Sir John Edge, C.J, and Tyrrell, J.:— The suit out of which this second appeal arose was brought by Thakur Ram Lal against L.W Teyen, a Magistrate of the first class, to recover damages for the sale by the defendant of two mares, five bullocks, one cow with calf, and two buffaloes, the property of the plaintiff, on the allegation that the defendant had, in bad faith and maliciously and without any sufficient cause, illegally and without authority sold the property in question before the date fixed for the sale, by reason whereof the plaintiff had suffered the damages claimed.
The defendant pleaded that he, when acting as a Deputy Magistrate in the Fatehpur district, had sentenced the plaintiff to three years' rigorous imprisonment and a fine of Rs. 500, under ss. 379 and 411 of the Indian Penal Code, which conviction and sentence be admitted had been set aside by the Sessions Judge of Cawnpore. The defendant also, amongst other things, alleged that such action as he had taken in the matter was taken in good faith by him and according to the best of his judgment and ability; that the sale was conducted under s. 386 of the Code of Criminal Procedure; and that it became necessary to sell the animals earlier than the date fixed [120] for the sale so as to avoid the costs of their maintenance; and relied upon Act XVIII of 1850.
The then Subordinate Judge of Cawnpore, being of opinion that Act XVIII of 1850 was a bar to the suit, by his decree dismissed the suit, but without costs.
From that decree the plaintiff appealed. On appeal the then Judge of Cawnpore found that the defendant had no jurisdiction to sell the plaintiff's property in the manner in which he had sold it; that the defendant had not used due care and attention in the matter, and did not in good faith believe himself to have jurisdiction to sell the plaintiff's property in the manner in which he had sold it.
The Judge of Cawnpore allowed the appeal, and assessing the damages at Rs. 1,200, gave the plaintiff a decree for Rs. 1,200 With costs of both Courts.
From that decree this second appeal has been brought.
The Judge of Cawnpore and the Subordinate Judge differed as to the construction of Act XVIII of 1850.
Act XVIII of 1850 is as follows:—
“An Act for the protection of Judicial Officers.
“For the greater protection of Magistrates and others acting judicially.
“It is enacted as follows:—
“I. 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 [121] or order, which he would be bound to execute, if within the jurisdiction of the person issuing the same.”
The Judge of Cawnpore considered that inasmuch as the sale was not in conformity with Form 37, schedule V, and s. 554 of the Code of Criminal Procedure, and Form D in Chapter V of the Circular Orders of this Court, the acts complained of were not done or ordered to be done within the limits of the defendant's jurisdiction as a Magistrate of the first class. In other words, the Judge of Cawnpore considered that an act done or ordered to be done by a Magistrate in the discharge of his judicial duty could not be treated as done or ordered to be done by him within the limits of his jurisdiction, if in doing such act or ordering it to be done he did not comply with the provisions of the law, which required that the act should be done in a particular manner.
If that construction of the Act is correct, this appeal must, on the finding of fact of the Judge of Cawnpore, that the defendant did not in good faith believe that he had jurisdiction to sell the plaintiff's property in the manner in which he sold it, be dismissed. If, on the other hand, that construction of the Act be not correct, that finding of fact is immaterial, as there can be no doubt that in sentencing the plaintiff to imprisonment and fine of Rs. 500, and in issuing his warrant for the levy of the amount by distress or sale of the moveable property belonging to the plaintiff, the defendant was acting in the discharge of his judicial duties as a Magistrate of the first class, whether or not he discharged those duties irregularly or even illegally.
Mr. Banerji for the appellant referred us to s. 386 of the Code of Criminal Procedure and the cases of Meghraj v. Zakir Husain(1), Calder v. Halket(2), The Collector of Hooghly v. Tarak Nath Mukhopadhya, Fray v. Blackburn(4), Dhan Singh v. Basant Singh(5) and Maxwell, pp. 67 and 385.
