C.P. Sen, J.
1. This petition under Article 226 of the Constitution has been sent by the convict Hamid Raza who was undergoing jail sentence in Central Jail, Rewa, claiming Rs. 14,860/- as damages for his illegal detention and interest @ 10% per month on the amount assessed. He has also requested for giving the assistance of an Advocate as an amicus curiae. Accordingly Shri D.M. Dharmadhikari appeared as amicus curiae and Shri S.L Saxena, Govt. Advocate, appeared for the State.
2. The petitioner was prosecuted Under Section 395/397 in Sessions Trial No. 40 of 1978 and Under Section 307 read with Section 149 I.P.C. in Sessions Trial No. 42 of 1978 in the Court of Second Additional Sessions Judge, Rewa. Both the cases were consolidated and tried together and the petitioner was convicted Under Sections 395 and 307/149 I.P.C and sentenced to R.I. for four years on each count, both the sentences to run concurrently as per judgment delivered on 11-11-1978. The petitioner preferred Criminal Appeal No. 1288 of 1978 which was dismissed on 29-4-1981. However, in the warrant which was sent to the Central Jail, Raipur for execution of the sentence, the Addl. Sessions Judge failed to mention that both the sentences were to run concurrently. In the absence of there being any mention that the sentences are to run concurrently, the jail authorities treated the sentences to run consecutively and even after completing four years of jail sentence, the petitioner was not released. So he filed Misc. Cr. Case No. 1231 of 1984 in this Court which was disposed of on 4-8-1983 directing that the two sentences are to rim concurrently and if the sentences passed against the petitioner have been completed he shall be relased forthwith. Accordingly the petitioner was released on 8-8-1983. In the meantime, he sent this petition from jail on 27-7-1983 which was received here on 3-8-1983.
3. The petitioner's case is that since both the sentences were to run concurrently, the petitioner completed his sentence in the month of June 1981, including the detention period during trial and the remissions earned ; the petitioner has not been released even after the expiry of 743 days after the sentences were already completed ; the petitioner was a tailor and used to earn on an average Rs. 10/- per day ; during his illegal incarceration the petitioner lost his parents and his family is almost ruined ; the petitioner deserves to be compensated for the loss of earning with penal monetary award for the illegal detention. He, therefore, claimed Rs. 14,860/- with interest @ 10% per month for his illegal detention for 743 days. In the return filed by the State it is contended that in the warrant issued by the Second Addl. Sessions Judge there was no mention that both the sentences were to run concurrently and consequently the jail authorities treated that the sentences were to run consecutively, therefore, there was no fault on the part of the jail authorities nor there was negligence ; since the order of the High Court in Misc.Cr. Case No. 1231 of 1983 dated 4-8-1983 was received on 8-8-1983 the petitioner was released immediately on the same day ; the petitioner completed his jail sentence on 14-5-1982 and not in June 1981 as contended by him and his detention from 15-5-1983 (1982) to 8-8-1983 was unauthorised ; that the mistake was of the clerk concerned who prepared the jail warrant ; the Court functions under sovereign power of the State and if any wrong has been done by the sovereign the petitioner is not entitled of any compensation and the petition is misconceived and deserves to be dismissed.
4. After having heard both the counsel and gone through the record, we are of the opinion, that the relief claimed by the petitioner cannot be granted. Under Section 418 of the Cr. Procedure Code where the accused is sentenced to imprisonment for life the Court passing the sentence shall forthwith forward a warrant to the jail where the accused is to be confined. Under Section 425 every warrant for the execution of a sentence may be issued either by the Judge or Magistrate who passed the sentence, or by his successor-in-office. Under Section 31 of the Code if the accused is convicted for more than one offence, the sentences are to run consecutively unless the Court directs that such punishments shall run concurrently. Admittedly in the warrant which was issued by the Second Addl. Sessions Judge for execution of the sentence, there was omission in mentioning that the sentences passed against the petitioner were to run concurrently, with the result the jail authorities rightly assumed that the sentences were to run consecutively and so the petitioner was not released although he completed four years of jail sentence on 14-5-1982. When this fact was brought to the notice of the jail authorities for the time by the order of this Court in Misc.Cr. Case No. 1231 of 1982 dated 4-8-1983 which was received on 8-8-1983 the petitioner was immediately released. Therefore, it is evident that the jail authorities are not at all responsible for the illegal detention of the petitioner after 14-5-1982. Under the circumstances, the Superintendent, Central Jail, Raipur nor the State of M.P. could be held liable for the damages for the illegal detention of the petitioner. Reliance was placed on a recent decision of the Supreme Court in Rudul San v. State of Bihar : 1983CriLJ1644 where an interim compensation of Rs. 35,000/- was awarded for the illegal detention of the petitioner in jail for more than 14 years. In that case the petitioner was acquitted by the Court of Sessions on 30-8-1968 but he was released from jail on 16-10-1982. That case is clearly distinguishable because for the illegal detention the jail authorities and the State were alone responsible and it was not due to any mistake or fault committed by the Court.
