Venkatasubba Rao, J.
1. This appeal raises an important question, namely, whether in an action for a malicious act against a police officer, he is entitled to raise the defence of limitation, relying upon'the protection given by Section 53 of the Madras District Police Act (XXIV of 1859). The plaintiff alleges that the first defendant, a Police Sub-Inspector, accusing him falsely of having obstructed a public pathway by heaping bricks, commenced with a malicious motive a prosecution against him (C.C. No. 318 of 1927) on 18th March, 1927, under Sections 188 and 283, Indian Penal Code, and that two days later (on the 20th March) he maliciously instituted another false complaint (C.C. No. 320 of 1927) under Section 291, Indian Penal Code, in connection with the same alleged heaping of bricks. The plaintiff further alleges that although the earlier complaint was enquired into and dismissed, the second charge, instead of being withdrawn, was pressed and continued, which also was ultimately found to be false. The third defendant is a Circle Inspector, who, it is alleged, came on transfer to the village in question. It was his duty, the plaintiff states, to have withdrawn the second complaint but from improper motives he failed to do so. The second defendant is the Secretary of State for India, against whom also damages have been claimed on the ground that he is liable for the tortious acts of his agents.
2. The suit has been dismissed by the Court below and the plaintiff has preferred the present appeal. So far as the Secretary of State is concerned, the appeal has not been pressed; it fails and is accordingly dismissed with costs.
3. The order of acquittal in respect of the first complaint was made on 26th July, 1927, in respect of the second, on the 21st November of the same year, and the suit was filed on 3rd January, 1929. Under the Limitation Act in regard to actions for malicious prosecution, time runs from the date when the plaintiff is acquitted or the prosecution is otherwise terminated and the period prescribed is one year (Article 23). In this case the plaintiff gave a notice under Section 80 of the Civil Procedure Code, and according to the lower Court, should the case be held to be governed by the Limitation Act, in computing limitation the period of the notice should be excluded, and the learned Government Pleader concedes that this conclusion is right. But even upon this footing the suit, having been brought more than fourteen months from the date of the first acquittal, is out of time, in so far as it relates to the earlier complaint. The appeal to that extent again has not been pressed.
4. Thus, the action is confined to the second prosecution and is pressed only as against defendants 1 and 3. Section 21 of the Madras District Police Act provides inter alia that it shall be the duty of every police officer to use his best endeavours and ability to prevent all crimes, offences and public nuisances; to preserve the peace and to apprehend disorderly and suspicious characters; to detect and bring the offenders to justice. Then the next relevant provision (S. 53) in so far as it applies to the facts of the case, runs as follows:
All actions and prosecutions against any person, which may be lawfully brought for anything done or intended to be done, under the provisions of this Act, or under the general police powers hereby given, shall be commenced within three months after the act complained of shall have been committed, and not otherwise.
5. The question is, whether the protection given by this section extends to acts done by a police officer out of malice. The learned Government Pleader contends that there is nothing to suggest that such acts are excluded and that the words should receive their plain and natural meaning; it should be wrong, he maintains, to construe the section as if the word 'bona fide' occurred before the words 'done or intended to be done'. But the question is, whether upon a true construction of the section, a person who acts maliciously can be said to act under the provisions of the statute or the general powers conferred by it. There were numerous statutes in force in England, passed from time to time, with a view to afford protection to public authorities. The enactment under consideration is one of 1859 and both before that date and since then, provisions similar to the one in question were and have been considered. In Theobald v. Crichmore (1818) 1 B. & Ald. 227 : 106 E.R. 83 the question arose under the twelfth section of the statute 53 Geo. III, c. 127, by which it was enacted:
That if any action shall be brought for anything done in pursuance of this Act, every such action shall be commenced within three calendar months after the act committed and not afterwards.
6. Lord Ellenborough, C.J., rejected the contention that the statute extended only to acts lawfully done; for, to say that where the law is exceeded, the officer loses the benefit of the statute, would be to render the protection illusory, for it is then that he requires its protection. But illegal acts protected under the statute, the Chief Justice went on to observe, are those done through ignorance or inadvertence. Bayley, J., concurred with this view and said:
It appears to me that the officer acted illegally but in the supposed bona fide execution of his duty, and he is therefore entitled to the protection of this statute.
7. Parton v. Williams (1820) 3 B. & Ald. 330 : 106 E.R. 684 arose under the eighth section of 24 Geo. II, c. 44, which enacted:
That no action shall be brought against any justice of the peace for anything done in the execution of his office, or against any Constable, Headborough or other officer or person, acting as aforesaid unless within six calendar months after the act committed.