Mr. Reid and Pandit Bishambhar Nath for the respondent referred us to the cases of Queen v. Shahon(6), Ammiappa Mudali [122] v. Mahomed Mustafa Sahib(7), Ashburner v. Keshav Valad Tuku Patil(8), and Collector of Sea ustoms, Madras v. Punniar Chithambaram(9).
It was at first contended that the Judge of Cawnpore having found that the defendant did not in good faith believe himself to have jurisdiction, it was immaterial whether the act done or ordered to be done was “within the limits of his jurisdiction.” That contention was properly abandoned on its being pointed out to counsel that such a reading of the Act would lead to the inference that a Judge or Magistrate would be liable to be sued for an act done by him in the discharge of his judicial duties, although the law imposed upon him the duty, of doing such act, and such act was done in strict conformity with the law if at the time of doing the act he did not bona fide believe that he had jurisdiction to do or order the act complained of, and would make the protection which the Act was intended to afford to. Judges, Magistrates and others acting in the discharge of judicial duties depend in all cases on the ignorance of the Judge or Magistrate or other person of the law, and not upon his having acted in conformity with the law.
In construing the Act, the first principle of construction must, if the Act is susceptible of it, be observed, and the same meaning be applied to the term “jurisdiction” wherever it occurs.
What is the meaning of that term where it first occurs? The Act was passed “for the greater protection of Magistrates and others acting judicially,” and is entitled “An Act for the protection of Judicial Officers.” There could have been no necessity to pass an Act to protect a Judge, Magistrate or other person who in the discharge of his judicial duties acted as the law required him to act and in conformity with the law. The law could not make a judicial officer liable to a suit for acting in conformity with the law. Prior to Act XVIII of 1850, the Acts which afforded protection to judicial officers in India were, so far as we are aware, the 13 Geo. [123] III, c. 63, and the 21 Geo. III, c. 70. S. 24 of the 21 Geo. III, c. 70, is as follows:—
And whereas it is reasonable to render the provincial Magistrates, as well Natives as British subjects, more safe in the execution of their office, be it enacted: That no action for wrong or injury shall lie in the Supreme Court against any person whatsoever exercising a judicial office in the country Courts for any judgment, decree or order of the said Court, nor against any person for any act done by or in virtue of the order of the said Court.”
In 1839 the Judicial Committee of the Privy Council in the case of Calder v. Halket judicially interpreted that section. The Judicial Committee considered that the object of that section was to protect Judges of the Native Courts from actions for things done within their jurisdiction, though erroneously or irregularly done, leaving them liable for things done wholly without jurisdiction. It is obvious that in using the term “jurisdiction” in that case the Judicial Committee did not use it in the sense of authority or power to do an act in a particular manner, but in the sense of authority or power to act in the matter. Act XVIII, of 1850 not only protected judicial officers from suits for acts done or ordered to be done by them in the discharge of judicial duties within the limits of their jurisdiction, but extended the protection which had to that extent according to the Judicial Committee of the Privy Council in Calder v. Halket, been afforded to them by s. 24 of the 21 Geo. III, c. 70, by further protecting them from suits for acts done or ordered to be done by them in the discharge of judicial duties, without the limits of their jurisdiction, provided that in such last case the officer at the time of doing the act or ordering it to be done in good faith believed himself to have jurisdiction to do or order the act complained of.
We presume that the Legislature in passing Act XVIII of 1850 had in mind the decision of the Privy Council in Calder v. Halket and intentionally used the term “jurisdiction” in the sense in which it had been used by their Lordships of the Privy Council in that case.
