Abdur Rahman, J.
1. This appeal arises out of a suit for damages brought by two ladies, the first plaintiff being a wife and the second plaintiff a minor daughter of the ex-Maharaja of Nabha against the Province of Madras through the Collector of Madura and four police officials one of whom was the then District Superintendent of Police at Madura, the other a Sub-Inspector of the Government Railway Police at the Madura Railway Station and the remaining two, head constable and constable of the Government Railway Police stationed at Kodaikanal Road Railway Station in the Madura District. The facts that have led to the institution of this suit may be first stated.
2. Nabha is an. important Sikh state in the Punjab which was being ruled since 1911 by the first plaintiff's husband. He was interned in 1928 at Kodaikanal--a hill station in the Madura District--by an order of the Government, of India to which reference is made in a memorandum (Ex. VII-b) issued by the Government of Madras to the District Magistrate, Madura on the 22nd February, 1928, (the year 1922 typed in the letter being obviously a mistake for 1928). A second memorandum No. 477-3 (Political), dated the 22nd June, 1928 (Ex. VII-c) issued by the Undersecretary to the Government of Madras to the District Magistrate, Madura shows that the Government of India, although not desirous of imposing a close supervision over the ex-Maharaja of Nabha, yet wanted a 'watch to be maintained by the police at any Railway Station where the detenu 'was' likely to entrain and steps to be taken to. ensure his rearrest in the event of his absconding'. This memorandum also discloses the fact that the Government of India had then forbidden the ex-Maharaja from absenting himself from his residence at night but this condition is stated by him in his evidence to have been relaxed later. The existence or non-existence of such a condition is however irrelevant for the purposes of this case and may be left out. of consideration. It would appear from a third memorandum No. 477-6, dated the 22nd August, 1928 (Ex. VII-d), that the movements of the ex-Maharaja, were under the orders of the Government of India to be restricted to Kodaikanal municipal limits. A copy of this memorandum was also issued to the Inspector-General, of Police who communicated the decision of the Government to the District Superintendent of Police at Madura on the 24th August, 1928 (Ex. VII). Since then the ex-Maharaja has been living in Kodaikanal and had with the object of keeping their company and of, as he says, giving 'them a send-off', accompanied the plaintiffs in their car on some occasions when they wished to visit Madras, but is not stated to have transgressed the Kodaikanal municipal limits.
3. From a letter written by Mr. Ganesan (P.W- 6) on behalf of the first plaintiff on the 11th January, 1937, to the Station Master Kodaikanal Road (Ex. F) asking a first class compartment to be reserved, it appears that she originally intended to leave Kodaikanal Road by the Trivandrum Express on Tuesday, the 12th January, 1937, but as no reply was received by him in time, they decided, to leave Kodaikanal Road by the same train on the next day, i.e., on the 13th January, 1937 (Ex. F-l). She eventually left Kodaikanal on 13th January, 1937, at about 5-30 P.M. with her daughter the second plaintiff. About half an hour after their departure, a telegram (Ex. IV) was despatched by the Station House Officer, (a head constable), to the District Superintendent of Police, Madura, North, which reads as follows:
Ex-Maharaja departuring' to Madras Spencer Hotel with family in Car. M.D. 2037
This led the District Superintendent of Police to wire (Ex. V). to the Sub-Inspector, . Kodaikanal, to prevent the ex-Maharaja from leaving Kodaikanal. But it was unnecessary to take any action-on that telegram as another telegram (Ex. VI) was despatched by the Station House Officer at 7-30 P.M. in the meantime informing the District Superintendent of Police that the ex-Maharaja had 'returned on sending family'. The District Superintendent of Police had anyhow to take action on the information contained' in Ex. IV before the receipt of Ex. VI. He decided therefore to communicate his orders to the Sub-Inspector at the Madura Railway Station by telephone to go to Kodaikanal Road Station find prevent the ex-Maharaja from leaving that station. This order was not correctly understood by the Sub-Inspector and it was the misunderstanding of this message on his part that led him to detain the first plaintiff and resulted in the institution of the suit out of which the present appeal arises.
4. Mr. Cameron (the second defendant) was examined in this case as a witness (D.W. 5). He deposes to having communicated the following message on the telephone:
Ex-Maharaja of Nabha and family were reported to be leaving Kodaikanal, that it is probable that the party would be taking the Trivandrum Express at Kodaikanal Road Station, that the Sub-Inspector should prevent the ex-Maharaja from catching that train.
The Sub-Inspector however states in paragraph 9 of the cross examination that he could not follow to start with whether the order of detention was in respect of the ex-Maharaja or the Maharani but with a reply to a question put by him on the telephone to the District Superintendent of Police, he was satisfied that the latter wanted the Maharani to be detained. According to Mr. Cameron, on the other hand, no question was put by the Sub-Inspector that might have led him to detect the mistake as to the identity of the person to be detained and the only difficulty that the Sub-Inspector had in understanding his message was with the word Nabha which he (the Sub-Inspector) did not follow and which he was confusing with the word 'Nadar'. Be that as it may, it was apparently for the District Superintendent of Police who must have been aware of his Sub-Inspector's capacity to follow a message in English and whose attention was drawn to the difficulty exhibited by the latter in understanding the former's message to be circumspect and to take steps to ensure that his orders were properly understood.
5. On receipt of the telephonic message and understanding that the first plaintiff was to be detained, the Sub-Inspector left Madura by the Trivandrum Express that was about to start when the message was received by him and arrived at Kodaikanal Road Station at about 8-15 P.M. eleven minutes after the usual time for its arrival.
6. The first plaintiff who had arrived at the Kodaikanal Road Station at about 7-45 P.M. was awaiting the arrival of the train in her own car which was placed in the Railway compound fenced, on three sides by iron fencing, and on the fourth side by the railway premises containing three or four rooms occupied by the Station-Master, Spencer's refreshment room, a waiting room for the higher class passengers and a verandah. The iron fencing has a gate through which the cars come into the compound.
7. The Sub-Inspector who Had seen a first class compartment reserved for the first plaintiff at an intermediate station between Madura and Kodaikanal Road, ascertained from the fourth defendant on his arrival at Kodaikanal Road Station, if the first plaintiff had arrived. On being informed that she had and in view of what he had understood at the time to have been the orders of the District Superintendent of Police, he prevented the first plaintiff's Secretary from placing her luggage which he was trying to keep in the compartment and communicated to the first plaintiff through her Secretary the orders that he, i.e., the Sub-Inspector had understood to have received from the District Superintendent of Police, Madura. The plaintiff complains that on the arrival of the train not only was she prevented by the Sub-Inspector from boarding the train but that the gate in the iron fencing was also closed under his instructions and the two constables (Defendants 4 and 5) were placed near the gate which resulted in wrongful confinement or imprisonment of the plaintiffs. Since Mr. Bhashyam, learned Counsel for the appellants, referred to the confinement not only for the purpose of enhancing the damages but as an additional ground for making the Sub-Inspector and the two constables liable, we would have to examine this contention in detail later. It is sufficient however to say for the time being that the contention advanced by the plaintiffs' learned Counsel that the third defendant would in any case be liable for having exceeded his instructions and confining his clients within the Railway compound instead of permitting them or rather the first plaintiff from boarding the train, was not advanced in the lower Court and is being put forward for the first time in this Court.
