1. The suit is against the Governor-General-in-Council for damages for malicious prosecution. It was conceded that the allegation made in paragraph 6 of the plaint as to the plaintiff having been abused and assaulted by the Assistant Station Master on duty did not constitute any cause of action against the defendant.
2. The plaintiff's case of wrongful arrest and malicious prosecution was as follows: He was an Inter-class passenger by the defendant's Railway from Howrah to Patna. On the evening of February 3, 1944 he boarded an Inter class compartment in the 5 Up Punjab Mail at Howrah. At about 1 a.m. on 4th the said train stopped at Asansol Railway Station when 3 Indian soldiers holding third class tickets or passes and several railway 'menials' forced their way into the said compartment and one of the soldiers forcibly occupied the plaintiff's seat. According to the plaintiff, the compartment concerned was overcrowded and he protested against this intrusion to at least two servants of the defendant who were on duty, but the latter took no steps in the matter. No sooner had the train started than the said soldiers threatened the plaintiff with violence, whereupon out of fear for his personal safety he pulled the emergency chain and caused the train to stop. The defendant's servants to whom the plaintiff had earlier complained then entered the compartment, made certain enquiries and asked the soldiers and the railway menials to vacate the compartment. While this was being done, the Assistant Station Master on duty rushed into the said compartment and on ascertaining that the plaintiff had pulled the emergency chain abused him in filthy language, without paying any heed to his explanation, and severely assaulted him. The plaintiff, said to be a renowned dancer, was on that occasion travelling to Patna to organise and take part in a dance performance in aid of the Red Cross. According to the plaintiff, the said Assistant Station Master with knowledge that the plaintiff was proceeding to Patna for the said purpose and alleging and/or assuming that he had refused to give his name and address, insplte of request, and with the help and assistance of the said other two servants of the defendant, wrongfully arrested the plaintiff, dragged him out of the said compartment and gave him into the custody of a railway policeman on the false charge of having pulled the emergency chain without reasonable and sufficient cause. The charge was one under Section 108 of the Indian Railways Act, 1890. The plaintiff was detained at the Government Railway Police Station at Asansol till 4 a.m. when he was released on his executing a personal bond after a charge-sheet had been signed by the Assistant Station Master. On or about February 23, 1944, the defendant by the said and other servants maliciously and without reasonable and probable cause preferred against the plaintifiE the said charge and had him prosecuted thereupon before an Honorary Magistrate, 1st class, Asansol. The plaintifiE was tried by the said Magistrate and ultimately acquitted on July 24, 1944. According to the plaintiff, in-the matters complained of. the said servants of the defendant were acting in the course of their employment and in the discharge of their duties as servants of the defendant and within the scope of their authority; in the alternative, the acts of the defendant's servants were subsequently ratified by the defendant. The plaintiff alleged that by reason of the acts complained of he was injured in his reputation, suffered personal injuries and indignities as well as damages. He claimed Rs. 2436/4/- as special damages, particulars whereof were set out in paragraph 10 of the plaint. As general damages, he claimed Rs. 5,000/-.
3. The defendant's case was that the suit was not maintainable as against him. As to the merits, on facts, he denied the plaintiff's version of the incidents and alleged that his servants had acted in the bona fide belief that the plaintiff had pulled the emergency chain without reasonable and sufficient cause. According to the defendant, it was not until after the plaintiff had refused to disclose his name and address that the said Assistant Station Master made over the plaintiff to the Government Railway Police at Asansol. The defendant's servants had throughout acted without malice and in the bona fide belief that as public servants they were discharging a public duty imposed upon them by statute. Accordingly, the defendant denied that he had not reasonable and probable cause for preferring the said charge and for causing the plaintiff to be tried and prosecuted in respect of the said charge.
4. The following issues were settled:
'1. Is the suit maintainable?