[124] The concluding portion of Act XVIII of 1850 leads us also to that conclusion. If the term “jurisdiction” in that concluding paragraph were to be construed as meaning authority or power to issue the warrant in the particular matter and in the particular manner or form in which it was issued, the officer or person executing the warrant would under the section obtain no greater protection than the law, without the aid of Act XVIII of 1850, already afforded him, the protection being extended only to an “officer of any Court or other person bound to execute the lawful warrant,” &c. The protection to such officer or person afforded by the section was not against suits for executing lawful warrants or orders, but against suits for executing warrants or orders, which were not lawful, provided that such warrant or order was issued by a judicial officer in a matter within his jurisdiction, and not merely in a matter in which such judicial officer had authority or power to issue the particular warrant.
This Court, in the case of Meghraj v. Zakir Husain in considering Act XVIII of 1850, decided that no person acting judicially was liable to be sued for an act done or ordered to be done by him in the discharge of his judicial duty within the limits of his jurisdiction, and that in such a case the question of good faith did not arise. That, so far as we are aware, was the only case prior to that now under consideration in which this Court has had to construe Act XVIII of 1850.
In the case of Collector of Sea Customs, Madras v. Punniar Chithambaram the defendant appellant, who was Collector of Sea Customs at Madras, professing to act under s. 24 of Act VI of 1863, imposed a fine upon the plaintiff, over whom he had no jurisdiction, and seized the property of the plaintiff with a view to realizing the fine. The Collector was held not to have been protected by Act XVIII of 1850, because he had no bond fide belief that he had jurisdiction. The judgment of Sir Walter Morgan, C.J, in that case is instructive on the point under consideration here. We extract two passages from that judgment as showing, as [125] we understand that judgment, that Sir Walter. Morgan construed Act XVIII of 1850 as we construe it. Those passages are as follows:—
“The illegal imposition and levy of the fine is the alleged cause of action. There is no allegation in the plaint, except incidentally in the prayer for relief, that the Collector acted maliciously and without reasonable or probable cause. With reference to this, the first and fourth issues were apparently framed to raise the question whether the Collector, unless shown to be actuated by corrupt and malicious motives, was liable to suit. These issues were, on the assumption that the Collector acted judicially, properly regarded by the Court below as immaterial. His act being in its nature judicial, if we assume in his favour that he acted within his jurisdiction, this would not, in my judgment, render him liable to suit even though the act was done maliciously. If, on the other hand, he acted without jurisdiction his liability would depend, not on whether the act was malicious and without reasonable and probable cause, but on whether it was within the protection of Act XVIII of 1850.
“The bona fide belief which this Act of 1850 requires in those whom it protects from liability to suit in respect of acts done without jurisdiction, is of a different kind. A belief based on no probable or plausible grounds and arrived at inconsiderately and without due inquiry cannot be considered a belief in good faith within the meaning of the Act, which has been construed in several cases to require reasonable care and attention in the performance of his official duty on the part of him who does or orders the act complained of. It is difficult to suppose that the appellant in his proceedings could have given due consideration to the extent of his powers or endeavoured to inform himself on the subject. Certainly we cannot infer that he did so merely from the fact that his acts were fully known to the Government Solicitor, and at a later period to his official superiors.
“Each case of this sort must no doubt be treated on its own circumstances. But we are bound, I think, to hold according to [126] the received construction of the Act that the error, whether it be one of law or of fact, must, to be protected or excused, be shown to rest on some foundation of reason.”
In the case of The Collector of Hooghly v. Tarak Nath Mukhopadhya the plaintiff sued a Magistrate for damages occasioned to him by the cutting of his band at the Magistrate's order. The High Court at Calcutta held that the Magistrate was acting judicially and with jurisdiction (though under the circumstance carelessly and irregularly), and was therefore protected by Act XVIII of 1850 from the action for damages. The judgment in that case is a long one, and we need refer only to the following passages in the judgment which are to be found at pp. 484-5 of the report:—
“Although we consider it clear that the procedure prescribed by Chapter XX was observed as little as it could well be by anybody acting under that chapter at all, still, as the Deputy Magistrate did, as the lower appellate Court finds he did, in fact act under Chapter XX and did call upon the plaintiff to show cause, and did hold a sort of inquiry (however irregular), through the police, we do not think we can say that the Deputy Magistrate was not proceeding judicially. We think he was proceeding judicially, though carelessly and irregularly.
