordingly made an enquiry from the office of the prosecuting Inspector and on Balbir Prasad's statement being confirmed, he-ordered notice of the bail application to issue to the Government Pleader. Notice was accordingly issued and the application for bail was put up for orders two days later, that is on the 18th December, 1944. On this date he heard the Government Pleader and allowed the application for bail. The appeal then came up for hearing some time in February, 1945 and the learned Sessions Judge acquitted the appellant and Shiv Narain in both the cases by his judgments dated the 2Ist February, 1945. As regards the case under the Brick and Cement Control Order, the acquittal was based on the ground that it was not proved that the appellant had used more than 1,000 bricks in the constructions in question.

7. In the meantime, on the 2nd December, 1944, the appellant gave notice to Sri A. Sen and Balbir Prasad under Section 80 of the Code of Civil Procedure of his intention to bring a suit for damages against them. The notices were served on the 6th and 12th December, 1944, and the two suits against Sri A. Sen and Balbir Prasad were filed on the 7th and 13th February, 1945 respectively.

8. The case of the appellant, as disclosed in the plaint, was that Sri A. Sen had no authority to arrest the appellant or to hand him over to the police custody or direct his arrest or detention in the lock up. It is said that Sri A. Sen working as the District Supply Officer, had no authority or right to direct the arrest of anybody, nor had the appellant committed any offence in the presence of the Magistrate and the Magistrate thus had no lawful authority to arrest the appellant. It was then stated that Sri A. Sen acted in an arbitrary and despotic and reckless manner and, even if he had an authority to arrest the appellant, he acted in bad faith and in a 'wanton manner' and acted maliciously in the exercise of his powers. He claimed a sum of Rs. 10,000/- as damages for the illegal arrest or false imprisonment.

9. The defence of Sri A. Sen, in the main, was that, besides being the District Supply Officer, he was also a Magistrate, first class, and he had the authority to arrest the appellant for the commission of an offence under the Defence of India Rules and that the offence committed by the appellant was a cognizable one. He also averred that he had throughout acted in a bona fide manner-. He says that arf enquiry had been made by Sri Balbir Prasad against the appellant and a notice had been issued to the appellant to show cause, but the appellant had not turned up on the appointed date. On the other hand, he had, without disclosing the material facts, obtained a permit for the purchase of 5,000 bricks and five bags of cement.

On coming to know of the true facts, he cancelled the permit and ordered the appellant's arrest for the contravention of the Brick and Cement Control Order. He had not known the appellant from before and when he was told that the appellant was the person against whom the enquiry had been made, he sent for him and asked him why he should not be prosecuted. After giving him an opportunity of showing cause, he ordered his arrest in the discharge of his official duties, believing in good faith that he had the authority to arrest the appellant and also that the appellant was guilty of the commission of an offence for the contravention of the Brick and Cement Control Order.

10. The defence of Balbir Prasad, in the main, was that he had made true reports in the case, that it was his duty to bring to the notice of Sri A. Sen that the appellant, who had obtained the permit, was the same person against whom the enquiry had been made and that he acted under the orders of Sri A. Sen. It was also pleaded in defence by both Sri A. Sen and Balbir Prasad that they were protected by Section 17 of the Defence of India Act and that the suit was barred by time. Sri A. Sen further pleaded that he was protected under the Judicial Officer's Protection Act. They both claimed special costs under Section 35-A of the Code of Civil Procedure.

11. The learned Civil Judge framed five issues in the case and held that Sri A. Sen was authorised to take cognizance of the offence under D.I.R. and was thus entitled to arrest the appellant, that he had arrested the appellant in the bona fide belief that the appellant was guilty of the offence and that

'Mr. Sen acted bona fide in the discharge of his public duty or supposed public duty. Even if he exceeded the powers he is entitled to protection.'