8. The Constable there, under a warrant commanding to take the goods of A, took the goods of B, believing them to belong to A. Abbot, C.J., held that the provision was intended for the benefit of persons who intend to act right but by mistake act wrong. In the judgments of Bayley, J. and Best, J., there are observations to the same effect. In that case it being held that the Constable acted bona fide the action brought beyond the period of six months was dismissed.
9. In Smith v. Shawl (1829) 10 B. & C. 277 : 109 E.R. 453 the question arose with reference to the Commercial Dock Act (50 Geo. III, c. 207). It was provided by Section 94 of that Act:
That if any action shall be brought against any person for anything done in pursuance of this Act, such action shall be commenced within six calendar months next after the act committed or in case there be a continuation of damage, within two months after the doing or committing of such damage shall have ceased.
10. Bayley, J., delivering the judgment of the Court, observes that according to the decisions which have construed similar words, so long as the person concerned acts bona fide, although he acts erroneously, he is to be considered as acting in pursuance of the Act and is to be entitled to its protection.
11. The learned Government Pleader relies upon Kirby v. Simpson (1829) 10 B. & C. 277 : 109 E.R. 453 which arose under 11 and 12 Victoria, Ch. 44, also a statute passed before the Police Act with which we are concerned. There, the question arose whether a Magistrate, acting mala fide in the execution of his office, is entitled to notice of action under ninth section of that statute and the answer was in the affirmative. That case, however, turned upon the express words of that section which, so far as it is relevant to the present case, may be read thus:
Whereas it is expedient to protect justices of the peace in the execution of their duty; be it therefore enacted that every action here after to be brought against any justice of the peace for any act done by him in the execution of his duty as such justice shall be an action on the case as for a tort; and in the declaration it shall be expressly alleged that such act was done maliciously and without reasonable and probable cause.
12. Then Section 8 provides that no action shall be brought beyond six months after the act complained of and Section 9 enacts that at least one calendar month's notice shall be given of such intended action. It will be seen that actions for malicious acts are among those contemplated by the statute itself, and, as has been pointed out by Parke B.:
The first section of the 11 and 12 Vic, Ch. 44 assumes that a person may act maliciously and without reasonable and probable cause and nevertheless be acting in the execution of his duty as a justice of the peace.
13. Parke B. guardedly adds (and that is important) that his observations apply only to the statute then under consideration and not to those cases which may arise under various Acts of Parliament affording protection to persons acting bona fide.
14. These various statutes to which I have referred, were special statutes passed prior to the Police Act now under consideration. But in 1893 a general Act was passed in England known as the Public Authorities Protection Act, Section 1 of which so far as it is material, runs as follows:
Where after the commencement of this Act... any action is commenced...against any person for anything done in pursuance .. of any public duty, the following provision shall have effect.
and then it is provided that an action should not lie, if not commenced, within six months. Dealing with that section, Lord Finlay in Neivell v. Starkie (1919) 2 Ir. Rep. 325 declares that the Act will not apply if it is established that the defendant had abused his position for the purpose of acting maliciously.
In that case he has not been acting within the terms of the statutory or other legal authority; he has not been bona fide endeavouring to carry it out.
15. To the same effect is the observation of Lord Atkinson, who also draws a distinction between an act done maliciously and one done mistakenly but honestly; in the former case the officer is not protected, whereas in the latter he is. This very authoritative statement of the law has been adopted by the Court of Appeal in Scammell and Nephew, Ltd. v. Hurley (1929) 1 K.B. 419. Scrutton, L.J., points out that illegal acts are protected by statute, but the protection disappears if they are done with an improper motive such as spite; in that case the Acts complained of are not done in intended execution of a statute, but only in pretended execution thereof. The learned Lord Justice quotes with approval Blackburn, J., who observes in Selmes v. Judge (1871) 6 Q.B. 724:.The judge thought that the defendants were not acting under the 5 and 6 William IV, c. SO and that consequently they were not entitled to the notice of action allowed thereby. I agree that if a person knows that he has not under a statute authority to do a certain thing, and yet intentionally does that thing, he cannot shelter himself by pretending that the thing was done with intent to carry out that statute.
16. The observations of Blackburn, J., are quoted with approval also by Greer, L.J. and Sankey, L.J.
17. It is difficult to say upon what particular English Statute Section 53 of the Police Act has been modelled, but in substance there is no difference between that section and the provisions which have been judicially considered in the decisions already referred to. Both Section 52 and those statutes have the same object in view, that of affording protection to public officers in the discharge of public duties; and if Section 53 is compared with the English Act of 1893, it will be seen that in regard to the nature of the protection afforded, similar safeguards have been prescribed. The first under the section in question relates to time-three months' limitation; the English Act provides a period of six months. The second under both Section 53 and the English Act, relates to the right given to the defendant to make a tender and thirdly, both the enactments contain special rules as to costs. We shall not be justified therefore in departing from the construction uniformly adopted in English decisions.
