1. This is a second appeal by the plaintiffs from the decision of the Additional Subordinate Judge, Rangpur, dated 28th August 1936, affirming a decision of the Munsif, Second Court of that place, dated 9th April 1936. The facts of the case are these: Defendant 1 was the Subdivisional Officer of Gaibanda in the year 1933. Defendant 2 was the Assistant Sub-Inspector of Police posted at Gaibanda Police Station in the same year. Defendant 1 received complaints from certain persons about noxious and adulterated mustard oil and ghee being sold and being exposed to sale by several traders in the Gaibanda town. He also received an anonymous petition to the same effect. The plaintiffs' firm was named in the petition as one of those dealing in these offensive articles. Defendant 1 thereupon made an order for a search and seizure of these articles at the premises of the plaintiffs' firm. He made this order in writing on the body of the anonymous petition. No search warrant however was issued in Form 8 of Schedule 5, Criminal P.C. The order of defendant 1 to search and seize was sent to the Officer in charge of the Gaibanda Police Station who directed defendant 2 to execute it. The latter thereupon seized 457 tins of mustard oil lying in the plaintiffs' shop on 7th May 1933 and left them in the custody of the plaintiffs' gomasta on his giving a jimba-nama. On 24th May 1933 one Ashutosh, the Sanitary Inspector of the District, who was authorized by the Commissioners of Gaibanda Municipality made a complaint before defendant 1 against plaintiff 1 and his gomasta Hari Prosad under Section 6 Bengal Food Adulteration Act.
2. On the basis of this complaint, proceedings under the Food Adulteration Act were started before defendant 1 against the accused. The complainant then applied before defendant 1 for a direction upon the police to make over the seized articles to him in order to enable him to produce them in Court. This prayer was allowed on 11th July 1933 and the police made over the custody of the articles to the complainant on 13th July 1933. While this case was pending, the plaintiffs applied to defendant 1 for release of the articles under seizure stating that their indefinite detention was causing enormous pecuniary loss to them. Defendant 1 thereupon on 18th September 1933 made an order to the effect that the matter would be considered after the disposal of the food adulteration case against them.
3. On 5th July 1934 the plaintiffs instituted the present suit out of which this appeal arises to recover Rs. 3000 as damage from defendants 1 and 2 and the Secretary of State for India in Council for wrongful seizure and detention of their articles. Plaintiff 1 and his gomasta were ultimately acquitted by this Court on 30th August) 1934 and the articles were released to the plaintiffs on 25th September 1934. On these facts, the Courts below have dismissed the suit against defendants 1 and 2. They have held that they are protected by the Judicial Officers' Protection Act (Act 18 of 1850) for the following reasons:
(1) That defendant 1 made the order for search and seizure under Section 96, Criminal P. C, in the bona fide discharge of his duty as a Magistrate as he intended to hold an enquiry into an alleged offence under Section 272, Penal Code, of which he took cognizance under Section 190 (c), Criminal P. C; (2) that the omission by defendant 1 to issue a warrant for the search and seizure of the goods amounted to an illegality but it did not take away the jurisdiction of the Magistrate to order for a search under Section 96, Criminal P.C.; (3) that defendant 1 refused to return the tins of oil to the plaintiffs in the bona fide belief that he had powers under Section 516, Criminal P.C., to detain the goods until the disposal of the food adulteration case; and (4) that defendant 2 executed the order of defendant 1 to search and seize as he took the order to be legal and was bound to execute it.
4. The suit against defendant 3 was dismissed by the trial Court on the ground that defendant 3 did not ratify the tort alleged to have been committed by his servants, viz. defendants 1 and 2, either directly or indirectly and that he did not derive any benefit from the acts of defendants 1 and 2. This finding of the trial Judge was not assailed by the plaintiffs before the lower Appellate Court. The appeal against defendant 3 in this Court was not pressed. The contention of the learned advocate for the appellants is that on the findings of the Courts below, the suit ought to have been decreed against defendants 1 and 2. It has been already pointed out that the Courts below have found that the order of defendant 1 to search and seize the goods and his subsequent order refusing to return the goods seized were made by defendant 1 in good faith in the discharge of his duties as a Magistrate. The question is whether on this finding, defendant 1 is protected under the Judicial Officers' Protection Act (Act 18 of 1850). The Preamble of this Act shows that this Act was passed for the greater protection of the Magistrates and others acting judicially. The Act contains only one section and it is in these terms:
No Judge, Magistrate, Justice of the Peace, Collector or other person acting judicially shall be liable to be sued in any Civil Court, for any act done or ordered to be done by him in the discharge of his judicial duty, whether or not within the limits of his jurisdiction: provided that he at the time, in good faith, believed himself to have jurisdiction to do or order the act complained of; and no officer of any Court or other person, bound to execute the lawful warrants or orders of any such Judge, Magistrate, Justice of the Peace, Collector or other person acting judicially shall be liable to be sued in any Civil Court, for the execution of any warrant or order, which he would be bound to execute if within the jurisdiction of the person issuing the same.