He further held in favour of the defence that the defendants were protected under Section 17 of the Defence of India Act and that the suit was barred by time. He held, that Sri Sen was also protected under the Judicial Officer's Protection Act, 1850. In the end he held that having regard to the position of the appellant and the respondents the proper amount of damages would be Rs. 1,000/-. This was done with the view to completethe judgment, as on the other findings the suits were dismissed with costs.

12. The learned counsel for the appellant has challenged the findings of the learned Civil Judge on all the points, including the assessment of the amount of damages.

13. We shall first take up the question whether Sri A. Sen respondent was authorised to put the appellant under arrest, when he had reasonable grounds for believing that the appellant was guilty of the contravention of the Brick and Cement Control Order, The argument of the learned counsel for the appellant is that no Magistrate has jurisdiction to order arrest of any person accused of an offence unless the offence is committed in the presence of the Magistrate or the Magistrate takes cognizance of the case under Section 190, Cr. P. C. After taking cognizance, he is authorised under Section 204, Cr. P. C., to issue a warrant for the arrest of the accused, and under Section 64 he is authorised to put a person under arrest, who has committed some offence in the presence of the Magistrate.

14. Reference may be made in this connection to a few sections of the Code of Criminal Procedure.

15. Section 54 enumerates the cases in which 'any police officer may, without an order from a Magistrate and without a warrant, arrest' a person. Out of the cases, mention may be made only of the first one which refers to any person 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 concerned in such an offence.

Section 55 mentions the cases in which 'any officer in charge of a police station may, in like manner, arrest or cause to be arrested.....' a person.

Section 56 lays down the procedure where an officer authorised to make an arrest requires any officer subordinate to him to do so.

Section 60 lays down that any police officer making an arrest without a warrant shall, without unnecessary delay, take or send the person arrested before a Magistrate having jurisdiction in the case, or before the officer in charge of a police station.

Section 61 provides that no police shall detain in custody a person without a warrant for a longer period than is reasonable and such period shall not exceed 24 hours, in the absence of a special order of a Magistrate passed under Section 167.

Section 64 authorises a Magistrate to arrest or order any other person to arrest an offender when the offence has been committed in the presence of the Magistrate and within the local limits of his jurisdiction.

Section 65 provides that any Magistrate may at any time arrest or direct the arrest, in his presence, within the local limits o his jurisdiction of any person for whose arrest he is competent at the time and in the circumstances to issue a warrant.

Section 167 casts a duty on the police concerned to transmit to the nearest Magistrate a copy of the entries in the diary relating to the case and to forward the accused to the nearest Magistrate, if he finds that the enquiry cannot be completed within 24 hours and that there are grounds for believing that the accusation is well founded. It may be noticed that the accused isto be sent to the nearest Magistrate and notnecessarily to the Magistrate having jurisdiction to try the case. The Magistrate to whom, the accused is forwarded under this section may authorise the detention of the accused in such custody as he thinks fit for a term not exceeding 15 days in the whole. If he considers further detention necessary, he may order the accused to be forwarded to a Magistrate having jurisdiction to try the case or to commit the accused for trial. The rest of the section is not relevant.

Under Section 190 only a Presidency Magistrate, District Magistrate, Sub-Divisional Magistrate and any other Magistrate, specially empowered in this behalf, is authorised to take cognizanceof any offence upon the receipt of a complaint, upon the receipt of a report in writing made by any police officer or upon information received from any person other than a police officer, or upon his own knowledge or suspicion. If he takes cognizance under the last clause, the accused must be informed that he is entitled to have his case tried by another Magistrate and, if any of the accused objects to his being tried by the Magistrate who had taken cognizance, the case must be transferred to another Magistrate or committed to the Court of Session, as the case may be.

Section 204 authorises a Magistrate, who has taken cognizance of an offence, to issue summons for the attendance of the accused or a warrant, as the case may be.

