Maclean, C.J:— The Plaintiff is a zemindar residing in the district of Mymensingh. The Defendant is a member of the Indian Civil Service, and, at the date of the transaction in question, was District Magistrate of Mymensingh. The Plaintiff seeks to recover damages for a trespass alleged to have been committed by the Defendant in searching the Plaintiff's cutchery at Jamalpur on the 28th of April 1907. The Defendant, in substance, pleads not guilty by statute and relies upon the statutes to which reference will be made later on.

The facts appear to be these:— For some time previous to the 28th of April 1907, the state of feeling between the Hindus and Mahomedans at Jamalpur ran very high; and there can be no doubt but that, for some days, the town had been in a condition of very great excitement. On the 28th of April 1907, the date of the search, which undoubtedly took place on the afternoon of that day, the Defendant was at Mymensingh; and in consequence of a telegram which he received from Mr. Barneville, the Sub-divisional Officer, and Mr. Luffeman, the head of the police at Jamalpur, he left for Jamalpur and arrived there at about ten o'clock in the morning. He was then informed by Mr. Luffeman that, on the previous evening a man, named Gendu Sheik, had been wounded by a revolver shot; and he was also informed that the police had reason to believe that firearms were stored in the cutcheries of the zemindars. In consequence of this information the Defendant determined to search, amongst others, the Plaintiff's cutchery: and in the presence of certain gentlemen as witnesses of the search, and accompanied by Mr. Barneville, Mr. Luffeman and several police, he searched the Plaintiff's cutchery in the afternoon. This is the trespass complained of. It is unnecessary to go more in detail into the facts of this part of the case, because there is no dispute as to the facts stated above. The fact of the search and that it was conducted by the order and under the directions of the Defendant is not denied. It seems, therefore, unnecessary to discuss what took place on the evening of the 27th of April or to go more minutely into the question of the excitement or the cause of the excitement and the state of feeling between the Hindus and Mahomedans at that time. Unless the search were warranted by some statute, the Defendant had no right to make it; and the question we have to decide is whether the Defendant is protected: in other words, was he acting and did he act under any, and if so what, power, conferred upon him by law. The Plaintiff has charged the Defendant with having acted maliciously and without reasonable and probable cause in making the search. I have no hesitation in saying that there is no ground whatever for charging the Defendant with malice, nor any hesitation in saying that the Defendant acted in perfect good faith in making the search that he did.

It will, perhaps, be convenient in the first place to deal with sec. 25 of the Indian Arms Act, 1887, upon which the Defendant relies. That section runs as follows:— “Whenever any Magistrate has reason to believe that any person residing within the local limits of his jurisdiction has in his possession any arms, ammunition or military stores for any unlawful purpose, or that such person cannot be left in the possession of any such arms, ammunition or military stores without danger to the public peace, such Magistrate, having first recorded the grounds of his belief, may cause a search to be made of the house or premises occupied by such person or in which such Magistrate has reason to believe such arms, ammunition or military stores are or is to be found, and may seize and detain the same, although covered by a license, in safe custody for such time as he thinks necessary. The search in such case shall be conducted by, or in the presence of, a Magistrate, or by, or in the presence Of, some officer specially empowered in this behalf by name or in virtue of his office by the Local Government.” The search was undoubtedly a general search for arms, not, as is now suggested at the Bar, for the revolver with which Gendu Sheik had been wounded. It is conceded that the Defendant, before making the search, did not record the grounds of his belief. The question then is whether, not having complied with the terms of that statute, the Defendant can justify the search under that section. It is contended for him that the words, “having first recorded the grounds of his belief,” are merely directory, and not imperative or mandatory. It is difficult to accept this view. A special and drastic power is by this section granted to the Magistrate. Without it, he could not have made the search, unless, as it is suggested, certain provisions of the Criminal Procedure Code apply to a case such as the present. These words must have been inserted in the section with an object, and the object probably was to protect the public against searches being inconsiderately directed, and to insure the exercise of deliberation by the Magistrate before 4 lie ordered the search. A fine distinction is often drawn between what is mandatory and what is merely directory in the language of any particular statute. The present case appears to fall within that class of cases in which, when a statute creates a special right, but certain formalities have to be complied with, antecedent to the exercise of that right, a strict observance of the formalities is essential to the acquisition of the right. As the Defendant, in the case now before us, did not comply with the required formality by re cording the grounds of his belief, before he proceeded to search, this section does not appear to protect him from the Consequence of his action.

Then it is said that the search was warranted by sec. 105, Cr. P. Code. That section runs as follows:— “Any Magistrate may direct a search to be made in his presence of any place for the search of which he is competent to issue a search warrant.” The Magistrate can only act under this section when he is competent to issue a search warrant. That takes us to sec. 96. That section applies to the issue of a search warrant by the Court. Here, the Defendant was not acting as a ‘Court’; and all that sec. 105 enacts is that, instead of the Court issuing a search warrant, the Magistrate may direct a search to be made in his presence. It is reasonably obvious why this power is given to a Magistrate: but the section does not assist the present Defendant.

Then, reliance is placed upon sec. 165 of the same Code, and the argument is that, inasmuch as Mr. Luffeman might have made a search under that section, the search must be treated as having been made under that section, and the Defendant can so shelter himself. The answer to this contention seems to be that the search was not and was never intended to be a search under this section, and the search was not by Mr. Luffeman or by any police officer making an investigation: it was a search conducted by and under the directions of the Magistrate. Mr. Clarke says so himself. He says:— “I thought, I was justified in making the search myself” and “I did want to make the search myself.” It must, I think, be taken that the search was by him. Mr. Luffeman was not called to prove that this was a search under this section, or that he was exercising the powers conferred upon him by this section. Mr. Luffeman did not go into the box. Sec. 165 does not mention the Magistrate. Where there are special provisions in an Act of the Legislature, dealing with the case of a search for arms, and laying down what are the conditions precedent to making such a search, and there are general provisions in another Act of the Legislature dealing with searches generally, and in point of fact the search is one made for arms, it ought, in the absence of evidence to show that the search was made under the general as opposed to the specific legislation, to be taken that the search was made, not under the general provisions authorizing searches but under the special provisions authorizing a search for arms, and especially so when the search is made by one who, in the circumstances, had no power of search under the general provisions as to searches. Nothing is specifically said about arms under sec. 165 and that section does not appear to protect the Defendant.

The scheme as regards searches under the Code of Criminal Procedure is reasonably clear. The Court can issue a search warrant under sec. 96, or in lieu of that, the Magistrate may himself search under sec. 105. Sec. 165 deals with searches by a police officer, and not by a Magistrate.

The only other Act relied upon is Act XVIII of 1850. The preamble of that Act is, “For the greater protection of Magistrate and others acting judicially” and, there is only one section which runs as follows:— “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 and no officer of any Court or other person bound to execute the lawful warrants or orders of any such Judge, Magistrate, Justice of the Peace, Collector or other person acting judicially shall be liable to be sued in any Civil Court, for the execution of any warrant or order which he would be bound to execute, if within the jurisdiction of the person issuing the same.” Can it be said that, in conducting this search, the Magistrate was acting judicially?—Was this act done in the discharge of his judicial duty? The act itself draws a distinction between an executive as opposed to a judicial act; for, it protects, not only the person who acts judicially, but also the person who executes the order of the person so acting judicially. The duties of a Magistrate in this country are at once judicial and executive. But here the search must be taken to have been conducted by the Magistrate in his executive and not in his judicial capacity. There is, therefore, no statute which protects the Magistrate in his primâ facie wrongful act in trespassing upon the Plaintiff's cutchery.

