Lawyers Directory Listing
Chat with us free on WhatsApp — tell us your city and legal matter and our team connects you with the right lawyer. No form, no fee.
Letters Patent Appeal No. 146 of 1960, decided on 21st December 1961.
‑False Imprisonment‑Malice on part of defendant‑Magistrate (defendant) issuing in first Instance non‑bailable warrants against plaintiff by way of show‑cause notice for alleged offence under S. 182, Penal Code (XLV of 1860)‑Extraordinary procedure adopted by Magistrate itself proof (in circumstances of case) of "bad faith."
‑Applies where an "obvious offence" is committed and there is "urgency of immediate arrest, not where offence "depends upon an inquiry."
‑Issuing warrant "in the first instance" where according to fourth column of Sch. 11, Criminal Procedure Code (V of 1898), a summons should issue‑Illegal.
-- Acting in ignorance of law as to one's power under an Act which officer had not studied but had only "heard of "‑Officer not protected.
--"In pursuance of any enactment" means "in conformity with" and not merely "pre tending to or acting under colour" of such enactment ‑[Pandit Shiam Lal v. Abdur Rauf A I R 1935 All. 538 rel.].
‑Applies to suit for damages for false imprisonment.
Karam Elahi Chauhan with Hakim Sardar Khan for Appellant.
Nemo for Respondent.
Dates of hearing : 29th and 30th November 1961.
.‑This Letters Patent Appeal arises from a suit for damages for false imprisonment brought by Khan Ghulam Qadir Khan Khakwani of Multan, a prominent landlord and a former Zaildar, against Mr. Abdul Karim Khalid, a Magistrate of the 1st Class in Multan District. The suit was originally instituted in a Subordinate Court at Multan but after most of the evidence had been recorded, it was transferred to the High Court and was tried by Mr. Justice B. Z. Kaikaus who found the plaintiff's case true and awarded nominal damages to the extent of Rs. 500 as against Rs. 20,000 claimed by the plaintiff. The suit was instituted on the 6th of April 1956. The incident to which it relates occurred on the 14th and 15th of October 1955. The plaintiff's case in the plaint was that on the 14th of October 1955, at Karampur Rest House in Tehsil Mailsi, the defendant had maliciously and without good cause and jurisdiction issued against him a non‑bailable warrant of arrest with the object of disgracing him in public and that in pursuance of the warrant in question he was arrested at Karampur Rest House on the same day and taken on foot a distance of two miles to Vehari, where he was detained in the judicial lock‑up. The police did not accept the offer of bail from the plaintiff and the defendant went to attend a dinner at Mailsi from where he returned to Vehari at about 11 O'clock in the might and it was only then that the plaintiff was released on bail. As he had committed no offence, the defendant had no power to order his arrest. The plaintiff belonged to a respectable Zamindar family of Multan where he enjoyed considerable esteem and the defendant was aware of his status in life. Although his reputation had been damaged irredeemably, he had claimed only twenty thousand rupees as damages.
2. In the written statement, the defendant replied that he was protected by the Judicial Officers' Protection Act No. XVIII of 1850 ; that the offence for which the plaintiff had been arrested was still under trial, and as regards the plaintiff's status, the defendant knew nothing about him and had seen him for the first time on the 14th of October 1955. The facts of the case were stated by the defendant as follows. On the day in question when the defendant was acting as Magistrate and Emergency Officer to the flood‑stricken areas of Vehari and Mailsi, the plaintiff made to him, without good cause, a false report that numerous armed villagers were preparing to make a breach in the Sauro minor and that not only was the danger of a breach of the peace imminent, the breach in the canal was likely to cause endless misery. Thereupon, the defendant, taking the police and other officers with him, went to the spot and found that the information was baseless and that the plaintiff had deliberately made a false report. As the defendant had full power to arrest the plaintiff and as the plaintiff had meanwhile disappeared, warrants were issued for his arrest. The defendant had this power under section 64 of the Code or Criminal Procedure. The plaintiff had been challaned under section 182, Pakistan Penal Code, and the case was under trial.