18. There is one further argument that remains to be noticed. The learned Government Pleader relies on Section 44 of the Police Act which, while prescribing penalties for certain illegal Acts and omissions, refers to police officers maliciously preferring false complaints, but I fail to see how it is of any avail to him; for, the Police Act says nowhere that the protection given by Section 53 refers to all sorts of acts or omissions alluded to in the Act. If an act is done maliciously, upon the construction uniformly adopted, it ceases to be an act, 'done or intended to be done under the provisions of this Act', and that construction is not in the least affected by there being a reference, in some section of the enactment, to malicious acts. The moment an act is shown to be malicious, it ceases to be protected by Section 53 and unless a contrary intention can be gathered, as from the language of 11 and 12 Vic, Ch. 44, Section 1 considered in Kirby v. Simpson (1854) 10 Ex. 358 : 156 E.R. 482 already referred to, there can be no justification for holding that the legislature intended to extend the protection to acts actuated by malice.
19. Then, as to Koti Reddi v. Subbiah : (1918)34MLJ494 it dealt with the construction of Section 80 of the Civil Procedure Code and the decision turned upon the words 'purporting to be done' occurring there. That case has therefore no bearing: on the point raised.
20. In an action for malicious prosecution, malice being requisite, Section 53 can have no application. In regard to the English Act of 1893, it has been held that actions for deceit or malicious prosecution may be commenced after the expiration of the six months' limit, as there can be no bona fides in the commission of a fraudulent or malicious act (23 Hals., S. 696).
21. In the result, so far as defendants 1 and 3 are concerned, the lower Court's decree is set aside, the appeal is allowed and the case is remanded for being disposed of on the merits; as regards the costs of the appeal, the plaintiff will get them if he succeeds in this suit, and the lower Court will in that event provide in its decree for payment of these costs to the plaintiff.
22. I am of the same opinion. I am unable to agree with the proposition that anything done by a Police Officer in his capacity of a Policeman is something done under the Police Act, or under his general Police powers given by the Act, notwithstanding that it was done maliciously. Section 21 of the Act says that a Police Officer shall for all purposes in the Act contained be considered to be always on duty. But I think it would be going too far to hold that this would cover any act done by a Police man under colour of his office; The duty which is cast upon the officer by the section is to 'use his best endeavours and ability' to prevent all crimes, offences and public nuisances; to preserve the peace; and to detect and bring offenders to justice, and so forth. He may, of course, make a mistake. He might arrest or charge an innocent person. But in making an honest mistake the Officer might still have been using his best endeavours to carry out his duties. In such case he will not have an immunity from legal proceedings for what he has done; though any legal proceedings against the Officer by the aggrieved party must be taken within the three months' time-limit fixed by Section 53. But it can be no part of an Officer's duty to wilfully bring a false charge against a man. On this ground alone I think that an officer who so abuses his powers could not claim to have done what he did under the Police Act or under his general Police powers. The question is put beyond doubt by the decisions of the House of Lords in Newell v. Starkie (1919) 2 I.R. 325 that a public Officer acting in the exercise of a statutory or other authority will not have the protection of the Public Authorities Protection Act, 1893, if he has acted maliciously. There is no substantial difference between the purposes of the English and the Madras Acts. The English Act provides that an action or prosecution shall not lie against any person for any act done in pursuance of an act of Parliament or of any public duty or authority unless it is commenced within six months after the Act complained of. Section 53 of the Madras Police Act says that all actions and prosecutions against any person for anything done under the provisions of the Act, or under the general Police powers given by the Act, shall be commenced within three months after the Act complained of. The English Act applies to all public officers, inclusive of Police officers, exercising statutory authority; whereas the Madras Act is limited to Police officers exercising Police authority under the Act. There is, therefore, no reason in point of policy or construction for excluding from the Madras Act the principle which is applicable to the English Act. I think, then, upon this principle, that an act done by a Police officer in the exercise of his Police powers will not have the benefit of Section 53 of the Act, if it was done maliciously. But the onus is on the plaintiff in the suit to prove by strong and cogent evidence the existence of malice and the absence of any honest desire to execute his powers on the part of the Police officer; Scammell & Nephew, Ltd. v. Hurley (1929) 1 K.B. 419. If the plaintiff, the present appellant, is unable to discharge this burden, his suit will come within Section 53 and will be hopelessly time barred.