H.W.F. D'Souza v. Chandrikasingh

1. The revision-petitioner raised a preliminary point in the trial Court that the suit be dismissed as he is a judicial officer and is protected by the Judicial Officers Protection Act, 1850. The trial Judge has postponed decision of that issue saying that it would be decided after recording evidence of both the parties inasmuch as before any protection is given to the defendant, the fact that he had jurisdiction to do the acts complained of is to be established and for that purpose evidence is necessary.

2. It is averred in the plaint that the plaintiff commands great respect in the society. He is an ex-Malguzar possessing about 45 acres of agricultural lands jointly with his brother, Onkarsingh; his annual income is about Rs. 10,000. Before the merger of the States, he was in the employ of the Ruler of Sakti State as a Mukhtar. Mr. D'Souza (the defendant) is the Sub-Divisional Magistrate at Sakti. The defendant is very friendly with Satyanarain and Sadhuram, proprietors of the Janata Printing Works, Sakti, with whom the plaintiff's relations are strained. The defendant had an inclination to resort to abuse of legal process with a view to harass the plaintiff. He served upon the plaintiff a notice calling upon him to stop the use of mike in advertising his cinema shows at Sakti. Later on, the defendant endeavoured to stop the cinema itself, unless the licence was produced, although the defendant was informed by the plaintiff that he had sent it for renewal to Bilaspur. With that background the plaintiff asserts that on the morning of the 10th December 1960, he sent Onkarsingh to the railway station to receive Durgasingh, plaintiff's son-in-law, who was expected to come with his wife from Gondia. At about 10-30 A.M. the plaintiff received information of a quarrel between Onkarsingh and some others having taken place and that the defendant had reached the railway station with the Police. The plaintiff, therefore, proceeded towards the railway station on his motor-cycle. However, on his way, he met Onkarsingh at the Police Station House, where he had gone to make a report and from where he was proceeding for medical examination, as advised by the police. The plaintiff learned from Onkarsingh that Durgasingh and his wife had arrived and were at the railway station. The plaintiff then proceeded to the railway station. On reaching there, he found that Durgasingh was sitting in a hotel close-by. The defendant was standing on the road. A few minutes after the plaintiff had reached the railway station, the defendant got Durgasingh and his cousin, Ramdharisingh, who had reached there later than the plaintiff, arrested and handcuffed. Before the plaintiff could ascertain from the defendant what it was all about the latter abruptly went away to village Darra in his Jeep car and returned after some lime with his party and one Manbhulau under arrest. When the plaintiff requested the defendant to tell him for what offence he had arrested those persons and requested that they should be released on bail, the defendant did not respond to the plaintiff's request and abruptly ordered that the plaintiff be put under arrest. On being asked the reason of his arrest, the defendant did not reply. The defendant also turned down the request of the plaintiff not to be hand-cuffed and to be given a lift in the jeep car. Instead, the plaintiff was hand-cuffed and made to march on foot along with the other arrested persons from the railway station to the police station house through the mostly crowded and important part of the Sakti town. His request for grant of bail was also curtly refused to be considered.

3. The defendant substantially denied the allegations of malice and highhandedness. His defence is that having received information of an unlawful assembly being formed and having come to know that the Station House Officer was not available, he himself went to the Railway Station and ordered the assembly to disperse. Since the order was not obeyed, he ordered arrest of certain persons, including the plaintiff.

4. Shri Bhave, Government Advocate, contends that for the mere fact that Mr. D'Souza is a Magistrate, the suit should be dismissed as he is protected and that there can be no enquiry whatever as to malice or otherwise, nor even as to absence of an occasion to effect the plaintiff's arrest.

5. Section 1 of the Judicial Officers' Protection Act (No. XVIII of 1850) enacts that no Judge, Magistrate, Justice of the Peace, Collector or other person acting judicially shall be liable to be sued in any 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. ....." Even before the enactment of this Act, the same protection was available to a Judge as was given to Judges in England. It was provided in Section 24 of the 21st Geo. III c 70 as follows:

"And, whereas it is reasonable to render the Provincial Magistrate, as well as natives as British subjects, more safe in execution of their office; be it enacted, that no action for wrong or injury shall lie in the Supreme Court, against any person whatsoever, exercising a judicial office in the Country Courts, for any judgment, decree or order of the said Court, nor against any person for any act done by or in virtue of the Order of the said Court."

In Calder v. Halket, (1840) 2 Moo Ind App 293, the Privy Council considered that the object of that section was to protect Judges for things done within their jurisdiction, though erroneously or irregularly done, leaving them liable for things done wholly without jurisdiction. The present Act not only protects the judicial officers from suits for acts done or ordered to be done by them in the discharge of their duties within the limits of their jurisdiction, but also extends the protection to such acts, although without the limits of their jurisdiction, provided that in the latter case, the officer, at the time of doing the act or ordering it to be done, in good faith, believes to have such jurisdiction.

