Patna High Court
Sailajanand Pande vs Suresh Chandra Gupta And Anr. on 13 August, 1968
Equivalent citations: AIR1969PAT194, 1969(17)BLJR1084, AIR 1969 PATNA 194
Author: N.L. Untwalia
Bench: N.L. Untwalia
JUDGMENT Untwalia, J.
This appeal by the plaintiff arises out of a suit filed by him for a decree for damages for a sum of Rs. 25,000 against the two defendants said to be liable jointly and severally. The plaintiff's case is that he is a colliery proprietor living at village Khanudih, pergana Nawagarh, in the district of Dhanbad. He has got extensive cultivation and is an income-tax paver. He belongs to a respectable Brahmin family of the District of Dhanbad, has got his relations in other districts around and is held in high esteem amongst his caste men and also by his relatives, neighbours and various important persons within the district of Dhanbad. Shri Suresh Chandra Gupta, defendant No. 1 was a Magistrate exercising first Class powers, within the Baghmara Sub-Division and was posted at Dhanbad. Daya Sagar Sharan, defendant No. 2, was an Upper Division Clerk attached to the office of the Deputy Commissioner, Dhanbad. The plaintiff's case is that defendant No. 1, as Sub Divisional Magistrate, Baghmara, at Dhanbad, by memo No. 3818 dated 5-12-60 issued a letter to him asking Mm to appear on 13-12-60 at 10.30 a. m. and directed him to show cause against prosecution on the petition filed by one Mohri Majhi and others. The letter purports to bear the signature of defendant No. 1 with date 3/12. According to the plaintiff, defendant No. 1 was not a Sub-Divisional Magistrate, Baghmara, on 5-12-60 or 13-12-60, he had no authority to issue any memo to the plaintiff directing him to appear, no cognizane of any offence had been taken against the plaintiff and defendant No. 1 exercised his functions arbitrarily in issuing the aforesaid memo. On 13-12-60 the plaintiff came to Dhanbad in connection with some civil work He was standing near the Dhanbad Bar Library. At about 4.15 p. m. defendant No. 2 accompanied by a Court constable came to the Bar Library and told the plaintiff that he was directed by defendant No. 1 to appear in his chamber. The plaintiff accordingly went to his court although he was not holding any court at that time, and he brought the record of C. M. A. No. 24 of 1960, State v. S. N. Pandey and put the plaintiff to hazat In the said case, no summons was served upon the plaintiff nor was any warrant of arrest for disobedience of the summons issued. There was no occasion for the issue of warrant of arrest and the action of the defendant was wrongful In the 11th paragraph of the plaint the case is that -
"The defendant No. I. Shree S. C. Gupta, a Certificate Officer, Baghmara with inordinate and unbecoming zeal of realising the certificate dues asked the defendant No. 2 to bring the record The plaintiff furnished sureties in the aforesaid Criminal case but the defendant no, 1 in order to coerce and put undue pressure upon the plaintiff for paying up the certificate dues sent the plaintiff to Hazat"
Plaintiffs case further is that he furnished bail bonds but defendant No. 1, on some pretext or other, did not accept the bail bond from 13-12-60 to 16-12-60 Plaintiff's men applied for bail with sureties, who were local men and income-tax payers, but defendant No. 1 illegally on some pretext or other did not pass any order and deferred the matter. On 27-12-60, the plaintiff states, he along with his son Shvama Kanta Pandev who was also a co-accused in a mining case appeared before the Sub-Divisional Magistrate, Baghmara. at Dhanbad. in that case. Defendant no 1 was doing the work as Sub-Divisional Magistrate and in open court, in presence of litigant public respectable persons and the lawyers be declared that he would put the plaintiff to Hazat if the certificate dues of his son were not paid. No warranf was issued either in C. M. A. 24 of 1960 or in the certificate case pending against the plaintiff, and there was no order that the warrant was to be executed at Dhanbad. Defendants 1 and 2 or the court constable were not armed with any authority to call the plaintiff and put him to Hazat. The first defendant acted mala fide and he had no jurisdiction to act in the manner stated above. Even when the plaintiff furnished proper surety for his appearance, defendant No. 1 raised frivolous objections and intentionally kept the plaintiff in Dhanbad Jail from 13-12-60 to 16-12-60 and coerced the plaintiff to pay the doubtful certificate dues. The plaintiff claims that he is an old man aged about 70, he has been lowered in the estimation of the public, his caste men and relations by the illegal, unauthorised and mala fide conduct of the defendants in arresting the plaintiff and they are jointly and severally liable to pay damages at least to the extent of Rs. 25,000/-. Defendant No. 1, even after the said incident of the 13th and 16th December, 1960 in order to vindicate the wrong done to the plaintiff, openly dishonoured the plaintiff on 27-12-60.
