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Graham Vs. Henry Gidney - Court Judgment

LegalCrystal Citation
Decided On
Reported inAIR1933Cal708
RespondentHenry Gidney
Cases ReferredGouri Prosad Dey v. Chartered Bank of India
- the police to 'put his complaint in writing' or to sign a 'letter of charge.' he did so. the police arrested 'on the letter of charge.' the private individual was held responsible for the arrest. page, j., in the ease cited, decided two points. the first was that the english law with regard to the justification of private arrests does not apply in india and that in this country the only defence available to an individual is to be found in section 59, civil p. c. on this point, i shall indicate my opinion hereafter.13. the second point was what page, j., himself called (p. 621 of 52 cal.) 'the pure issue of fact whether the defendant caused the arrest of the plaintiff.' on this point, page, j., on the evidence of mr. robertson (then inspector robert-son), found that the police would.....

Ameer Ali, J.

1. On 18th May 1931 the plaintiff was arrested at Lalbazar, was taken under police escort--to the Park Street thana and there detained in the lock-up for about two hours. For this trespass to his. person he seeks damages from the defendant. The cause of action disclosed in the plaint is 'false imprisonment.' The plaint includes an allegation that the defendant 'maliciously caused the arrest upon a false charge.' It would be possible, I think, on this pleading to found a case of 'malicious arrest.' In point of fact, no issue of 'malice' was raised and the case proceeded as one for 'false imprisonment.' The issues raised by Mr. Clough were as follows: 1. Did the defendant arrest the plaintiff or cause his arrest? 2. If so, was the arrest justifiable? 3. Damages. In my view, the vital questions involved in this suit are as follows: 1. Was the arrest of the plaintiff the act of the defendant or the act of the police? 2. If the latter, is the plaintiff entitled to recover on the basis that the information given to the police was false or was maliciously given. If so, was the information false? 3. If the arrest was the act of the defendant, is the defendant protected by any provision of the Criminal Procedure Code, or by establishing reasonable and probable ground? 4. Is the defendant entitled to establish that the offence in question was in fact committed? If so was the offence committed, and is the defendant protected ?

2. I shall deal first with the facts, then with the law, and last with the conclusions at which I have arrived. The material events happened between 15th and 18th May 1931 inclusive. Very little need be said by way of introduction. The defendant, Sir Henry Gidney-has long been a personage in public life. He is the President of the Anglo-Indian Association, and he is, as he has himself described it, 'the leader of the community.' The plaintiff Graham is a youngish man of fine physique and meritorious war-record. The defendant had, at several stages of the plaintiff's career, assisted him in obtaining employment, and, until the events I am about to mention, the plaintiff professed to be an admirer and follower of the defendant. On the defendant's return from the Round Table Conference, early in 1931, apparently, there was a split in the community and the feelings of a considerable number of Anglo-Indians towards the defendant, including those of the plaintiff, underwent a change. The reasons for that change are not material, but, so far as it is relevant, I am prepared to assume that those of the plaintiff were genuine. An association in opposition to that of Sir Henry Gidney was founded, consisting largely of the younger and more ardent spirits. It was not unnatural that the plaintiff, with the qualities I have described, should have found or put himself at its head. The immediate cause of what took place was as follows: The ranks of the Anglo-Indian unemployed had become swollen by the discharge by the railway and other authorities of a considerable number of Anglo-Indian employees in order to replace them with Indian employees. With the rights or wrongs of this policy I have nothing whatever to do. As was inevitable however the section of the community led by the plaintiff, which included the Anglo-Indian unemployed, began in turn to agitate that the Indian staff employed by the defendant should be replaced by Anglo-Indians. Resolutions to this effect were passed at meetings, at which the plaintiff spoke with considerable heat, and it was decided that the result of these meetings should be conveyed to the defendant.