8. Either in view of some alteration between the plaintiff's Secretary and the Sub-Inspector or on account of the former's request in the vain hope of the plaintiffs being permitted to travel by the Trivandrum Express, the train was detained for about eight minutes longer than the scheduled time for its stay but it is unnecessary to go into these minor details, as they do not seem to bear on the questions that have to be determined in this appeal. We know it for a fact that the plaintiffs were not allowed to board the train and that the Sub-Inspector sent a telegram (Ex. O) after it had left to the District Superintendent of Police, Madura North at 8-42 P.M. which reads as follows:
Detained Maharani of Nabha from going by six (the number by which the Trivandrum Express is known) as per your orders advise as to what to do.
To this the following reply (Ex. Ill) was despatched by Mr. Cameron at 9-20 P.M.:
Your orders were to detain. Raja and not Maharani. Maharani may proceed anywhere and you should afford any assistance which the Maharani: may require.
This was received at Kodaikanal Road Telegraph Office at 9-25 P.M. and delivered to the Sub-Inspector at 9-45 P.M. according to the time of its receipt as given at the corner of the telegram presumably by the Sub-Inspector. Shortly after this the plaintiffs were allowed to go. It seems that the plaintiffs then went to the Spencer's refreshment room (vide Ex. XIII) for a short time and in spite of a telegram (Ex. K-l) that was sent by the plaintiff's Secretary to the Station Master, Trichinopoly, which roads as follows:
Maharani Nabha arriving by car to catch six, please detain reserve 4 first, 2 seconds, Madras;
they could not catch the train as they arrived at that station only at about 1-30 A.M. while the train must have left it about two hours earlier. . They left Trichinopoly eventually by the Dhanashkodi Passenger at about 4-30 A.M. on the 14th January, 1937, reaching Madras at about 2-30 P.M. on the same day.
9. Paragraphs 7, 17 and 18 of the plaint state the grounds on which the plaintiffs want to make the various defendants liable for damages for the suffering--both mental and physical--humiliation caused to the plaintiffs and last of all pecuniary loss suffered by them. As reliance was placed by the Government Pleader on the allegations in these paragraphs in support of his objection that the suit was not maintainable against the defendants 2 to 5 under Section 270 (1) of the Government of India Act, it would be useful to reproduce them in extenso. They read as follows:
7. The said acts of the defendants 2 to 5 were purported to be done by them in their official capacity and are quite irregular and there is no lawful justification for the said acts of the said defendants, and have all the appearance of official high-handedness. The said wrongful acts of the said defendants 2 to 5 restraining the liberty of the plaintiffs by show of authority have resulted in complete deprivation of liberty of the plaintiffs; and amount to false imprisonment.
17. Since the invasion of the plaintiffs' right to freedom has been committed in the course and as part of the official employment and alleged to be within the scope of his official authority, the first defendant is also liable in law to the plaintiffs.
18. As the defendants 3 to 5 have acted under the direction of the second defendant and as the defendants 2 to 5 have thereby joined in committing the said wrongful acts, they are also liable in the same way to the plaintiffs in damages.
Relying upon the information contained in the telegrams that were sent by the Station House Officer, (Exs. IV and VI), it was contended on behalf of the defendants that the ex-Maharaja of Nabha had also accompanied the persons who had left his house along with the plaintiffs on the 13th January, 1937, but that he had subsequently returned. The fact that the plaintiffs were detained at the Kodaikanal Road Station was not denied but it was alleged on behalf of the defence that the telephonic message given by the District Superintendent of Police, Madura North, to prevent the ex-Maharaja of Nabha from proceeding by the Trivandrum Express was not correctly heard by the Sub-Inspector of Police and being under the bona fide impression that he was asked to prevent the first plaintiff from going by that train, he communicated the orders to her through her Secretary and stopped her from boarding the train. It was denied however that the Sub-Inspector of Police had ordered the defendants 4 and 5 to close the gates or to post themselves near it or had wrongfully confined the plaintiffs. The 'acts done by the defendants 2 and 3 were' pleaded to have been done by them in their official capacity in the lawful exercise of their duties' and 'the third defendant' was said to have 'acted bona fide in not allowing the plaintiffs to proceed by the Trivandrum Express train'. It was asserted that 'the plaintiffs were informed through the Secretary that they could go anywhere except the train'. The allegations that the first plaintiff was not in good health or that there was loss of sleep or loss of appetite or bronchial affection on that score or that there was mental pain and physical discomfort, pecuniary loss and humiliation were denied.
10. Not being content with the denial of the injury caused to the plaintiffs, insult was added to it by not admitting the alleged position of the plaintiffs in life and their status by which apparently it was meant that they were not the wife and daughter of the ex-Maharaja. We would have understood paragraph 15 of the first defendant's written statement to mean that the plaintiffs' designation as 'Maharani' and 'Princess' was being disputed had it not been for the cross-examination of the first plaintiff on behalf of the defendants in paragraphs 28 and 29 which leads us to infer that the status of the first and second plaintiff as the ex-Maharaja's wife and daughter was not being admitted. This was wholly opposed to the letters (Exs. T, T-l and T-2) written by the Private Secretary to His Excellency the Viceroy to or on behalf of the first plaintiff in August, 1933, when she was even referred to as Junior Maharani of Nabha although the correct form of address in regard to her given by the Chief Secretary to the Government of Madras in an extract of a confidential demi-official letter written to the District Magistrate of Madura (Ex- XIV) is stated to be different. Whether this new formula of address was evolved at that time or earlier, it is unnecessary to ascertain. But it appears to have evoked a serious protest on behalf of the first plaintiff (see Exs. S and XI-a) and may have been to some extent responsible for this litigation, as it is quite possible that if she had been addressed by Mr. Cameron as Maharani in Ex. VIII, the letter would not have remained unopened and this litigation would not have in all probability started. After all she was referred to as 'Maharani' seven months later (Ex. R) by no less, an officer than the Deputy Inspector-General of Police when he was directed by the Government of Madras to see her with the object of apologising 'on behalf of the Police for the very discourteous treatment she received at the hands of the Railway Police at Kodaikanal Road Station'; but by then the suit had been instituted and the case was stated to have gone out of her hands (Ex. XII-a). We cannot help expressing our regret however that due advantage was not taken of the Government's gesture of goodwill. This is however only by the way and can have no effect on the determination of the various questions that arise in this appeal.
