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1912 Supreme(SC) 17
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
LORD MACNAGHTEN, LORD ATKINSON, LORD SHAW OF DUNFERMLINE, SIR JOHN EDGE, AND MR. AMEER ALI.
LOFTUS OTWAY CLARKE - Appellant
Versus
BROJENDRA KISHORE ROY CHOWDHURY 2.SRIMATI BISWESWARI DEBI CHOWDHURANI - Respondents
On appeal from the High Court in Bengal.
Decided On : Apr. 30; May. 1; June. 18. 1912.
Solicitor for appellant:Solicitor, India Office. Solicitors for respondents: Downer & Johnson.
A magistrate possesses statutory authority to conduct searches under Sections 96 and 105 of the Code of Criminal Procedure as part of their ordinary powers, regardless of whether a formal proceeding is pending, provided the search is conducted in view of an enquiry.
Headnote:(A) Code of Criminal Procedure - Sections 36, 96 and 105 - Schedule III - Power of Magistrate to conduct search - A magistrate is competent to direct a search in his presence under Section 105 if he is competent to issue a search warrant under Section 96 - The term "Court" in Section 96 is used interchangeably with "magistrate" - Under Section 36 and Schedule III, the power to issue search warrants is an "ordinary power" of provincial magistrates - Such power can be exercised in view of an "enquiry," which includes every enquiry other than a trial conducted by a magistrate or Court - A search conducted under these provisions does not constitute actionable trespass.
(B) Indian Arms Act, 1878 - Section 25 - Where a statute creates a special right but requires certain formalities, such as recording grounds of belief, antecedent to the exercise of that right, strict observance of those formalities is essential to the acquisition of the right.
(C) Act XVIII of 1850 - Protection of Judicial Officers - A magistrate directing a search in view of an inquiry under the Code of Criminal Procedure is acting in the discharge of judicial functions and is entitled to protection under this Act.
Facts of the case:
A district magistrate, following reports of civil unrest and a shooting incident, conducted a search of certain premises for concealed arms. The search was carried out by forcing open locked doors. The owners of the premises sued for damages for trespass, alleging the search was illegal and malicious. The lower courts held the search was unauthorized as the magistrate had not recorded grounds under the Arms Act and was not acting as a "Court" under the Code of Criminal Procedure.
Findings of Court:
The magistrate was authorized by the Code of Criminal Procedure to direct the search. The lower courts erred in interpreting the word "Court" in Section 96 as requiring a pending proceeding or the magistrate to be sitting as a Court.
Issues: Whether a search conducted by a district magistrate without recording grounds under the Arms Act, but in the exercise of powers under the Code of Criminal Procedure, constitutes an actionable trespass.
Ratio Decidendi: The power to issue search warrants under Section 96 is an "ordinary power" of provincial magistrates as per Section 36 and Schedule III. Section 105 allows a magistrate to conduct such a search in his presence. The term "Court" in Section 96 includes magistrates. Since the search was conducted in view of an "enquiry" (which is distinct from a trial), the magistrate acted within his statutory authority.
Result: Appeal allowed, the order of the Court of Appeal discharged, and the suit dismissed with costs in both Courts.
Legal Category Hierarchy
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tort
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trespass
- actionable trespass
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trespass
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criminal law
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practice and procedure
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search and seizure
- search warrants
- arms act
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search and seizure
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practice and procedure
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administrative law
-
judicial immunity
- protection of judicial officers
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judicial immunity
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
76
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