2. Was the plaintiff prosecuted maliciously and without reasonable and probable cause?
3. Was he wrongfully arrested?
4. What damages, if any, did the plaintiff suffer for which the defendant was answerable?'
5. It will be convenient to deal first with the evidence as to malice and want of reasonable and probable cause. The onus of proving want of reasonable and probable cause, and of proving the existence of such facts as are evidence of such want, lies on the plaintiff. It is also essential that the plaintiff should give some evidence of the defendant's malice, where it is denied. But it must be observed that if the plaintiff should prove want of probable cause, malice may be inferred, although want of probable cause is not conclusive evidence of malice. The plaintiff's evidence, is that when he got to the train at Howrah he found military personnel occupying an inierclass compartment by which he intended to travel. He objected to the military personnel travelling in that compartment and sought the R. T. 0's. help in the matter and, according to him, he managed to get rid of the military personnel. It appears that the plaintiff had a horror of the presence of any member of the Armed Forces in the same compartment in which he might have to travel owing to an incident which he had witnessed on a previous occasion. At Asansol, according to the plaintiff, some 10-or 12 Indian other ranks and several railway menials suddenly pushed the door of the, compartment concerned and forcibly entered it. After getting into the compartment they are said to have thrown the plaintiff's luggage on the floor and threatened him with personal violence if he did not allow them accommodation. According to the plaintiff, they all had third class tickets or passes which they carried in their hands. The plaintiff's complaints to the R. T. O., Private Harries, and to a servant of the Railway were in vain. According to him, the train started, but Just after half a minute it stopped again. This, according to him, was due to someone in the R. M. S. van having pulled the alarm chain. In answer to Q, 39 the plaintiff said that the military personnel had not only scattered his luggage but also gave him one or two blows before the train started. This incident, according to him. he brought to the notice of the R. T. O. but to no purpose. He told the R. T. O.
'If these military people are there and no protection is given, I would be sorry to pull the alarm chain to stop the Punjab Mail as I think I have a right to put my grievance.'
The plaintiff's evidence shows that he had warned the R. T. O. and another servant of the Railway that unless the military personnel was cleared of the compartment he would pull the alarm chain and bring the train to a standstill and that is precisely what he did after the train had moved one bogie length. I was anxious to find out whether the plaintiff had pulled the alarm chain in consequence of any threat to personal violence or to assert his right to have the military personnel ousted from the compartment concerned. The plaintiff's answers to my questions convinced me that he had made up his mind at the outset of his journey from Howrah that he would not allow any military personnel to get into his compartment. In answer to Q. 120 he said that military per-sonnel had no right to travel in the compartment concerned. Asked at Q. 133 as to 'the immediate cause of his pulling the alarm chain, the plaintiff answered:
'They threatened personal violence.
Q. 134: When? / Before the train started.
Q. 135: And before the train started, you decided that if no help came, you would pull the chain and detain the train? / Yes.'
According to the plaintiff, there were many civilians in the same compartment, but no one has been produced on his behalf to corroborate the plaintiff's evidence as to the circumstances under which he came to pull the alarm chain. The plaintiff's reference, when questioned about his conduct, to the Advocate General of Patna, to his cousin Shri Mrinal Kanti Bose, a well-known journalist, and to Rai Bahadur N. G. Ghosh, the then Chief Operating Superintendent of the Railway, as also to a similar incident which had befallen his celebrated cousin Shri Mrinal Kanti Bose, clearly showed that the plaintiff was a highly strong person and had an exaggerated notion of his own importance and was not in a mood to be frustrated in his attempt to exclude from the compartment any military personnel at any stage of the journey. There is no doubt that when questioned immediately after the train had been stopped as a result of his having pulled the communication cord, he took up an imperious attitude towards the Assistant Station Master. He even threatened the railway servant and informed him that his cousin Shri Mrinal Kanti Bose had obtained damages from the railway in respect of a similar outrage. (See QQ. 174, 175 and 176). In my view, the real reason for stopping the train was hot fear of being hurt by the military personnel but was the vindication of what he supposed to be his right to exclude the military from the compartment concerned. There were other civilian passengers numbering a dozen or so, and I do not believe that any reasonable man in those circumstances could have apprehended immediate personal violence on the part of the military. In my view, having regard to all the circumstances of the case, the plaintiff had no sufficient cause for pulling the communication cord. As a result of the controversy, the train was detained for about 19 minutes, and there can be no doubt that on the plaintiff's failure to disclose his name and address, the defendant's servant was justified in handing the plaintiff over to the police. I must now refer to the evidence of the Assistant Station Master, Mr. Watson. According to Watson, after the train had stopped for the second time he went into the compartment and asked the plaintiff, after he had been identified as the person who had pulled the alarm chain, why he had done so. To this, according to Mr. Watson, the plaintiff answered that the military were travelling in the same compartment with him. That was the plaintiff's objection. He did not complain that the military personnel had threatened him with violence. Watson did not find the compartment overcrowded. According to him, only three spldiers were in it. The plaintiff refused to give his name and address to Watson and said
'Do you know who I am? You know I am related to your C. O. P. S. and the Editor of the Amrit Bazar Patrika and I will get you asked for this.'