16. A reading of the above sections would show that there is no express provision in the Code of Criminal Procedure authorising any Magistrate to order the arrest of any person, who, he thinks, is guilty of the commission of a cognizable or a non-cognizable offence unless he has taken cognizance of the case himself. But under Section 167, a Magistrate has to decide whether he will remand the accused to the custody of the police and, even if he has no jurisdiction to try the case, he can in suitable cases remand the accused to the police custody for the maximum period of 15 days. It would be anomalous if the Magistrate had the power to remand to the police custody for 15 days but would not have the power to arrest a person whom he believed to be guilty.

It would further be anomalous that any police officer may have the power .to arrest a person, reasonably suspected of having committed a cognizable offence, but the Magistrate should have no such power. The very fact that a police officer under Section 54 may arrest without an order from a Magistrate and without a warrant implies that such an officer may also arrest with a warrant from a Magistrate, and this means that the Magistrate may issue a warrant even at the stage where Section 54, Cr. P. C., applies.

17. The above conclusion is supported by an authority of the Supreme Court in the case of R. R. Chari v. The State of Uttar Pradesh : 1951CriLJ775 . The main question for decision in the case was whether the Magistrate, who had issued the warrant, had taken cognizance of the case under the Prevention of Corruption Act, Act No. II of 1947, and the Supreme Court held that the Magistrate had not taken cognizance when he had issued the warrant of arrest so that no sanction for prosecution of Sri R. R. Chari was necessary at that stage. While proceeding to decide this question, a point arose whether the offence under Sections 161 and 165, I.P.C.,was a cognizable offence or not. Under the Code of Criminal Procedure the offence was not cognizable but it was made such by Section 3 of the Prevention of Corruption Act. The main section said that an offence punishable under Section 161 or Section 165, I.P.C. would be deemed to be a cognizable offence. The proviso to that section is in the following words :

'Provided that a police officer below the rank of Deputy Superintendent of Police shall not investigate any such offence without the order of a Magistrate of the first class or make any arrest therefor without a warrant.'

Their Lordships held that, if an officer below the rank of Deputy Superintendent of Police wanted to investigate the case and arrest without a warrant, he must first obtain an order from the Magistrate, and this has to be done before the Magistrate takes cognizance of the case. It was contended before their Lordships that the Magistrate had no Jurisdiction to issue any process before taking cognizance of the offence under Section 190, Cr, P. C., but this argument was rejected and their Lordships held,

'In our opinion having regard to the wording of Section 3 of the Act the assumption that the Magistrate can issue a warrant only after taking cognizance of an offence under Section 190 of the Criminal Procedure Code is unsound. The proviso to Section 3 of the Act expressly covers the case of a Magistrate issuing a warrant for the arrest of a person in the course of investigation only and on the footing that it is a cognizable offence.' Further on they say : 'Reading Sections 197 and 190 of the Criminal Procedure Code and Section 6 of the Act in the- light of the wording of the proviso to Section 3, it is therefore clear that the stage at which a warrant is asked for under the proviso to Section 3 of the Act is not on cognizance of the offence by the Magistrate as contemplated by the other three sections.'

It may be pointed out that the proviso does not specifically authorise a Magistrate to issue a warrant for the arrest of an offender before taking cognizance of the case, but the language of the proviso was held to imply that a warrant could be asked for at an earlier stage and, if it could be asked1 for, it could also be issued.

18. Very similar is the wording of Section 54 of the Code of Criminal Procedure and we think the principle of the above decision applies also to the case of an arrest for the commission of a cognizable offence during the course of investigation and that it is permissible for the Magistrate to issue such a warrant.

19. As he could issue the warrant, Section 65, Cr. P. C., clearly authorises him to arrest the person also. In the alternative, we are of the opinion that the Magistrate acted throughout in good faith and we shall presently give our reasons for the conclusion, while considering the next issue, namely, whether Sri A. Sen was protected under Section 17 (1) of the Defence of India Act.

20. The learned Civil Judge held that Sri Sen was entitled to take cognizance of the offence because he was a first class Magistrate and all first class Magistrates had been authorised to take cognizance of an offence without any police report, by the Notification No. 1130-A issued under Section 27 of the Act 10 of 1872, published in the Central Govt. Gazette of 1873 at page 1903. This notificationmight be said to have been continued in force by the provisions of Section 24 of the Central General Clauses Act. But we do not propose to consider the question because we think that Sri Sen had not taken cognizance of the case himself.