5. By this section a judicial officer is protected if he made the order in the discharge of his judicial duties whether or not within the limits of his jurisdiction provided that he at the time, in good faith, believed himself to have jurisdiction to pass the order. The word 'jurisdiction' in the section is to be taken in the sense of authority or power to act in the matter and not in the sense of authority or power to do an act in a particular manner. Even if the order of a judicial officer is not within the limits of his jurisdiction, he would still be protected, if at the time of making the order he believed in good faith that he had jurisdiction to make the order: Teyen v. Ram Lal (1890) 12 All 115. Defendant 1 had power to issue an order for search and seizure of the tins of oil from the shop of the plaintiffs under Section 96, Criminal P.C. He however did not exercise this power in the particular manner in which it ought to have been exercised, namely by the issue of a search warrant. But this irregular or illegal exercise of power does not imply that the order itself was without jurisdiction. Further in this case defendant 1, at the time when he made the order in good faith, believed that he could exercise his power under Section 96 by making an order only for the search and seizure. The Courts below were therefore right in dismissing the suit against defendant 1.
6. As regards the claim against defendant 2, the contention of the appellants is that he is not protected by the Judicial Officers' Protection Act as he was not bound to carry out the order of defendant 1 to search and seize the goods until and unless a search warrant was issued by defendant 1 in the prescribed form. The concluding portion of S.1,. Judicial Officers' Protection Act (Act 18 of 1850) however says that a person bound to execute lawful orders of any Magistrate shall not be liable to be sued in any Civil Court for execution of an order which he would be bound to execute if within the jurisdiction of the person issuing the same. Defendant 2 was bound to execute lawful orders of defendant 1. The order in question was within the jurisdiction of defendant 1 in the sense that he had power and authority to pass it though he did not exercise that power in the manner indicated by the Criminal Procedure Code. Defendant 2 was therefore bound to carry out this order. In Teyen v. Ram Lal (1890) 12 All 115 cited above Edge C. J. and Tyrrell J. observed as follows:
If the term 'jurisdiction' in that concluding paragraph (the concluding portion of Section 1 of Act 18 of 1850) were to be construed as meaning authority or power to issue the warrant in the particular matter and in the particular manner or form in which it was issued, the officer or person executing the warrant would under the section obtain no greater protection than the law, without the aid of Act 18 of 1850 already afforded him, the protection being extended only to an 'officer of any Court or other person bound to execute the lawful warrant', etc The protection to such officer or person afforded by the section was not against suits for executing lawful warrants or orders, but against suits for executing warrants or orders which were not lawful, provided that such warrant or order was issued by a judicial officer in a matter within his jurisdiction, and not merely in a matter in which such judicial officer had authority or power to issue the particular warrant.
7. Under the circumstances I am of opinion that defendant 2 is also protected by the Judicial Officers' Protection Act. The further difficulty in the way of the plaintiffs is that defendant 2 is not at all responsible for the detention of these goods and there is no material or finding on the record of the present case to indicate whether the plaintiffs have suffered any damage on account of the search and seizure of the goods by defendant 2, In any view of the case, the claim against defendant 2 also cannot succeed. Dr. Basak on behalf of the respondents drew our attention to Section 270, Clause (2) of the Government of India Act of 1935. The relevant portion of this clause is in these terms:
Any civil or criminal proceedings instituted whether before or after the coming into operation of this part of this Act, against any person in respect of any act done or purporting to be done in the execution of his duty as a servant of the Crown in India or Burma before the relevant date shall be dismissed unless the Court is satisfied that the acts complained of were not done in good faith.
8. The answer of the learned advocate for the appellants is that the defendant cannot take advantage of this statutory provision of the Government of India Act, as before this provision can be applied, two things must be shown, namely (1) that the person did the act or purported to do it in the execution of his duty as a servant of the Crown and (2) that the acts were done in good faith. So far as defendant 1 is concerned, it is not disputed that he did pass the order in good faith. It cannot also be disputed, in view of the facts of the present case, that while making that order he acted or at least purported to act as a servant of the Crown.
9. As regards defendant 2 the contention of the learned advocate for the appellants is that in view of the order issued to him by the police officer in charge of the Gaibanda Police Station, defendant 2 cannot be held to have acted in good faith when he seized 457 tins of oil inasmuch as he was asked only to seize tins containing adulterated mustard oil and he had no materials before him at the time of seizure to satisfy himself that all these tins contained adulterated mustard oil. Clause (2) of Section 270, Government of India Act, lays down that the action shall be dismissed unless the Court is satisfied that it was not made in good faith. The contention of the plaintiffs in this case is that they had no opportunity of showing that defendant 2 did not act in good faith as this section came into force only on 1st April of this year. In view of our decision that defendant 2 is protected under the Judicial Officers' Protection Act and that there are no materials to show that the plaintiffs had suffered any damage on account of the search and seizure of the goods by defendant 2, it is not necessary to pursue this point any further. The result therefore is that this appeal is dismissed and the decrees of the Courts below dismissing the suit against all the defendants are affirm-ed. But in view of the facts and circumstances of this case we direct the parties to bear their own costs throughout this litigation.