11. To revert to the pleas raised on behalf of the defendants. Since the first defendant had not authorised anything to be done to the plaintiffs and there was no ratification on its behalf of anything done by the other defendants, the first defendant's liability for the action of the other Government servants who had either acted or purported to act under the statutory powers conferred on them was denied. Reference was made in the end to the written apology sent by Mr. Cameron (Ex. VIII) to the first plaintiff as soon as he had become aware of the unintentional mistake committed by the third defendant and attempts that were subsequently made to have an interview with the first plaintiff for the same purpose, although they can have no bearing on the liability of the various defendants, if they or any one of them are or is found to be liable--whatever effect they may have on the quantum of damages in case the main issues are decided against them. The validity of the notice served on the first defendant was disputed and the suit was alleged to have been barred by limitation. It was contended on behalf of the defendants 2 to 5 that the plaintiffs were not entitled to maintain the suit without the consent of the Governor of Madras as required by Section 270 (1) of the Government of India Act and that the suit was also barred under Section 53 of the Madras District Police Act (Act XXIV of 1859).
12. In a judgment that is fairly well-discussed the learned Subordinate Judge of Madura came to the conclusion that the third defendant had ordered the closure of the eastern gate of the Railway compound in order to prevent the first plaintiff from proceeding by car with the object of boarding the train at any other station like Dindigul and Trichinopoly and that under his orders the defendants 4 and 5 'had totally and effectively restrained the freedom of the plaintiffs so as to cause false imprisonment'. In answer to the issue whether the defendants 2 and 3 (the District Superintendent of Police and the Sub-Inspector) were acting bona fide in the lawful discharge of their duties, the learned Subordinate Judge was of opinion that they had acted bona fide and although the second defendant had acted in the lawful discharge of his duties, the third defendant had not done so and was not protected by law. As to the first issue which related to the bars under Section 53 of the Madras District Police Act and Section 270 (1) of the Government of India Act, the learned Subordinate Judge fouund that under the latter section the sanction of the Governor of the Madras Province was a condition precedent for the maintainability of the suit; but Section 53 of the Madras District Police Act did not apply to the facts of the present case. As for the liability of the Province of Madras, he held that although Section 179, Sub-clause 1 of the Government of India Act was not a bar, the plaintiffs had no cause of action against it as defendants 2 to 5 were not acting as agents of the Government and the principles of implied authority to act on behalf of the latter or of the liability of a master for the wrongful acts done by his servant in the course of the latter's employment were not applicable. As to the question of limitation he held that in so far as the act of the second defendant was in pursuance of Section 54 of the Code of Criminal Procedure, the suit was barred by limitation against him but not against the other defendants. The issues in regard to the validity of the notice under Section 80 of the Code of Civil Procedure and relating to misjoinder of defendants were not seriously pressed on behalf of the defendants. As for the quantum of damages the learned Subordinate Judge was of opinion that if the case were to be decreed in favour of the plaintiffs a sum of Rs. 5,000 would have been enough in the circumstances of the case; but having regard to the conclusion in regard to the legal objections raised on behalf of the defendants, he was of the opinion that the suit was not maintainable. It was therefore dismissed. The plaintiffs appeal.
13. From the facts that have been stated and the pleadings of the parties that have been briefly summarised, it would be clear that there is no dispute in regard to the essential facts of this case.
14. Whether the ex-Maharaja of Nabha had actually left his house on the 13th January, 1937 and had returned as mentioned in the telegram Ex. VI or had not left his house on that day at all, it is unnecessary to decide although we are inclined to accept the ex-Maharaja's testimony and feel that the second telegram (Ex. VI) was sent by the head constable (Station. House Officer) after he had discovered that the first one (Ex. IV) was sent under a mistake. It seems that Sebastian (D.W. 9), a police constable in. the intelligence department had received 'information at 11 A.M. on the' 13th January, 1937, that the ex-Maharaja of Nabha and Rani (the first plaintiff) would go with their family to Spencer Hotel Madras' and this information was communicated by him to Ghulam Dastagir (D.W. 8) head constable 988 on the same day. Either relying on the information that he had received during the day or as a result of the working of a heated imagination, Sebastian seems to have jumped to the conclusion that the ex-Maharaja had left Kodaikanal when he saw his cars pass by and asked D.W. 8 to wire to the District Superintendent of Police Madura and to the other officers mentioned in the latter's statement of the ex-Maharaja's departure. Even if the ex-Maharaja had left his house by car--a fact which we have already stated we are not prepared to believe--that should not have been sufficient for either Sebastian (D.W. 9) or Gulam Dastagir (D.W. 8) to wire to the authorities as the ex-Maharaja had been accompanying his wife and daughter even before up to the Municipal limits when they wished to visit Madras and this must have been known to them.
15. As to the question whether Mr. Cameron (the second defendant) had asked the Sub-Inspector (the third defendant) to detain any person other than the ex-Maharaja, it is true that the message which Mr. Cameron deposes in his evidence as D. W. 5 to have sent was not reduced to writing. It is not therefore possible to say whether the message given by the witness in Ms deposition and reproduced in an earlier portion of this judgment was exactly what he has now stated it to be. But as the telegram Ex TV deferred to the departure of the ex-Maharaja, the telegram Ex. V which Mr. Cameron had given at or about the time when he telephoned his orders to the Sub-Inspector also refers to the 'Nabha ex-Raja' to be prevented from leaving Kodaikanal and the telegram Ex. III which he sent in reply to Ex. O reiterates that the orders were 'to detain the Raja and not Maharani' there cannot be much room for doubt that he must have asked the ex-Maharaja alone to be detained although it is possible to conceive that the word 'party', if used by him, as both he and the Sub-Inspector depose to its having been used on the telephone, might have led the Sub-Inspector D.W. 1 (who had read up to fourth form only) to think that the order of detention applied to all those as well who were or were to be with the ex-Maharaja. The Sub-Inspector would not however admit this and states, as we have already noticed elsewhere, that his definite instructions were to detain the first plaintiff. Moreover the District Superintendent of Police knew that it was the ex-Maharaja alone who was debarred under Government orders from leaving the Municipal limits of Kodaikanal. In the absence of any other indication or suggestion as to the motive for the first plaintiff's detention, we cannot but conclude that Mr. Cameron must have ordered the ex-Maharaja alone to be detained. There is no doubt however that the Sub-Inspector (defendant 3) understood that the orders were in regard to the first plaintiff and it was on that basis that he acted until the telegram. Ex. III was received by him.
16. We will advert to the effect of this finding later but we cannot help deprecating at this stage that a. responsible officer like the District Superintendent of Police should have depended solely on the telephonic message and should not have followed it up by a confirmatory telegram or letter particularly when he was dealing with the liberty of an ex-Ruler of an important Indian State. Had Mr. Cameron taken the trouble to send a telegram to Kodaikanal Road Station confirming his orders and sent a letter with a constable in a car, the mistake of detaining the plaintiffs would not have been committed and this unfortunate litigation would have been avoided.
