1. The issue in this suit is of fundamental importance for it touches the liberty of the subject. The plaintiff claims damages for false imprisonment, and it becomes necessary to consider under what conditions in India a private individual is entitled to cause the arrest of another person. Now, the Court is a jealous guardian of the right of personal freedom, and requires any interference with the liberty of the subject to be strictly justified. Until the final address of counsel the hearing of the suit proceeded upon the assumption that the law in India on this matter was analogous to that obtaining in England. In both countries various statutes are in existence Under which in the particular circumstances therein referred to a right of arrest is given, but in England the common law relating to the right of arrest possessed by a private person is in an anomalous and unsatisfactory state. At common law a private individual is justified in himself arresting a person or causing him to be arrested when a felony has been committed, and he has reasonable ground of suspicion that the person accused is guilty of the felony for which he has been arrested. Where a misdemeanour has been committed, however, under the common law the arrest of the offender by a private individual cannot be justified.

"It is true that very often there is a duty cast upon a person to put the law in motion in order to bring the offender to justice, and it is no doubt for reasons of public policy that some excuse limited in character is permissible in an action for damages at civil law for false imprisonment when a private person has wrongly caused the arrest of another.... But be it observed that this concession is limited to felonies, and although a misdemeanour, which may be a more serious crime than some felonies, may have been committed, yet, if a person causes a wrongful arrest, however serious the misdemeanour may be, it cannot be made the basis of any legal excuse if the party has been wrongfully arrested. When a person instead of having recourse to legal proceedings by applying for a judicial warrant for arrest, or laying information or issuing other process well-known to law gives another into custody he takes a risk upon himself by which he must abide, and if in the result it turns out that the person arrested was innocent, and that, therefore, the arrest was wrongful he cannot plead any lawful excuse unless he can bring himself within the proposition of law which I have enunciated in this judgment"

[per Isaacs, Chief Justice, Walters v. W. H. Smith & Son, Ltd. [1914] 1 K. B. 595, 606.

2. Now in India the distinction between felonies and misdemeanours, which has almost become obsolete in England, has never been recognised, and, in my opinion, the common law of England relating to the right of arrest by a private individual does not run in India. I am of opinion that the general law on this subject is to be found in Section 59 of the Code of Criminal Procedure. I refer to the section in its present form, as amended by the Criminal Procedure Code Amendment Act (XVIII of 1923, Section 12), for the material provisions of the section are in substance the same as the provisions of the section in its unamended form. Section 59 (1):

"Any private person may arrest any person who in his view commits a non-bailable and cognisable offence, or any proclaimed offender, and without unnecessary delay, shall make over any person so arrested to a police officer, or, in the absence of a police officer, take such person or cause him to be taken in custody to the nearest police-station"

. The section is not happily worded, but the intention of the Legislature appears to have been to restrict the right of arrest by a private individual to cases in which a cognizable and non-bailable offence has been committed in the presence of the person who arrests or causes the arrest of the offender [see Queen Empress v. Potadu ( 1888) I. L. R. 11 Mad. 480.] In my opinion, it is not essential that a private individual, in whose presence a non-bailable and cognizable offence is committed, should himself physically arrest the offender. He may cause such offender to be arrested by another person. In so far as the ratio decidendi of the case of Bolai De v. Emperor ( 1907) I. L. R. 35 Calc. 361. is not in accordance with the view which I have expressed' with all due respect to the learned Judges who decided it, I am unable to acquiesce in it. In a suit for false imprisonment, therefore, it is incumbent upon the defendant to prove either (i) that he did not arrest or cause the arrest of the plaintiff, or (ii) that the offence was cognizable and non-bailable, and had been committed in his presence. If the defendant satisfies the Court as to either of these propositions, in my opinion, the plaintiff's claim must fail. I am further of opinion that the issue as to whether in arresting or causing the arrest of the plaintiff the defendant had reasonable and probable cause for so doing is immaterial. Now, inasmuch as the offence with which the plaintiff in this suit was charged was not committed in the presence of the defendant bank or of Mr. Clark, who is the agent of the bank, the only issues which fall for determination are:

(i) Did the defendants or either of them cause the arrest of the plaintiff?