I should have been glad if I could have seen my way to have protected the Magistrate, for he was placed in a difficult position and in one of emergency. That he acted with the utmost bonâ fides throughout I entertain no doubt whatever, and the charge of malice against him is as unfounded as it is improper. The only mistake he made was in not complying with the provisions of the Arms Act before he made the search. We are told that if the decision of the first Court be upheld, it will paralyse the action of Magistrates in moments of emergency in this country, and that they will be timid about acting under their statutory powers. I am afraid, we cannot go into the consequences of our decision; our only duty is to decide, as best as we may, according to what we believe to be the law. At the same time, it may be pointed out that it is of the highest importance, in the interests of the public, that, when executive officers are invested with statutory powers of a special and drastic nature, they ought to be very cautious, before exercising those powers, in satisfying themselves that they have strictly complied with the provisions of the Act which created them.

It is said that we must decide this case, not according to the law of trespass prevailing in England, but upon the principles of equity, justice and good conscience. But how can those principles justify an executive officer of the Government in forcibly entering another man's house and ransacking its contents without any warrant in law to do so? In the view now taken, it becomes unnecessary to go into the question of whether the search was properly conducted, or whether too much violence was or was not displayed, for, at the outset, Mr. Dunne said that he did not propose to go into the question of the quantum of damages.

There is a cross-objection in which the Plaintiff reiterated his charge against the Defendant of malice and want of bonâ fides. This cross-objection has not been pressed.

The result then is that the appeal is dismissed; but, having regard to the reiteration of the unfounded charges against the Defendant, it will be dismissed without costs, and the cross-objection will also be dismissed without costs.

Harington, J.:— In this case, the Defendant appeals against a judgment of this Court in its Original Jurisdiction awarding to the Plaintiff Rs. 500 damages for trespass.

The Defendant was, in April 1907, District Magistrate of Mymensingh: On the 27th of that month, there being very considerable ill-felling between the Mahomedans and Hindus, a Mahomedan was shot at Jamalpur. On the 28th, the Defendant arrived at Jamalpur and was informed of the shooting of the Mahomedan and that firearms had also been used by some Hindus in the temple of one Dayamoyi. He was told that the person who had shot the Mahomedan had filed towards the Plaintiff's cutcheries and he was told that the zemindars were storing arms in their cutcheries.

Under these circumstances, on the 27th, the Defendant went to the Plaintiff's cutchery accompanied by the District Superintendent of Police and other persons who conducted a search under the authority of the Defendant. In respect of this search, the Plaintiff claimed damages to the extent of Rs. 10,500.

There was some evidence of actual damage done by the persons who carried out the search apart from the mere trespass. This evidence, the persons who made the search were not called to contradict. The Judge, therefore, after acquitting the Defendant of any want of bonâ fides in the matter, awarded the Plaintiff Rs. 500 to cover the trespass and the actual damage done.

The learned Counsel for the Appellant does not concern himself with the amount of damages, but argues that the Defendant is justified under the statutory enactments on which he relies.

The Acts which the Defendant considered himself entitled to rely on were the Arms Act and the Criminal Procedure Code.

In the course of the argument, there was some discussion as to which of these Acts the Defendant purported to act under.

That, to my mind, is of very little importance. The Defendant is entitled to call in aid any statute which justifies his action quite irrespective of whether it was present or not to his mind when he made the search.

Under sec. 25 of the Arms Act, a Magistrate is authorized, if he thinks a person has arms for an unlawful purpose, to make a search having first recorded the grounds of his belief.

It is admitted that the Defendant did not record the ground of his belief in this case; but, it is argued that the provision that he should do so, is merely directory, and that his entry on the premises is justified, as he had good grounds for his belief that arms were stored in the cutchery, notwithstanding his failure to record these grounds.

I do not agree with this, and I think that, where a statute authorises the doing of an act which is primâ facie a wrong to an individual, the doer must comply strictly with the conditions imposed by the statute, if he desires to rely on the statute as a justification for his act. He cannot claim, as against the individual who is injured by his act, the protection of the statute unless he strictly complies with the conditions on which the statute affords that protection.

Here, the section imposes on the Magistrate, in the most express terms, the duty of first recording the grounds of his belief that arms are in the possession of the person whose house is to be searched. It makes it, in the most express terms, a condition precedent, and to justify his entry, the condition must be strictly complied with. As there was a failure to comply with this condition, the Arms Act will not avail the Defendant.

The next section, under which it is sought to justify the Appellant, is sec. 165 of the Criminal Procedure Code. That section-provides that “whenever a police officer making an investigation considers that the production of anything is necessary for the conduct of an investigation of any offence which he is authorised to investigate, and when such thing is not known to be in the possession of any person, such officer may search, or cause the search to be made for the same within the limits of the station of which he is in charge or to which he was attached.”

I quite agree with the argument that (apart from any question of the use of undue violence) if the search by the police officer can be justified under this section, then the Defendant must-succeed; for, if the police officer committed no trespass in entering and searching, then the Defendant committed no wrong in authorising the police officer to do that which the law gave him a right to do.

But this case was not set up in the Court of first instance, nor was any evidence given to support it. To succeed, the Defendant would have to prove that the police officer who made the search considered that the production of something was necessary for the conduct of his investigation into an offence which he was authorised to investigate, and this could not be proved without calling the police officer.

Now, the police officer was not called; the facts entitling the police officer to enter and search were not proved. As the case stands, there is nothing to show, that the police officer considered that it was necessary to any investigation to produce anything. For all that appears, he may have searched just because the Defendant told him to.

The next section relied on is sec. 105, read with the other sections dealing with the issue of a search warrant.

The Defendant considered he was able to issue a search warrant, and therefore, under sec. 105, competent to conduct a search in person.

Now, the law relating to the issue of search warrants is to be found in sec. 96 and the following sections of the Criminal Procedure Code.

By sec. 96, when the Court considers that the purposes of any inquiry, trial or other proceeding under this Code will be served by a general search, it may issue a search warrant; and by sec. 105, a Magistrate can direct a search to be made in his presence of any place for which he is competent to issue a search warrant.

Could he, in the present case, issue a search warrant?

In my opinion, sec. 96 only authorizes the Magistrate to issue a search warrant when sitting as a ‘Court,’ i.e, when some proceeding under the Code has been initiated before him and this view is strengthened by the form of the search warrant given in Sch. V. Form 8, which recites that information has been laid or complaint has been made. In this case, there is no evidence of the initiation of any proceeding before the Magistrate under the Criminal Procedure Code, nor of an ‘information’ or a ‘complaint’ being laid before the Magistrate under the Code. Moreover, the Magistrate appears to have been searching for arms generally, not for some particular weapon.