3. In the replication, the plaintiff replied to the objections of the defendant, but as regards the actual incident, he did not give his own version and contented himself merely with stating that he had not made any such "alleged report" to the defendant. Consequently, the issues that were framed were as follows: ‑
(1) Whether the non‑bailable warrant issued against the plaintiff was based on any malice If so, what was that malice
(2) Whether the plaintiff was arrested and imprisoned wrong fully and illegally
(3) If issues Nos. 1 and 2 are proved, to what amount of damages is the plaintiff entitled
(4) Whether the action of the defendant is protected under the Judicial Officers' Protection Act, XVIII of 1850
(5) Are the Civil Courts barred from trying such suit under the Judicial Officers' Protection Act
(6) Is it necessary to stay the proceedings of this case till the hearing of criminal case under section 182, P. P. C. pending against the plaintiff
(7) Relief.
4. During the trial, however, the plaintiff gave the following version of the incident. He and his younger brother Ghulam Haider Khan had land in the Village Karimwah of Tehsil Mailsi. His brother had come to him on the 14th of October 1955 from the village to Multan and informed him that his land had been inundated with the flood and the flood water was heading towards the plaintiff's land. The plaintiff thereupon took with him Siddiq Muhammad Khan and Ghulam Sarwar Khan, reaching Vehari at about noon time. At the Rest House, they found Muhammad Nawaz also and they all went to the Deputy Superintendent of Police, Haji Shah Muhammad and, informing him about the incursion of water, asked for assistance. The Deputy Superinten dent took them to the defendant who was then on duty and introduced the plaintiff who repeated his request to the defendant. The defendant sent him to the flooded area and promised to follow immediately after lunch. On way to his village, the plaintiff's car got stuck in mud and it took him about an hour and a half to extricate the car and put it in order. Thereafter, he went to the Sauro Minor where he found a car and a lorry standing. He was informed that these vehicles had brought the Magistrate and the police who had gone along the bank of the Sauro Minor to the Rest House. The plaintiff and his companions walked over to the Karampur Rest House which was two miles from that place. There they found Mr. Khalid, the defendant, Mr. Waheed, another Magistrate, the Deputy Superintendent of Police, Shah Muhammad Khichi, and many other persons in the veranda. Upon seeing the plaintiff at some distance, they took the car and went away without waiting for him. In the Rest House, Sub‑Inspector Taj Muhammad inquired who Ghulam Qadir Khan was, and when the plaintiff told him his name, the Sub‑Inspector arrested and handcuffed him. Upon asking him for the reason of his arrest, the Sub‑Inspector replied that it was under the orders of Mr. Khalid and that the reason also was known to Mr. Khalid. The plaintiff asked him to show to him a written order but there was no such order. The plaintiff was taken to Sauro minor on foot and from there taken in a lorry to the Vehari Rest House and then to the lock‑up. At about 11 p.m., he was again taken to the Rest House in handcuffs. Mr. Khalid and Mr. Waheed were already there and the plaintiff was asked to furnish a bail bond in Rs. 1,000 and ordered to appear at 9 a.m. next day before Mr. Khalid, On the following day, when he appeared before Mr. Khalid, he was told by that officer that he had been "sufficiently punished". Mr. Khalid obtained his signatures on two blank pieces of paper. These signatures were identified by him in Court on the documents Exh. P. D. and P. D/1 which are on the file of the case under section 182, P. P. C. Thereafter, he was released. It subsequently transpired that his prosecution had been ordered under section 182, P. P. C. This prosecution later resulted in the plaintiff's conviction and a sentence of Rs. 50 as fine, which as the learned Single Judge has observed, is non‑appealable. The plaintiff filed a revision petition against this sentence in the High Court but it was dismissed by Mr. Justice J. Ortcheson whose judgment shows that the findings of fact were accepted by him, without examination.