3. On the 15th the plaintiff, followed by a body of followers, proceeded to the office of the association in Park Street. It is clear that a number waited in the court-yard or on the stairs, and 20 or 30 entered with the plaintiff into each of the office rooms. As to what happened on that day in the offices of the association, considerable evidence has been given. I accept the evidence of Mr. Iyer, Col. Gidney's secretary, and Mrs. Gibson. Both gave their evidence quite clearly, and it is corroborated by the statement in writing given by them to the defendant. Mr. Chandler's evidence is exaggerated by the fact that he was personally involved in the quarrel which ensued.

4. The plaintiff and his companions would not at first believe that the defendant was not there. They said that they would stay on until he came or until they were removed by the police. They were not at that time threatening or in any way violent. Mrs. Williams then came in and, by way of creating a diversion, took the plaintiff to task for 'being seated in the presence of a lady,' upon which Mr. Graham got up, and his temper, already ruffled, broke down at the sight of Mr. Chandler (with whom apparently he had some cause for enmity) sitting down and (in his own words) 'contemptuously smoking a cigarette.' Upon this the plaintiff used some phrase of this kind, I have only to raise my finger and my 200 followers will pull you to pieces,' sufficiently alarming for a man of Mr. Chandler's physical condition. It is relevant to note that the actual 'row' (if I may use the expression) took place on what might be called a point of order,' and not in connexion with the motive or purpose of the visit. Mr. Chandler is an Anglo-Indian and to avoid misconception I should mention that the phrase said to have been used by Mr. Graham to Mr. Chandler, 'You, Nigger' or 'Damn Nigger' has, among this community, no ethnological or spefic significance.

5. Mr. Graham and his party were eventually persuaded that Sir Henry Gidney was not there, and they left. Thereafter, Iyer sent a telegram to his master which is of some importance, because it does not appear to indicate an incident of any terrifying nature. Mrs. Gibson is concise and descriptive to the same effect, 'I might have been frightened if I had not been so annoyed,' I am not prepared to find that the plaintiff's followers came armed in any way, at any rate to the knowledge of the plaintiff.

6. On the 16th, Sir Henry Gidney returned, Shortly thereafter, Mr. Graham, Mr. Remfry and Mr. Brazier arrived in the office and made an appointment for the 17th. This matter purports to be described by Sir Henry Gidney in his letter on p. 6, to which description I shall refer again. Sir Henry Gidney sent for Inspector Jennings of the adjacent Park Street thana. Jennings asked certain questions of the staff, which he will not call 'inquiries.' The written statements, to which I have referred and which are included in the brief, were not taken at that time. Sir Henry Gidney says that he gave certain instructions to Jennings: see correspondence, p. 31, and evidence, questions 168, 170 and, 171 to the effect that he did not wish to charge Graham, and that he only wanted Graham to be warned. Jennings does not mention it and it was not put to him, and I find that no such instructions were given apart from what appears from the letter itself, viz., that Sir Henry Gidney wished to discuss the matter with the Commissioner of Police. Jennings says (see questions 6, 34 and 38) that, after he had asked the staff about the matter, he asked Col. Gidney to 'put his complaint in writing.' This I find to be the fact. The word 'complaint' in this context has no special meaning. Sergeant Jennings might just as well have said 'put it all down, and I will show it to the Commissioner of Police.'

7. On the afternoon of the 16th, the defendant dictated to Iyer the letter which is the cause of all the trouble. It was addressed and sent to the police officer-in-charge, Park Street thana. In it the defendant narrates somewhat dramatically or sensationally the incidents of the 15th mentioning 'trespass' and 'criminal intimidation.' The letter concludes as follows:

I lay these facts before you for your information and guidance, because it is quite likely that this man will return tomorrow with another mob of unruly fellows and one does not know what would occur should this take place.

Perhaps, after reading this you will be good enough to place it before Mr. Robertson your officer, seek his advice and consult with me on the matter. I shall be at your disposal from 7-30 this evening onwards.

