TMI Blog1965 (2) TMI 119X X X X Extracts X X X X X X X X Extracts X X X X ..... pondent was arrested by the Circle Inspector of Police pursuant to an authority given by the appellant, and was confined in the lock-up for the night. Next morning the respondent was produced before the appellant who remanded him to custody. Eventually by order of the local First Class Magistrate, Mr. J. Barua, the respondent was released on March 20, 1950 on bail. It is common ground that neither on March 17, 1950 nor on any date thereafter, was any formal complaint lodged against the respondent charging him with an offence in connection with the riots, nor was any information recorded at any police station against the respondent in that behalf. The respondent had to appear before the local First Class Magistrate on diverse occasions but the proceeding was adjourned because the Magistrate was awaiting investigation reports from the police. On May 27, 1950 Mr. j. Barua recorded that a great confusion exists amongst police officers about the case. It is surprising that the officer-incharge should refer to the C. I. (Circle Inspector) as authority for the arrest and the latter to the Sub-Divisional Officer. No case also seems to have been registered at the police station. I fail t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and that in the course of discussions the Deputy Commissioner had asked the appellant to take suitable action . The appellant stated that he had been orally directed by the Deputy Commissioner to issue orders of arrest of the respondent, and he acted in pursuance of that direction, and addressed the following letter Ext. A to the Circle Inspector of Police, directing that the respondent be arrested: Deputy Commissioner has ordered the arrest of Sri Ajoy Mukherjee a resident of this town at once under S. 436, Indian Penal Code. sd/- Illegible S. D. O. 17-3-50 . The Deputy Commissioner denied that he had given any instructions for the arrest of the respondent; he stated that he had told the appellant about the reports received by him and by the Chief Minister that the respondent was concerned with incidents which led to rioting and arson, and that he had discussed the matter with the appellant and had told the appellant to take suitable action in the matter. 6. The Court of First Instance held that the arrest of the respondent was not made in exercise of any lawful authority and that the arrest was reckless and without any lawful excuse , and that even t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd Deka, J., disagreed. The learned Chief Justice substantially agreed with the Court of First Instance that the appellant could not have the protection of the Judicial Officers Protection Act, 1850. Deka, J., expressed a contrary opinion. The appeal was then referred to Mehrotra, J., who agreed with the opinion of Sarjoo Prasad, C J. 8. In this appeal, the only question raised is that in ordering the arrest of the respondent the appellant acted in discharge of his judicial duties, and be was on that account protected by the Judicial Officers' Protection Act, 1850. Section 1 of the Act, in so far as it is material, provided: No Judge, Magistrate, * * * 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 lie at the time, in good faith, believed himself to have jurisdiction to do or order the act complained of; * * * The statute is clearly intended to grant protection to Judicial Officers against suits in respect of acts done or ordered to be done by them in discharge of their du ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e an act done in the discharge of the judicial duty, even if it turns out that there were not sufficient grounds for the Magistrate to proceed against the accused. In the present case no warrant in Form 2 prescribed by the Code of Criminal Procedure in the Fifth Schedule was issued. The letter Ext. A on which reliance was placed was in form a direction given to the Circle Inspector of Police to arrest the respondent: it did not bear the seal of the Magistrate and it did not state that the respondent stood charged with the offence under S. 436, Indian Penal Code. But these irregularities may not affect the exercise of the power, if the power was in fact exercised under S. 204 of the Code of Criminal Procedure. The only question to be determined, therefore, is whether the appellant had taken cognizance of the offence under Section 190 of the Code, before issuing the order to arrest the respondent. 10. There being no formal complaint lodged before the appellant charging the respondent with having committed an offence under S. 436, I. P. Code or any other offence, power under S. 190(1)(a) could not be exercised. And in the absence of a report in writing of the facts stating the offe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... maintained of any information received by the appellant or the grounds of his suspicion, pursuant to which he could act in taking cognizance of an offence under S. 190(1)(c). The record of the proceeding against the respondent commences with the first entry dated March 18, 1950 recording that the respondent was produced under arrest and that he was remanded to custody. There is also the order passed by the Magistrate who ultimately closed the proceeding against the respondent. The order-sheet clearly shows that no officer was prepared to undertake responsibility of having directed the arrest of the respondent. The Circle Inspector pleaded that he acted under the orders of the appellant and. the appellant pleaded that he acted under the orders of the Deputy Commissioner. The last-named officer denied that he had given any such authority to the appellant. At no stage of the proceeding, which ultimately ended in the order dated May 31, 1950, was it even suggested that the appellant had in exercise of the powers under S. 190 of the Code of Criminal Procedure taken cognizance of the offence under S. 436, I. P. Code against the respondent and had directed that he be arrested. The informa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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