As I read the provisions of the Code, it appears to provide for search by a police officer which may be made under sec. 165 before any proceeding has been initiated before any Court, and searches under the authority of a Court under sec. 96, which must be made after the initiation of some proceeding. The only sections that I can find in the Code authorising a Magistrate to search, without any proceeding having been initiated before him, are secs. 98 and 100. The former confers on a District Magistrate, Sub-divisional Officer, Presidency Magistrate or Magistrate of first class, the power of issuing a warrant or to search houses suspected of containing stolen property, forged documents, counterfeit coins and such like articles, but this power can only be exercised upon information and after such inquiry as the Magistrate thinks necessary. The latter enables a Presidency Magistrate, Magistrate of the first class or Sub-divisional Magistrate, if he has reason to believe that a person is confined under such circumstances that the confinement amounts to an offence, to issue a warrant for the search of the person so confined. It is significant that sec. 96, which authorises the issue of a search warrant for the purposes of an inquiry, trial or other proceeding under the Code, confers the powers of issuing the warrant on ‘the Court,’ while secs. 98 and 100, confer the power issuing a warrant to search only on the Magistrates specified in the section.

Lastly, it is said that the Defendant was acting as a Judicial Officer and so is protected by the Act of 1850.

That Act, in my opinion, does not apply, because there is nothing to show that the Magistrate was acting judicially when he directed the search.

No doubt, there is authority for saying that the issue of a search warrant by a Magistrate is a judicial act. Under the Code, (except in the cases specified under secs. 98 and 100) the issue of a search warrant presupposes the existence of an enquiry, trial or other proceeding, in the course of which, the Court may be called on to determine judicially, whether a warrant ought or ought not to be issued. But, even if it be assumed that a search by the Magistrate under sec. 105 is as much a judicial act as the issue of a warrant to search, (a proposition to which I am not at present prepared to assent) even then, it has not been shown that the search was directed for the purpose of any proceeding under the Code, as it must be, to justify the issue of a warrant. And, further, if the Magistrate were acting as a Judicial Officer, I should have expected some sort of record of some proceeding before him, in the course of which, it would appear that the search was directed. On the contrary, it appears that there was nothing before the Magistrate to enable him, as a Court, to issue a warrant.

He cannot, therefore, be said to have been acting judicially in directing a search to be made without any proceeding having been instituted before him which he could be called on to determine judicially.

In conclusion, if there had been no evidence of excess of violence in the conduct of the search, I should have considered that a very small sum indeed would have represented the damage which the Plaintiff would be entitled to recover for the wrong which the Defendant has done him in making a search which he had ample reasons for making without recording those reasons. But, there was evidence of undue violence in the conduct of the search,—not perhaps very strong or very convincing evidence, but it was believed by the learned Judge who had the witnesses before him,—and I cannot say there was no case to answer on this head. But the Defendant did not answer it by calling the actual searchers, the persons who were alleged to have done the damage, and that being so, the damages were bound to be more than nominal.

For these reasons, I agree that the appeal should be dismissed and that the Respondent should be allowed no costs inasmuch as he had made grossly improper and unfounded attacks on Mr. Clarke who, when called upon to act, under circumstances of unusual difficulty, undoubtedly acted with perfect good faith.

Brett, J.:— I regret that, after the best consideration which I have been able to give to the facts and law of this case, I am unable to agree with the view which has been taken in their judgment by the learned Chief Justice and my learned brother Mr. Justice Harington.

The present appeal arises out of a suit brought by the Plaintiff, Babu Brojendra Kishore Roy Chowdhury, a zemindar in the District of Mymensingh, who has his zemindari cutchery at Jamalpur in that district, against Mr. L.O Clarke, who, on the 28th April 1907, was District Magistrate of the Mymensingh District. The suit was brought to recover damages to the amount of Rs. 10,500 for wrongful trespass in the cutchery of the Plaintiff by the Defendant on the 28th April 1907. The plaint alleged that, on the 28th April, the Defendant with the Sub-divisional Officer of Jamalpur, Mr. Luffeman, District Superintendent of Police, a Sub-Inspector of Police and the Sub-Registrar, followed by a large number of armed policemen and a large number of Mahomedan rowdies carrying lathies and other dangerous weapons, wrongfully invaded and trespassed in the Plaintiff's cutchery, and there, under orders of the Defendant, those who accompanied him forcibly, wantonly and wrongfully broke open and smashed boxes in the cutchery, scattering, destroying and mutilating various valuable zemindari papers and documents. It went on to say, in para. 6, that “the Defendant acted in a wholly illegal, wanton and arbitrary manner and he had no lawful or reasonable excuse or justification or authority in or for his wanton and high-handed conduct aforesaid, and the Plaintiff further charges that the Defendant acted wrongfully and maliciously and without reasonable cause in the matter of the conduct aforesaid.” Damages were claimed (see para. 7 and the schedule) (1) for insult, injury and humiliation at Rs. 8,000, (2) for damages done to the houses at Rs. 200, (3) damages to moveables at Rs. 300 and (4) damaged, lost papers and documents at Rs. 2,000. Under the first item appears to have been included a claim for rents which, in consequence of the search, the Plaintiff said, he had been unable to realise from his tenants.

The suit was instituted on the 25th July 1907 in the Court of the Subordinate Judge, (3rd Court) of Mymensingh. On the 26th November 1907, the Defendant applied to the District Judge of Mymensingh for the transfer of the suit for trial from the Court of the Subordinate Judge to that of the District Judge. After receipt of notice of the application, the Plaintiff, on the 3rd January 1908, applied to the High Court, in its Extraordinary Civil Jurisdiction, to transfer the suit from the Court of the Subordinate Judge of Mymensingh to the High Court for trial; and on the same day, a rule nisi was issued by the High Court on the Defendant to show cause why the suit should not be transferred to the High Court for trial. On the 29th January 1901, an order was passed by Mr. Justice Fletcher transferring the suit to the High Court to be tried by it in the exercise of its Extraordinary Original Jurisdiction. The suit afterwards came on for hearing before Mr. Justice Fletcher on the 25th May 1908.

The following sequence of events is important:—

On the 21st April 1907, there was a large fair or mela held at Jamalpur. Certain Hindus at the instigation, it is stated, of the Hindu servants of the Plaintiff and other zemindars, his co-sharers in the village, tried to prevent the sale of Bideshi or foreign goods at this fair. The Mahomedans resented this and there was a serious disturbance and the feelings of the Mahomedens towards the Hindus were considerably embittered. In the evening of the 17th April, some Hindus, dressed, it is stated, in Mahomedan clothes were seen wandering about and were followed by some Mahomedans. The Hindus turned on the men following them and fired 3 or 4 revolver shots at them, one of which wounded Gendu, a Mahomedan. An uproar followed. Mr. Barneville, Sub-divisional Magistrate of Jamalpur, and Mr. Luffeman, District Superintendent of Police, who were then in the dak bungalow at Jamalpur, went to the scene of disturbance and met some Mahomedans carrying away the Mohamedan Gendu, who had a wound from a revolver bullet in his leg. Information was given to them that Gendu had been wounded by one Prakash Chandra Dutta, a leader of a body of Hindus called “volunteers,” and that Prokash Chandra Dutta and those with him had filed in the direction of the cutcheries. The cutcheries of the Plaintiff and his co-sharer landlords appear, from the map filed in the suit, to be all close together on an open piece of ground. Close by is the temple of Thakurani Doyamoyi. An excited crowd of Mahomedans armed with lathies were collecting, evidently bent on attacking the cutcheries. The two officers collected as many police as they could and went towards the cutcheries with apparently the double intention of arresting the man or men who had fired on the Mahomedans and wounded Gendu, and also of keeping the Mahoinedan mob under control. On arrival at the cutchery, they found four Hindus, strangers, there whom they arrested on suspicion. They also found Satis Chandra Banerjee with forty or fifty men armed with lathies in the cutchery. These they disarmed. They were then informed that armed men were concealed in the adjoining temple of Doyamoyi and went there. They found the door locked and were refused admission. The Sub-divisional Magistrate ordered the persons inside to open the door, promising that no harm should be done to the persons inside. There was then a large angry crowd of Mahomedans close by, but they seem to have been under control. The door was not opened but two shots from a revolver and two from a shot gun were fired from inside the temple and a Mahomedan received a shot wound. The two officers then drew off the Maho-medan crowd and managed to disperse them.