Being the District Supply Officer and a Magistrate, first class, he directed the arrest of a person whom he wished to prosecute. No order sheet for this date was prepared nor was any date in future fixed for hearing. He subsequently directed another enquiry and then the matter was sent up to the District Magistrate for sanction to prosecute the appellant, it was thereafter that the complaint was filed in the Court of another Magistrate who then took cognizance of the case. Sri Sen never intended to try the case himself as a first class Magistrate, nor do we think he had taken cognizance of the offence as a trial Magistrate.

21. Section 17 (1) of the Defence of India Act is in the following words :

'No suit, prosecution or other legal proceeding shall lie against any person for anything which is in good faith done or intended to be done in pursuance of this Act or any rules made thereunder or any orders issued under any such rule.'

The words 'or any orders issued under any such rule' were added by Ordinance No. XXV of 1945, which was promulgated after the date of the arrest in question. But Section 3 of the Ordinance gave retrospective operation to the words quoted above, so that the words would be deemed to have been inserted in the section from the date that the Defence of India Act came into force. The contravention in the present case was of the Brick and Cement Control Order issued by the Magistrate, which came into force from the 31st March, 1944. There are thus only two points to be considered in connection with the applicability of the section.

22. The first point is whether Sri Sen acted or intended to act in good faith, and the second whether he intended to act in pursuance of the Act or Rules or any Orders issued under the Rules. There can be no doubt that the act was intended to be done under Rule 81 of the Defence of India Rules and the Brick and Cement Control Order. The arrest was made when Sri Sen was informed that it was the appellant against whom the enquiry had been made. Sri Sen says that he arrested the appellant because of the contravention of the Brick and Cement Control Order and the question is put beyond doubt by the order that he wrote to the station officer of Rakbganj police station on the 4th September, 1944.

In this order he clearly said that he had arrested the appellant for contravention of the Defence of India Rules and the Order regarding the use of bricks. Sri Sen did not know the appellant from before. The appellant himself had admitted in his deposition that he did not know Sri Sen from before, and this is what Sri Sen also has said. It was when Balbir Prasad pointed out to Sri Sen that it was the appellant against whom the enquiry had been made that Sri Sen declared the appellant under arrest. There is thus no doubt that Sri Sen intended to act under the provisions mentioned in Section 17 (1). If he was authorised to arrest him, as we have held he was, then it must also be said that he actually acted under the Defence of India Rules for contravention of the Brick and Cement Control Order :

23. The only question then that requires serious consideration is whether this was done in good faith. That it was honestly done there can be no doubt, because there was no previous enmity between the appellant and Sri Sen. In fact, Sri Sen did not even know him from before. A report was placed before him that the appellant had been guilty of the contravention of the Control Order and, as the contravention was punishable with three years' rigorous imprisonment or fine or both. Sri Sen thought he could arrest the appellant. The facts already mentioned would also show that he acted with care and circumspection.

24. The learned counsel for the appellant emphasised certain facts to show that the arrest was made in such a manner as would show that it was done in a fit or anger which was aroused by the facts that the appellant had obtained a permit for 5000 bricks and five bags of cement without disclosing the fact that an enquiry was pending against him. This action of the appellant certainly was the cause which led to Sri Sen being informed that the appellant was in the office. Sri Sen was displeased with the appellant for not pointing out the fact that an enquiry was pending against him and the fact, according to him, was very relevant, as he says that he would not have granted the permit for the purchase of bricks and cement, if he had known that an enquiry was already pending against the appellant.

He actually cancelled this permit as soon as he came to know that an enquiry was pending. The learned counsel for the appellant argued that there was no law which made it incumbent on the appellant to disclose the above fact and the displeasure of Sri Sen was wholly unjustified. We do not agree with the learned counsel. There were no detailed rules regarding the form of the application and, under the circumstances, Sri Sen might very well have expected that the appellant would disclose the facts in the application which were relevant on the point whether a permit should be granted or not.