5. What the defendant appears to have done on the 14th and 15th of October 1955 is disclosed by the following documents. Exhibit D. 1 is a notice issued by him to the plaintiff on the 14th of October 1955 and dictated to the Sub‑Inspector Taj Muhammad. In substance, this notice states in Urdu that "whereas by virtue of a dangerous flood the Provincial Govern ment had applied the National Calamities Act to the Punjab Province and the police and the Magistrate had been commissioned to deal with the incidents of the flood, and whereas the plaintiff had, at 12 O'clock on the 14th of October 1955, at Rest House Vehari, laid information before the defendant and the Deputy Superintendent of Police that the people of Kot Qazi and Danwah were opposing each other with guns, rifles and dangs, at points in these villages adjacent to the Sauro minor, and whereas the plaintiff had stated to the Magistrate that he had satisfied himself at the spot as to the truth of the information and that if the police and the Magistrate did not go to the spot in time, a fight was imminent between the two parties, and whereas in consequence of this information the defendant had taken with him the Deputy Superintendent of Police, the Station House Officer, and other police officers to the spot, and had found neither any armed parties opposing each other nor any danger to the canal minor, this notice was issued to him to show cause why he should not be prosecuted under the National Calamities Act". Below this notice is the following order in Urdu signed by the defendant and purporting to be of the same day : "S. H. O. Vehari should arrest Ghulam Qadir Khan".
6. On the same day, and according to the defendant at the same time, a non‑bailable warrant was issued by the defendant for the arrest of the plaintiff. This was also dictated to the Sub Inspector as no printed form was available at the spot. It directs the arrest of the plaintiff "under section" (the section is not stated) "of the National Calamities Act, Pakistan, and under section 182, Pakistan Penal Code" and his production before the defendant on the 15th of October 1955 at Vehari at 10 a.m. sharp. On the back of the warrant, there is an order of release on the same day but the time is not stated. There is also an order that the plaintiff should appear at Vehari on the 15th of October. On the 15th of October, there is an order that the plaintiff is present and that notice should be served on him. The notice mentioned here is apparently the notice Exh. D. 1, which required him to show cause, why he should not be prosecuted under the National Calamities, Act.
7. The proceedings of the 15th of October 1955 appear in Exh. P. D./1 and P. D./4, the documents which are on the file of the criminal case. Exhibit P. D./1 is to the following effect :‑
‑Have you heard the substance of the notice What Is your reply
.‑I had given the information by reason of misunderstand ing. I request to be pardoned. I shall not commit such a mistake again. Somebody gave me this information and I was not able to confirm it. In a state of confusion, I came straight here and communicated the information. This was not Intentional.
.‑Do you wish to say anything more
.‑No. I may be pardoned."
8. On the back of this document is Exh. P. D./4, the order which the Magistrate passed after recording this statement of the plaintiff. The order is to the following effect: ‑
"Ghulam Qadir Khan admits his guilt. He admits that he gave incorrect Information. In these circumstances, a complaint under section 182, P. P. C. should be made and presented in the Court of the Resident Magistrate at Vehari. The accused is under bail. He may be summoned by the Court for a suitable date."
This order is dated the 15th of October 1955.
9. The judgment of the learned Single Judge is published in P L D 1960 Lah. 1039 and contains a summary of the evidence produced by the parties at pages 1044 to 1047. The plaintiff produced eighteen witnesses including himself. P. W. 1 Muhammad Nawaz, a commission agent, P. W. 6 Ghulam Haider Khan, brother of the plaintiff, P. W. 7 Behram Khan, a Zamindar of Multan, and P. W. 16 Sadiq Muhammad Khan of Vehari testify to the plaintiff's story that the information which he had given to the defendant was limited only to a concern expressed by the plaintiff in respect of his own land and that the plaintiff had asked for assistance. Babu Khan (P. W. 2), Ghulam Murtaza Shah (P. W. 3), a business‑man of Karampur, Behram Khan (P. W. 7), already mentioned and Qazi Shah Muhammad Lambardar of Kot Qazi (P. W. 9) stated that upon seeing the plaintiff and his party arrive at the Karampur Rest House, the defendant had left the Rest House in the company of Shah Muhammad Khichi and Ahmad Khan Khichi in a car. These two persons were opponents of the plaintiff. Muhammad Aslam Khan (P. W. 4), who is a Zamindar of Multan City, and Abdul Qadir Khan (P. W. 5), a first cousin of the plaintiff's father, related past incidents to prove the defendant's malice. The learned Single Judge has not held that the defendant was actuated by any previous malice, and having considered the circumstances of the case, we have formed the same opinion.