The Sub-divisional Officer, Mr. Barneville, then wired to the Commissioner of the Division for all available armed; police, and the District Superintendent of Police, Mr. Luffeman, sent a telegram to Mymensingh to the Defendant, as District Magistrate, to the following effect:— “Serious not just averted. Come at once.”

The Defendant received this telegram at 2 a.m, on the morning of the 28th April. He afterwards started for Jamalpur and arrived there at 10 A.M

On his arrival, the Defendant Teceived from Mr. Barneville, the Sub-divisional Magistrate, and from Mr. Luffeman, the District Superintendent of Police, reports of the two occurrences of the 27th April.

At 1-30 P.M, the Defendant with Mr. Luffeman, the District Superintendent of Police, proceeded to search the cutcheries of the Plaintiff and of the other zemindars. The temple of Doyamoyi and the cutchery and Naib's house of the Ramgopalpore zemindar were first searched. Afterwards, the cutchery of the Plaintiff was searched. The case for the Defendant was that he searched the Plaintiff's cutchery in consequence (1) of the reports received by him from Mr. Barneville and Mr. Luffeman of what had occurred on the 27th April, and (2) of reports previously received that the Gouripore zemindars (i.e, the Plaintiff and his co-sharers) had been collecting arms and men in their cutcheries.

At that time none of the amlas or peadahs of the Plaintiff were to be found and it seems that the jemadar in charge of the Plaintiff's cutchery building had locked it up and left at 1 P.M The padlocks closing the doors of the building were forced open and the boxes in the cutchery were also forced open and their contents—zemindari papers—taken out in pursuit of the search for arms. The search of all the buildings occupied from 1-30 P.M to 3-30 P.M

The main point raised for determination in the suit were—

(1) Was the search made under the provisions of the Code of Criminal Procedure and was the Defendant protected from the suit on that account?.

(2) Was the search made under the provisions of the Arms Act and was the Defendant protected from suit by that Act? or,

(3) Was the Defendant in directing the search acting judicially, and were he and those acting under his orders in consequence protected by the provisions of Act XVIII of 1850?

In his defence, the Defendant pleaded (see, his written statement, paragraphs 13, 14, and 15 and the preceding explanatory paragraphs 6 to 12)—(1) that at the time of the alleged trespass, he was District Magistrate of Mymensingh, and as such Magistrate, he was acting and did act under and by virtue and in pursuance of the powers conferred on him by law and particularly by all or some one or more of secs. 94, 96, 105 and 165 of the Criminal Procedure; Code or (2) in the alternative, that he was acting under the powers conferred upon him by sec. 25 of the Indian Arms Act, or (3) in the alternative, that he was acting in, discharge of a judicial duty and within the limits of his jurisdiction and that he at the time believed himself to have (as, he submits, he had in fact) jurisdiction to do or order the acts done or ordered by him and therefore that he was protected by Act XVIII of 1850, being the Act for the Protection of Judicial Officers. Further, he alleged that the damages claimed were excessive. The written statement, it is to be observed, was filed in the Court of the Subordinate Judge of Mymensingh on the 9th November 1907.

Evidence was gone into by both parties and judgment was delivered by Mr. Justice Fletcher on the 19th June 1908. The learned Judge held that the Defendant, in determining to make the search on the day in question in the Plaintiff's cutchery, was acting bonâ fide and was not actuated by malice or other improper motives against any particular individual or section of the community. On the other hand, he held that the search of the Plaintiff's premises by the Defendant was not-warranted by law and so constituted an actionable trespass. In arriving at this conclusion, the learned Judge applied the principle of the Common Law in England, which he regarded as applicable to the case, that a Magistrate is liable in an action for trespass for acts done by him to the persons' or property of others unless he can justify the act as having been done under the authority of law; and that, if a Magistrate pleads a statute or statutes as justifying his acts, he must bring himself within the words of the statutes strictly.

Applying that principle, he held that the Defendant had failed to justify his act under the Arms Act of 1878 as the provisions of sec. 25 of that Act required that, before causing a search to be made under the Act, the Magistrate should first record the grounds of his belief that the person whose premises he was about to search had in his possession any arms, ammunition or military stores for any unlawful purpose or that such person cannot be left in the possession of any such arms, ammunition or military stores without danger to the public peace, and the Defendant had failed to record the grounds for his belief to that effect before he directed the search.

Dealing next with the plea based on the provisions of secs. 105 and 106, Criminal Procedure Code, the learned Judge dismisses it very summarily with the observation that it is obvious that the Defendant was not competent to issue a search warrant under the provisions of the Code of Criminal Procedure as he was not acting as a Court within the meaning of sec. 94 of the Criminal Procedure Code, as there was no proceeding pending before him. He then takes the plea based on the provision of sec. 165 of the Code of Criminal Procedure that the search was in fact one made by Mr. Luffeman, the District Superintendent of Police, who at the time was making an investigation into the offence committed by the person who shot at and wounded Gendu on the 27th April 1907, and that as Mr. Luffeman as a police officer had authority under sec. 165 of the Code of Criminal Procedure to make the search in the course of that investigation, the Defendant having taken Mr. Luffeman to make the search was protected by the law in the same way as Mr. Luffeman. As to this, the learned Judge says that he was satisfied on the evidence that the search was not intended to be made under the provisions of that section, but was a search for arms generally which sec. 165 does not authorise, and therefore he held that sec. 165, Criminal Procedure Code, did not justify the action of the Defendant. It is unfortunate that the learned Judge does not specify the evidence on which he relied in support of this conclusion.

Further he held that the provisions of Act XVIII of 1850 could not be invoked to protect the Defendant, because, he was of opinion that, in directing and conducting the search, the Defendant was performing no judicial duties at all. It is to be noticed that the judgment gives no distinct reasons for the opinion that the act was not a judicial act but that it was “one of the important executive acts which as District Magistrate, the Defendant, had to perform.”