“Then was the cutting of band an act within his jurisdiction? We take it for granted that it was, if he had proceeded regularly under Chapter XX. But does she irregularity or incompleteness of this procedure so affect the matter that the jurisdiction did not attach? For the same reasons which induce us to hold that the proceeding was a judicial proceeding though irregular, we hold that the Deputy Magistrate was acting with jurisdiction. As the Deputy Magistrate, acting on the report of the overseer, considered it necessary that the band should be removed, and as he under s. 308 passed an order calling upon the plaintiff to remove it, or show cause to the contrary within seven days, and as there was in fact a species of inquiry through the police, we think that the jurisdiction attached, [127] and that the Deputy Magistrate cannot be held to have acted without jurisdiction. On the whole, as we must accept it as a fact that the Deputy Magistrate in cutting the band was acting under Chapter XX of the Criminal Procedure Code, we are of opinion that he did act judicially and with jurisdiction, and therefore that he ought not in this suit to have been held liable in damages to the plaintiff.”
The observations of Norman, J., in the case of the Queen v. Shahon, were, so far as Act XVIII of 1850 was concerned, clearly obiter.
It does not appear from the report of the case of Ammiappa v. Mahomed Mustafa Saib, whether or not the learned Judges in that case were considering the provisions of Act XVIII of 1850.
In the case of Vinayak Divakar v. Bai Itcha, the Court held that for the order of the Magistrate, in respect of the carrying out of which the suit against the Magistrate was brought, there was not a shadow of legal foundation; and, further, that the order was made by the Magistrate for the purpose of placing undue pressure upon the plaintiff's husband.
The case of Venkat Shrinivas v. Armstrong, related to a question of pleading, and throws no light on the present case.
We cannot see what bearing the case of Ashburner v. Keshav Valad Tuku Patil has upon the case before us.
In the result we are of opinion that the defendant-appellant here was in doing or ordering the act complained of to be done, acting in the discharge of his judicial duty within his jurisdiction as a Magistrate of the first class; that under such circumstances the finding of fact that “he did not in good faith believe himself to have jurisdiction to sell the plaintiff's property in the manner he did,” is immaterial; and that the fact that he acted with gross and culpable irregularity did not deprive him of the protection afforded by Act XVIII of 1850.
[128] However hard it may be upon the plaintiff to have no redress by suit for the grossly irregular and oppressive act of the defendant, it is of the utmost importance to the public and to the State that the protection afforded by Act XVIII of 1850 should not be cut down to meet hard cases, and that Judges, Magistrates and others who have to exercise judicial duties for the benefit of the community should be able to act without the constant fear before them that if they happen to act irregularly or without full legal justification for the act done or ordered to be done by them they will have to answer in damages to the person injured.
In the case of Fray v. Sir Colin Blackburn Crompton, J., explained the principle upon which the law protected Judges of the Superior Courts in England from actions for a judicial act thus:—
“It is a principle of our law that no action will lie against a Judge of one of the Superior Courts for a judicial act, though it be alleged to have been done maliciously and corruptly; therefore the proposed allegation would not make the declaration good. The public are deeply interested in this rule, which indeed exists for their benefit and was established in order to secure the independence of the Judges and prevent their being harassed by vexatious actions. In the present case there can be no doubt that the action is most improper and vexatious.”
That, it appears to us, is the principle which underlies Act XVIII of 1850.
The Executive Government may in gross cases be depended upon by their action to prevent the particular person having an opportunity of again misconducting himself in the discharge of judicial duties.
We allow the appeal, but without costs here or below, and we restore the decree of the Subordinate Judge.
We direct that a copy of this judgment and the record be sent to the Local Government for its consideration.
Appeal allowed.