In view of the pending charge against the appellant, if the permit had remained, it would have obviously enabled the appellant to take up the false defence in the criminal court that the bricks and cement used in the constructions were the same for which he had obtained the permit. The subsequent enquiry report of Balbir Prasad showed that no further repairs of the latrines were necessary and the cancellation of the permit shut out the false defence which it was possible for the appellant to take. Under the circumstances we think that the fact whether an enquiry was pending against the appellant was an important fact which Sri Sen could properly expect the appellant to disclose while trying to obtain the permit.

25. It was then argued that the manner in which Sri Sen acted at the time of the arrest was highly improper and arbitrary. It was argued that Sri Sen never asked the appellant to show cause why he should not be prosecuted for the contravention of the Control Order. The appellant has stated that he was not at all asked to show cause but was just asked to stand up and then go to a corner and remain standing there, as he was under arrest. Sri Sen, however, has stated that he did ask the appellant what he had to say as regards his prosecution, and the appellant only said that he had not contravened the Control Order. The circumstances of thecase are such that we prefer to accept the statement of Sri Sen.

He did ask Balbir Prasad to bring the appellant to him and had actually issued a notice to him to say what he liked in connection with the contravention of the Control Order. The appellant did not appear in obedience to the notice on the 2nd of September, but he says that it was due to the fact that he received the notice at about 1. P. M. and was at that time engaged with the Shradh. of his grand-father. It is clear that Sri Sen did want to give him an opportunity of saying what he liked and, when he came to know that the appellant was in office on the 4th of September, he did send for him. We believe his statement that he asked the appellant to explain the facts appearing against him and was not satisfied with the appellant's denial that he had not contravened the Control Order.

26. It was then argued that on the 4th of September, the appellant had to perform the Shradh of his father and it was very harsh to arrest him on that date, because on account of the arrest the Shradh could not be performed. Sri Sen says that he was never informed by the appellant that he had to perform the Shradh of his father on that date. The appellant also has not stated that he informed Sri Sen that his father's Shradh was going to be performed on the 4th of September. The appellant has said that he wanted that Sri Sen should hear him but Sri Sen asked him to keep quite. We have already indicated above that we do not accept this statement of the appellant to be true. The appellant could have, but did not, tell Sri Sen that his father's Shradh was going to be performed on the 4th and, therefore, he should not be arrested on that date. Sri Sen, therefore, cannot be accused of knowingly arresting the appellant on a date on which it was so inconvenient for the appellant to be arrested.

27. It was then argued that the appellant was marched through the Bazar while being taken to the police station and the more appropriate course for Sri Sen was to have ordered the police to send for a bus for taking the appellant to the lock up. Sri Sen, it appears, did not concern himself with the manner in which the police chose to take the appellant to the lock up. He did not ask the police to take the appellant on foot or otherwise. After making the arrest, he handed over the appellant to the constable and the civic guard who had been sent from the Kotwali to take the appellant to the lock up. Sri Sen gave a note saying that the appellant had been arrested in connection with the contravention of the Control Order and that he should be released on bail on furnishing proper .security.

The Station Officer subsequently released him on bail at about 5 P.M. the same day. We do not think that there was anything in the manner of arrest or the attending circumstances which show that Sri Sen acted in a high-handed and arbitrary manner. Because of the reports submitted to him, he believed the appellant to be guilty of the contravention of the Control Order and also believed that he was entitled, as a first class Magistrate, to put the appellant under arrest, being an officer whose duty it was to see that the Control Orders were enforced. Far from saying that Sri Sen acted in bad faith or in a high handed and harsh manner, we are of the opinion that Sri Sen acted in perfect good faithand agree with the decision of the learned Civil Judge on the point.