10. The defendant produced four witnesses of whom Haji Shah Muhammad, Deputy Superintendent of Police, and Mr. Akhtar Ali Jafri, Magistrate at Vehari, supported his version. The third witness was a camp clerk of the defendant who proved the defendant's appointment as Emergency Officer in the flood affected area. The last witness was the defendant himself.
11. The learned Single Judge said in para. 10 of the judgment that he was prepared to accept the version of the defendant as to the Information which the plaintiff had given to him at Vehari, but added that he was not accepting it to the extent of holding that the plaintiff had deliberately given false information. The plaintiff needed help and perhaps it was true that parties from two different villages had opposed each other. The plaintiff had thought it fit to suppress this part of the information "probably in view of the complaint against him under section 182, P. P. C." When the defendant went to the spot, he did not find any parties assembled there. He felt annoyed particularly because he had to walk a distance of three miles in the sun and the plaintiff bad not reached there. He, therefore, felt annoyed and at first sent a notice under the National Calamities Act. Not satisfied with mere notice, he wrote an order on the notice that the plaintiff should be arrested. The warrant was issued sometime later, when exactly it is not clear, and reference was made in it to section 182, P. P. C., also. The learned Single Judge was further inclined to accept the statement of the plaintiff that the defendant had left Karampur Rest House after seeing him.
12. Our estimate of the evidence, particularly of the docu mentary evidence, is more or less the same. The plan of the spot which bears exhibit number 'A' and is on the criminal file, shows the Mailsi canal running from east to west and the Sauro Minor running perpendicularly to it from north to south. It shows breaches In the Mailsi canal at two points on its north and there is quite some considerable flood, the flood water spreading in all directions. On the west, it stretches out to the Sauro Minor. Villages Kot Qazl and Denwah, which are mentioned in the notice Exh. D. 1 as opposing each other, are respectively to the west and east of the Sauro Minor. Abdullahwah, which is the village of the plaintiff, has been shown on the immediate verge of the flooded area. We were told during the arguments that the lands on the eastern border of the Sauro Minor are on a higher level than the minor and that if the Minor had been out on the eastern side, the flood water escaping from Mailsi canal would have fallen into Sauro Minor and, relieved the villages to the east of the Minor. At the same time, this would have resulted in the Minor overflowing its western bank and flooding Kot Qazi and other villages. It may, therefore, have been correct that one party wanted to make a breach In the Minor on the eastern side and that another party on the western side was determined to prevent it. At the same time, it must be true that the plaintiff wanted relief for his own land which was not immediately in danger of being flooded, and he could have obtained relief only if the Sauro minor had been breached on the eastern side. While asking for relief for himself, he was likely to strengthen his case by pointing to a likely breach of the peace between two parties on the opposite banks of the canal Minor. It was for that reason that the learned Single Judge accepted the defendant's version to be more correct in substance. Behram Khan (P. W. 7) in fact stated that the plaintiff had asked for help by means of a cut In the Minor. Qazi Shah Muhammad (P. W. 9) has stated that a day prior to the present incident the inhabitants of Kot Qazi, were engaged in protecting the bund. Qazi Shah Muhammad is Lambardar of Kot Qazi and was present at the spot when the Magistrate arrived on the 14th of October. He naturally could not tell the Magistrate that his villagers had been preparing for a fight.