(ii) If yea, what damage has the plaintiff suffered by reason of such arrest?

3. The facts, so far as material, I find to be as follows: On or about the 31st December 1921, Mr. Clark, the agent of the bank, discovered that certain demand drafts on the branch of the bank in England were missing from the bank's premises in Calcutta. According to the normal practice of the bank demand drafts are not permitted to leave the bank until they have been paid for. The plaintiff was a senior cashier of the bank, and was responsible for the safe custody of the bank's drafts. It appeared, however, that some little time before the 31st December 1921 the plaintiff in breach of his duty had delegated the duty of keeping the bank drafts in proper custody to another employe of the bank, Krista Ghose. Although the bank drafts ought to have been paid for, according to the practice in the bank, not later than 72 hours after issue the agent of the bank discovered that a number of drafts had been outstanding for a much longer period without notice having been given by the plaintiff to the accountant's department. The plaintiff was sent for, and informed Mr. Clark that he knew a customer of the bank who apparently had obtained possession of certain of these drafts without previously having paid for them, and had negotiated them in the market. The plaintiff further admitted that he had borrowed money from Chandna which had not been repaid. The value of the bank drafts which were found to be missing was about Rs. 2,70,000. On the evening of the 31st December Krista was sent for and saw Mr. Clark to whom he confessed his complicity in the criminal transaction. Mr. Clark gave information to the police, and having requested the police to investigate the matter, Mr. Bird, a Deputy Commissioner of police, detailed Inspector Robertson to institute an enquiry. On the 31st December Inspector Robertson arrested Krista, and thereafter commenced a detailed investigation into the problem as to how this crime had been committed. It is admitted that the plaintiff gave assistance to the police officer who was investigating the matter, and on the 9th January 1922 Chandna was arrested. A few hours later he made a confession, but in that confession he in no way suggested that the plaintiff was a party or privy to the crime. The plaintiff remained in the employment of the bank, and carried out his duties as cashier until the 28th January. Meanwhile, Chandna had made a second confession while in custody, and in that second confession he stated a number of facts which, if the statement was to be relied upon, were evidence that the plaintiff was concerned in the crime. After having received the second confession of Chandna Inspector Robertson had an interview with Mr. Bird, and, apparently, Mr. Bird came to the conclusion that there was sufficient evidence to put the plaintiff upon his trial for conspiring with Krista and Chandna to commit a criminal breach of trust. Accordingly, about midday on the 28th January Inspector Robertson sought an interview with Mr. Clark at the bank, and in the course of the interview the plaintiff was sent for and was arrested. He was removed from the bank in custody by Inspector Robertson and taken to the Hare Street Police Station, where he was detained for an hour, and then taken before a Presidency Magistrate at Bankshall Street. The charge was preferred against him, and the Magistrate remanded him in custody. Subsequently, all three accused were committed for trial to the July sessions of the High Court. The accused were charged with conspiracy to commit theft, and also with conspiracy to commit breach of trust. Krista Ghose and Chandna were convicted, and the plaintiff was unanimously acquitted.

4. The issue of fact, therefore, is a simple one, namely, whether the defendants caused the arrest of the plaintiff on the 28th January 1922.

5. The plaintiff stated that on the morning of the 28th January 1922 he was working in the cashier's department when he received an order to go to Mr. Clark's room. When he entered the room he found Inspector Robertson and Mr. Clark inside. Upon his entrance Mr. Clark said to Inspector Robertson, "Here he is, I charge him" and thereupon Inspector Robertson proceeded to arrest him. According to Mr. Clark Inspector Robertson came into his room, and said to him: "We have decided to arrest Gouri Babu. I want you to sign this letter as a matter of form in order to enable proceedings to be taken against him", and Inspector Robertson then wrote out and handed to Mr. Clark for signature a letter in the following form:

Chartered Bank of India, Australia & China, Calcutta, 28th Jany. 1922.

The Deputy Commissioner of Police, Calcutta.

Dear Sir, We hereby charge Krishna Chunder Ghose and Gouri Prosad Dey with criminal breach of trust in respect of 16 demand drafts on London, totalling 055-12-5, and S. Mahomed Ismail Chandna with receiving and disposing of stolen property.