5. Now the question remains whether the Court of Second Addl. Sessions Judge, Rewa, which issued the detention warrant, could be held liable to pay the damages as the Court failed to mention in the warrant that the two sentences passed against the petitioner were to run concurrently. Failure to mention this fact resulted in the jail authorities presuming that the sentences were to run consecutively. For the protection of Magistrates and others acting judicially, the Judicial Officers Protection Act, 1850 was enacted. Section 1 is as under :
1. Non-liability to suit of officers acting judicially, for official acts done in good faith, and of officers executing warrants arid orders. 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.
The Supreme Court while interpreting this section in Anowar Hussain v. Ajoy Kumar : 1965CriLJ686 has held that:
The Act protects a Judicial Officer only when he is acting in his judicial capacity and not in any other capacity. 'But within the limits of its operation it grants large protection to Judges and Magistrates acting in the discharge of their judicial duties. If the act done or ordered to be done in the dischargeof judicial duties is within his jurisdiction, the protection is absolute and no enquiry will be entertained whether the act done or ordered was erroneously, irregularly Or even illegally, or was done or ordered without believing in good faith, that he had jurisdiction to do or order the act complained of. If the act done or ordered is not within the limits of his jurisdiction, the Judicial Officer acting in the discharge of his judicial duties is still protected, if at the time of dosing or ordering the act complained of, he in good faith believed himself to have jurisdiction to do or order the act The expression 'jurisdiction' does not mean the power to do or order the act impugned, but generally the authority of the Judicial Officer to act in the matter.
It is, therefore, clear that if the Act done or ordered to be done in the discharge of judicial duties by the judicial officer is within his jurisdiction the protection is absolute and no enquiry will be entertained whether the act done or ordered was erroneously, irregularly or illegally passed but if the act done or ordered is not within the limits of his jurisdiction, the judicial officer acting in the discharge of his judicial duties is still protected, if at the time of doing or ordering the act, he in good faith, believed that he had the jurisdiction to do or order. The expression jurisdiction means the authority of the judicial officer to act in the matter and does not mean the power to do or order the act impugned. Under this section, besides the judicial officers, any person who is bound to execute the lawful warrant or order or any person acting judicially shall not be liable to be sued in any Civil Court for execution of any such warrant or order if the same was within the jurisdiction of the person issuing the same. In this case the Second Addl. Sessions Judge had the jurisdiction to issue the detention warrant of the petitioner and the jail authorities were bound the execute the warrant. As there was no mention that both the sentences were to run concurrently there was no fault or negligence on the part of the jail authorities in treating that the two sentences were to run consecutively. As held earlier, neither the jail authorities nor the State is liable for the illegal detention of the petitioner from 14-5-1982 to 8-8-1983. In this case the warrant was issued by the Second Addl. Sessions Judge Under Section 425 of the Code of Cr. Procedure. This act was done by the Second Addl. Sessions Judge while performing his judicial functions. Therefore, he is fully protected under Section 1 of the Judicial Officers Protection Act, in spite of the fact that there was a mistake in the warrant in mentioning that both the sentences were to run concurrently.
6. Shri Dharmadhikari tried to suggest that since the warrant was issued by the clerk of the Court and not by the Presiding Judge the said clerk of the Court is not protected under Act. He quoted Clerk & Lindsell on Torts, Fifteenth Edition, at page 1251 that Officers of Courts of justice act either judicially or ministerially, a judicial act is one which involves the exercise of a discretion, in which something has to heard and decided, a ministerial act is one which the law points out as necessary to be done under the circumstances, without leaving any choice of alternative course, every purely formal step in a legal process, and everything which is necessary to carry into execution what has been judicially decided, is ministerial, and it is not always easy to distinguish between the two classes of acts, though issuing a warrant is a ministerial act but in the foot-note it is mentioned that there does not appear to be any conclusive test by means of which judicial activities can be infallibly distinguished from administrative activities, very largely because there is no sharp dividing line between the two. Quoting the law laid down by Lord Denning, J. in Schmidt v. Secretary of State for Home Affairs (1969) 2 WLR 337 (350) it has further been mentioned that the distinction between exercising an administrative power and doing a judicial act is no longer valid.
7. Whatever that be, here the warrant was issued by the Presiding Judge Under Section 425 of the Code of Cr. Procedure and this he did while acting judicially and it cannot be said to be a ministerial act. If the warrant was issued by the clerk of the Court then things might have been different.
8. With the result the petition fails and it is dismissed.