According to Watson, the plaintiff got more and more aggressive, and when asked to get out of the compartment, he sat down on the floor of the compartment and said 'Take me if you can'. Watson denied having abused or beaten the plaintiff. Asked at Q. 34 whether he had asked the plaintiff to come down from the train, Watson replied:
'I was just fully convinced of the cause of pulling the alarm chain and since he refused to reveal his name I took that authority as a railway official to detain him and make him over to G. R. P. for investigation and prosecution.'
According to the evidence on behalf of the defendant, the Station Master on duty is required to furnish an explanation in respect of undue detention of mail trains. It may well be that after the plaintiff had declined to disclose his name and address and had threatened to re-port the matter to the Chief Operating Superintendent, Watson became very firm and might have treated the. plaintiff more harshly than the circumstances warranted. I was impressed with his demeanour in the witness box and I have no reason to disbelieve Watson with regard to the main points of his evidence. In any event, the allegation as to abuse and assault having been left out of consideration in the suit, the real question for determination telates to the circumstances under which the plaintiff pulled the communication cord and brought the train to a standstill. As to this, the plaintiff's own evidence is that the threat of personal violence alleged by him was before the train started and that he had decided (See Q. 135) before the train started that if his objection was not met, he would pull the chain and detain the train. He had already objected, and successfully to military personnel travelling with him from Howrah and in my view he had determined to see to it that in no circumstance was any military personnel allowed to enter the compartment at any stage of the journey. I do not think that anybody had a vested right to travel in a compartment to the exclusion of any class. The evidence is that at the material time no separate interclass compartment was earmarked for military personnel, although there were such compartments so far as First, Second and Third class military passengers were concerned. There were other civilian passengers in the same compartment, none of whom has been produced to corroborate the evidence of the plaintiff on the point. A reasonable man in my view would not have gone to the length the plaintiff did. The war was on and travelling was difficult in those days and in my view those who travelled by train during such times were expected to show certain amount of forbearance. The three soldiers who travelled in the same compartment were Indians, and I cannot understand why the plaintiff could not have travelled with them without quarrelling. Witness George Hilt gave evidence to say that after the train had stopped he informed Watson that the alarm cord had been pulled by a gentleman in the compartment concerned. His evidence was that from the platform where he stood he saw an Indian gentleman pull the communication cord. It was this witness who at the instance of Watson went to call a policeman. He met a constable on the platform and sent him towards the compartment. Witness Ramlal Mali was the Ticket Checker in charge at Asansol at the time. This witness corroborates the evidence of Watson that the plaintiff refused to disclose his name and address. His evidence is that prior to the train stopping a second time he had not met the plaintiff; in other words, that he had received no complaint from the plaintiff between the train having arrived at Asansol and its departure for the first time. The other railway witnesses were Bibhuti Bhusan Mukherjee and Robert Stevans Howes, a pilot guard and an ordinary guard respectively. It is not necessary to deal with their evidence as nothing appears to turn on it. The other evidence consisted of the plaintiff's examination by the doctor that very morning and of the Sub-Inspector of Police before whom the plaintiff was produced. It was to this Sub-Inspector that the plaintiff complained about having been roughly handled.