17. Moreover, the use of the word 'detain' which was in all probability used by Mr. Cameron on the telephone, was also unfortunate. It is used both in the sense of keeping one in confinement as also for keeping him in waiting or hindering him. It cannot be denied that to a policeman, particularly when he does not happen to be very well-educated, the word detain would ordinarily suggest the first meaning rather than the second or the third. The use of this word by Mr. Cameron to the Sub-Inspector and the use of it by the latter when communicating the former's orders to the first plaintiff's Secretary could have been and was probably taken to mean that the first plaintiff was intended to be confined to the place where she happened to be at the time i.e. in the car in the Railway compound. And if the constables (defendants 4 and 5) were posted near the gate--and we are inclined to agree with the finding arrived at by the lower Court in this respect that they were placed there by the Sub-Inspector--the conclusion would be irresistible that the first plaintiff must have thought that she was confined within the Railway fencing where her car was standing and would not be permitted to leave it if she tried so to do. If that was the impression created in her mind, we can. very well understand why the first plaintiff did not ask any person if she could go out of the compound and why she did not leave the car. That must have been her feeling from the subjective point of view; but that would not be enough for us to hold that she was actually confined or imprisoned and not merely restrained from proceeding by the Trivandrum Express. Had there been proof on the, record that there was total restraint of the first plaintiff's movements or liberty during the period that she was in her car by the use or threat of force or by confinement, she could be said to have been imprisoned. Our attention was drawn in this respect by learned Counsel for the appellants to the evidence of P.W. 4, P.W. 5 and P.W. 6. There is no doubt that in answer to a request by the Secretary (P.W. 6) 'to ask the constables to open the gate on the east so that they could go' the Sub-Inspector (D.W. 1) is reported to have said that 'he could not allow them to go unless he received instructions from the District Superintendent of Police'. But if this is taken along with what the witness (P.W. 4) stated in paragraph 11 of his cross-examination which reads as follows:
Through the upper class waiting room one can come to the platform and go out through the third class waiting room. There was no obstruction from anybody to go like that but no car can go that way,
it would appear that there was no total restraint on the plaintiffs' movements; but what the witness was trying to convey was that by closing the gates, the car could not have been taken out of the station compound and as the plaintiffs could not have left the Kodaikanal Road Railway Station without the car, they must be taken to have been virtually confined. Similarly, P.W. & who is no other than the plaintiff's own Secretary stated in his examination in chief that the Sub-Inspector D.W. 1 said that
his orders wore to detain the Maharani. He did not say she could be detained there and would not be allowed to go anywhere I did not ask the Sub-Inspector, if there was any objection to the Maharani going back to Kodaikanal or to her going by car though not by train.
Having regard to these statements, we cannot attach any importance to the statement of P.W. 5 that the first plaintiff was not allowed to go and was told that she 'should stay there'.
18. Learned Counsel for the plaintiffs laid considerable stress on the advice sought by the Sub-Inspector in his telegram (Ex. 0) after he had succeeded in preventing the first plaintiff from boarding the train. We are in agreement with Mr. Bhashyam that the explanation given by the Sub-Inspector in his deposition that by those words he wanted to know what Mr. Cameron wanted the witness to do in regard to his own movements, i.e., whether he might return to Madura is wholly unconvincing and that the Sub-Inspector was apparently enquiring as to how he should act as the first plaintiff had been detained from going by the Trivandrum Express and was then at the Kodaikanal Road Station. But this does not show that the first plaintiff was there because she was confined to the Kodaikanal Road Station, but because she happened to be left behind after the train had left the station without her. We are however prepared to admit that by placing the policemen at the gates and by closing the same (although not locking) it would be a legitimate inference to draw that the plaintiffs' car was stopped by the defendants 3 to 5 and would not have been allowed to be taken out. This does not however mean that the plaintiffs were confined and would have been prevented from proceeding in any direction other than possibly to Dindigul or Trichinopoly if they had attempted to do so. On the analogy of the decisions in Emperor v. Lathanu Manaji (1925) 27 Bom. L.R. 1410 and In re Peria Ponnuswami Goundan : AIR1927Mad506 and In re Muhammad Usuf Sahib : (1938)2MLJ583 , it was contended by Mr. Bhashyam that if the first plaintiff was not allowed to go in her car in which she had a right to proceed and it was impossible for her to go anywhere without her car, the persons who prevented her from using the car should be held to have confined or imprisoned her wrongfully. It was argued by the learned Government Pleader, on the other hand, that even if the defendants are found to have prevented the car from being taken out of the Railway compound by or at the first plaintiff's instance, they could not be said to have confined or imprisoned the first plaintiff. He cited Emperor v. Ramalala : (1912)15BOMLR103 , In re Venkatramiah (1908) Cri.L.J. 192 and Durgapada Chatterjee v. Nilamumi Ghosh (1934) Cri.L.J. 472 in support of his contention. It is admitted in this case that the first plaintiff may be, in so far as she was prevented from boarding the Trivandrum Express, taken to have been wrongfully restrained by the Sub-Inspector. But the contention that a person would be said to have been confined merely because he is not allowed to proceed either in his car or conveyance even if no restriction is placed on his person does not seem to us correct. The offences of wrongful restraint or wrongful confinement are offences affecting human body and cannot be said to have been committed if a person is not restrained or confined himself but the liberty of going in the conveyance in which he wishes to go or taking the article which he wishes to carry and without which he is not willing to proceed is donied to him. If the decisions cited by Mr. Bhashyam lay down any different rule we would be, with great deference, unable to concur with them.
19. We are not for the above reasons, satisfied both on facts and as to law that the plaintiffs were or can be said to have been actually confined either in the Railway compound or even within the limits of Kodaikanal Road Station. Had the first plaintiff or her Secretary made a request to the Sub-Inspector or to the constables for the former to go out of the Railway compound and had any obstruction been created, it would have been a different matter. The onus of proving confinement lay on the plaintiffs and in the absence of satisfactory evidence on the point, it is not possible for us to agree with the lower Court--although it has to be admitted, as we have already observed, that the conduct of the third defendant was undoubtedly dubious and the user of the word detention makes the statement of the defence witnesses on this point doubtful.
20. In view of our finding that Mr. Cameron had ordered the ex-Maharaja to be detained, the question of his bona fides for ordering the first plaintiff to be prevented from boarding the Trivandrum Express does not arise for consideration. We are equally clear in our minds that the Sub-Inspector was not actuated by any bad or malicious motives either. He was under an honest impression, although a mistaken one, that he was ordered to prevent the first plaintiff from going by the Trivandrum Express. At one stage of the case, Mr. Bhashyam advanced the contention that the Sub-Inspector's conduct was at all events extremely negligent and that he should not be held to have acted in good faith if we were not satisfied that he had proceeded in the mater with due care and caution. But when it was pointed out to him that the definition of the words 'good faith' in the General Clauses Act is materially different from that given in the Indian Penal Code and that it would not be correct in this case to use them in the limited sense in which they were used in the Indian Penal Code, the contention was not pressed. The action of the Sub-Inspector could not be, even if negligent to some extent, held to. be malicious or even mala fide. We must therefore hold that in preventing the first plaintiff from proceeding by the Trivandrum Express he was acting bona fide though erroneously.