2. A joint written statement was filed by both the defendants. Their defence, inter alia, is that defendant No. 1 was a Magistrate having first class powers within the territorial jurisdiction and was also vested with powers under Section 190 (1)(a), (b) and (c) of the Code of Criminal Procedure (hereinafter called the Code). He also held power under Sections 260 and 110 of the Code. He was posted in Baghmara Sub-Division at Dhanbad, In the absence of the Sub-Divisional Magistrate, he worked as such, defendant No. 2 was an Upper Division Assistant posted in Baghmara Sub-Division, and he worked as Law Clerk there.
3. It may be stated here that the local limits of Babghmara Sub-Division are quite distinct and apart from the local limits of the Sadar Sub-Division of Dhanbad. Due to non-availability of the Court buildings at Baghmara, the Sub-Divisional Magistrate and other Magistrates are allowed to hold their court in some of the Court buildings at Dhanbad although the court buildings are exclusively within the local limits of the Sadar Sub-Division.
4. The defendants' case further is that a petition was filed by Mohri Ma.lM and others on 8-11-60 alleging therein that the petitioners being poor Harijan Adi-vasis were being deprived of their sown paddy as Shri Sailajanand Pande, plaintiff, forcibly cut away the same. Defendant No. 1. while doing the work of the general file of the Sub-Divisional Officer, on 8-11-60 passed orders on the said petition to the effect -
"Issue registered notice at once fixing 21-11-60 to show cause against prosecution."
Though defendant No. 1 was holding powers under Section 190 of the Code and was in a position also to take cognizance straightway, he refrained from doing so and wanted to give an opportunity to the plaintiff to show cause against prosecution. Even on the adjourned date 13-12-60 as the order sheet shows, he did not appear and file any hazri. Defendant No. 1 worked as Sub-Divisional Officer in absence of the permanent Sub-Divisional Officer, Baghmara, on 3-12-60 and 13-12-60. The plaintiff's case that no summons had been served on him and no warrant was issued against him in C. M. A. 24 of 1960 was denied. It is further pleaded that in C. M. P, case 49 of 1958 the plaintiff was not appearing since cognizance of offence was taken against him on 11-6-58. On 25-6-59 when he appeared in that case, it was transferred to the Court of defendant No. 1. On 21-8-60 and also later the plaintiff chose to remain absent.
On 21-11-60 orders were passed to issue fresh warrant of arrest with processes under Section 87 of the Code and the warrant of arrest and the processes were directed to be sent to the Officer in charge of Baghmara Police Station. The next date fixed was 12-12-60. On 12-12-60 the plaintiff who was accused in the case did not turn up. The bail bond furnished earlier was forfeited and show cause notice was issued to the bailor and request was directed to be made to the Deputy Commissioner to depute a section of armed force with a Magistrate to execute the processes and the case was directed to be put on 23-12-60. On 13-12-60 an order was recorded at 4.15 p. m. directing the plaintiff (accused) to be remanded to custody in default of bail of Rs. 1,000 with two sureties of the like amount. Similar order was passed on C. M, A. case 24 of 1960.
5. Replying to the allegations contained in paragraph 11 of the plaint, it is stated in the 14th paragraph of the written statement -
"That the allegations contained in paragraph 11 of the plaint are not true. The fact is that defendant No. 1 is also the Certificate Officer of Baghmara Sub-Division and when he took over the charge of the department, there were huge amounts pending against a large number cf certificate Debtors and he took a firm attitude and succeeded in rpalising a good amount. There was no question of his showing inordinate and unbecoming zeal against the plaintiff. He took the same attitude and same efforts against the plaintiff as he took against other Certificate Debtors. It is not true that the plaintiff furnished bail and the defendant No. 1 put him into Hazat to coerce and to put undue pressure upon the plaintiff to pay up the Certificate dues."
