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Gouri Prasad Dey Vs. Chartered Bank of India - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata
Decided On
Reported inAIR1925Cal884
AppellantGouri Prasad Dey
RespondentChartered Bank of India
Cases ReferredSewell v. National Telephone Co.
Excerpt:
- .....he takes a risk upon himself by which he must abide, and if in the result it turns out that the person arrested was innocent, and that, therefore, the arrest was wrongful he cannot plead any lawful excuse unless he can bring himself within the proposition of law which i have enunciated in this judgment {per isaacs, chief justice, walters v. w. h. smith & son, ltd. [1914] 1 k.b. 595].2. now, in india the distinction between felonies and misdemeanours, which has almost become obsolete in england, has never been recognised, and, in my opinion, the common law of england relating to the light of arrest by a private individual does not run in india. i am of opinion that the general law on this subject is to be found in section 59 of the code of criminal procedure. 1 refer to the section in.....
Judgment:

Page, J.

1. The issue in this suit is of fundamental importance for it touches the liberty of the subject. The plaintiff claims damages for false imprisonment, and it becomes necessary to consider under what conditions in India a private individual is entitled to cause the arrest of another person. Now, the Court is a jealous guardian of the right of personal freedom, and requires any interference with the liberty of the subject to be strictly justified. Until the 6nal address of counsel the bearing of the suit proceeded upon the assumption that the law in India on this matter was analogous to that obtaining in England. In both countries various statutes are in existence under which in the particular circumstances therein referred to a tight of arrest is given, but in England the common law relating to the right of arrest possessed by a private person is in an anomalous and unsatisfactory state. At common law a private individual is justified in himself arresting a person or causing him to be arrested when a felony has been committed, and he has reasonable ground of suspicion that the person accused is guilty of the felony for which he has been arrested. Where a misdemeanour has been committed, however, under the common law the arrest of the offender by a private individual cannot be justified. ' It is true that very often there is a duty cast upon a person to put the law in motion in order to bring the offender to justice, and it is no doubt for reasons of public policy that some excuse limited in character is permissible in an action for damages at civil law for false imprisonment) when a private parson has wrongly caused the arrest of another ... But be it observed that this concession is limited to felonies, and although a misdemeanour, which may be a more serious crime than some felonies, may have been committed, yet, if a person causes a wrongful arrest, however serious the misdemeanour may be, it cannot be made the basis of any legal excuse if the party has been wrongfully arrested. When a person instead of having recourse to legal proceedings by applying for a judicial warrant for arrest, or laying information or issuing other process well-known to law gives another into custody he takes a risk upon himself by which he must abide, and if in the result it turns out that the person arrested was innocent, and that, therefore, the arrest was wrongful he cannot plead any lawful excuse unless he can bring himself within the proposition of law which I have enunciated in this judgment {per Isaacs, Chief Justice, Walters v. W. H. Smith & Son, Ltd. [1914] 1 K.B. 595].

2. Now, in India the distinction between felonies and misdemeanours, which has almost become obsolete in England, has never been recognised, and, in my opinion, the common law of England relating to the light of arrest by a private individual does not run in India. I am of opinion that the general law on this subject is to be found in Section 59 of the Code of Criminal Procedure. 1 refer to the Section in its present form, as amended by the Criminal Procedure Code Amendment Act (XVIII of 1923, Section 12), for the material provisions of the Section are in substance the same as the provisions of the Section in its unamended form, Section 59 (1): 'Any private person may arrest any person who In his view commits a non-bailable and cognizable offence, or any proclaimed offender, and without unnecessary delay, shall make over any person so arrested to a police officer, or in the absence of a police officer take such person or cause him to be taken in custody to the nearest police-station.' The section is not happily worded, but the intention of the Legislature appears to have been to restrict the right of arrest by a private individual to cases in which a cognizable and non-bailable offence has been committed in the presence of the person who arrests or causes the arrest of the offender, [see Queen Empress v. Patadu [1888] 11 Mad. 480]. In my opinion, it is not essential that a private individual, in whose presence a non-ball-able and cognizable offence is committed, should himself physically arrest the offender. He may cause such offender to be arrested by another person. In so far as the ratio decidendi of the case of Bolai De v. Emperor [1908] 35 Cal. 361, is not in accordance with the view which I have expressed, with all due respect to the learned Judges who decided it, I am unable to acquiesce in it. In a suit for false imprisonment, therefore, it is incumbent upon the defendant to prove either (i) that he did not arrest or cause the arrest of the plaintiff, or (ii) that the offence was cognizable and non-bailable, and had been committed in his presence. If the defendant satisfies the Court as to either of these propositions in my opinion, the plaintiff's claim must fail. I am further of opinion that the issue as to whether in arresting or causing the arrest of the plaintiff the defendant bad reasonable and probable cause for so doing is immaterial. Now, inasmuch as the offence with which the plaintiff in this suit was charged was not committed in the presence of the defendant bank or of Mr. Clark, who is the agent of the bank, the only issues which fall for determination are:

(i) Did the defendants or either of them cause the arrest of the plaintiff?

(ii) If yes, what damage has the plaintiff suffered by reason of such arrest'?

3. The facts so far as material, I find to be as follows: On or about the 81st December 1921, Mr. Clark, the agent of the bank, discovered that certain demand drafts on the branch of the bank in England were missing from the bank's premises in Calcutta. According to the normal practice of the bank demand drafts are not permitted to leave the bank until they have been paid for. The plaintiff was a senior cashier of the bank, and was responsible for the safe custody of the drafts. It appeared, however, that some little time before the 31st December 1921 the plaintiff in breach of his duty had delegated the duty of keeping the bank drafts in proper custody to another employee of the: bank, Krista Ghose. Although the bank drafts ought to have been paid for, according to the practice in the bank, not later than 7 2 hours after issue the agent of the bank discovered that a number of drafts had been outstanding for a much longer period without notice having been given by the plaintiff to the accountant's department. The plaintiff was sent for, and informed Mr. Clark that he knew a customer of the bank who apparently had obtained possession of certain of these drafts without previously having paid for them, and had negotiated them in the market. The plaintiff further admitted that he had borrowed money from Chandna which had not been repaid. The value of the bank drafts which were found to be missing was about Rs. 2,70,000. On the evening of the 8ist December Krista was sent for, and saw Mr. Clark to whom he confessed his complicity in the criminal transaction. Mr. Clark gave information to the police, and having requested the police to investigate the matter, Mr. Bird, a Deputy Commissioner of Police, detailed Inspector Robertson to institute an enquiry. On the 31st December inspector Robertson arrested Krista, and thereafter commenced a detailed investigation into the problem as to how this crime had been committed. It is admitted that the plaintiff gave assistance to the police officer who was investigating the matter, and on the 9th January 1922 Chandna was arrested. A few hours later he made a confession, but) in that confession he in no way suggested that the plaintiff was a party or privy to the crime. The plaintiff remained in the employment of the bank, and carried out his duties as cashier until the 23th January. Meanwhile, Chandna had made a second confession while in custody and in that second confession he stated a number of facts which, if the statement was to be relied upon, were evidence that the plaintiff was concerned in the crime. After having received the second confession of Chandna Inspector Robertson had an interview with Mr. Bird, and apparently, Mr. Bird came to the conclusion that there was sufficient evidence to put the plaintiff upon his trial for conspiring with Krista and Chandna to commit a criminal breach of trust. Accordingly, about midday on the 28th January Inspector Robert' son sought an interview with Mr. Clark at the bank, and in the course of the interview the plaintiff was sent for and was arrested. Ha was removed from the bank in custody by Inspector Robertson and taken to the Hare Street Police Stallion, where he was detained for an hour, and then taken before a Presidency Magistrate at Bankshall Street. The charge was preferred against him, and the Magistrate remanded him in custody. Subsequently, all three accused were committed for trial to the July sessions of the High Court. The accused were charged with conspiracy to commit theft and also with conspiracy to commit breach of trust. Krista Ghose and Chandna were convicted, and the plaintiff was unanimously acquitted.