8. I find that the real motive of the letter was to obtain police protection: See Iyer, question 55. 'The apprehension was that he would visit again with a mob' (see also Mr. McGuire's evidence as to what took place on the 18th which I accept and to which I shall refer again and the defendant himself at questions 136 and 187). I do not accept the defendant's evidence at other places to the effect that he was not in the least alarmed 'about, the matter (see questions 217 and' 246 'I was not afraid,' 'I felt I could cope with the matter, and I did not want the police'). I have no doubt that Col. Gidney wished to discuss the matter with the Commissioner of Police and to discover some way of putting the plaintiff in check, and enabling him (Col. Gidney) to say: 'But for me you would have got into severe trouble.' I do not think that his intention was 'arrest.'

9. On 17th May in accordance with the appointment, which had been made, Graham and certain of his followers came to meet the members of the committee of Sir Henry Gidney's association and what took place purports to be recorded in the minutes of that association. After the meeting was over, Sir Henry Gidney apparently described what had taken place on the 15th and in his own words 'opined that steps must be taken to prevent a repetition.' This phrase was quite legitimately made use of by counsel for the plaintiff. On this occasion the two police officers, one of whom was Inspector Jennings, were in Col. Gidney's private premises (see Mr. McGuire's evidence, questions 35 and 37). I am quite sure that they were there in pursuance of Col. Gidney's demand for protection. The defendant will not have this. He says he was extremely surprised to see them and that he remonstrated Strongly with them for ever having come. This was not also put to Jennings and I do not think for a moment that it took place. I see no cause for remonstrance at all.

10. Inspector Jennings had orders from the Deputy Commissioner, Mr. Banerji, to request the plaintiff to attend at the thana at Lalbazar the next day, and he did so. On the 18th at 11 o'clock or thereabouts, Graham was interviewed by Mr. Banerji, the Deputy Commissioner, and the Assistant Commissioner, Mr. Robertson. I am unable to accept wholly Graham's account. We have not Mr. Banerji's account. Jennings' account I consider to be substantially correct. Indeed I accept his evidence as a whole, bearing in mind that it is slightly tinted by departmental instructions. The police (and I do not blame them for this) in these matters prefer to remain in the background, Jennings' evidence was roughly this: Graham was asked to produce certain books and give certain information about his association. If not obstructive, he was certainly not accommodating, and at one stage became what Jennings considers might be called aggressive.' Evidence was given both by Jennings and Graham of Mr. Banerji's final remarks something to this effect: 'I arrest you on the strength of this letter (referring to the letter of Col. Gidney).' Objection to this was made by Mr. Clough, but in my opinion the evidence is relevant and admissible not as a statement by Banerji, but as evidence of what took place from which we are able to infer whether Banerji acted upon one basis or upon another basis. Ultimately Banerji directed a charge to be entered under Section 448, i. e., 'house trespass' and gave Graham into custody. This charge was entered in the police report or, as it is usually called, the 'charge sheet.'

11. On 18th at about 1 p. m. Jennings informed the defendant of the plaintiff's arrest. The defendant went round and wanted to bail the plaintiff out. In point of fact the plaintiff and the other gentleman, who had been arrested, were bailed out by some one else. The defendant then went to Mr. Robertson, and there was a discussion between the defendant and Mr. Robertson, at which Jennings was present. Apparently the defendant went to Robertson for the express purpose of protesting against the action which had been taken. This is the effect of the evidence of the defendant himself. He expressed himself extremely angry at what the police had done (see questions 33, 35, 40, 42, 176 and 181). Why? Again I am unable to say. According to the defendant (question 35), Jennings had already told him that Banerji had arrested the plaintiff because he, the plaintiff, was 'cheeky' to Mr. Banerji. This I doubt. In any event the defendant's grievance against the police was entirely unjustified. The answer that he received from Mr. Robertson was, (this again we have from the evidence of the defendant) If you did not want him to be arrested, why did you write the letter?' On the 19th May Col. Gidney wrote a long letter to the police, strongly complaining about their conduct on the lines I have mentioned. The last words are: 'The action of the police has surprised and pained me.'

