Judgement

Consolidated Appeals by special leave from two decrees of the High Court (January 12, 1909) affirming two decrees of the said Court in its extraordinary original civil jurisdiction (June 19, 1908).

The questions decided were whether a search made by the appellant as chief magistrate of the district, accompanied by Mr. Luffman, district superintendent of police, upon the premises of the respondents constituted an actionable trespass, and whether the appellant was liable in damages therefor. The suits were brought on July 25, 1907, under the circumstances detailed in the judgment of their Lordships, in the Court of the third Subordinate Judge of Mymensingh.

The respondents in their plaints alleged that the said search constituted a wanton and wrongful trespass, and they charged the appellant with having acted in a wholly illegal, wanton, and arbitrary manner, without any lawful or reasonable excuse, justification, or authority, and witt having acted wrongfully and maliciously and without any reasonable and probable cause in the matter, and they each prayed for a decree for the sum of Rs.10,500 as damages with costs.

Law. Rep. 39 Ind. App. 163 ( 1911- 1912) Loftus Otway Clarke V. Brojendra Kishore Roy C howdhury

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The appellant in each suit pleaded that the said search was necessary and justified under the circumstances, and under the powers conferred by ss. 94, 96, 105, and 165 of the Code of Criminal Procedure, and by s. 25 of the Indian Arms Act, 1878; and that he was not liable to suit by virtue of the provisions of Act XVIII. of 1850 (an Act for the protection of judicial officers).

In January, 1908, the High Court in its extraordinary original civil jurisdiction by orders transferred to trial of the suits from the Court of the said Subordinate Judge to itself ; and by consent the trial proceeded only in one suit, the judgment therein to govern both suits.

Fletcher J. on June 19, 1908, decreed in favour of the respondents for Rs.500 damages in each suit. He found that the appellant in determining upon the search acted bona fide and was not actuated by malice or other improper motives.

He held (l.)that s. 25 of the Arms Act did not afford a defence or justification, as before making the search the appellant had not, as directed by that section, recorded his grounds for his belief that arms were in the buildings ; (2.) that ss. 94, 96, and 105 of the Code of Criminal Procedure did not apply as the appellant was not acting as a " Court," and there was no proceeding pending before him ; (3.) that there was no defence or justification afforded by s. 165 of the Code of Criminal Procedure, as he was satisfied that the search was not intended to be made under that section, but was one for arms generally under the Arms Act; (4.) that the appellant was not protected by Act XVIII. of 1850 as he was- not discharging any judicial duty, and that under the common law he was liable for a trespass.

The High Court in its appellate jurisdiction by a majority (Maclean C.J. and Harington J., Brett J. dissenting) dismissed the appellants appeals from the decrees of Fletcher J., but without costs.

The majority agreed with the finding of Fletcher J. that the appellant had been placed in a position of great difficulty and emergency, that he acted in perfect good faith throughout, that there were no grounds whatever for charging him with malice, and that the charge to that effect was as unfounded as it was improper. They also in effect concurred in the decision of the lower Court as regards the defences under the Arms Act, Act XVIII. of 1850, and ss. 94—96 and 105 of the Code of Criminal Procedure. As regards the defence under s. 165 of the said Code, Harington J. held that the appellant was entitled to call it in aid, if it justified the search, whether it was present to his mind at the time or not; but that inasmuch as the superintendent of police was not called as a witness in this suit to prove the facts entitling him to enter and sear