Yours faithfully, (Sd.) W. Clark.

Agent.

6. Mr. Clark stated that he did not pay much attention to this letter one way or the other, as he regarded it as a formal matter to enable proceedings to be taken by the police.

7. Inspector Robertson also gave evidence as to what took place in Mr. Clark's room on the morning of 28th January. After staling that he had placed the information at his disposal before the Public Prosecutor, and had obtained an oral opinion thereon advising criminal proceedings Inspector Robertson was asked:

8. On getting that opinion what did you do?---I told Mr. Bird what the opinion was, and he directed me to go to the bank and place the full facts about the investigation before the agent, which I did.

9. Did you tell the agent anything about the confession?---I did. I told him that Chandna had made a confession implicating the plaintiff, and gave him all the details.

10. Did you tell him about the opinion which the Public Prosecutor gave?---Yes.

11. Did you tell him about what Bird had said?---I said that I was going to discuss the case Under the direct supervision of Bird, and I also said that, in my opinion, there was a case to go before the Magistrate.

12. Who arrested the plaintiff?---I did.

13. Give me the circumstances Under which that arrest came to be made?---After I had discussed the offence with Clark I said that, according to the opinion of the Public Prosecutor, and in my opinion, I thought there was a case to go before the Magistrate, and I said it was the usual procedure that there ought to be a specific charge made for the sake of formality, and then the charge was given to me, and the accused was brought back by me to Lall Bazar.

14. You asked for a letter of charge?---Yes.

15. And this is the letter?---I brought it back and produced it before Bird who initialled it; then the specific charge was entered in our Crime Register.

16. To Court. You said it was a mere matter of formality. What exactly did you say to Clark?---I told him that it was necessary for a Letter of charge to be given before the accused went before the Magistrate, and the procedure was that a formal charge ought to be made, and then acting on that charge we will place the accused person before the Magistrate;

17. In relation to that conversation when did you arrest him?---I brought him away then and there.

18. Why did you take this letter from him?---Because it was necessary that I should have a letter of charge before an accused person is placed before a Magistrate.

19. Why did you want this paper from him?---Because, that is the procedure.

20. Everybody knows that you have to make a complaint before a Magistrate, but what I want to know is what was your object in getting this?---So that we could take action against all the three accused persons.

21. Suppose you had not got it?---Suppose Mr. Clark had said "I am not going to sign any paper", what would you have done?---Without a charge we could not have proceeded. There must be a complaint.

22. What would you have done?---I would have come back, and reported the matter to the Deputy Commissioner.

23. Inspector Robertson was further asked:

24. You did not take a letter of charge before you arrested Krista?---No,

25. Nor did you take a letter of charge before you arrested Chandna?---No.

26. The Court.---Why not?---Because at that time the investigation was going on, and there was no idea then to send the accused persons up before the Magistrate.

27. I pause here to observe that, notwithstanding the powers possessed by the Deputy Commissioner as a Magistrate, I am informed that it would not be permissible,---indeed. it would be very reprehensible,---to detain Krista in custody without bringing him before a Magistrate in the Police Court for so long a period as that which elapsed between the 31st December 1921 and 28th January 1922.

28. Q. 248. Would you arrest a man without any suspicion at all?---No, there must be some reasonable suspicion.

29. Q. 249. And if you have any reasonable suspicion you will arrest him?---Under Section 54, Criminal Procedure Code.

30. Q. 251. Am I to Understand you to say that you would not take proceedings unless that charge was given?----Yes.

31. Q. 252. And if you had not had that letter you would not have arrested this man at the bank?---I think there was ample evidence, reasonable evidence.

32. Q. 253. That is not the point. Everything turns upon this, so far as one aspect of this case is concerned, and I put to you yesterday afternoon "if you had not had that letter what would you have done?---I would have gone back.

33. Q. 254. You would not have arrested him?---Not at that time. I would have gone back and reported the matter to my superior officer.

34. Q. 255. Would you have arrested him?---I do not think I would have.

35. Q. 256. Therefore, as I Understand you, you were not prepared to take any steps until you had got that letter?---And without consulting my superior.

36. Q. 258. I am not asking you what you would have done when you got back. I am only concerned as to what you did at the bank. If you had not had that letter I Understand you to say you would not have arrested him?---Yes.