28. The learned counsel for the appellantthen contended that Sri Sen contravened Section 15 of the Defence of India Act, which casts a duty on an authority or person acting in pursuance of the Act to interfere as little as possible with the ordinary avocations of life and the enjoyment of property, consonant with the purpose of ensuring. the public safety and interest and the defence of British India. It was also argued that the provisions of this section are mandatory and Sri Sen. interfered with the ordinary avocations of the appellant's life and the enjoyment of property unnecessarily in putting the appellant under arrest. We do not think that the section has any application to a case where reasonable grounds exist for believing that a person has been guilty of the commission of a cognizable offence and it is decided to proceed against him for the contravention.

The offence was a cognizable one punishable with rigorous imprisonment upto three years. In arresting a person for the commission of such an offence, it cannot be said that the ordinary avocations of life or enjoyment of property are being interfered with. If a Magistrate or police officer is authorised to put a man under arrest there can be no question of the accused not being able to enjoy his property or continue the ordinary avocations of life. The position more or less is the same that, if a person has been put under arrest, he is necessarily deprived of his freedom of speech and freedom of moving about in the country, but the arrest cannot be said to interfere with any of the above freedoms : see Collector of Malabar v Erimmal Ibrahim Haji, fS) : 1957CriLJ1030 .

The object of the section is very different and what it means is that action under the Act or the Rules, in matters, connected with the ordinary avocations of life or enjoyment of property, should be such as to interfere the least with the avocations of life or enjoyment of property as far as it is consonant with the purpose of ensuring the public safety, interest and the defence of British India. The interest of British India demanded that the Control Orders should be passed and that they should be enforced. We do not think that Section 15 of the Defence of India Act helps the appellant in any manner.

29. The learned Civil Judge has also held that Sri Sen was protected under the Judicial Officer's Protection Act. We do not agree with this decision of the learned Judge, because, in our opinion, Sri Sen was not acting as -a Court or a judicial tribunal at all in making the arrest, but was acting as an executive officer whose duty it was to enforce the Defence of India Rules and the Orders issued under them.

30. The learned Civil Judge has also decided that the suit was barred by time, as Article 2 of the first Schedule of the Limitation Act applied to the case and the suit was brought more than 90 days after the date of imprisonment, excluding the period of two months for the notice under Section 80 of the Code of Civil Procedure. The learned counsel for the appellant has argued that the proper Article applicable to the case is Article 19 which specifically provides for a suit for damages for false imprisonment. We do not propose to decide this question as, in our opinion, the suit fails on merits.

31. Lastly, the learned counsel for the appellant challenged the finding of the learnedCivil Judge that the proper amount of damages in such a case was Rs. 1,000/-. We do not propose to consider this question either, because we have held that the appellant is not entitled to any damages at all.

32. The suit against Ealbir Prasad is also liable to be dismissed, because, as far as this defendant is concerned, the only thing that he did was that he submitted the reports to Sri Sen, which it was his duty to do. Sri Sen was first informed by the Area Rationing Officer, Sri Amir Singh, that the appellant was using pucca bricks without obtaining permit for the purchase of the same. Sri Sen asked Balbir Prasad to make an enquiry and report. Balbir Prasad went to the appellant's place on the 29th August, 1944. The appellant refused to show him the constructions and, according to Balbir Prasad, the refusal was persisted in, even though Balbir Prasad showed him the identity card.

A Sub-Inspector of Police was then called and at his intercession the appellant agreed to show the constructions. Balbir Prasad then made a report in which he said that three walls had been constructed and he gave the measurements of the walls including the ventilators in them. He was of the opinion that more than 1,000 pucca bricks had been used by the appellant and he had thus contravened the Brick and Cement Control Order. Sri Sen issued notice to the appellant to show cause, but the appellant did not appear on the 2nd of September, as required in the notice. He appeared on the 4th of September and then Balbir Prasad brought it to the notice of Sri Sen that an enquiry had been made against the appellant.