On these findings, the learned Judge arrives at the conclusion that the search of the Plaintiff's premises by and under the direction of the Defendant was not warranted by law and, therefore, amounted to a trespass. In dealing with the question of damages, the learned Judge holds that Defendant did not himself enter the cutchery to make the search but relied on the Police to conduct it in a proper manner, and that, though this goes to establish the Defendant's bonâ fides, it does not release him from the obligation which the law casts on him, as being in supreme control of the search party, from seeing that the search was conducted in a proper and reasonable manner. He entertains no doubt that the search was conducted with unnecessary damage to the property of the Plaintiff, relying apparently in support of this view mainly on the evidence of Mr. Horniman, and holds that the Defendant failed to exercise proper supervision and control over the people under him conducting the search. Being of opinion on this finding that though the damages should not be exemplary they should be substantial, he awards that Plaintiff Rs. 500 as damages against the Defendant.

The Defendant has appealed.

The learned Counsel for the Appellant, who has placed the case before us, has laid great stress, from the outset, on the remarkable contrast which is presented by the case as held by the learned Judge to have been proved against the Defendant and that as set out in the plaint, and has argued that the acts of the Defendant and those who carried out his orders have been grossly distorted and the damage done exaggerated enormously. No attempt was in fact made to prove the alleged loss of rents from the tenants as a damage consequential on the search, after the Plaintiff's agent had been obliged to admit that in the preceding year an attempt had been made by the Plaintiff to raise the rents of his tenants, more than 90 per cent, of whom are Mahomedans, which had been resisted and had created general discontent. The plaint averred against the Defendant that he had committed a malicious and outrageous abuse of his authority. The learned Judge has found that the Defendant acted bonâ fide and without malice, but that, as he had failed to comply strictly with the provisions of sec. 25 of the Arms Act, he committed a trespass.

The first point taken in support of the appeal is that the learned Judge erred in regarding the principles of the Common Law of England as applicable to the present case. The learned Counsel has pointed out that the alleged trespass having been committed in the District of Mymensingh, which is outside the limits of the Ordinary Civil Jurisdiction of the High Court, and the suit having been transferred to the High Court for trial in the exercise of its Extraordinary Civil Jurisdiction, the learned Judge was bound, under the provisions of sec. 20 of the Letters Patent of 1865, with respect to “the law or equity and the rule of good conscience,” to be applied to the case, to apply “the law or equity and rule of good conscience,” which would have applied to the case in the local Court of 3rd Sub-Judge of Mymensingh. This contention cannot be denied and clearly the principles of the English Common Law could not be taken to apply as such. The learned Counsel for the Respondent in reply has, however, invited attention to the decision in the case of Wagkela Rajsanji v. Masludin as practically laying down that the same principles would apply. But the learned Judge, in dealing with the point which arose in that case, and which was whether a guardian could execute a contract in the name of his ward so as to impose on the ward a personal liability, remarks that a guardian in India could not have greater powers over a ward than a guardian in England and adds that the matter must be decided by equity and good conscience, which is generally interpreted to mean the rules of English Law if found applicable to Indian society and circumstances. This clearly lays down that the principles would only apply if found applicable to the circumstances of the case under consideration. In the present case, the learned Counsel for the Appellant has pointed out that the learned Judge has found that the circumstances were such as to justify the Defendant, as District Magistrate, in making the search for arms, and that he acted throughout with perfect bonâ fides, and the learned Counsel contends that the mere omission on the part of the Defendant to record his reasons for directing the search, though the reasons in fact existed and were good and sufficient, cannot be held, in accordance with the principles of law, justice, equity and the rule of good conscience, as governing the District Courts in India, to be in law sufficient to convert what was a right and justifiable act into an actionable wrong. In this case, however, before attempting to apply the principles on which the learned Counsel relies, it would be convenient first to see whether, in the circumstances of the case, the Defendant has been able to justify his action on his pleas.

The facts leading up to the search have been already set out in detail.

The learned Judge in the Court below has stated in his judgment that he was satisfied on the evidence that the search was made for arms generally under the provisions of the Arms Act and not under any sections of the Code of Criminal Procedure; and the first question which arises is—Does the evidence support that finding?

On this point, we have the evidence of the Defendant alone and we have his defence as set out in the written statement. The method adopted in cross-examination of the Defendant is, to say the least of it, unusual.

By means of a long series of questions, many of which on the spur of the moment and without reference to authorities it was manifestly most difficult for him to answer and in reply to which it is admitted that it would be unfair to bind him by his answers, the learned Counsel appears to have attempted to argue out with the Defendant points of law which it was certainly the duty of the Judge trying the case to decide. What, however, does the Defendant say? In his written statement, he first claims protection on the ground that he was acting as a Magistrate under the provisions of secs. 94, 96, 105 and 106 of the Code of Criminal Procedure. None of these could possibly apply to a search under the provisions of the Arms Act. It is equally a matter which admits of no doubt that if the search was made for arms used in the commission of an offence and for the purpose of an enquiry or an investigation into that offence, the provisions of the Arms Act could have no possible application. That Act in sec. 25 provides for a search for arms and ammunition generally for the preservation of the public peace and not weapons used in the commission of a definite offence.

To support the Defendant's assertion that he acted under the provisions of the Code of Criminal Procedure, we have the following statements. In examination-in-chief he was asked, “Why did you make the search?” And he gave the following reply—“I had received reports for some time that certain zemindars, in special the Gouripore zemindars, had been collecting arms and men in their cutcheries. The Mahomedans of Jamalpur stated that they feared that the Hindus would sally out from their cutcheries and do them injury again as soon as the officials had left. A case had been instituted with regard to the shooting of a Gendu Sheik and it was proposed to institute cases for the shooting on the Sub-divisional Officer and Superintendent of Police. For the purpose of these eases, it was all-important that the weapons with which the shooting was done should be found. It was also very dangerous to leave it unascertained whether there was not a considerable store of arms in those cutcheries.” The following answers were elicited from him in his cross-examination (at pages 108 to 114 of the paper-book)—“Before this search I did refer to the Criminal Procedure Code; and did not refer to the Arms Act.” Further on he says:— “I thought, I could act under sec. 105,” and then he was stopped; and later on, in answer to a question relating to his power to act under sec. 165 of the same Code, he says:— “In this way I thought I could act under sec. 165. The Sub-Inspector of Police was empowered to make a search and, I thought, I could be present and direct the proceedings. Then, I would be acting as an Executive Officer of the Police.” When questioned as to his power to direct the search under sec. 94 and sec. 96, Criminal Procedure Code, he says that he thought he could issue a search warrant under sec. 96, Criminal Procedure Code, though afterwards he says:— “There was nothing formal in my inquiry. No. I was not holding any inquiry as a Magistrate.” Afterwards in reply to the question—“You wanted to search in order to preserve the peace of the District,” he says:— “That was one of the reasons: one of the reasons was to seize arms to prevent their being used. My search for the arms in connection with that case was equally in my mind. The actual investigation of that case was in the hands of the District Superin tendent of Police.” At page 115, he further says in answer to a question from the Court, “I made up my mind to make the search after hearing the police officers' and the other persons' reports.”

The fact that the Defendant before directing the search referred to the Code of Criminal Procedure and not to the Arms Act seems to be consistent rather with the conclusion that, in his own mind, at least at the time, the Defendant thought he was acting under the Code of Criminal Procedure and not under the Arms Act, and to support a conclusion contrary to that at which the learned Judge has arrived that the search was only for arms generally. They seem fully to support the conclusion that the search was at the same time for arms used in the commission of the two offences which were alleged to have been committed on the 27th April, when fire-arms were certainly used.