13. In the circumstances, we agree with the learned Single Judge that the plaintiff could not have deliberately given false information. There was no motive for doing so. His land was in danger of being floodded and it was natural for him to seek assistance. We do not believe that he had made any statement to the effect that he had himself found two opposing parties at the spot. If no such parties had existed and he was making a false report with a view to impressing upon the Magistrate the gravity of the situation, he should have been intelligent enough to know that when on the spot the Magistrate discovered the information to be false, he would be vastly annoyed. When, however, the defendant found nothing at the spot, the opposing parties may have disappeared meanwhile not even the plaintiff, he felt annoyed, having walked as the learned Single Judge says, a distance of three miles in the sun. Then he thought of punishing the plaintiff, and what was done by him subsequently was obviously not done in good faith. It should have been enough for him to issue a notice, as he had done, in the form Exh. D. 1. He relies in this notice on the National Calamities Act which quite clearly does not contain any provision that could be applied to the plaintiff. Certain powers can be exercised in that Act by the Relief Commissioner who had delegated these powers to Commissioners and Deputy Commissioners, but the defendant himself did not possess any such powers, and he gained nothing in law by calling himself an Emergency Officer. However, after having issued the notice it was entirely unneces sary for him to order the plaintiff's arrest also. At the time of recording this notice he was not relying on any power which enabled him to order arrest. Next, he issued a non‑bailable warrant of arrest. Whether he did so immediately or a little later, does not make any difference in the case, but it is obvious that he did not know what section of the National Calamities Act was applicable to the case and he, therefore, Included section 182, P. P. C., which is summons case, a bailable case and a non‑cognizable case, a case in which a summons only must be issued in the first instance. After Issuing the notice, why was it necessary for him to issue a non‑bailable warrant, unless he intended that the plaintiff should be put in handcuffs immediately. He explained in the written statement that arrest had been ordered by him because the plaintiff had disappeared. We do not believe that the Magistrate honestly believed that the plaintiff had absconded and that a warrant of arrest was necessary. The notice gives the address of the plaintiff in detail and if the defendant could rely on the information given to him by the plaintiff in the first instance, it must be because he knew or had been told by the police, that the plaintiff was a man of substance. Further, in view of the attitude of mind which the defendant has manifested in these orders, we are strangely inclined to accept the evidence of the plaintiff that the defendant had left Karampur Rest House immediately on seeing him.
14. An offence under section 182, P. P. C., Is committed if a person gives information to a public servant which he knows or believes to be false, and we have seen that in these circum stances the plaintiff had not lodged any information which he knew or believed to be false. With the exercise of a little patience, the defendant would have learnt from the plaintiff, upon the latter's arrival, what actually had happened and why he had been delayed. There was no point in the plaintiff delaying his arrival at the spot if an hour and a half later he went to Karampur Rest House to be arrested. But even if the Magistrate at the time believed that the offence under section 182, P. P. C., bad been committed then there was no case for Immediate arrest. It is one of those offences which cannot be tried without any complaint in writing of the public servant to whom false infor mation is given. In the ordinary course, therefore, the Magistrate would, whether or not he gave an opportunity to the offender to show cause, prepare a complaint in writing and send it to the Magistrate concerned for trial. The adoption of extraordinary procedure by the defendant is itself evidence of bad faith on his part.
15. It was, however, argued that under section 64, Criminal Procedure Code, the defendant could arrest the plaintiff, who had committed an offence, namely, an offence under section 182, P. P. C. "in the presence of" the defendant. This is stretching the meaning of section 64 much too far. Section 64 evidently applies to cases where an obvious offence is committed, an offence like theft for instance, and the urgency of the situation requires that the Magistrate should act immediately, It does not apply to a case where the commission of the offence will depend upon an inquiry as to the truth of the information given to the Magistrate. This information was given to the defendant at Karampur Rest House and, although the offence became complete with the lodging of the information, the defendant had no reason to think that an offence bad been committed until he had gone to the spot. At the spot, however, the plaintiff was not present and no arrest, therefore, such as is contemplated by section 64, could be effected. It is true that the Magistrate has power to secure an offender by a warrant of arrest, but that power is not derived from section 64. It is the power, which he possesses under Chapter VI, beginning with section 68, of compelling the appearance of an accused person, when he acts as a Court, and is, in other words, taking cognizance of the offence. It cannot be argued that the defendant was, in this case, taking cognizance of this offence. We have already pointed out that no offence under section 182, P. P. C., could have been tried without a complaint by the defendant, in which case some other Magistrate; not the defendant, would take cognizance of the offence. But even if the defendant were taking such cognizance, as the offence was bailable, a non‑bailable warrant could not have been issued. It was argued that section 76 contemplated a non‑bailable warrant because it gives discretion to the Court to "direct by endorsement on the warrant that, if such person executes a bond with sufficient sureties for his attendance before the Court . . . . . . the officer to whom the warrant is directed shall take such security and shall release such person from custody". This argument loses sight of section 204, which requires a Magistrate, if the case appears to be one, in which, according to the fourth column of the Second Schedule of the Code, a summons should issue in the first instance, to issue, a summons only for the attendance of the accused: If the case appears to be one in which according to that column a warrant should issue in the first instance, he may issue a warrant, or if be thinks fit, a summons. Now, since according to the fourth column of Schedule 2, in the case of an offence under section 182, P. P. C., a summons shall Issue in the first instance, the issue of a warrant was illegal.
