M.C. Ghose, J.
1. This is an appeal by the defendants in a suit for damages. The plaintiff is a man of Habigunj. Defendant 1 was the Assistant Superintendent of Police of Sylhet. Defendant 2 was the Deputy Superintendent of Police at Habigunj. Defendant 3 was the Sub-Inspector in charge of Habigunj Police Station.
2. The plaintiff's case is that from April 1930 peaceful and well-regulated processions and meetings were held in Habigunj Sub-Division according to the programme of the Indian National Congress; that on 18th June 1930 the Sub-Divisional Magistrate of Habigunj without any justification issued an order under Section 144, Criminal P. C., prohibiting such meetings and processions and that the people of Habigunj considered the order to be illegal and unjustifiable and were determined to disobey the same. Accordingly at 3-30 p.m., on 1st July 1930, nine civil resisters called Satyagrahis started in procession through the principal street of Habigunj town, followed by a motor lorry in which there were three men including the plaintiff with red cross badges on their dress. They meant to render first aid to the Satyagrahis who might be wounded or injured by the Police; that the civil and military Police under the instructions of the three defendants assaulted the nine Satyagra his and then advanced towards the lorry in which the plaintiff and two other members of the ambulance were and without justification assaulted the plaintiff. Defendant 3 struck him a blow and other constables assaulted him with the result that he fell down unconscious, his left elbow joint was dislocated and it has been permanently injured. The plaintiff claimed damages of Rs. 509.
3. The defence was that the Sub-Divisional Magistrate was justified in issuing the order under Section 144, having regard to the intense excitement of the people during the period of propaganda of the Civil Disobedience Movement by meetings and processions and that the procession of the Satyagrahis together with the so-called ambulance lorry carrying the plaintiff and others and the people following the lorry formed one and the same assembly in violation of the order under Section 144, Criminal P. C., and that defendant 1 judging the assembly to be an unlawful assembly in exercise of the authority vested in him under Section 127, Criminal P. C., commanded the assembly to disperse and when his command was disobeyed, he ordered his constables to disperse the assembly by force; that the lorry men had no legal right to make use of the red cross and that only minimum force was used in dispersing the crowd; that defendant 1 had ordered the policemen that no blows would be struck above the waist and that when the men in the lorry refused to disperse, the policemen only struck the sides of the lorry and there was a scramble amongst the occupants who jumped off and fell one upon another but that the defendants were not aware of any injury received by the plaintiff. The trial Court decreed the suit and the decree was affirmed in appeal. The learned Subordinate Judge in a long and careful judgment has found that the order of the Sub. Divisional Magistrate under Section 144, Criminal P. C., was invalid and illegal. He found that from January 1930 there was a great agitation in the whole of the sub-division and meetings and processions were organized throughout the sub-division. Civil disobedience was launched with the result that the people were excited to break the salt laws and forest laws, not to pay Chowkidary tax, to abandon schools and to burn foreign cloths. Lectures were delivered asking the people to go to jail and even to sacrifice their lives and that they should not be afraid of bloodshed; that the Government Officers were molested in various ways and on a certain day of a Hartal the Magistrates had a great difficulty in reaching their offices. The learned Subordinate Judge found that the Magistrate could reasonably be of opinion that the situation prevailing at the time was sufficiently urgent to call for an order under Section 144, Criminal P. C., but that the order was invalid and illegal, inasmuch as it did not comply with the provisions of Clause (3), Section 144, Criminal P. C., which runs as follows:
An order under this section may be directed to a particular individual or to the public generally when frequenting or visiting a particular place.
4. The order of the Magistrate was to forbid the meetings and processions throughout the sub-division of Habigunj. The Court of appeal below held that such a wide order was not contemplated oy Clause (3), Section 144, Criminal P. C., which meant a particular place which the public would be asked not to visit. On the question whether the nine volunteers and four lorry men formed one and the same assembly, the learned Subordinate Judge held that their common object was not the same. The object of the nine Satyagrahis was to defy the Magistrate's order and the object of the red cross men including the plaintiff was not to defy the Magistrate's order but to give first aid to the nine Satyagrahis in case they were wounded by the police. It is urged by the learned Standing Counsel that the Court of appeal below has not taken a correct view. These men all came from the camp of the Civil Disobedience Movement. Nine of them dressed up as Satyagrahis who offered themselves to be injured by the police and their friends, the plaintiff and others put on red cross badges on their dress and followed in a lorry to give them first aid when they were wounded by the police.