21. Having come to these findings of fact, we are now free to discuss the various questions of law which have been raised on behalf of the various defendants. The first contention advanced by the learned Government Pleader was that inasmuch as the plaintiffs were expressly suing the defendants for acts which were admitted by them to have been done in their official capacity, the suit would not be maintainable without the consent of the Governor under Section 270 (1) of the Government of India Act. It runs as follows:
No proceedings civil or criminal shall be instituted against any person in respect of any act done or purporting to he done in the execution of his duty as a servant of the Crown in India or Burma before the relevant date, except with the consent, in the case of a person who was employed in connection with the affairs of the Government of India or the affairs of Burma, of the Governor-General in Ms discretion and in the case of a person employed in connection with the affairs of a province, of the Governor of that province in his discretion.
22. Inasmuch as the act of wrongful confinement or of wrongful restraint was committed in January, 1937, i.e., some months before 'the relevant date' by persons employed in connection with the affairs of a province, it would fall within the ambit of the section if it was done or purported to be done by them in the execution of their duty as a servant of the Crown in India. As the question of the applicability of Section 270 (1) depends primarily on the nature of the allegations made against the public servants in the plaint, for which see Hari Bam Singh v. The Crown : (1939)2MLJ23 , we will have to examine the allegations contained in paragraph 7 of the plaint which we have reproduced earlier in this judgment. The plaintiffs complaint is that the 'acts of defendants 2 to 5 were purported to be done by them in their official capacity' or in other words, in the execution of their duty as servants of the Crown. Since this suit was not instituted, with the consent of the Governor, Section 270 (1) clearly constitutes a bar so far as the defendants 2 to 5 are concerned. Mr. Bhashyam however contended that Section 270 (1) would have no application unless the acts were done or purported to be done by these defendants in the execution of their duty. He contended in the first instance that as it was not possible for Mr. Cameron to order any subordinate of his to apprehend or to detain any person by telephone, he could not be stated to have done anything in discharge of his duty. Secondly, it was contended that as, in the absence of any allegation or information that the plaintiffs had committed any offence, it was not possible for the Sub-Inspector of Police to have restrained or confined them, he could not be equally said to have done anything in the execution of his duty. The same argument was advanced with reference to the other two constables who are defendants in the case. Reference was made in this connection by Mr. Bhashyam to Section 54 of the Criminal Procedure Code under which it is possible for a Police Officer to arrest a person without a warrant.
23. There is no warrant for the proposition that a police officer cannot order the arrest of a person by means of a telephonic message. The word 'requisition' in Section 54 (1) (ix) is quite general and clearly covers a message communicated by telephone, although it will be necessary for him when he is asking another Police Officer to do what he could, have done himself to disclose not only the identity of the person whom he wishes to be arrested but also the offence or the reason for which the arrest is to be made. This has to be done for the reason stated in the last clause of Section 54 (1). This information will enable a person who is called upon to arrest to know that the person required to be arrested by him could have been lawfully arrested without a warrant by the officer who had issued the requisition. The proposed action being thus within the competence of one who may be described, although not quite accurately, as a principal, the person requisitioned would be doing nothing wrong if he complied with his so called principal's orders and carried them out as his agent.
24. Our attention was drawn to a decision by a single Judge of the Rangoon High Court in Mohamed Ismail v. King-Emperor I.L.R.(1935) 13 Bom. 754 where it was held that the provisions of Section 54 of the Code of Criminal Procedure were limited by Section 56 of the Code and that although it is possible for a Police Officer to arrest on his own. initiative or when acting independently any person concerned in a cognisable offence without a warrant, yet, where a subordinate Police Officer was not acting independently but was merely deputed by a superior officer to arrest a person concerned in a cognisable offence, the order specifying the person to be arrested and the offence or other cause for which the arrest was to be made must be in writing and the Subordinate Police Officer must notify to the person to be arrested the substance of the order and if so-required by such person, show him the order.
25. Inasmuch as the Police Officer in that case was making an investigation under Chapter XIV of a case under Section 380, Indian Penal Code, which is a cognisable offence, the decision was, if we may say so with respect, fully justified. But if the learned Judge wished to lay down generally that the provisions of Section 54 were to be limited by those of Section 56, Criminal Procedure Code and in all cases it is incumbent upon a superior officer of the police, even when he is above the rank of an officer who is in charge of a Police Station or when he is not making an investigation under Chapter XIV of the Code of Criminal Procedure to comply with the formalities mentioned in Section 56 of the Code, we must with deference express our dissent. Section 54 applies to all Police Officers whether to superior or subordinate. Section 56 only applies to such Police Officers as are in charge of a Police Station or as are making investigations under Chapter XIV. The Officer in charge of a Police Station is defined in Section 4 (p), Criminal Procedure Code. Let us suppose that an Inspector-General of Police orders his Deputy Inspector-General of Police or a District Superintendent of Police (all of whom are superior Police Officers and who would not ordinarily be in charge of a Police Station or making an investigation themselves under Chapter XIV) to arrest a person, would it be essential for the Inspector-General of Police to comply with the requirements of Section 56 of the Code of Criminal Procedure? In our opinion, it would not be so necessary. Nor would it be necessary for a subordinate Police Officer, say an inspector of Police to do so if he gives an order for a person's arrest to another Police Officer as long as the person giving the order is not the Officer in charge of a Police Station and is not making an investigation under Chapter XIV, Criminal Procedure Code. In other words, Section 56 of the Code only applies to cases of Police Officers who are either in charge of a Police Station or who are making investigation under Chapter XIV. If in their capacities as such officers, they depute their subordinates to arrest without a warrant (otherwise than in their presence) they have to give that order in writing. But if they are not acting in that capacity, a compliance with the general provisions contained in Section 54 (1) (ix) would be enough.