37. Q. 259. That is, you would not have taken the responsibility of arresting that man on the evidence that you had before you unless you had got this letter signed?---Yes.

38. It was not incumbent upon the plaintiff to prove that Mr. Clark expressly ordered the arrest of the plaintiff, for if Mr. Clark knew, or under the circumstances ought to have known, that the arrest would be the natural result of putting his signature to the letter, and as a direct consequence of his action the plaintiff was arrested, in my opinion, Mr. Clark caused the plaintiff to be arrested.

39. Now, the police were investigating this matter on behalf of the bank; they were satisfied that there was abundant evidence upon which to arrest Krista and Chandna, and they were prepared to take the responsibility of arresting these two persons Under Section 54 of the Criminal Procedure Code. The position with regard to Gouri Prosad was different. He was an old servant of the bank of some 30 years standing, and two of his brothers were in the service of the bank, as also was his father, who had been in the employment of the bank for very many years. As soon as the crime was discovered Mr. Clark had turned to Gouri Prosad, and asked for information as to what the position was from him. Gouri Prosad at once had told Mr. Clark what the position was as he understood it, and had admitted that he knew Chandna, and that he had borrowed money from him. In the course of the investigation by the police Gouri Prosad had given all the assistance that it was in his power to afford, and he had been permitted for a month after the discovery of the crime to continue to perform his duties as a cashier of the bank. Apart from the second confession of Chandna, admittedly, the police were not satisfied that there was sufficient evidence connecting the plaintiff with the crime to justify the police in taking proceedings against the plaintiff. Admittedly, Chandna would not be a person upon whose evidence implicit reliance would be placed, for, notwithstanding the detailed statement which he had made on the 24th January implicating the plaintiff, he had made no charge against the plaintiff in his first confession on the 9th of January. Mr. Clark, who gave his evidence with fairness and candour in the witness-box, admitted that he thought that the first statement made by Chandna was a tissue of lies. However, there it was, and it may well be that the police authorities had I come to the conclusion that the general incidents of suspicion coupled with the second confession of Chandna might be sufficient to justify proceedings being taken against the plaintiff, and it may be that Mr. Clark was informed by Inspector Robertson that the police thought that there was sufficient evidence to take proceedings against the plaintiff. But it is quite clear from Robertson's evidence that when he came to the bank on the 28th January he did not come there armed with direct and implicit instructions from Bird to arrest the plaintiff. He came to the bank on the 28th January in order to inform Mr. Clark of the second confession of Chandna, and to consider with Mr. Clark what ought to be done having regard to the information then at the disposal of the police. No doubt Mr. Clark had left the investigation of the matter in the hands of the police, and no doubt, as he stated, if the police were satisfied that there was enough evidence to justify proceedings being taken against the plaintiff, so was he. Indeed, he went further, for he stated that he had made independent enquiries, and had satisfied himself that the plaintiff was a party to the crime. Mr. Clark, in the course of his evidence, stated that he wanted to have the matter investigated in the Courts. I invited him to say how he proposed to arrange that the plaintiff should be placed before the Magistrate, and at first he said he thought that he might be a witness in the case. But Mr. Clark immediately afterwards receded from that position, and stated that he thought he ought to stand in the dock.

40. Q. 83. If he was implicated did you not think he ought to stand in the dock?---Yes.

41. Q. 84. You thought the matter should be investigated, that Gouri was implicated, aud that he ought to stand in the dock?---Yes.

42. Q. 85. If all the letter meant was that he would be placed in the dock you were prepared to sign it?---Yes.

43. Q. 86. Did it matter to you very much how he got placed in the dock?---No.

44. Q. 87. I meant whether he was arrested on a warrant or appeared on summons or anything else, it would make no difference to you?---No.

45. Q. 8. You were quite prepared to sign that charge in order to get him placed in the dock?---Yes, to facilitate the case.

46. Q. 89. To facilitate the proceedings?---Yes.

47. Q. 90. Including his arrest?---Yes, if that was necessary.

48. Q.91. At the time you signed the letter did you attach great importance to the words "matter of form"? I cannot say I attached great importance to it.