The learned Judge has not referred to the evidence on which he relied and, after a careful perusal of the Defendant's evidence and of his written statement, filed on the 9th November, immediately after the institution of the suit, I regret that I am unable to agree that the conclusion of the learned Judge is in fact supported by the evidence.

The question then arises for determination whether the Defendant was justified in directing the search by the provisions of the Code of Criminal Procedure.

First, it is to be considered whether the Defendant had power to act under the provisions of sec. 105 read with the provisions of secs. 94 and 96 of the Code. These sections occur in Chap. VII which falls within Part HI of the Act which is headed “General Provisions.”. That these provisions apply to proceedings before and after the proceedings in prosecution of an accused is clear from the sections themselves. They do not necessarily apply to proceedings after a case has been instituted against any definite accused person. Sec. 94 runs—“Whenever any Court, or in any place beyond the limits of the towns of Calcutta and Bombay, any officer in charge of a police-station considers that the production of any document or other thing is necessary or desirable for the purpose of any investigation, inquiry, trial or other proceeding under this Code by or before such Court or officer, etc.” An investigation by a police officer or any inquiry by a Magistrate may be made before any accused person has in fact been named.

The learned Judge has held that the Defendant was not acting as a “Court” within the meaning of sec. 94 of the Criminal Procedure Code, as “there was no proceeding pending before him.” “Court” is no where defined in the Code nor is a “proceeding.” From Chap. III of the Code, it would, however, appear that the term “Court” and “Magistrate” are in fact synonymous and it should be remembered that, under the special conditions prevailing in India, a Magistrate is frequently called upon to act as a Court, even though he may not at the time be sitting within the four walls of his ordinary Court building, or in fact, any building. The powers of the Court depend on the power with which the Magistrate presiding in it is vested. “Proceeding” appears to mean anything done or order passed by the Magistrate or Court, in the exercise of his powers. This indeed seems clear, for instance, from the word “proceeding” as used in sub-sec. 7 of sec. 145, Cr. P.C Powers to act under sec. 94 and sec. 96 of the Code are given to all Magistrates, (see sec. 94 itself and Sch. 3 of the Code) and the question is whether a Magistrate can exercise those powers on verbal information only or whether it is necessary for him to wait till something has been written or he is sitting in Court before he can do so. The learned Judge seems to be of opinion that this preliminary is essential. But is it so? Offences are divided into two broad classes—(1) Cognizable, i.e, those for which a police officer may arrest without a warrant from a Magistrate, and (2) Non-cognizable, i.e, those in which a police officer may not arrest without a warrant. The former seems to mean cases of which a police officer, as such, can take cognizance; and the latter, those of which, as such, he cannot take cognizance. Sec. 190, Cr. P.C lays down the conditions under which a District Magistrate or other Magistrate referred to in that section may take cognizance of an offence. It must be remembered that the Defendant in this case was, at the time of the search, the District Magistrate of Mymensingh. He had, therefore, power under the law throughout the whole district to take Cognizance of the offences with firearms which are alleged to have been committed on the 27th April. And he would be empowered to take cognizance under that section on (a) complaint, (b) police-report of such facts and (c) on information received from any person other than a police officer or upon his own knowledge or suspicion that such an offence has been committed. There is nothing in the section to lay down strictly that either (a), (b) or (c) must be written; and in fact, the latter portion of cl. (c) would favour the contrary view. Nor is there anything in the law which strictly lays down that the police officer must have something written before he can take action in respect of an offence of which he can take cognizance without the order of the Magistrate. Clearly, in India, as well as in England, a police officer must often take cognizance of an offence and arrest the offender on verbal information alone. There seems to be nothing in the law or in common sense to prevent a Magistrate from acting on verbal information and taking cognizance of an offence and taking the steps necessary to arrest the offender or, as in the present case, to secure the production of the weapon with which an offence has been committed. Manifestly, there are cases when the offender would escape or material evidence would disappear if a written proceeding were in law strictly necessary. In this case, the Defendant has stated in his evidence that, before directing the search, he had received the information verbally from Mr. Bar-neville, the Sub-divisional Magistrate, as well as from Mr. Luffeman, the Distric Superintendent of Police, that the two offences had been committed on the preceding day; and, in these circumstances, it seems difficult to agree with the learned Judge that the Defendant had no power to direct or make the search under the provisions of sec. 105 read with secs. 94 and 96 of the Criminal Procedure Code, because no proceeding was pending before him. The verbal direction to search was, in fact, in itself a proceeding taken in taking cognizance of the offences. I regret, therefore, that I am unable to agree with the learned Judge that, for the reasons given by him, the Defendant was not authorised to make or direct the search in the premises of the Plaintiff. Nothing in this case seems to turn on the meaning of the term “competent” in the provisions of sec. 105, it simply means that the Magistrate has, under the powers with which he is vested by the Local Government, and in the circumstances stated in the preceding secs. 94 and 96, power or authority, as such Magistrate, to issue the search warrant.

The next question raised is the alternative whether, under the provisions of sec. 165 of the Code, the Defendant is protected from the present action. This question has not been considered by the learned Judge. He has simply held that it does not arise.

The learned Counsel for the Appellant has relied on the provisions of secs. 156, 157 and 165 of the Code of Criminal Procedure as showing that Mr. Luffeman, as District Superintendent of Police, had full power to hold an investigation into the two offences committed on the 27th April and power under sec. 165 of the Code to search the premises of the Defendant for the arms with which the offences were committed and which he had reason to believe were in the cutcherry, because such a proceeding was necessary for the con-duet of the investigation. And, all the provisions of the Code as to search warrants, so far as may be applied, apply to searches under this section (see sub-Sec. 4 of sec. 165). If Mr. Luffeman, as a police officer, was acting within the law in conducting such a search, it is contended, that the Defendant, who directed the search and accompanied the police officer when he went to make it, would be equally protected by the law. It is to be observed that, under the provisions of sec. 4 of Act V of 1861, powers of general control and direction over the police are given to the Magistrate of a district, throughout the limits of his local jurisdiction; and, whether the Defendant in this instance acted under the powers given by that section or under his powers as a Magistrate, under the Code of Criminal Procedure, it is urged that he was equally protected.

This argument seems to be unanswerable if we take it that the Defendant was acting under the powers with which he is vested by sec. 4 of Act V of 1861, if the search was being made by the District Superintendent of Police.

The learned Counsel for the Respondent has, however, argued that, in an investigation made under Chapter XIV of the Code of Criminal Procedure, the police officer must proceed strictly in accordance with the provisions of the sections in that chapter. He must, under sec. 157, send a report to the Magistrate empowered to take cognizance of the offence on the police report, and that report must be submitted through his superior officer (sec. 158), and on completion of the investigation, he must submit a report in the form prescribed by sec. 173, and if in the course of such an investigation, he makes a search, he must note that he has done so in red ink on the report, under a departmental order of the police department.

The learned Counsel relies on the report submitted by Mr. Luffeman in respect of the offences under secs. 326 and 307 of the Indian Penal Code alleged to have been committed on Gendu Sheik (which is printed at page 47 of the paper-book) as proving that in fact the cutchery of the Plaintiff was not searched in the course of an investigation made by Mr. Luffeman into that offence. The report bears date the 2nd May 1907 and contains no entry of any search having been made.