6. As stated in 30 Halsbury (Simonds) 707 :

"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."

Otherwise, as it was once said "no man but a beggar or a foul would be a judge."

7. The protection is absolute and 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. But the protection does not extend to acts purely extra-judicial or alien to the judicial duty of the defendant. Any act which is not done in the discharge of his judicial duty is outside the section. The protection afforded to judicial officers rests on public policy. To secure that protection, it must be shown (1) that the defendant was acting judicially; (2) that he made that order in the discharge of his judicial duty; and (3) that it was within the limits of his jurisdiction, or even if without jurisdiction, he, in good faith, believed himself to have that jurisdiction to do or order the act complained of.

8. The first requisite of the protection, is that the defendant acted judicially and the act done was in the discharge of his judicial duty. In other words, the proceedings, out of which the action arose, must be judicial proceedings of a Court.

"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."

(See 30 Halsbury (Simonds) 709). In The King v. London County Council 1931-2 KB 215 (233), Scrutton, L. J., observed thus :

" It is not necessary that it should be a Court in the sense in which this Court is Court; it is enough if it is exercising, after hearing the evidence, judicial functions in the sense that it has to decide on evidence between a proposal and an opposition; and it is not necessary to be strictly a Court; if it is a tribunal which has to decide rights, after hearing evidence and opposition, it is amenable to the writ of ccrtiorari."

In R. v. Manchester Legal Aid Committee (1952) 1 All EH 480 (490), it is observed as follows :

If, on the other hand, an administrative body in arriving at its decision at no stage has before it any form of lis and throughout has to consider the question from the point of view of policy and expediency, it cannot be said that it is under a duty at any stage to act judicially.

In that case, Franklin v. Minister of Town and Country Planning (1947) 2 All ER 289, was referred to. See also Sharp v. Wakefield 1891 AC 173 (179) and Labour Relations Board v.

John East Iron Works Ltd., 1948 AC 134 (149).

9. As I read Section 1 of the Judicial Officers' Protection Act, 1850, it seems clear that the words "in the discharge of his judicial duty" have been used in contradistinction to the exercise of administrative or executive functions in the discharge of which the authority is not bound to apply any standards except that of expediency or policy. My view finds support in Anowar Hussain v. Ajoy Kumar AIR 1959 Assam 28 (50) and Ram Narain v. A. Sen AIR 1958 AH 758. In the latter decision a District Supply Officer, who was also a First Class Magistrate, ordered arrest of an offender. It was held that in doing so ho was not acting as a Court or a judicial tribunal, but only as an executive officer whose duty was to enforce the defence of india rules and the orders made under them. The defendant was not entitled to the protection of the Act.

10. Whether an act was done in the discharge of judicial duty or not, can primarily be determined by the nature of the order passed. Yet, if necessary, the Judge must take evidence to see whether the case comes within the Act, before dismissing the suit on the ground that the defendant is protected by it. That was also the view taken in Izzat Ali v. Sharafatullah Khan ILR 39 All 516 : (AIR 1917 All 355 (2)). Learned Government Advocate relics on Behari Lal v. State of Punjab AIR 1953 Punj 188. In my opinion, that case is distinguishable on facts. Moreover, Izzat All's case, ILR 39 All 516: (AIR 1917 Ail 355 (2)) (supra) was referred to and it was observed as follows :

"I do not, however, think that this case can be taken as an authority for the proposition that in every case of this kind it is necessary to allow the suit to proceed, and to record evidence on merits in cases where the allegations in the plaint do not reveal that the Magistrate sued has acted in any way beyond his jurisdiction."

11. The second requisite of the section is clearly this : (1) Where an act done or; ordered to be done by a judicial officer in the discharge of his judicial duty is within the limits of his jurisdiction, he is protected, even if he discharges that duty wrongly, irregularly or even illegally, and the question of good faith does not arise. (2) But, where the act done or ordered to be done was in the discharge of judicial duty, but without limits of the officer's jurisdiction, he is still protected, if, at the time of doing or ordering it, he, in good faith, believed to have jurisdiction to do or order it.

12. In the present case, the trial Judge has framed a preliminary issue, which must be decided in the light of what is said above. And, I have no doubt that the trial Court shall decide this issue before commencing the trial of any other issue.

13. The petitioner has not been able to show that the trial Court has no jurisdiction to take evidence on the questions which are relevant for the determination of the preliminary issue.