26. Had the ex-Maharaja of Nabha left the Kodaikanal Municipal limits and arrived at Kodaikanal Road Station against the orders of the Government of India, he would have been guilty of an offence defined in Section 225 (B), Indian Penal Code and liable to arrest by Mr. Cameron without a warrant, the offence being of a cognisable nature. The Sub-Inspector also knew that the ex-Maharaja could not leave the Kodaikanal Municipal limits and he could have also done the same. If Mr. Cameron could have arrested the ex-Maharaja himself under Section 54 (1) (i), it is clear that he could have made a requisition to the Sub-Inspector either in writing or verbally or even by telephone to arrest the ex-Maharaja at Kodaikanal Road Station under Sub-clause (9) of the same section. In making a requisition to arrest the ex-Maharaja at Kodaikanal Road, both the person to be arrested and the cause for which the arrest was to be made must be taken to have been specified and it would have appeared to the Sub-Inspector therefrom that the ex-Maharaja could have been on leaving the Municipal limits of Kodaikanal arrested without a warrant by Mr. Cameron. It would follow therefore that in asking the Sub-Inspector to detain the ex-Maharaja, Mr. Cameron was not only doing what he was fully entitled to do but was executing a duty that he was bound to discharge in view of the orders of the Government of India conveyed to the Inspector-General of Police in Ex. VII-D and by the latter to the District Superintendent of Police in Ex. VII.
27. As regards the Sub-Inspector and the two constables Mr. Bhashyam contended that the act done or purported to be done by them must have been in the execution of a duty and in so far as they could not be said to have been under any duty or entitled to arrest the first plaintiff under Section 54, Criminal Procedure Code they clearly exceeded their powers and could not be brought within the ambit of Section 270 (1) of the Government of India Act. In other words, his contention is that in order to attract Section 270 (1), the power and duty to arrest must be clearly found to be existing under Section 54, Criminal Procedure Code and it should not be merely a purported duty or a duty that a person wrongly thought he was bound to discharge. We agree with the learned Counsel's contention that the word 'duty' as used in the section of the Constitution Act refers to the actual duty and not what a person merely thinks to be his duty. We also agree that Section 54, Criminal Procedure Code cannot help these defendants. None of its provisions can be held to empower them to restrain or confine the first plaintiff. There was no requisition by Mr. Cameron to arrest the first plaintiff, and even if the request to arrest the ex-Maharaja may be taken to have been wrongly understood as a request to arrest her, there was no disclosure of the offence or other cause for which she could have been arrested. In the absence of any disclosure of an offence or any other cause, it is contended on behalf of the appellants that it was not possible for the Sub-Inspector to detain or arrest the first plaintiff under the provisions of Section 54, Criminal Procedure Code. If Section 54 were the only section under which it would have been possible for the Sub-Inspector to act, there would have been undoubtedly a great deal of force in the learned Counsel's contention. But under Section 21 of the Police Act, it. is the duty of every subordinate Police Officer, as the third defendant was, to obey the orders of the senior Police Officer as Mr. Cameron, the District Superintendent of Police, happened to be at the time. If therefore Mr. Cameron ordered the Sub-Inspector to arrest or detain the ex-Maharaja, the Sub-Inspector was bound to comply with that order. If in pursuance of such an order, the Sub-Inspector had arrested or detained the ex-Maharaja, he would have been acting in execution of his duty. But if by a mistake in reading or hearing the order, the Sub-Inspector detained some one else as it happened in the present case, he could not be said to have been acting in execution of his duty in carrying out the orders of his superior Officer, but nonetheless he can be said to be purporting to carry out an order which he understood to have been passed by Mr. Cameron and which it was his duty to execute. It was in the end urged that under Section 21 of the District Police Act, a Police Officer is bound to execute merely lawful orders and the order to arrest or detain the first plaintiff could not be regarded to be lawful. It was also contended that this section only dealt with disciplinary jurisdiction of the Police Officers and had no application when they were dealing with the public generally. This section provides that it shall be the duty of every Police Officer 'to obey and execute all orders and warrants lawfully issued to him''. If, may be argued, and not without some force, that it would not be open to a subordinate Police Officer to question the legality of the orders of his superiors and that if an order or warrant was lawfully issued to him, it would be his duty to obey and execute the same. In other words, the argument is that the word 'lawfuly' does not qualify the words 'orders or warrants' and merely refers to the method of their issue. Prima facie this seems to be correct; but even if it is not so and the word lawfully is found to qualify the words 'orders or warrants', there is no difficulty in overruling this contention. The order to arrest or detain the ex-Maharaja issued by Mr. Cameron was, as has been already held, a perfectly lawful order. It does not become unlawful merely because it was misunderstood by the person who was to execute the same. The only difference would be, as pointed Out before, that the Sub-Inspector instead of acting in execution of his duty could only be said to have purported to act in execution of his duty. But either of them is covered by Section 270(1) of the Constitution Act and cannot legally give rise to a cause of action except with the consent of the Governor. There is also, no force in the contention that Section 21 is applicable between Police Officers inter se and has no application when they are dealing with private individuals. The orders which they as Police Officers are to give and the warrants which they are to issue will relate largely if not solely to private individuals or to individuals even if they happen to be Police Officials in their private capacity. The Police Act does not deal with administrative matters of the Police as a department but with matters and duties which they in their official capacity are called upon to undertake and discharge.
28. It is not easy to understand why the lower Court considered that the third defendant's action was not protected by law. He was purporting, to perform a duty which he was bound to discharge. It follows therefore that the plaintiffs must be, both according to their allegation in the plaint and on the merits irrespective of any such allegation, held not to be entitled under Section 270 (1) of the Government of India Act to institute this suit against the defendants 2 to 5 without the consent of the Governor.
29. We have already held that the actions of the defendants 2 and 3 were bona fide. The Police constables (defendants 4 and 5) were similarly bound to obey the orders lawfully issued by the Sub-Inspector and there can be no manner of doubt that what they were ordered to do and what they did in pursuance of such orders as were given to them was done by them in the execution of their duties as servants of the Crown in India and was done by them in good faith. Under Section 270 (2) of the Constitution Act all civil and criminal proceedings against such persons have to be dismissed unless the Court is satisfied that the acts complained of were not done in good faith. In other words, the onus of proving want of good faith in the case of such persons and such acts as are referred to in this sub-clause is placed upon the plaintiff or the complainant as the case may be. There is no proof on the record that any of the four defendants (2 to 5) did not act in good faith. Indeed we have found that all of them acted in good faith. For that reason also the case against these defendants must fail.
30. The incident which led to the institution of this suit occurred as stated before on the 13th January, 1937. The plaint was presented on behalf of the plaintiffs on the 17th June, 1937 after a notice of two months had been given on behalf of the plaintiffs' as required by Section 80, Civil Procedure Code. The period of such notice has to be excluded in computing the period of limitation under Section 15, Sub-clause (2) of the Limitation Act. The civil Courts in Madura were closed on account of summer recess and reopened on the 14th June, 1937. If the period of limitation for a suit of this nature were found to be three months under Article 2 of the Limitation Act as it has been contended on behalf of the defendants to be, the suit would be barred by time, the last date of its institution in that case being the 14th June, 1937. Learned Counsel for the plaintiffs however relies on Articles 19, 36 and 120 and contends that Article 2 of the Limitation Act would not be, in any case, applicable to the facts of the case. It is urged by him in the alternative that even if Article 2 of the Limitation Act is found to be applicable, the period of limitation under Section 24 of the Limitation Act should be computed from the time when the injury (i.e. the illness in Madras) to the plaintiff resulted in consequence of the happenings of the 13th January.