The further plea in the written statement is that no bail was offered by the plaintiff on 13-12-60 when he was directed to furnish a bail and defendant No. 1 had no alternative than to remand him to custody. The bail bond signed by the plaintiff's lawyer on 14-12-60 was filed at 4.15 p. m. Orders were passed to file affidavits of the sureties in accordance with Section 499(3) of the Code. Court was closed on 15-12-60 due to sad demise of the then Jail Minister and the affidavit was filed on 16-12-60 when it was accepted and orders for release of the plaintiff were passed. Defendant No. 1 did not act mala fide. All the allegations of the plaintiff to the contrary are false. The facts as to the incident said to have taken place on 27-12-60 are false. Several criminal cases were pending against the plaintiff in the court of defendant no, 1 and in the circumstances defendant No. 1 was legally justified in sending for the plaintiff and to put him under arrest in accordance with the provisions contained in Section 65 of the Code, It is false to say that the plaintiff was kept in hazat from 13th to 16th December, 1960 to coerce him to pay certificate dues. The plaintiff is not entitled to any amount of damages. All actions of defendant No. 1 were taken bona fide and without any malice and in exercise of his judicial powers. Defendant No. 2 simply carried out the orders of defendant No. 1 which he was bound to do.
6. The learned Subordinate Judge who tried the suit has dismissed it holding that -
(i) The issuing of memo No. 3818 dated 3-12-60 by defendant No. 1 calling upon the plaintiff to show cause against prosecution on the petition filed by Mohri Majhi and others was not in any way in contravention of any law.
(ii) The said defendant was legally justified in sending for the plaintiff and in putting him under arrest as the plaintiff did not furnish bail bond. The allegation regarding detention of the plaintiff in prison from 13-12-60 to 16-12-60 in order to coerce him to pay up the certificate dues is not correct.
(iii) The officers who were entrusted with the service of the different processes in the criminal cases did not perform their duties properly and incorrect reports were made in relation to them.
(iv) The arrest of the plaintiff in the Court room of defendant No. 1 must be deemed to be within his territorial jurisdiction and it cannot be said to be illegal on that account.
(v) "Although defendant No. 1 has denied that he put any pressure on the plaintiff for payment of the dues in those cases yet the circumstances go to show that he did put pressure on the plaintiff for how is It that the dues in the different cases amounting to over Rs. 4000 were all on a sudden paid off on one day on 16-12-60 when the plaintiff was in jail and that too by a third person who as appears from the evidence was then on good terms with the plaintiff."
(vi) ".....that the arrest of the plaintiff on 13-12-60 was neither illegal nor without jurisdiction nor was his detention in jail from 13-12-60 to 16-12-60 unlawful."
(vii) Defendant No. 1 was within his rights to arrest him for compelling his attendance (vide order sheets of C. M. A. Case No. 24 of 1960 and C. M. P. case No. 49 of 1958).
(viii) Defendant No. I is protected under Section 1 of the Judicial Officers' Protection Act, 1850 (Central Act XVIII of 1850).
(ix) The evidence is not sufficient to establish the allegations regarding the incident said to have taken place on 27-12-60.
The learned Subordinate Judge has assessed a sum of Rs. 4,000 as damages to be awarded to the plaintiff if he would have otherwise been found entitled to it. The plaintiff has come up in appeal from the decree of dismissal of his suit.
7. At the outset, I may state that although I do not approve of all that has been said by the learned Subordinate Judge in connection with the action tsken by defendant No. 1 on the petition filed by Mohri Majhi and others, I do not consider it necessary to examine the evidence or discuss any point with reference to it. No action was taken against the plaintiff nor was he arrested and remanded to custody on 13-12-60 in connection with the petition filed by Mohri Majhi and others, upon which a mere show cause notice had been issued against him (plaintiff). The claim of damages either on account of the allegedly false imprisonment or defamation could obviously be not related to, and substantiated upon, the action of defendant No. 1 in issuing a show cause notice against prosecution on the petition filed by Mohri! Majhi and others. This was conceded to by Mr. S. C. Ghosh, learned Counsel for the plaintiff appellant. No argument of any substance could be advanced by him to press the appeal in relation to the story of the alleged defamation on 27-12-60 in the court of defendant No. 1. No claim of any amount of damages could be substantiated with reference to the alleged incident of the 27th December, 1960. I shall, therefore, not refer to the evidence in this regard either.
8. What remains, however, to be considered is the facts and the consequences in relation to the arrest of the plaintiff on 13-12-60 and his detention la prison from that date to 16th or 17th December, 1960.
9. The plaintiff's case is that defendant No. 1 who was a certificate Officer of Baghmara put the plaintiff in Hazat in order to coerce him and put undue pressure on him for paying up the certificate dues. This fact Is not disputed in the written statement rather tacitly it is admitted when it is said in its 14th paragraph that when defendant No. 1 took charge as a Certificate Officer of Bagh-mara, huge amounts were due against a large number of certificate debtors and he took a firm attitude and succeeded in realising a good amount, and he took the same attitude and made the same efforts against the plaintiff as he did against others. The evidence of P. W. 7, Rabindra Kumar Chatterjee, who was the plaintiff's Mukhtear, is that on 14-12-60 when he filed the bail bond, Gupta Saheb (defendant No. 1) said to Daya Sagar Sharan (defendant No. 21 that he should bring the list of the amount due from the plaintiff and his relations, in respect of which there were certificate cases. Defendant No. 2 submitted the list which was eventually marked Ext. 2, Gupta Saheb said that bail would not be allowed until the money in respect of the certificate cases was realised.
