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HIGH COURT OF NAGPUR
Bose, Sen
SHANKARRAO BALAJI AND ORS – Appellant
Versus
SHAMBIHARI AND ORS – Respondent
Miscellaneous First Appeal No. 171 of 1945
Decided on : 29-03-1948
assault & battery - damages - Central Provinces and Berar Maintenance and Restoration of Order and Collection of Fines (Indemnity) Act (II [2. of 1945) - Section 4
Fact of the Case:
Plaintiffs appealed in a suit for damages for assault & battery and trespass to property. The defendants were alleged to have assaulted the plaintiffs and damaged their property. An indemnifying Act was passed after the institution of the suit, leading to the lower court discharging the suit under Section 4 of the Act. The plaintiffs appealed.
Finding of the Court:
The court found that the suit was discharged under Section 4(1) of the Act, as it applied to the actions of the defendants. The court also determined that the suit disclosed no cause of action against the Provincial Government and automatically discharged the suit against the first three defendants. The court held that the lower court had no power to direct the plaintiffs to pay the costs of the defendants and set aside the order for costs.
Issues: The issues involved the application of Section 4 of the Central Provinces and Berar Maintenance and Restoration of Order and Collection of Fines (Indemnity) Act (II [2. of 1945) to the suit for damages, the liability of the defendants, and the jurisdiction of the court in discharging the suit.
Ratio Decidendi: The court held that the suit was discharged under Section 4(1) of the Act, as it applied to the actions of the defendants. The court also determined that the suit disclosed no cause of action against the Provincial Government and automatically discharged the suit against the first three defendants. The court held that the lower court had no power to direct the plaintiffs to pay the costs of the defendants and set aside the order for costs.
Final Decision: The court agreed with the lower court that the suit was discharged under Section 4(1) of the Act. The court also altered the lower court's order on costs, directing that there would be no order as to costs throughout.
Bose, J—This is pltfs'. appeal in a suit for damages for (1) assault & battery & (2) trespass to property.
2. The pltfs. claim that they were assaulted by the defts. & that their property was damaged.
3. Deft. 1 was a Sub-Inspector of Police at the time, attached to the Arvi station house. Deft. 2 was the Circle Inspector & deft. 3 was a head constable. Deft. 6 is the Provincial Govt. It is said that the first three defts. are the servants of deft. 6 & accordingly deft. 6 is also liable. No specific allegations were made against defts. 4 & 5 or against the third either. It was merely stated in a vague way that one or other of them was present when the various illegal acts were done & that, ''defts. 1 & 2 committed the aforesaid acts in league with defts. 3, 4 & 5.''
4. After the institution of the suit an indemnifying Act was passed in 1945--the Central Provinces and Berar Maintenance and Restoration of Order and Collection of Fines (Indemnity) Act (II [2. of 1945). It received the assent of the Governor General on 7-2-1945. On the strength of this the lower Ct. has discharged the suit purporting to act under Section 4. The pltfs. appeal.
5. Section 3 imposes a bar to legal proceedings. The bar is not absolute but it is contended by the Provincial Govt. & the first three defts. that it is wide enough to cover the present case. But we do not intend to go into that because there is a mere fundamental obstacle in Section 4 which cuts at the root of the lower Ct's. jurisdiction.
6. Section 4 states that:
No suit...for, or on account of or in respect of, any act ordered or done or purporting to be ordered or done by a servant of the Crown or other person acting, or in good faith purporting to act, under the orders of a servant of the Crown for the purpose of maintaining or restoring order in any part of the Province during the period of emergency to which this Act applies. shall be instituted in any Ct. except with the previous sanction of the Provincial Govt. and if any such proceeding has been instituted before the passing of the Act, it is hereby discharged.
In para 12 of the plaint the pltfs. state:
The defts. 1 & 2 committed the aforesaid acts in league with defts. 3, 4, & 5. They were done under the pretext that they could seize property of anybody without warrant & that martial law was declared & that they had powers from the higher authorities to do what they like. They were done with the intention of striking terror & thereby making illegal gains themselves.
The reference to martial law & the averment that the first five defts. were purporting to act under powers conferred by the higher authorities, coupled with the statement in para. 3 that the defts. 1, 2 & 3 were in uniform & that the incidents took place on 20-8-1942 when the August disturbances of that year were at their height, is enough to indicate that according to the pltfs'. case the first five defts. were purporting to act under the orders of a servant of the Crown for the purpose of maintaining or restoring order in a part of the Province. That attracts Section 4 & requires a discharge of the suit.
7. In order to understand the section it will be necessary to analyse it clause by clause. First we will consider the position of the first three defts. who are servants of the Crown. Eliminating unnecessary words Section 4 runs thus so far as it affects these three defts:
No suit...on account of or in respect of, any act ordered or done or purporting to be ordered or done by a servant of the Crown...for the purpose of maintaining or restoring order etc...shall be instituted etc.
8. The first three defts. are servants of the Crown. According to the plaint they either did, or ordered the acts complained of to be done. It is true they in their turn are said to have been acting under powers conferred by the ''higher authorities'', but whether that is so or not Section 4 is attracted.
9. If the first three defts. themselves did the acts complained of then the matter falls wit
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