It is not clear, however, that the report is the final report in the case; but the point is not very material. It is to be observed that two dates for the first information are given in it, viz., the 27th April 1907, and the 2nd May 1907, and this seems to support the explanation that the information was given verbally on the 27th April but not recorded till the 2nd May. The omission to record the entry in red ink to the effect that a search had been made in the course of that investigation, if due to inadvertence, would not itself be sufficient to establish that no search was made, if in fact it was made.

It seems open to considerable doubt whether it would be safe to construe the provisions of the law so strictly in the present case, as the learned Counsel desires, as to deprive the Defendant or the police officers acting under his orders, of the protection of the law.

If in fact the police officer, Mr. Luffeman, went to the cutchery of the Plaintiff under the direction of the Defendant to investigate the offence committed against Gendu and the search was made in the course of that investigation, it seems only reasonable to hold that they were acting bonâ fide under the provisions of the law and therefore the act did not amount to an actionable trespass.

To prove that they did so act, there is the evidence of the Defendant himself and his written statement. There is the further fact that the Defendant went to Jamalpur that day, in consequence of the receipt of the telegram from Mr. Luffeman with regard to the events of the 27th April. There is nothing on the record to indicate that he went in order to make a general search for arms. It is clear that the Mahomedans generally were at the time in a very excited and infuriated state and it was urgently necessary to keep them under control. A search made to ascertain who were the persons guilty of the offences committed on the 27th April would certainly be a movement in that direction.

To support the contrary conclusion, the learned Counsel for the Plaintiff relies on paras. 6, 8 and 9 of the Defendant's written statement and on the absence of any entry relating to any search in the police report of the case instituted by Gendu. Para. 13 of the same written statement, however, indicates clearly enough that the Defendant pleaded from the first that he was acting under the Code of Criminal Procedure and that he relied on sec. 165, Criminal Procedure Code, amongst others, to support his plea. If, in the press of work and under the stress of circumstances resulting at the time from the disturbed state of the district and the special steps necessary to keep the peace at Jamalpur, the police officer failed, by inadvertence, to make the entry as to the search required by the rules in the report, the omission can hardly be regarded as of serious importance.

There seems to be no sufficient grounds for disbelieving the truth of the story as told by the Defendant in his evidence, and the balance of probability, both from the Defendant's conduct at the time and from his defence, seems to be in favour of the view that he all along thought he was acting under the Code of Criminal Procedure and not under the Arms Act. In fact, it would rather appear that he relied on the provisions of the Arms Act as an after thought.

In these circumstances, his act in directing the search does not appear to amount to a trespass in civil law, whether it was done under his order as a Magistrate, or under his directions, by the police in the course of the investigation into the offence committed against Gendu.

We have next to consider whether the search, if it was made under the provisions of the Arms Act, amounted to a civil trespass on the part of the Defendant, because he failed to comply with the provisions of sec. 25 of the Act and to record his reasons for making it before he directed it to be made. To prove that the Defendant had good reasons for making, the search, there is his own evidence which appears to have been accepted as sufficient by the learned Judge who tried the case. The Judge has found that the Defendant acted bonâ fide and that he was not actuated by malice or improper motives against any particular individual or section of the community. He holds, however, that the omission of the Defendant to comply with the provisions of the law rendered his act, under the common law of England, a trespass, for which he was liable in damages at civil law, though otherwise it might have been right and proper. On behalf of the Defendant, reliance is placed on the circumstances that the conditions under which he acted were exceptional and that he was obliged, under the stress of circumstances and the emergency, to take prompt action. On this point, the Defendant in his evidence says, when asked why he omitted to record his reasons for the search under the Arms Act.—“There was a great deal to be done. I had not time to look everything up. I could not spare the force of men to watch the cutcheries and have the search later on. I thought of the Arms Act but I had not it with me and it would take some time to get a copy. At the time, I was not aware of the provisions of the Arms Act. I thought I had power to direct a search, if I had reasonable grounds. I did not realise, I had to record that.” Further on he says that in good faith he believed he had jurisdiction in the matter.

For the Plaintiff, it has been urged that, as the greater number of the Hindus had filed out of panic and the cutchery was deserted, there was no necessity for haste, and the learned Judge has expressed the opinion that in searching the cutchery of the Plaintiff the Defendant should have proceeded with great circumspection, as the fact that he had previously searched the temple and the cutcheries of three other zemindars and had found no arms, should have led him to doubt whether the information given to him by the police was correct. But, must not the searches made of the temple and the cutcheries be rather regarded as acts forming part of one transaction? It is not as though the cutcheries and the temple were in different places at some distance from one another. The map filed in the record shows that they are all close together and the information appears to have been to the effect that there was a combination amongst the servants of the different landlords to collect the arms for unlawful purposes and that the arms could not be left in their possession without danger to the public peace. In such circumstances, it seems hardly reasonable to expect that the Defendant should have proceeded with greater circumspection in searching one cutchery than in searching the other buildings.

The real question, however, appears to be whether the directions in sec. 25 of the Arms Act that a Magistrate, before making a search, should record his reasons are mandatory or directory, and in determining this question, we may well be guided by the following remarks of Lord Campbell in the Liverpool Borough Bank v. Turner. “No universal rule can be laid down for the construction of statutes as to whether mandatory enactments shall be considered as directory only, or obligatory with an implied nullification for disobedience. It is the duty of the Courts of Justice to try to get at the real intention of the Legislature by carefully attending to the whole scope of the statute to be considered.” Now, the object of the provisions of the Arms Act, and specially of sec. 25 of that Act, is clearly to preserve the public peace. Can it be held that the directions in sec. 25 were in their nature so mandatory that the failure to comply with them would have the effect of nullifying the proceedings? Maxwell, in his work on the Interpretation of Statutes, p. 556, says—“When a public duty is imposed and the statute requires that it shall be performed in a certain matter or within a certain time or under other specified conditions, such condition may well be regarded as intended to be directory only when injustice or inconvenience to others, who have no control over those exercising the duty would result if such requirements were essential and imperative.” There can be no reasonable doubt that, in laying down the conditions in sec. 25 of the Arms Act, the object of the Legislature was to ensure that, in each instance, a Magistrate should not enter on a search without due care and good and sufficient reasons. At the same time when, as in the present case, it has been found that the Magistrate acted bonâ fide and for good and sufficient reasons, can the failure on his part to record his reasons, which was due to exceptional conditions, stress of circumstances and the emergent necessity for prompt action, be held so to nullify his act as to convert what was right and justifiable for the preservation of the public peace into an actionable wrong? To hold that it would have that effect appears hardly to be consistent with the rules referred to above or with the principles of justice and good conscience. It is he doubt, most necessary to prevent public officers from exercising their powers in a harsh, careless or arbitrary manner. At the same time, it appears to be hardly just or reasonable to hold that, when an officer has acted bonâ fide in what lie believed to be the discharge of his duty and when it has been found that he had good and sufficient reason for his action, he should be liable, under the civil law, for damages for a trespass, because, through inadvertence, he failed strictly to observe a formality which in the circumstances of the case, was not of serious importance and which may be taken to constitute a technical, rather than a substantial defect in his proceedings.