12. Let me summarise the facts as follows: On the 15th May there had been a deputation, or demonstration, at the office of Col. Gidney. On the 16th Col. Gidney heard from the staff a fairly accurate but somewhat highly coloured account of what took place. He, wrote to the police an account of the occurrence mentioning criminal offences and asked for police protection. Protection was given to him and the plaintiff was sent for by the Commissioner. On 18th the plaintiff was questioned. The situation was, shall I say, aggravated by the attitude of the plaintiff. I think the situation is probably best expressed in slang, he gave the Commissioner 'sauce.' The Commissioner had him arrested, and entered a charge on the facts stated in the letter. Without the letter, the plaintiff would obviously not have been arrested: without the 'sauce' he would probably not have been arrested. The offence being a compoundable offence, the defendant (although he considered the arrest to be justified) did not wish to proceed. The plaintiff was discharged. The defendant then turned round, attacked the police for what they had done. On behalf of the plaintiff it is contended that the decision in this case must follow the decision of Page, J., in Gouri Prosad Dey v. Chartered Bank of India, Australia and China AIR 1926 Cal 884. There also a private individual was told by the police to 'put his complaint in writing' or to sign a 'letter of charge.' He did so. The police arrested 'on the letter of charge.' The private individual was held responsible for the arrest. Page, J., in the ease cited, decided two points. The first was that the English law with regard to the justification of private arrests does not apply in India and that in this country the only defence available to an individual is to be found in Section 59, Civil P. C. On this point, I shall indicate my opinion hereafter.

13. The second point was what Page, J., himself called (p. 621 of 52 Cal.) 'the pure issue of fact whether the defendant caused the arrest of the plaintiff.' On this point, Page, J., on the evidence of Mr. Robertson (then Inspector Robert-son), found that the police would not act without a letter of charge--that the individual signed such letter fully appreciating this fact--therefore the individual assumed responsibility for and 'caused' the arrest. In coming to this conclusion Page, J., followed the English authorities. It is obvious that the facts of the present case are by no means identical with those of the case decided by Page, J., and I therefore proceed to examine the English cases in order to see how far they provide a test whereby in this case it can be determined whether or not the arrest was 'caused' by the defendant. I am not entirely content with the language of the issue at (p. 619 of 52 Cal.) and would prefer to avoid the words 'cause,' 'direct consequence' (p. 626 of 52 Cal.) and 'direct outcome' (p. 629 of 52 Cal.), nor do I consider the question 'but for the letter would you have arrested?' (reiterated at p. 625 of 52 Cal.) together with its answer conclusive. It is obvious that in most cases 'but for the letter' the police would not have arrested. I prefer therefore to state the matter more formally

where the person sued is not the person who actually arrests and imprisons the plaintiff; the question in each case is whether the defendant so acted as to render the plaintiff's arrest the act of the defendant.

14. In Pollock on Torts, 10th Edn., pp. 231-2, the law is summarised as follows:

Every one is answerable for specifically directing the arrest or imprisonment of another, as for any other act that he specifically commands or ratifies.... But one is not answerable for acts done upon his information or suggestion by an officer of the law, if they are done not as merely ministerial acts, but in the exercise of the officer's proper authority or discretion. Rather troublesome doubts may arise in particular cases as to the quality of the act complained of, whether in this sense discretionary or ministerial only. The distinction between a servant and an 'independent contractor' with regard to employer's liability is in some measure analogous.

15. The authorities are merely examples of how in each particular case the 'troublesome doubts' have been resolved. Hopkins v. Crowe (1886) 4 Ad. & El. 774 was a case of cruelty to a horse. The language used by the persons involved in the occurrence was as follows:

The constable: 'If you charge him with cruelty I will take him in custody'.

Individual: 'I do.'