6. My finding is that the plaintiff had no reasonable or sufficient cause for pulling the communication cord. I believe the evidence of Watson that he honestly and reasonably believed the guilt of the plaintiff and that finding, to my mind, negatives malice. In any event, I find no evidence of malice. Although, therefore, the plaintiff was acquitted of the charge, he has in my view failed to prove either malice or that there was want of reasonable and probable cause in prosecuting him for an offence under Section 108 of the Indian Railways Act. Whatever damage he suffered in consequence of the unfortunate episode must, I fear, be borne by him. The tax-payers of India cannot be answerable for the same. I have considered the plaintiff's evidence as to damage. In my view, he has exaggerated such loss or damage as he may have suffered. The question of assessing general damages does not arise.
7. Before dealing with the defendant's liability, as the owner of the Railway undertaking, for a tort committed by one of its servants, it is necessary to decide if in the circumstances disclosed a master other than the Government would have been liable. The law affecting the master's liability for the wrongful acts of his servants may be stated thus: A master is liable for a tort committed by his servant in the course of the latter's employment. In a similar case, 'GIRIJA SHANKER v. B.B. & C I Rly.', 43 Bom .103, Batchelor, J. observed:
'The master is liable where the servant, acting in a matter which is within the scope of his authority, that is, within the course of his employment, commits a wrong by exceeding the authority vested in him. The act itself which constitutes the wrong may be - and usually is - in excess of the servant's authority, but if in thus transgressing his authority the servant is doing in the master's interests one of the class of acts which the master has employed him to do, then the master is liable.
* * * *It remains to see how this principle is to be applied in such a case as this where a person is arrested and wrongfully assaulted by the servant. Here, in conformity with the general principle, the law, as I understand it, is this: the assault being an incident of the arrest and being an excess of the servant's authority, the master is liable if, and only if, the arrest was within the servant's authority. In other words, if the supposed offence for which the person was arrested was an offence for which the master himself would have had authority to make the arrest, then the master will be liable; he will not be liable where he himself, for the alleged offence, would not have been justified in arresting the offender; for in such a case the arresting would be beyond and outside the' course of the servant's employment, and the added assault would not be referable to any of the class of acts which the master had impliedly put the servant there to do.'
In arresting the plaintiff in the Bombay case, the two railway servants concerned purported to act under Section 108 of the Indian Railways Act. The question, therefore, was whether there was authority in the Railway to arrest a person- alleged to have committed an offence under Section 108 of the Indian Railways Act. Dealing with this matter, Batchelor, J. observed:
'But for this offence, it is admitted that, under the Act, the defendant Company had no authority to arrest him. It follows as my learned brother Kajiji, J. held, that the Company cannot be held liable for the assaults committed by their servants in the course of the arrest.'
8. In the case before me, in causing the plaintiff's arrest, the Railway servant concerned purported to act under the provisions of Section 132 of the Indian Railways Act, Section 132 (1) is as follows:
'If a person commits any offence under this Act other than an offence mentioned in the last foregoing section, or fails or refuses to pay any excess charge or other sum demanded under Section 113, and there is reason to believe that he will abscond, or his name and address are unknown, and he refuses on de mand to give his name and address, or there is reason to believe that the name or address given by him is incorrect, any railway servant or police officer, or any other person whom such railway servant or police officer may call to his aid, may, without warrant or other written authority, arrest him.'