This seems to have been the fact in the present case and it seems difficult to say that, in consequence, the act of the Defendant amounted to a trespass.

There remains, lastly, for determination the question whether the Defendant can in this case claim to be protected by the provisions of Act XVIII of 1850; and in dealing with this question, it has to be determined whether his act was a judicial act or purely an executive act. The learned Judge has held that the act was an executive act. The distinction between a judicial and an executive act in India is not very clearly drawn, as many acts which are purely administrative are generally described as executive. The main distinction between the two appears to be that judicial acts are those acts done or orders passed in the exercise of the judicial discretion or power with which an officer is vested under the law, while executive acts are of a ministerial character either carrying judicial orders into effect or discharging duties not of a judicial nature. In the case of Hope v. Evered(3) to which we have been referred, it has been clearly laid down that the issue of a search warrant is a judicial act; and in the case of Mahomed Jackariah v. Ahmed Mahomed, and in the case of In re Lakmidas Narainji, a similar view has been taken by the High Courts in India.

The question is whether the order directing a search under the Arms Act or the proceedings in execution of that order differ in essence so materially from searches made otherwise under the law as to constitute the order passed under the Arms Act an executive rather than a judicial act. The whole scope and object of the Arms Act appears to be to impose restriction on the manufacture, sale, import, export and transport, and the possession of arms and ammunition with a view to preserve the public peace, and in directing a search under sec. 25 of the Act, the Magistrate has to proceed on information laid to him disclosing that the person is in possession of arms, etc., for any unlawful purpose, or that he cannot be left in possession of such arms without danger to the public peace. If he considers that such information is such as to afford sufficient reasons for a search, he is empowered to order one to be made. It can hardly be said that, in arriving at the conclusion that the possession was for any unlawful purpose, or that possession of the arms could not be retained without danger to the public peace, the Magistrate is not exercising a judicial discretion, that is to say, arriving at a conclusion on evidence. Indeed, if the act is not a judicial act, it seems difficult to understand what the object of the Legislature was in requiring that the Magistrate should record his reasons. It seems difficult to suppose that the Legislature intended to empower a Magistrate to deprive a person of his property, even temporarily, by an executive act. It seems to me, therefore, very difficult to hold that the order directing the search was an executive act on the part of the Defendant.

If that be the case, then, the provision of Act XVIII of 1850 appear to be sufficiently wide not merely to protect the Defendant but also those acting under him. The section runs “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, Relieved himself to have jurisdiction to do or to order the act complained of; and no officer of any Court or other person, bound to execute the lawful warrants or order of any such Judge, Magistrate, Justice of the Peace, Collector or other person acting judicially shall be liable to be sued in any Court for the execution of any warrant or order which he would be bound to execute if within the jurisdiction of the person issuing the same.”

The learned Judge who tried the case has expressed the opinion that the search was “one of the important executive acts which, as District Magistrate, the Defendant had to perform,” but he has not stated his reasons for arriving at that conclusion. I regret to say that I am unable to agree that the order directing the search, based on information received which was held to afford good reasons for it, and made for the preservation of the public peace, was in fact an executive act. It appears to me, therefore, that the Defendant and the police officers acting under him are protected from suit by Act XVIII of 1850.

The learned Judge in dealing with the question of damages says that the law casts on the Defendant, as being in supreme control of the search party, the obligation of seeing that the search was conducted in a proper and reasonable manner, and the learned Judge goes on to say that he entertained no doubt that the search was conducted with unnecessary damage to the property of the Plaintiff, and that the Defendant failed to exercise proper supervision and control over the people under him, conducting the search.

On this point, the Defendant in his evidence says that he did not see or sanction the destruction of any property more than was reasonably necessary for the purpose of opening the boxes. He says that only one complaint was made to him that the police were doing unnecessary damage and that was when the cutchery and house of the Naib of the Ramgopalpore cutchery was being searched and that “he took steps to see to it.” He adds “I told Mr. Luffeman to tell the police to put back the things left lying about,” and “it is not a fact that the complaint was repeated to me while I was searching at the Plaintiff's premises.” He denied that armed Mahomedans accompanied him during the search or took part in breaking open the boxes. It is true that in a latter portion of his evidence the passage occurs “I think daos were used by the Mahomedans but I am not absolutely certain;” but, as just before that, he had said that the Mahomedans took no part in the search, it seems not impossible that there may have been some confusion on this point in the record of his statement. The context seems to support that conclusion. He says that before breaking open the door of the cutchery and the boxes, he tried to obtain the keys but none were produced.

In support of his conclusion on this point, the learned Judge relies mainly on the evidence of Mr. Horniman. Now, without in any way wishing to question the veracity of that witness, what in fact does his evidence prove? Mr. Horniman did not arrive at the cutchery till the morning of the 1st May, the search having taken place on the afternoon of the 28th April. To fill up the interval, there is the evidence of Safatulla Jemadar, And to prove the character of the search proceedings themselves there is the evidence of Jogesh Chandra Dutt, Pleader, Issur Chandra Guha, Muktear, and Kali Kumar Mitter, medical practitioner. The evidence of these three last-mentioned gentlemen is certainly not beyond-suspicion of bias; and Safatulla, in a postcard which is proved to have been sent after the occurrence, gave an obviously exaggerated account of what had happened.

But, if the evidence of all these be taken into account, what in fact does it amount to? The door of the cutchery house was fastened by a chain and padlock. The padlock was forcibly broken open. The boxes in the cutchery appear to have been fastened, some with chains and padlocks and others with locks; and to open them, the padlocks were forced by bamboos and the other boxes forced open with daos, that is to say, hatchets. Mr. Horniman expressed the opinion that locksmiths might have been called in. The Deendant on this point says that he did not think of sending for locksmiths.

The point has been taken for the Plaintiff-Respondent that Defendant, ought to have examined Mr. Luffeman or the Sub-Registrar to prove what was done at the time of the search. To this, the learned Counsel for the Appellant has replied that those gentlemen and others were cited and were present as witnesses. It was not deemed necessary to examine them, as it was thought that, if the Court would not believe Mr. Clarke, it would not be likely to believe officers subordinate to him who were in fact alleged to have been equally blameworthy for the method of the search and one of whom, was a Defendant in a similar action on the same facts. I must say that I fail to see how the evidence of these witnesses would have materially improved the position of the Defendant as clearly each of them would have “been” open to the imputation of bias. It has been suggested that the papers contained in the boxes ought to have been replaced when no arms were discovered. I doubt, however, whether in similar searches, when conducted by other authorities under similar circumstances, such consideration is shown, however desirable it may be. No attempt was made to support the case for the Plaintiff as set out in the plaint that papers of value were lost and destroyed. The search does not appear to have been conducted in an unusual manner and I am unable to agree with the learned Judge that it was conducted with unnecessary damage to the property of the Plaintiff.

For the above reasons, I am unable to agree with the learned Judge in holding that the Defendant was liable to pay the damages which have been awarded against him and I would decree the appeal with costs.

Mr. H.C Egger, Attorney for the Appellant.

Mr. Hirendra Nath Dutt, Attorney for the Defendant.

P.R.C

Appeal allowed with costs.