In the last hour on that very date two cheques of the amounts of Rs. 1,400 and Rs. 3,400 were produced in the court of Gupta Saheb by one Kaluram ARarwala on behalf of the plaintiff. Gupta Saheb ordered that so long the cheques would not be encashed, he would not accept the same. On 16-12-60 affidavits were asked to be sworn by the bailors. Kaluram Agarwala had to execute indemnity bond in respect of the two cheques which he had issued; the indemnity bond is Ex. 10. Bail was accepted at about 4 or 4.30 P. M. on 16-12-60 after the filing of the indemnity bond. More or less, to the same effect is the evidence of P. Ws. 8, 9 and 10. the last being the plaintiff. Their evidence finds support from the documents and seems to have been accepted by the court below also.
10. Although some order sheets Jn connection with other mining cases were also produced and exhibited on behalf of the defendants, to wit. Exts. 8/e -- order sheet of C. M. A. 26/60, 8/f -- order sheet of C. M. P. -- 58/58 and 8/g -- order sheet of C. M. A. 16/60, nothing turns upon these order sheets as no special facts are mentioned in them nor was any pleaded or deposed to with reference to them. The two main order sheets relating to two mining cases which deserve discussion are Ext. O -- order sheet of C. M. P. ('Cr. A. Suit') No. 24 of 1960 and O/1 -- order sheet of C. M P. No. 49 of 1958. Their relative complaint petitions are Exts. J/1 and J respectively. Ext. O shows that cognizance of this case was taken on 24-2-60. The case was in respect of a minor offence and is triable as a summons case. The finding of the learned Subordinate Judge is that summons was not served. The order sheet shows that an order was recorded on 22-9-60 that service report of summons against all the accused persons was received back after service anywhere, but the accused were absent and, there-fore, bailable warrant of arrest was directed to be issued. Warrant of arrest, however, was actually issued on 28- 10-60/29-10-60, and since the execution report was not received, warrant of arrest was re-issued on 21- 11-60 fixing 13-12-60 as the date of return. On 28-11-60 one accused surrendered and was enlarged on bail of Rs, 500. On 13-12-60 the following order was recorded.
"Accused Pashupati Pandey files hazri E. R. of W/A against S. N. Pandey received unexecuted with a report that Arms force and a Magistrate may kindly be deputed for execution of W/A and process under Ss 87 and 88, Cr. P. C. I have separately written to S. D. O. in certificate matter for deputing armed forces with a Magistrate long ago. Bench clerk will send a copy of this to Deputy Commissioner for the deputation. Put up on 23-12-60."
The finding of the learned Subordinate Judge -- (and his finding either on the question of service of summons or in this regard was not challenged) -- is that no attempt was made to serve the warrant of arrest on the plaintiff. I, however, do not attach much importance to this fact as at best it can lead to the conclusion that strong steps were unjustifiably directed to be taken against the plaintiff by recording the order dated 13-12-60. Nonetheless the steps taken were during the course of a judicial proceeding. The Magistrate gets absolute protection in this regard, under the Judicial Officers' Protection Act, 1850 (Central Act XVIII of 1850) But what happened after 4 p. m. on 13-12-60 is a matter of serious comment and consequence. There is no gainsaying the fact that the plaintiff was called by defendant No. 1 through the agency of defendant No. 2 and a court constable from a place near the Bar Library to his court room or to a part of it which was being used as his chamber. No fresh warrant of arrest was issued by defendant No. 1 directing any proper person to execute it. His stand is that in exercise of his powers under Section 65 of the Code he arrested the plaintiff and on his failure to file the bail of Rs. 1.000 and two sureties of the like amount, he remanded him to custody.
The order which was recorded at 4.15 p. m. on 13-12-60 runs as follows--
"Sri Daya Sagar Sharan a U. D. assistant informed this Court that the accused who is also certificate debtor in many certificate cases is loitering and going away to Bar Library side. This Court deputed court constable to send for the accused who came. The accused is remanded to custody in default of bail of Rs. 1,000 with 2 sureties of the like amount Put up on the date fixed i. e. 23-12-60."