5. On a proper view, it is clear they formed one and the same assembly; the front men were out to defy the orders of the Government and the men in the lorry were behind them to aid and abet them. They were followed by a crowd of about 1,000 people. The lorry was at some distance behind the nine men who were marching ahead. But when in front of the local Treasury Office the policemen stopped the nine men, a large number of men gathered between them and the lorry. The Court of appeal below has criticised the defendants because they took the aid of the armed police. In this the Court committed an error. Actually defendant 1 used only his fists and the constables used only lathis. No firearms were used. The order under Section 144 being found to be illegal the question is whether the defendants acted bona fide in the exercise of their rights under Sub-section 127 and 128, Criminal P. C., in declaring the assembly unlawful and in commanding it to disperse. Considering the large number of men who were led by the persons who were openly defying the law, it cannot be said that the defendants who were in charge of the peace of the sub-division were wrong to hold that the assembly was unlawful.
6. Defendant 1 who was the Police Officer in charge was right to declare the assembly to be unlawful under Section 127 and was right to direct 'his policemen to disperse the assembly. The learned Subordinate Judge considers that the lorry men did not disobey the order to disperse; when they were ordered to disperse the driver of the lorry tried to back, but he was prevented by the police. He tried to drive forward; from that also he was prevented by the police. Then the policemen beat on the sides of the lorry and struck at the occupants. The Court of appeal below has held that in assaulting the occupants of the lorry the police acted wrongly. It is urged by the learned Standing Counsel that the view taken by the Court of appeal below is not correct. When the order was given for the assembly to disperse, apparently the greater number of the assembly quickly dispersed. The men dressed with red cross badges stayed in the lorry. It was clearly their duty to get down from the lorry, but instead of doing that they kept their seats on the lorry and refused to move. In the circumstances it cannot be said that the police exceeded their rights in striking the sides of the lorry and commanding the men to disperse.
7. As to the actual injury which happened to the plaintiff it has been proved that his left elbow joint was dislocated. He says that he was struck on the left arm by the constables and by such injury his left arm was dislocated. He stated in evidence that defendant 3 struck him. That story has been disbelieved by the Court of appeal below. It would appear from that that the plaintiff is not a witness of truth. It appears that he got his arm broken either by a direct stroke or in falling down from the footboard of the lorry after receiving a lathi blow. In any case the police who struck him must be held responsible for the severe hurt which was caused and it cannot be said that in causing the hurt to the plaintiff the policemen were within their rights. The plaintiff would therefore be entitled to damages if his claim be not barred by limitation.
8. It is urged that the suit is barred by limitation, that the proper Article to apply is Article 2, Schedule 1, Lim Act. That article applies to a suit for compensation for doing or for omitting to do an act alleged to be in pursuance of any enactment in force for the time being in British India. The period of limitation is 90 days from the time when the act complained of takes place. It is urged that here the plaintiff claimed compensation from the Police Officers for doing an injury to him which they did in the course of the dispersal of an unlawful assembly under the Criminal Procedure Code and therefore this is the proper Article and as the suit was not brought within 90 days, the plaintiff cannot succeed. The Courts below have held that the Article applicable is Article 22 for compensation for any other injury to the person. The period of limitation is one year from the time the injury is committed. It is urged by the learned Standing Counsel that Article 22 would apply in the case of tort against a private person or against a public officer acting mala fide. But when a public officer is acting bona fide in pursuance of the law and commits a tort Article 2 is the proper Article to apply. That Article which lays down a short period of 90 days for a suit is for the protection of public officers who have acted bona fide in the exercise of their duties.
9. It has been held in many cases that Article 2 will not protect a public officer who has acted mala fide under colour of his office. In this case it is clear that the three defendants acted bona fide in exercise of what they understood to be their duty under the Criminal Procedure Code. The injury that was caused to the plaintiff was done in the exercise of that duty, but in doing the injury they exceeded their lawful authority. If the act complained of is believed to be actually authorised by law, then no question of limitation would arise, as in that case the action itself would not be maintainable. It is when a public officer acted bona fide in the exervise of his lawful authority but heedlessly exceeded his authority, then a suit would lie and the limitation prescribed by Article 2 would apply. The present is such a case, and as the suit was brought more than three months after the injury was received by the plaintiff, the plaintiff's claim is barred by limitation. In the result the appeal is allowed and the plaintiff's suit is dismissed with costs in all the Courts. Leave to appeal under Section 15 of the Letters Patent is refused.