49. In my opinion, Inspector Robertson was not instructed, and was not prepared, to take the responsibility of arresting the plaintiff under the circumstances without obtaining the assent of the bank to the course which was being taken. Inspector Robertson was called by the defendants. In my opinion, he gave his evidence fairly, and he was not discarded as a witness by the defendants at the trial. He stated that if he had not had this letter, he would not have arrested the plaintiff. The conclusion at which I have arrived is that the plaintiff was arrested in consequence, and as the result, of Mr. Clark signing that letter. Now, I am, of course, alive to the danger to which my attention was called of putting difficulties in the way of persons preferring charges in the criminal Courts. I fully endorse the opinion of Chief Baron Pollock in Emma Grinham v. Willey (1859) 4 II. & N. 496. where his Lordship observed We ought to take care that people are not put in peril for making complaint when a crime has been committed. If a charge be made mala fide, there are ample means of redress. But in the absence of mala fides we ought not to be too critical in our examination of the facts, to see if something is not done without which the charge against the suspected person could not have been proceeded with. A person ought not to be held responsible in trespass, unless he directly and immediately causes the imprisonment.

50. Learned Counsel for the defendant further cited in support of his contention the case of Sewell v. National Telephone Co., Ld. (1907) 1 K. B. 557. Sir Richard Henn Collins, Master of the Rolls, in the course of his judgment stated that:

The act that was done was merely to provide a prosecutor, and that does not let in liability to an action for false imprisonment, unless the person who takes that step has taken on himself the responsibility of directing the imprisonment.

51. Now, in that case the plaintiff had been taken into custody, and it was only at a subsequent date that the representative of the defendant signed the charge sheet on behalf of the defendants. But the facts are very different in this case, and if I find, as I do, that the arrest was the direct outcome of the action of Mr. Clark in signing that letter of charge, which, in my opinion, he would have signed even if he had been told that the result of signing it would be that the accused would be arrested as the first step in the criminal proceedings to be taken against him, the conclusion which I ought to, and do, draw from those facts is that the defendant caused the arrest of the plaintiff.

52. There will be, therefore, a decree in favour of the plaintiff.

53. The next question which I have to consider is the damages to which the plaintiff is entitled. The plaintiff claims Rs. 1,50,000 as damages. No doubt, the damages were assessed at this high figure upon the assumption that the plaintiff would succeed in proving that the defendants were liable to, pay damages for having maliciously prosecuted him. But any claim on the ground of malicious prosecution was deliberately withdrawn. No doubt, it was withdrawn upon the advice of counsel. In my opinion, that advice was sound. In order to satisfy the Court that a plaintiff is entitled to damages for malicious prosecution it is incumbent upon the plaintiff inter alia to prove that the defendant in prosecuting him had no reasonable and probable cause for so doing. I am satisfied upon the evidence in this case that Mr. Clark was amply justified in thinking that there was reasonable and probable cause for acting as he did, I am far from thinking, as was suggested on behalf of the plaintiff, that the bank has acted towards the plaintiff in a capricious and unwarrantable way. In my opinion, they have acted towards him in a very liberal and proper manner. It is because there were reasonable grounds upon which the defendants would be able to justify the course which they took that the claim for malicious prosecution was not persisted in. Now, the damage which the plaintiff has suffered in being committed for trial, and tried at the Sessions was caused by proceedings taken against him pursuant to the order of the Magistrate on the 28th January in the Police Court. The only damage which the plaintiff is entitled to recover against the defendant in this suit is the damage which naturally and reasonably flowed from the facts that he was arrested about noon on the 28th January; was taken in custody by the police officer to the Hare Street police station; was detained there for an hour, and was then conveyed to the Court of the Magistrate. I have carefully considered the damage which accrued from those events. I have taken into account the position of the plaintiff in the bank, and the pain and suffering which must have been caused to him by being taken from the bank to the police-station; by being detained there, and then taken to the Magistrate's Court. It is in respect of those events, and those events only, that the plaintiff is entitled to recover damages, and I assess the damages at Rs. 1,500.

54. There will be, therefore, a decree for the plaintiff for Rs. 1,500, with costs on scale No. 2, and interest on judgment at 6 percent.