No reason is recorded In this order as to why this extraordinary and over zealous step was taken by the Magistrate to put the accused (plaintiff) under arrest in exercise of his powers under Section 65 of the Code. Even the fact of his arrest is not noted in the order sheet, merely the fact of the accused being remanded to custody for default of bail was recorded. The reference to the fact of the plaintiff being a certificate debtor in many ceitificate cases clearly shows the domi-nent object of the arrest, which was to coerce the plaintiff to pay up the certificate dues, as is so obvious from the undisputed facts relating to the payment of the certificate dues and the release of the plaintiff on bail. The action of the Magistrate, to say the least, is highly deplorable. To achieve the object of realising the certificate dues by adopting questionable and unlawful method of putting the plaintiff under arrest was unbecoming of a Magistrate who claimed to be acting as the Sub-Divisional Officer and Sub-Divisional Magistrate on 13-12-60 in absence of the permanent Sub-Divisional Officer. It will not be necessary for me in this case to lay stress upon the fact of not releasing the plaintiff on bail for 3 days as it seems to me. this part of the action of the Magistrate is in exercise of his judicial power which is absolutely protected under Central Act XVIII of 1850.
No investigation can be made to find out the motive of the Magistrate in not releasing the plaintiff on bail. No facts can be entertained and no enquiry can be made in this suit to show that the learned Magistrate acted mala fide in not directing the release of the plaintiff on bail. But the very same facts become relevant for investigation to find out the motive, the propriety and the legality of the action of the Magistrate in arresting the plaintiff in exercise of his powers under Section 65 of the Code, as it appears to me that the power aforesaid or the exercise of it is administrative or executive and is not a judicial power although it may have been exercised during the pendency of a judicial proceeding.
11. Similar is the position with reference to Ext. O/1, the order sheet of C. M. P. 49/58, In that case the accused was present on several dates. The case lingered on for quite a good number of days. Thereafter he wasabsenton 21-11-60. The order dated 21-11-60 shows that execution report of the warrant of arrest was received back intimating that the accused was evading arrest and. therefore, fresh warrant was directed to be issued with processes under Sections 87 and 83 of the Code fixing 12-12-60 as the date for return. On 12-12-60 an order of the kind which was recorded in the other case on 13-12-60 to execute the warrant with the help of an armed force was recorded in this case also. Whatever I have said above in connection with Ext O applies on all fours to the facts of Ext O/1. It is true that one may say that the Magistrate could arrest and arrested the plaintiff in the criminal cases pending against him for violation of certain provisions of the Mines Act or the Rules. The arrest by the Magistrate, however, under Section 65 of the Code would still be an executive action. On the facts and in the circumstances of this case. I am not prepared to hold that the Magistrate took an extraordinary step by sending for the plaintiff to his court and putting him under arrest in order to bring to conclusion the mining cases against him. I have: no doubt in mv mind that the only object or in any event the dominant object of putting the plaintiff under arrest in exercise of the powers under Section 65 of the Code waa to coerce him to pay the certificate dues.
12. Exts. 8/i. 8/j. 8/q, 8/r and 8/h are the order sheets of the various certificate cases. The main order recorded in Ext 8/q on 16-12-60 runs thus:
"Received cheque No. 31078635 dated 14-12-60 of Jharia Industrial Bank Private Ltd. for Rs. 1435.41 (Rupees one thousand four hundred thirty five and Np. forty one only) against D. M. B. H. case No. 54/58-59. 21/59-60. 147/53-54, 46/58-59. 48/57-58. 107/56-57, 97/54-55. 227/50-51. 226'50-5I. Misc. No. 18 of 1960-61. 250/53-54. Misc. 42/56-57. 66/57-58, 19^59-60 send It to the Bank for encashment and put with challan."
Ext. 2 is the list of all the amounts said to be due from the plaintiff in the various certificate cases. This was in the handwriting of defendant No. 2. as is the unchallenged evidence of the nephew of the plaintiff. P. W. 8. In the first part of the list, the total amount shown due is Rs. 1,435.41 Np. and thereafter there is an endorsement on this list to this effect: --
"Paid by Ch, No. 078635 dated 14-12-60 Rs. 1,435.41 Np. on 14-12-60."