It would appear that under Section 132 the power to arrest without warrant or other written authority is in respect of any offence committed under the Act other than an offence mentioned in Section 131, provided certain conditions exist, the conditions being: (i) there is reason to believe that the offender will abscond; or (ii) his name and address being unknown, he either refuses on demand to give the same, or (iii) there is reason to believe that the name or address given by him is incorrect. The arrest, according to the defendant, was not for the alleged offence under Section 108, but for the plaintiff's failure on demand to disclose his name and address. It would follow, therefore, that there was, under Section 132, a power to arrest on the assumption that the facts were as the officer arresting alleged. If that be so, the master would be liable on the principle that he is liable where the servant, acting in a matter which is within the scope of his authority, that is, within the course of his employment, commits a wrong by exceeding the authority vested in him. It should be observed that under Section 132 a railway servant is empowered to arrest a person if there is reason to believe that the name or address given by the alleged offender is incorrect. It may turn out, upon investigation, that the name and address given by the alleged offender were correct. The arrest nevertheless would be legal if the railway servant concerned had reason to believe that the name and address given him were incorrect. It was suggested that the plaintiff had told Watson that he was Maharaja Bose., This suggestion was repudiated by Watson who added that after what had happened if the plaintiff had told him that he was 'Maharaja Bose', he would not have believed him. I have already touched upon the evidence on the subject of the plaintiff's arrest. I accept the defendant's version of the circumstances leading to the plaintiff's arrest by a constable. According to Watson, on the plaintiff's refusal to disclose his name, he sent for the Government Railway Police and had the plaintiff arrested by a constable. It is clear to me that the plaintiff's reference, at the time, to his cousin Shri Mrinal Kanti Bose, and to the Chief Operating Superintendent of the Railway as being a relation of his, was a prelude to his demand made to Watson for the removal of the military personnel from the compartment concerned.
9. The law as to the liability of the State for torts committed by its servants appears to me to toe fairly well-settled. Since the decision of the 'PENINSULAR and Oriental Steam Navigation Co. v. Secretary of State', 5 Bom HCR App. A, there has been a considerable volume of case law on the subject. Nevertheless, in deciding the point as to the vicarious liability of the Crown in India for torts committed by its servants, reference has always been made to the distinction, so clearly stated by Sir Barnes Peacock, between acts done by the Crown in pursuance of ventures which a private individual might undertake equally well and acts done in exercise of Governmental powers which could not be lawfully exercised save by the sovereign authority or persons to whom the sovereign authority might delegate such powers. In the former case a suit in tort would lie against the State. Chakravartti, J. in 'Uday Chand v. Province of Bengal', 51 Cal W N 537, reviewed the case law on the subject and observed:
'Acts of the former class are mercantile operations or operations of like kind in which the East India Company actually engaged itself before and even after it had acquired sovereignty. The reason why an action lies against the Crown with reference to acts of this type is, on the one hand, a historical reason, because actions could, in fact, be brought against the East India Company at the relevant time, and on the other hand, a statutory reason, because a specific provision, saving the right of action in such cases, has been made in all the successive Government of India Acts.'
Inspite of the decision in the P & O case, there remained for a long time a certain amount of doubt as to whether the Government could ever be sued in respect of tort. This doubt was finally laid at rest by the judgment of the Judicial Committee in the case of 'SECRETARY of State v. Moment', 40 Cal 391 PC. Speaking of this decision Rankin C. J., in 'SECRETARY of State v Shreegobinda', 59 Cal 1289', observed as follows:
'Therefore the P & O case was finally affirmed in so far as it held that it was possible to sue the Government in tort if it was in connection with a private undertaking or undertaking not in the exercise of sovereign powers. It has put an end to the doubt raised by Sir Lawrence Jenkins and Mr. Justice Fletcher.'