And by the Court:

Page 776. 'If the defendant had not directed the constable to apprehend but had only given him information, he was entitled to a verdict.'

Page 117, He directed 'the officer to apprehend the plaintiff. He made him his servant for that purpose.'

Page 778. 'He was a principal, making an arrest by the hand of the police officer'.

16. In Gosden v. Elphick (1849) 4 Ex 445, the defendant pointed out a man as the man who had committed the offence, it was held not to be the defendant's arrest. In that case, the earlier case of Flewster v. Role (1808) 1 Camp 187 was doubted. In Grinham v. Willey (1859) 4 H & N 496, the defendant signed the charge sheet. The plaintiff gave evidence that the defendant 'gave her in charge' this was not accepted, and the evidence of the policeman was accepted who stated that he took her into custody. It was held that signing the charge sheet did not make the arrest that of the defendant; 'he would be liable if he acted mala fide but not otherwise.' In Harris v. Dignum (1859) 29 L J Ex 23, the language used was as follows:

Constable: 'Did you give her in custody?'

Individual: 'Let her be looked up'.

17. Austin v. Dowling (1870) 5 C P 534:

But it is found in the case that, though the defendant gave no express direction for the plaintiff's detention, he was expressly told by the inspector on duty that he (the inspector) disclaimed all responsibility in respect of the charge and that he would have nothing to do with the detention of the plaintiff except on the responsibility of the defendant; and that the inspector would not have kept the plaintiff in custody unless the charge of felony was distinctly made by the defendant. Signing the charge sheet with that knowledge therefore was the doing of an act which caused the plaintiff to be kept in custody.

18. On this basis the arrest was held to be that of the defendant. Danby v. Beardslay (1880) 43 L T 603 was a case on the other side of the line. The defendant was held merely to have given information; 'there was no direction to the constable to arrest or prosecute.'

19. Sewell v. National Telephone Co. Ltd. (1907) 1 KB 557 was a case where the defendant signed the charge sheet. This was held to be evidence against the defendant but not conclusive evidence:

A person ought not to be held responsible in trespass, unless he directly and immediately causes the imprisonment.

20. As already indicated, I prefer to avoid the language of causation. Finally, I refer to the earliest case of all. Rafae v. Verelst (1776) 2 Black W 1055, both for its historical interest and significant language. The plaintiff had been arrested and imprisoned by Nawab Suzuddowla. He sued the President of the Council of the East India Company at Fort William. The arrest and imprisonment were held to be the act of the defendant on the finding of the jury quoted at p. 1059 that 'the Nawab is a mere machine--the instrument and engine of the defendant,'? It will be seen that, in each case where the Court has held a private individual responsible for an arrest by the police, the individual has either 'given the plaintiff into custody', 'directed the constable to arrest,' or 'signed the charge sheet' with the knowledge that the plaintiff would not otherwise be detained.

21. The defendant's letter of 16th May 1931 contained no direction to arrest. Nor can it be said that Mr. Banerji was a mere 'machine', 'instrument' or 'engine' of the defendant. This however does riot finally conclude the matter; it is still open to the plaintiff to contend that since the letter disclosed criminal offences, the defendant should have anticipated arrest as a probable consequence. The question is whether a private individual should, in such circumstances, be held responsible for the supervening arrest on the ground that a person must be taken to direct an act which is likely to follow from information given by him. In this connexion a passage in Gouri Prosad Dey v. Chartered Bank of India, Australia and China AIR 1926 Cal 884, is of assistance to the plaintiff:

If Mr. Clark (the defendant) knew, or, under the circumstances ought to have known, that the arrest would be the natural result of putting his signature to the letter, and as a direct consequence of his action the plaintiff was arrested, in my opinion, Mr. Clark caused the plaintiff to be arrested.