In the second part of the list, after mentioning the details and the total dues of Rs. 3,248.22 Np. it is noted -
"Paid Che. No. 078636 dated 14-12-60 Rs. 3,248.22 Np,"
The indemnity bond (Ext. 10) executed by Kaluram Heliwal who had paid the entire amount of the certificate dues by the two cheques is dated 16-12-60 and it runs as follows :--
"I, Sri Kaluram Heliwal son of Bhairo Ram Heliwal of Baghmara P. S. do hereby stand surety for the cheque No. JI 078635 dated 14-11-60 for Rs. 1,435.41 Np. and cheque No. JI 078636 dated 14-11-60 for Rs. 3,248.22 Np. presented to the Certificate Officer, Baghmara at Dhanbad in Certificate cases against Sri S. N. Pandey son of Late Shamlal Pandey of village Khenudih P. S. Baghmara and promise to pay in cash in the event of the cheque being dishonoured within a day and hence Sri S. N. Pandey will not be responsible or liable for the dues in which payment have been made by the above cheques."
It is, therefore, manifest that the entire amount for which numerous certificate proceedings were said to be pending against the plaintiff and/or others were realised in the high-handed and unlawful manner by illegally arresting the plaintiff and detaining him in prison. It is here that a court of law comes under a duty for the enforcement of the rule of law. No executive action, whatever may be its object -- good or bad, can be allowed to exceed the limits of law. The Certificate Officer had no power like the one engrafted in Section 65 of the Code to arrest the plaintiff. No such provision exists in relation to the exercise of the various powers of directing arrest under the Code of Civil Procedure. I am constrained to say that defendant No. 1 in the garb of exercising his power ostensibly in the criminal cases for the alleged violation of the mining law by the plaintiff exercised it mala fide with the ulterior object of coercing the plaintiff to pay the amounts said to be due from him in the various certificate cases.
The evidence of the plaintiff who has examined himself as P. W. 10 is that on his release from jail he took copies of certain papers of the certificate cases from which he came to know that he was not liable to pay the amounts which were realised from him. This evidence dees not seem to be quite correct. Yet it finds some support from the evidence of defendant No. 1 who has examined himself as D, W. 2. In cross-examination he had to admit that from the record it did not, appear that Sailaja Nanda Pandey meaning thereby the plaintiff had any liability in the two cases which in the narration of his deposition were the first two ones. The evidence of D. W. 2 that when the plaintiff came on being called by him through the constable, he asked him to furnish bail of Rs. 1,000 with two sureties and then he said that he would not furnish the bail, the Magistrate may do whatever he liked is obviously not correct. There is no such case in the written statement. In evidence the Magistrate fights shy of admitting that he arrested the plaintiff first and then asked him to furnish bail. But obviously he could not ask him. to furnish bail without arresting him. The circumstances as they appear from the records are so overwhelming that I am not prepared to believe the evidence of D. W. 2 when he says that he sent for him on 13-12-60 on the basis of the orders recorded in C. M. A. case No. 24/60 and C. M. P. case No. 49/58 because from those orders it appeared that the accused was evading arrest. It will be remarkable to accept the evidence that a Magistrate who merely worked as Sub-Divisional Magistrate on a few days when the regular Sub-Divisional Magistrate was not able to attend to his duties would be able to remember about a particular accused, call him and put him under arrest in connection with minor summons cases which would have been pending against him. Clearly, as is his case also, defendant was over zealous in realising the certificate dues somehow or the other by hook or by crook. In this case also he did succeed in realising the dues as eventually the orders recorded in the order sheets of the certificate cases show. But at what cost? A court of law cannot allow to go unnoticed the unlawful, illegal and over zealous action of the executive for the realisation of the certificate dues.
13. The learned Subordinate Judge has mixed up the exercise of the power of arrest under Section 65 of the Code with the fact of not enlarging the plaintiff on bail for 3 days resulting in his detention in prison. His view that neither the arrest of the plaintiff on 13-12-60 was illegal and without jurisdiction nor was his detention in jail from 13-12-60 to 16- 12-60 unlawful is not correct. I, however, do not find it necessary to examine the correctness of his views in regard to the detention of the plaintiff in jail from 13-12-60 to 16-12-60. But having held that the arrest of the plaintiff by defendant No. 1 on 13-12-60 was made illegally and mala fide, I now proceed to examine as to whether it was with or without jurisdiction.
14. As stated above, the local limits of the jurisdiction of defendant No. 1 were the entire Baghmara Sub-Division and no part of the court precincts at Dhanbad was within the local limits of his jurisdiction. The learned Subordinate Judge has said that it would appear to be an anomalous position that the Magistrate can order the arrest of the plaintiff sitting in the court room at Dhanbad but could not take any action against him in that court room. On this apparent anomaly he has taken the view that arrest of the plaintiff in the court room of defendant No. 1 must be deemed to be within his territorial jurisdiction, I do not accept this view as correct. We asked the learned Additional Government Pleader to show us the notification prescribing the limits of the jurisdiction of defendant No. 1 when he was posted at Dhanbad as Magistrate, 1st Class, Bagh-mara Sub-Division. He could not do so, Nothing could be shown to us that the jurisdiction of defendant No. 1 extended beyond the local limits of Baghmara Sub-Division.