On the authority, 'inter alia', of 'PENINSULAR and Oriental Steam Navigation Co. v. Secretary of State'; 'Secretary of State v. Moment' and 'SECRETARY of State v. Shree Gobinda', it follows that a suit would lie against Government for torts committed by its servants in the course of their employment in a business or commercial undertaking owned by the State. No one can doubt that in the case before me the railway servant concerned was acting in the discharge of duties which were incidental to the conduct of a commercial undertaking, an undertaking which a private individual can equally well undertake, an undertaking not in exercise of sovereign powers. Acts which are done in exercise of Governmental powers may be said to fall under two categories. Chakravartti, J. in the case cited above observed:
'One class are acts of State, properly so called, such as making a treaty, commandeering private property for war purposes, or quelling civil disturbances by force. Such acts are never justiciable in Courts of law, and since the Crown itself is not answerable for such acts in its Courts, there is no principle upon which it could be made liable for the acts of its officers or subordinates. The immunity is absolute. The other class of acts are those which are done under the sanction of some municipal law or statute and in exercise of powers thereby conferred. This class can be sub-divided further into two classes: (i) those consisting in detention by the Crown of land, goods or chattels belonging to the subject and (ii) those done by officers of the Crown in the discharge of their official duties. With regard to acts of the first sub-class, an action would lie in the Courts in India, and it would seem that even in England, a Petition of Right would lie. With regard to acts of sub-class (ii), however, no action would lie except in cases where it can be proved that the impugned Act had been expressly authorised by the Crown or that the Crown had profited by its performance. The reason why no right of action lies except on proof of special authorisation by the Crown is that, in the absence of such proof, the act is considered to have been done in exercise of the power or the discretion vested in the officer by the relevant law and not in pursuance of any im-, plied authority derived from the Government. These principles can be enlarged or curtailed by statute in the Dominions and Colonies, and so far as India of the present day is concerned, the Government of India Act of 1935 makes the rule contained in Section 176 expressly subject''To any provisions which may be made by any Act of the Federal or provincial Legislature'.'
It was argued on behalf of the defendant that inasmuch as the railway servant concerned had acted in the 'bona fide' exercise of powers under the Indian Railways Act, no suit lay against Government. It was expressly pleaded on Government's behalf that the Assistant Station Master was a public servant and that in handing the plaintiff over to the police he was discharging a public duty imposed upon him by statute and that therefore the case fell within the principle that no action would lie except in cases where it could be proved that the impugned Act had been expressly authorised by the Crown or that the Crown had profited by its performance. It was argued that there was absolute immunity with regard to acts done by officers of the Crown in the discharge of their official duties. In my view, the immunity, if any, which is afforded in respect of acts done in exercise of powers or duties under a statute is confined to acts done in exercise of governmental powers. If the acts complained of are acts in connection with a private undertaking or an undertaking not in the exercise of sovereign powers, then there is no immunity. As I have already pointed out, the acts complained of here were incidental to the running of a railway and not in exercise of sovereign or governmental powers. The fact that Section 132 of the Indian Railways Act empowers a railway servant, under certain circumstances, to arrest, without warrant or other written authority, a passenger, does not afford immunity to the owner of the railway undertaking from the consequences of a tortious act on the part of its servant, simply because the relevant statute gives that servant authority to act in a particular way. In such a case, it would be no defence, in my view, to say that the servant concerned was acting in the exercise of powers given him under a statute. If, however, the act complained of was not incidental to a commercial undertaking but an act in the exercise of governmental functions, it would be a defence if it could be shown that the person concerned was acting in exercise of powers under a particular statute. It would be otherwise if it could be shown that Government had expressly authorised or ratified the wrongful act purported to have been done in exercise of the authority or discretion conferred by statute. The principle urged on behalf of the defendant is applicable to acts which are done in exercise of governmental or sovereign powers and not to those which are in pursuance of ventures which a private individual might equally well undertake. It seems to me, therefore, that the present suit is maintainable.
10. As to malice, which is an essential ingredient in an action for malicious prosecution, the principle to be followed in a case such as this is that which applies to a corporation. In respect of a prosecution initiated by an agent with the principal's authority, express or implied, the malice of the agent will be imputed to the principal. It is on this principle that a corporation is liable to an action for malicious prosecution, although it has no mind and cannot be guilty of malice. As I have indicated, the suit, in my view, is maintainable and the first issue is, therefore, decided in favour of the plaintiff. The rest of the issues are decided against the plaintiff.
11. The point as to the maintainability of the suit is important and a considerable amount of argument on the subject was addressed- on either side. Looking at the matter all round and In all the circumstances of the case, I think each party would bear and pay its own costs. There will, accordingly, be no order as to costs.
12. In the result, the suit is dismissed.