Here again Balbir Prasad acted properly in bringing to the notice of Sri Sen that a permit for the purchase of bricks and cement had been granted to the appellant, though there was a case pending against him. Sri Sen considered the information very relevant and cancelled the permit. He then directed Balbir Prasad to make another report which Balbir Prasad submitted on the 11th September, 1944. In this report he stated that he made the inspection along with a number of other persons and that all the three latrines were in good condition and required no alterations or construction and that they were constructed with stone slabs and bricks in lime. This report also cannot be said to contain any false statement in it.

33. The next action of Balbir Prasad was that when the learned Sessions Judge was about to pass an order releasing the appellant on bail, he brought it to the notice of the Sessions Judge that bail could not be granted without hearing the Government Pleader. The Sessions Judge made an enquiry from the office of the prosecuting Inspector and the information given by Bal-bir Prasad was confirmed, with the result that the Sessions Judge issued a notice to the Government Pleader before passing any order on the application for bail. After issuing notice, the Sessions Judge allowed the application for bail on the 18th December, 1944, but in his order he says that what he was told on the 16th December, was incorrect. The question was whether Rule 81 had been included within Rule 130A or not.

Rule 130A(a) provided that no person accused or convicted of a contravention of the Defence of India Rules or Orders made thereunder was to be released on bail or on his own bond, unless the prosecution had been given an opportunity to oppose the application for such release. This was a general provision and it extended to all the rules so that Balbir Prasad was quite right in pointing out to the Sessions Judge that he could not release the appellant on bail without giving an opportunity to the prosecution to oppose the application. The misunderstanding, that appears to have been created, was that Balbir Prasad wrongly stated that Rule 81 had been included within the provisions of Rule 130-A (b).

Clause (b) of this Rule provided that, where the application for bail was opposed by the prosecution and the contravention was of the rules or orders made thereunder, which were notified by the Central or the Provincial Government, the application for bail could not be granted till the Court was satisfied that there were reasonable grounds for believing that the appellant was not guilty of the contravention. Rule 81 had not been notified by any of the Government as the rule to which the provisions of Rule 130-A (b) would apply. But Clause (a) of the rule was of universal application and no bail could be granted to any person, convicted of the contravention of any of the rules or orders, without giving an opportunity to the prosecution to oppose the application. The order dated 16th of December, 1944 shows that Balbir Prasad intervened when the Sessions Judge was going to pass the order releasing the appellant on bail.

The Sessions Judge could not pass that order without giving an opportunity to the prosecution to oppose the application and this is actually what the Sessions Judge did on the 16th of December. He ordered notice to be given to the Government Pleader before granting the bail. Balbir Prasad was wrong in saying that Rule 81 had been included in Rule 130-A, but as far as the giving of an opportunity to the prosecution to oppose the bail application is concerned, the conviction under every rule would be covered by the provisions of Rule 130-A (a). On the 16th December, 1944 the Sessions Judge did only what he was bound to do, and the fact that Balbir Prasad said that Rule 61 had been included in Rule 130-A did not, in any way, improperly prejudice the appellant.

The provisions of Rule 130-A (a) applied, though not the provisions of Rule 130-A (b). The fact that the provisions of Clause (a) applied made it impossible for the Sessions Judge to grant bail on the 16th December, 1944 without giving notice to the Government Pleader. The ultimate acquittal of the appellant for the contravention of the Brick and Cement Control Order was based on the fact that it was not proved that more than 1,000 bricks had been used in the constructions. Balbir Prasad thought that more than 1,000 bricks had been used and the mere acquittal of the appellant on the above ground is no proof for purposes of a Civil Suit, of the fact that less than 1,000 bricks had actually been used. In the Civil Suit against Balbir Prasad it has not been proved that his statement was false and less than 1,000 bricks had been used in the constructions. We do not think that Balbir Prasad did anything improper during the entire course of the proceedings against the appellant and all his actions were bona fide and done in good faith as an Inspector employed in the office of the District Supply Officer.

34. Both the appeals accordingly fail andare dismissed with costs.


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