I find no principle like the one of International Law applicable to ships on high seas, to enable me to uphold the view of the learned Subordinate Judge that the Court precinct of defendant No. 1 at Dhanbad can be treated as part of the area of Baghmara Sub-Division. That being so, it is obvious that defendant No. 1 exercised his power under Section 65 of the Code not only with an ulterior motive as held above but also beyond the local limits of his jurisdiction. It amounted to false imprisonment making defendant No. 1 liable to pay damages in tort. Defendant No. 2, however, cannot be fastened with any liability in the matter. He committed no wrong in merely calling the plaintiff from the Bar Library to the court room of defendant No. 1 in pursuance of his order. He took no part in putting the plaintiff under arrest.
15. At page 178 of the 14th Edition of Salmond on Torts it is said -
"The wrong of false imprisonment consists in the act of arresting or imprisoning any person without lawful justification, or otherwise preventing him without lawful justification from exercising his right of leaving the place in which he is."
In my opinion, defendant No. 1 has committed the wrong of false imprisonment in this case.
16. The judgment of the Assam High Court in Anowar Hussain v. Ajoy Kumar Mukherjee, AIR 1959 Assam 28 has been upheld by the Supreme Court in Anowar Hussain v. Ajoy Kumar Mukherjee, AIR 1965 SC 1651. It has been pointed out by the Supreme Court that the Act of 1850 "protects a Judicial Officer only when he is acting in his judicial capacity and not in any other capacity." It has been observed further -
"But within the limits of its operation it grants large protection to Judges and Magistrates acting in the discharge of their judicial duties. If the act done or ordered to be done in the discharge of judicial duties is within his jurisdiction, the protection is absolute and no enquiry will be entertained whether the act done or ordered was erroneously, irregularly or even illegally, or was done or ordered without believing in good faith, that he had jurisdiction to do or order the act complained of. If the act done or ordered is not within the limits of his jurisdiction, the Judicial Officer acting in the discharge of his judicial duties is still protected, if at the time of doing or ordering the act complained of, he in good faith believed himself to have jurisdiction to do or order the act. The expression 'jurisdiction' does not mean the power to do or order the act impugned, but generally the authority of the Judicial Officer to act in the matter: Tayen v. Ram Lal, ILR 12 All 115."
It will be useful to note here the reasons for such protection from Article 1352 at page 707 of Volume 30 of Halsbury's Laws of England, 3rd Edition. The passage reads thus :--
"The object of judicial privilege is not to protect malicious or corrupt judges, but to protect the public from the danger to which the administration of justice would be exposed if the persons concerned therein were subject to inquiry as to malice, or to litigation with those whom their decisions might offend. It is necessary that such persons should be permitted to administer the law not only independently and freely and without favour, but also without fear."
In the same volume at page 709 Article 1354 describes as to what proceedings are protected and Article 1355 states about the extent of protection. It is said at page 709 -
"The protection of judicial privilege applies only to judicial proceedings as contrasted with administrative or ministerial proceedings; and, where a judge acts both judicially and ministerially or administratively, the protection is not afforded to acts done in the latter capacity ..........................................................................................
Duties, however, which are partly judicial and partly ministerial, such as the duty of admittng to bail, are not sever-able so as to admit of liability for any part of the acts done in fulfilment thereof,"
But -
"Wherever protection of the exercise of judicial powers applies, it is so absolute that no allegation that the acts or words complained of were done or spoken mala fide, maliciously, corruptly, or without reasonable or probable cause suffices to found an action."
Further it has been pointed out under the title "Liability of Magistrates" at page 160 of Volume 25 of Halsbury's Laws of England, 3rd Edition, that -
"Protection is afforded by common law and by statute to justices in respect of acts done in the execution of their duty as such; but this protection does not extend to cases where they have acted either maliciously and without reasonable and probable cause, or without or in excess of their jurisdiction, and in such cases they are liable to an action for damages at the suit of the party "aggrieved,"
A similar passage occurs at page 768 of Volume 38 of the Halsbury's Laws of England, 3rd Edition -
"A Magistrate or other person acting In a judicial capacity is not liable for acts done within his jurisdiction, but he is liable to an action for false imprisonment If he unlawfully commits a person to prison in a matter in which he has no jurisdiction, provided that he has knowledge, or the means of knowledge of the facts which show that he has no jurisdiction."