31. Article 19 of the Limitation Act would have been undoubtedly more appropriate if we had been of opinion that the first plaintiff was wrongfully confined or falsely imprisoned. In view of our finding however that she had been only wrongfully restrained, Article 19 of the Limitation Act would have no application. Article 36 makes a general provision for suits founded on torts. Provisions for particular cases are to be found in Articles 19 to 27 and 37 to 49. If a case falls under any of the special Articles, Article 36 will have no application. It clearly provides that it would have no application if the limitation for acts complained of had been specially provided for. It cannot apply if the malfeasance, misfeasance or nonfeasance referred to therein was committed or purported to be committed in pursuance of any enactment in force in British India. Much less can Article 120 which is a residuary article have any application. It can only be invoked as a last resort and in case no other Article is found to be applicable. If the suit happens to be for compensation for doing an act alleged to have been done in pursuance of any enactment in force for the time being in British India, as this happens to be, Article 2 will have to be applied in preference to either Article 36 or any other Article referred to above and this is because it has been proved now that the various defendants acted on the 13th January, 1937 or purported to act in pursuance of some enactment. It is true that the use of the word 'alleged' by the Legislature in this Article is not happy. It cannot be taken to mean that a mere allegation by a party invoking its assistance or pleading that he had acted or omitted to act in pursuance of an enactment would attract its provisions. But when the act is found to have been done or purported to have been done in pursuance of an enactment, as the acts of defendants 2 to 5 have been found to be, this Article must be held to apply. Relying on the word 'alleged' in this Article, learned Counsel for the appellants argued that before it could be found to govern the present suit, the allegation by the defendants that they were acting in pursuance of an enactment must have been made by them when they were acting. This is obviously incorrect. First of all, a contention like this assumes that every person who is acting in pursuance of an enactment must, not only know at the time when he is acting, the correct title and provision of the Act under which he was authorised to act (as if it happens to be wrong, it may be argued that the correct enactment was not alleged by the person doing the act) but also the provisions of the Limitation Act (which is after all. an adjectival law) which make it essential for him to mention his authority for the act done by him. Secondly, this Article applies both to the doing of an act or omitting to do an act; it might be physically possible for a person to speak and to refer to the enactment at the time when he is acting in pursuance of the enactment but what about the omission to act? If a man does not act and is not even present for the simple reason that he did not wish to act, is he even then required to speak and name the provision of law under which he thinks he is not required to act or on account of which he omitted to act? The enactment under which he acted or omitted to act can surely be referred to by him or on his behalf when he is called upon to explain his conduct later. As we have found that the defendants were acting under the provisions of Section 54, Criminal Procedure Code and Section 21 of the Police Act, both of which were and are in force, the suit must be held to be governed by Article 2 of the Limitation Act.
32. The contention advanced on behalf of the plaintiffs that column 3 of the Article should be governed by Section 24 of the Act and limitation should not be held to start under Article 2 from the time when the acts took place but from the time when the injury to the plaintiff (i.e. the illness in consequence of her detention) occurred in Madras a few days later has also no force in our opinion. If the act complained of had not given rise to a cause of action until some special damage had resulted therefrom, Section 24 of the Limitation Act might have been of help to the plaintiffs. In so far as their learned Counsel vehemently contended and we are not inclined, as at present advised, to disagree with him that the wrongful restraint complained of and found to have been committed would be a tort and actionable per se, it could have given rise to a cause of action immediately. Section 24 of the Act cannot thus help the plaintiffs and the period of limitation cannot ,be computed from the time when the injury is alleged by the plaintiffs to have resulted to them.
33. It was moreover contended by the learned Government Pleader that Section 53 of the District Police Act was also a bar. The relevant provisions of that section read as follows:
All actions and prosecutions against any person, which may be law fully brought for anything done or intended to be done, either under the provisions of this Act or under the provisions of any other law for the time being in force, conferring powers on the police shall be commenced within, three months after the act complained of shall have been committed and not otherwise.
The learned Subordinate Judge overruled this contention as he held that
the act could not be said to be one done or intended to be done under the provisions of the Police Act or the Criminal Procedure Code, though the third defendant honestly believed that in, doing that act. he was carrying out the orders of the District Superintendent of Police and though that was an act done by him in execution of his duty as a servant of the Crown in India.
No reason has been given by him why Section 54, Criminal Procedure Code or Section 21 of the Police Act to which reference was made by him in the preceding sentence had no application to the defendants. We have in an earlier part of this judgment discussed the question and taken pains to show that the acts of these officers were covered by the provisions of the Criminal Procedure Code and those of the Police Act. The very fact that the Sub-Inspector was carrying out or purported to carry out the order of the District Superintendent of Police would bring him within the protection afforded by the Government of India Act read with, the provisions contained in the Police Act. We must therefore hold that the finding of the learned Subordinate Judge in paragraph 29 of his judgment is erroneous and Section 58 of the Indian Police Act applies to the case so far as defendants 2 to 5 are concerned and the suit is therefore barred by limitation against them on this ground as well.
34. The last question to decide is whether the 'Province of Madras could be held liable for the acts of the other defendants. Relying on the cases such as those of Limpus v. The London General Omnibus Co. (1862) 1 H. & C. 526 : 158 E.R. 993 Poland v. John Par and Sons (1927) 1 K.B. 236 and Baayley v. The Manchester Sheffield and Lincolnshire Railway Co. (1872) 7 C.P. 415, it was contended by learned Counsel for the appellants that the Government would be, like any other master, responsible for the acts of its servants when they are done by them within the scope of their authority even if they happen to be against the express Orders or instructions of the Government. In the present case, however, it was argued by Mr. Bhashyam, that there was no question of the defendants' and of at any rate Mr. Cameron's acting in contravention of the Government's orders. The duty of keeping the ex-Maharaja within the municipal limits of Kodaikanal was imposed on Mr. Cameron as the District Superintendent of Police and on the third defendant either directly or through Mr. Cameron and anything done or purported to be done by both of them within the scope of their authority would, if it amounts to a civil wrong, make the Government liable. It was further argued that the Government would be responsible for the negligence of its servants committed by them in complying with its express orders.