16. We are clearly of the opinion that no warrant could have been issued under section 64, Criminal Procedure Code.
17. It has next to be seen whether the Judicial Officer's Protection Act, 1850, applies to this case. Section 1 of that Act is to the following effect: ‑
"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."
18. This Act says that a Magistrate shall not be liable to be sued for any act done by him in the discharge of his duty, whether or not he possesses legal power to do that act, provided that "at the time" he believed, in good faith, that he had such power. We have seen that at the time of his issuing the notice, he was thinking only of the National Calamities Act. We have also seen that below the notice he directed the Station House Officer to effect immediate arrest. The judgment of Mr. Justice Kaikaus shows that the case for the defendant was that he had not read the National Calamities Act when he passed this, order. If it was intended to argue that while ignorance of law is no excuse for the layman, in the case of a Magistrate, ii amounted to a belief, in good faith, that he had power to do anything In the name of an Act which he had merely heard of, then, If this argument Is sound, we have no hesitation in stating that the Judicial Officers' Protection Act Is a form of judicial tyranny which must be removed from the statute book.
19. Next comes the non‑bailable warrant which empowered arrest both under an unnamed section of the National Calamities Act and section 182, P. P. C. We have already held that a warrant could not have been issued in this case for the commission of an offence under section 182, P. P. C. It appears from para. 22 of the judgment of Mr. Justice Kaikaus that the defendant's counsel had conceded before him that he could not and was not taking cognizance of the offence under section 182, P. P. C., but that he was acting under section 64, Criminal Procedure Code. We have seen that section 64 also was inapplicable. Although it was still possible, to argue that the defendant, in good faith, believed that section 64 was applicable, we have no reason to think that section 64 was in the defendant's mind and that it was merely a case of misappli cation. For the first time that section was mentioned in the written statement of the defendant. It is true that it need not have been mentioned in the notice or the warrant, but the entire conduct of the defendant was such as to leave no doubt that his purpose was merely to get the plaintiff handcuffed and confined under the colour of any provision of law, which occurred to the mind of the defendant. We, therefore, hold that the defendant did not believe, in good faith, that he had power to issue a non‑bailable warrant of arrest.
20. We were informed by the learned counsel for the defendant that the words "in good faith" occurring in the Judicial Officers' Protection Act should be interpreted In the light of section 3 clause (20) of General Clauses Act, not in the light of section 52, P. P. C. Under the Penal Code, nothing is said to be done or believed in 'good faith' which is done or believed without due care and attention. Under the General Clauses Act, a thing is done in "good faith" where it is in fact done honestly, whether it is done negligently or not. Whether we apply the one definition or the other, the result is the same. We do not believe that anything was done by the defendant honestly.
21. Lastly, it was argued that the suit was time‑barred because under Article 2 of the Limitation Act, the period of Limitation "for compensation for doing or for omitting to do an act alleged to be in pursuance of any enactment in force for the time being in Pakistan", is 90 days. It was, however, held by a Full Bench in Pandit Shiam Lal v. Abdur Rauf (A I R 1935 All. 538), that the expression "in pursuance of any enactment must be interpreted as meaning "acting in conformity with any enactment" and not merely pretending to act or acting under colour of such an enactment " In other words, if the defendant bad acted honestly and in good faith, Article 2 could apply. To a case of false imprisonment, it would appear that Article 19, which pro‑ F vides a period of one year, would be applicable.
22. We dismiss this appeal with costs.
A. H.
Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.
🔍 Find a Lawyer