17. The relevant part of Section 1 of the Judicial Officers' Protection Act, 1850 runs thus -
"No Judge. Magistrate. Justice of the Peace, Collector or other person acting judicially shall be liable to be sued in anv 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 .........."
18. In the first Instance, I am of the view that the act of arrest of the plaintiff done by defendant No. 1 was not such that the Magistrate can be said to be acting judicially within the meaning of the law engrafted in the Act of 1850; it was an administrative or executive act The act of refusing to enlarge the plaintiff on bail was a judicial act Sitting in the court room at Dhanbad and exercising powers as the Sub-Divisional Magistrate of Baghmara Sub-Division, defendant No. 1, was acting judicially within the limits of his jurisdiction in not ac-cepting the bail offered on behalf of the plaintiff for 2 or 3 days. In that regard defendant No. 1 has got the absolute protection. In the second place assuming, however, for the sake of argument that even while making the arrest under Sec-tion 65 of the Code defendant No. 1 was acting judicially, he was not so acting within the limits of his jurisdiction. Section 65 did not in terms authorise the Magistrate to arrest, the plaintiff within the court precincts situated within the Sadar Sub-Division of Dhanbad. It is neither the case of defendant No. 1 nor are there any materials to indicate that at the time he so acted, in good faith he believed himself to have jurisdiction to do the act complained of. With due care and caution, he must have been aware that his court was not at a place which was within the local limits of his jurisdiction.
Even on interpreting the provision of law contained in Act XVIII of 1850 in the light of what has been said in the different passages extracted above from Halsbury's Laws of England, I have arrived at the conclusion that the Magistrate has no absolute protection in regard to his act of arrest of the plaintiff. It Is a qualified protection, and on my finding that he acted illegally, mala fide and without jurisdiction in the matter of arrest of the plaintiff, defendant No. 1 Is still liable in tort to pay damages to the plaintiff. The view I have just expressed can be lent support to by the decision of Diplock, J., as he then was, in O'Connor v. Isaacs, (1956) 1 All ER 513. While holding on the facts of that case that the plaintiff has established 8 right of action at common law for false imprisonment against some of the defendants, the learned Judge was of the opinion that the action was barred by law of limitation. The decision was upheld by the Court of Appeal in O'Connor V. Isaacs, (1956) 2 All EH 417.
19. The learned Additional Government Pleader on the authority of the decision of the Supreme Court in Nana-lal Zaber v. Bombay Life Assurance Co. Ltd., 1950 SCR 391 = (AIR 1950 SC 172) submitted that even if one of the motives of defendant no, 1 was to arrest the plaintiff for realisation of the certificate dues, the act of arrest being also with the object of compelling his attendance in the mining cases cannot be said to be tantamount to false imprisonment. I am unable to accept this argument. In the first place. I have held that the only object or, in any event, the dominant object was to arrest the plaintiff to force him to pay the certificate dues. In the second place even assuming that one of the motives for arrest was to bring to conclusion the mining cases, still the arrest was beyond the local limits of the jurisdiction of the Magistrate. The principle enunciated by the Supreme Court with reference to the exercise of the powers of the Directors of a company in a meeting cannot apply to the facts of the instant case.
20. For determining as to what should be the proper amount of damages to be awarded in this case, it will be useful to quote a passage from paragraph 850 at page 721 of the 12th Edition of Mayne and McGregor on Damages -
"The details of how the damages are worked out in false imprisonment are few: generally it is not a pecuniary loss but a loss of dignity and the like, and Is left much to the jury and their discretion. The principal heads of damage would appear to be the injury to liberty, i. e., the loss of time considered primarily from a non-pecuniary viewpoint, and the injury to feelings. i. e., the indignity, mental suffering, disgrace, and humiliation with any attendant loss of social status. This will all be Included in the general damages which are usually awarded in these cases ....."
No claim for special damages has been made or proved in this case. Taking into consideration all that has been said by the learned Subordinate Judge in connection with the quantum of damages Which he fixed at Rs. 4,000 and the facts in relation to which could not be challenged before us, I think the plaintiffs Stand will be vindicated and justice would be met by awarding a sum of Rs. 1,000 only as damages to him against defendant No. 1.
21. In the result I allow the appeal, set aside the Judgment and decree of the court below and award a decree for Rs. 1.000 only to the plaintiff against defendant No. 1 with proportionate costs here and in the court below. The suit stands dismissed against defendant No. 2 but without costs.
Wasiuddin, J.
22. I agree.