35. Had we been dealing with a private individual or his servants who were shown to have committed a civil injury in the course of their employment and for their master's benefit even if the act would have been against his specific instructions, he i.e., the master, would have been liable. But the question now to decide is whether the Government could be made liable when the acts were done or purported to be done by certain Police Officers in discharge of their duties. The fact that the ex-Maharaja must be regarded to have been taken into or kept in custody under the orders of the Government of India is immaterial. He was interned by an order of the Government which was nothing but an act of state and which could not/be questioned by the municipal Courts of the country. Nor would his being in the custody of the defendants 2 and 3, even if that be assumed to be correct, make any difference if they were under a statutory duty to keep him in custody and entitled to arrest him if he in spite of being a detenu happened to transgress the municipal limits of Kodaikanal. That they were both empowered and bound to arrest him admits of no doubt, in our opinion. Had the ex-Maharaja left the municipal limits of Kodaikanal, he would have fallen within the. mischief of Section 225-B, Indian Penal Code and would have been liable to be arrested by any Police Officer without a warrant. This was not because of any special request made either by the Government of India or the Government of Madras but because in his capacity as a Police Officer, it is his duty to arrest an offender without a warrant if he can in law do so and with a warrant when he has been ordered to do so by the authorities entitled to issue the same. The decision in Tobin v. Queen 33 L.J.C.P. 199 is a clear authority for the proposition that a petition of right could not have been on the facts of the present case maintained against the Queen although in that case a Naval Officer had, purporting to act in pursuance of a statutory authority, wrongly seized a ship in the supposed performance of a duty imposed upon him by an act of Parliament. It was held in that case that on these facts, the maxim 'respondent superior' would not apply and make the Crown liable. The question how far the Government is liable for the acts of its servants when they are performed not in the carrying on of an ordinary business transaction which as successors* of the Bast India Company it has at times to undertake, but in pursuance of the exercise of Governmental or sovereign power-has been the subject of several decisions by the various High Courts in India. It was held by Sir Lawrence Jenkins, Chief Justice of the Bombay High Court (as he then was) and another learned Judge in Shiva Rajan Durgaprasad v. The Secretary of State for India I.L.R.(1904) 28 Bom. 314 that the Government was not liable on account of the act of a chief constable who had seized certain bundles of hay not in obedience to an order of the executive Government but in performance of statutory power vested in him by the Legislature. To the same effect there are decisions of other Courts including our own where this question has been fully discussed (see M. A. Kader Zailani v. The Secretary of State for India in Council I.L.R.(1931) Rang. 37 A.M. Boss v. The Secretary of State for India in Council (1915) 29 M.L.J. 280 : I.L.R. Mad. 781. The Secretary of State for India in Council v. Garapati Somayya : AIR1926Mad1084 and The Secretary of State for India in Council v. Shree Gobinda Choudhuri I.L.R.(1932) Cal. 1289. It will be supererogatory on our part to tread the same ground once again. These authorities clearly establish that the Government could not be made liable if the act was done or purported to be done by the defendants in discharge of their duty imposed upon them by statute.
36. In determining the application of Section 270 (1) of the Government of India Act to defendants 2 to 5, we have already held that the acts done or purported to be done by these Police Officers were in execution of their duty. Mr. Cameron who telephoned to the Sub-Inspector for the ex-Maharaja to be detained at Kodaikanal Road Station was performing a statutory function and did not act because he was expressly authorised by the Government to detain the ex-Maharaja on that day. In the same way, the third defendant was bound to carry out the orders which were given or which he erroneously understood to have been given by his superior officer. The orders passed by the third defendant had to be obeyed by the defendants 4 and 5. Had the third defendant been found to have detained the first plaintiff not bona fide but on account of malice, the situation would have been different. Had these defendants been carrying out an order passed by the Government not in the exercise of its Governmental functions but in carrying on the ordinary business transactions, the position might have been also different. But in this case these considerations are out of place. The contention advanced by Mr. Bhashyam that these Police Officers were acting as agents to keep the ex-Maharaja in custody and not as Police Officers has absolutely no force. The direction of the Government of India contained in Ex. VII-C that they wanted a 'watch to be maintained by the Police at any Railway Station where the detenu is likely to entrain and steps to be taken to ensure his rearrest in the event of his absconding' does not enable a Police Officer to do anything more than he Was bound to do under the provisions of the Criminal Procedure Code or under the Police Act, irrespective of this direction having been given by the Government of India. The Government expects all officers to discharge the duties imposed upon them by statute and in this case the Government was not asking or expecting anything else or in addition to be done. In fact, the Government in passing this order was trying to minimise the rigour with which the movements of the ex-Maharaja could have been closely supervised. Paragraph 1 of this very letter indicates that the Government did not favour the employment of any special Police guard and clearly stated that they did not wish a close supervision over the ex-Maharaja of Nabha. That is why the special Police staff employed apparently by the local Government was ordered by the Government of India to be disbanded. We might also state in passing that if any act had been found to have been committed maliciously, it could not be held to have been done on behalf of the Government. Similarly, the detention of the first plaintiff being wholly wrongful and illegal and in excess of the Sub-Inspector's duty could not render the Government liable unless it was found to have been subsequently ratified or adopted by it. It was so held by their Lordships of the Judicial Committee in the Collector of Masulipatam v. Cavaly Venkata Narainappah (1860) 8 M.I.A. 500 where they observed at page 554:
Again the acts of a Government Officer bind the Government only when he is acting in the discharge of a certain duty within the limits of his authority, or, if he exceeds that authority, when the Government in fact, or in law, directly or by implication, ratifies the excess.
The position is therefore reduced to this that the Government could not be held liable either when an officer takes an action in pursuance of a statutory duty or when the act committed by him happens to be in excess of his authority unless in the latter case the act is either done by the Government's express orders or is subsequently ratified and adopted by it. Nor could any action be maintained against the Government for a tort committed by its servants if in passing the order in the performance of which the tort was committed the Government was discharging its Governmental functions as a sovereign.
37. In view of our conclusion as regards all the defendants it is unnecessary to go very minutely into the question of damages. Having regard to the status of the plaintiffs and to the inconvenience to which they were put, the lower Court would have been inclined to pass a decree for a sum of Rs. 5,000 if it had held that any of the defendants could be made liable in this suit. We are, on the whole, satisfied that the view taken by the lower Court in regard to the quantum of damages was not, in the circumstances, erroneous or unreasonable.
38. For the above reasons the appeal fails against all the defendants and is dismissed. Having regard to the peculiar circumstances of the case, we consider that the lower Court's order in directing the parties to bear their own costs was fully justified and we would follow the same course ourselves.
39. The memorandum of cross-objections must therefore be dismissed but without costs.
40. A portion of the argument in this case centred on the interpretation of the word 'duty' used in Section 270 Sub-clause (1) of the Government of India Act. It was contended on behalf of the appellant that the word 'duty' could not include what was characterised by Mr. Bhashyam as 'purported duty' i.e. a duty which an officer may erroneously consider that he was required to perform. The learned Government Pleader however contended that the word 'duty' used in the section would also include a duty that an officer might think he was entitled or liable to discharge. We accepted the interpretation placed upon that word by Mr. Bhashyam but decided the point (in connection with which this interpretation was put) against him as we held the acts done by the defendants to be in discharge of duty and not of what was described as a 'purported' duty. Since this case involves a substantial question of law as to the interpretation of the Act within the meaning of Section 205 a certificate will issue to this effect.