4. The issue of fact, therefore, is a simple one, namely, whether the defendants caused the arrest of the plaintiff on the 28th January 1922.

5. [His Lordship then discussed the evidence and proceeded:-]

Now I am, of course, alive to the danger to which my attention way called of putting difficulties in the way of persons preferring charges in the criminal courts. I fully endorse the opinion of Chief Baron Pollock in Emma Grinham v. Willey [1859] 4 H and N. 496 where his Lordship observed:We ought to take care that people are not put in peril for making complaint when a crime has been committed. If a charge be made mala fide, there are ample means of redress. But in the absence of mala fides we ought not to be too critical in our examination of the facts, to see if something is not done without which the charge against the suspected person could not have been proceeded with. A person ought not to be held responsible in trespass, unless he directly and immediately causes the imprisonment.

6. Learned Counsel for the defendant further cited in support of his contention the case of Sewell v. National Telephone Co., Ld. [1907] 1 K.B. 557. Sir Richard Henn Collins, Master of the Rolls, in the course of his judgment stated that:

The acts that was done was merely to provide a prosecutor, and that does not let in liability to an action for false imprisonment, unless the person who takes that step has taken on himself the responsibility of directing the imprisonment.

7. Now, in that case the plaintiff bad been taken into custody, and it was only at a subsequent date that the representative of the defendant signed the charge sheet on behalf of the defendants. But the facts are very different in this case, and if I find, as I do, that the arrest was the direct outcome of the action of Mr. Clark in signing that letter of charge, in which, in my opinion, he would have signed even if he had been told that the result of signing it would be that the accused would be arrested as the first step in the criminal proceedings to be taken against him, the conclusion which I ought to, and do, draw from those facts is that the defendant caused the arrest of the plaintiff.

8. There will be, therefore, a decree in favour of the plaintiff.

9. The next question which I have to consider is the damages to which the plaintiff is entitled. The plaintiff claims Rs. 1,50,000 as damages. No doubt, the damages were assessed at this high figure upon the assumption that the plaintiff would succeed in proving that the defendants were liable to pay damages for having maliciously prosecuted him. But any claim on the ground of mallicious prosecution was deliberately withdrawn. No doubt, it was withdrawn upon the advice of counsel. In my opinion, that advice was sound. In order to satisfy the Court that a plaintiff is entitled to damages for mallicious prosecution it is incumbent upon the plaintiff inter alia to prove that the defendant in prosecuting him had no reasonable and probable cause for so doing. I am satisfied upon the evidence in this case that Mr. Clark was amply justified in thinking that there was reasonable and probable cause for acting as he did. I am far from thinking, as was suggested on behalf of the plaintiff, that the bank has acted towards the plaintiff in a capricious and unwarrantable way; in my opinion, they have acted towards him in a very liberal and proper manner. It is because there were reasonable grounds upon which the defendants would be able to justify the course which they took that the claim for malicious prosecution was not persisted in. Now, the damage which the plaintiff has suffered in being committed for trial, and tried at the Sessions was caused by proceedings taken against him pursuant to the order of the Magistrate on the 28th January in the Police Court. The only damage which the plaintiff is entitled to recover against the defendant in this suit is the damage which naturally and reasonably followed from the facts that he was arrested about noon on the 28th January: was taken in custody by the police officer to the Hare Street police station; was detained there for an hour, and was then conveyed to the Court of the Magistrate. I have carefully considered the damage which accrued from those events. I have taken into account the position of the plaintiff in the bank, and the pain and suffering which must have been caused to him by being taken from the bank to the police-station; by being detained there, and then taken to the Magistrate's Court. It is in respect of those events, and those events only, that the plaintiff is entitled to recover damages, and I assess the damages at Rs. 1,500.

10. There will be, therefore, a decree for the plaintiff for Rs. 1,500, with costs on scale No. 2, and interest on judgment at 6 per cent.


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