22. Clerk & Lindsell on Torts, Edn. 8th p. 179, is still more appropriate:

If the arrest or other trespass is effected by a purely ministerial officer ... the defendant must clearly be answerable if he in fact authorised the act in question. It is not necessary that he should in terms have made a request or demand ; it is enough if he makes a charge on which it becomes the duty of the constable to act.

23. This is getting very near this case. The authority cited in support of the above proposition is Hopkins v. Crowe (1886) 4 Ad. & El. 774. I have carefully considered this case but am unable to see that it fully bears out the proposition quoted. I am far from saying that there may not be cases where the individual must be held liable on the basis that although he has not expressly directed the arrest, he has in fact made it impossible for the constable to act otherwise. In such a case the constable becomes the 'instrument' and 'engine' of the individual. But, in my opinion, the principle of constructive service or direction by estoppel should not be extended. If A is the servant of B and B gives certain instructions to A which A may reasonably construe as instructions to assault C, B may not be entitled to deny that he directed the assault. But the question in these cases is whether A was at all the servant of B.

24. Having regard to the finding, which I propose to give on the first question, it is not necessary for me to consider the first point decided by Page, J., in Gouri Prosad Dey v. Chartered Bank of India, Australia and China AIR 1926 Cal 884, viz., that in India a private person responsible for an arrest cannot look for protection elsewhere than in Section 59, Criminal P. C., but, as the matter has been discussed I take the liberty of expressing a doubt : see Gopal Naidu v. Emperor A I R 1923 Mad 523 and Nagendra Nath v. Basanta Das : AIR1930Cal392 . I quite appreciate that owing to the difference in the two systems of criminal law it may be difficult or impossible to apply the English law in its entirety, but I am as yet not convinced that the only defence to civil trespass is to be found in any section of the Criminal Procedure Code.


Question 1.--Judged by the tests above indicated I find that on the facts of this case the arrest was not the act of the defendant.

Question 2.--As I have already indicated this question was not raised in the pleadings and was not argued as an independent point.

25. Although most of the cases of malicious arrest arise out of civil process I have no doubt that in a proper case an arrest by the police for a crime procured by the defendant maliciously, would afford a cause of action: see observations in Gosden v. Elphick (1849) 4 Ex 445, Grinham v. Willey (1859) 4 H & N 496, and Nagendra Nath Ray v. Basanta Das Bairagga (12). The gist of such an action would be malice. In this connexion counsel for the plaintiff has laid stress on what he characterised as the excessive language and exaggeration in the letter of 16th May 1931. The letter is not entirely accurate, the language is not restrained. The best way to describe it is I think in terms suggested to me by Mr. Clough who called it 'a plain unvarnished tale.' I should describe it as varnished, highly varnished, but not false or malicious in the sense that would found an action for malicious arrest.

Question 3.--Does not arise in view of the finding on question 1. I have already expressed my view as to the law.

Question 4.--This again does not arise. Mr. Clough has relied upon a passage in Halsbury's Laws of England and upon Cahil v. Fitzgibbon (1885) 16 Ir 371 for the proposition that, notwithstanding the plaintiff's acquittal on the criminal charge, it is yet open to the defendant in a civil action for trespass to establish that the offence was in fact committed. It is to be remembered however that the case quoted was decided with reference to the English law, under which a defendant is protected if he establishes that a felony was committed and that he had reasonable ground for suspicion : see Gouri Prosad Dey v. Chartered Bank of India, Australia and China AIR 1926 Cal 884.

26. In my opinion however in this country, where, as in this case, the offence being compoundable, the prosecution does not proceed and the arrested parson turns round and sues the individual who is responsible for his arrest in trespass, it would be open to the defendant to establish that the offences for which the plaintiff was arrested, had in fact been committed. I fully realise that this places the civil Court in an invidious position and taking the present case as an example I find great difficulty in coming to a finding on the fourth question. As the evidence has been given and discussed, I think it only right that I should give my conclusion and it is that the criminal offence of house trespass was not committed by the plaintiff. In view of my finding on the first question the suit is, dismissed with costs.

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