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Judgment
Spens, C.J.—(Varadachariar J. concurring)-This appeal arises out of a suit for damages for false imprisonment instituted by the appellants
against the government of Madras and four of its police officers. The incident complained of happened on 13th January 1937, at Kodaikanal
Road, a Station on the South Indian Railway. The appellants are mother and daughter; as there is no separate ease on behalf of appellant 2 who is
a minor, appellant 1 will be referred to as the appellant in the course of this judgment. Kodaikanal Road is about 52 miles from Kodaikanal, a hill
station in South India. The headquarters of the district is Madura, about 20 miles further south from Kodaikanal Road on the South Indian
Railway. Madura is the headquarters of defendant 2 who at all material times was the District Superintendent of Police. Defendant 3 was a Sub-
Inspector belonging to the Madras Railway Police Service and defendants 4 and 5 are police constables of the same service. A brief narrative of
the events that led up to the incident of 13th January 1937, will help to make the contentions raised in the case intelligible.
The appellant is the widow of the ex-Maharaja of Nabha. By an order of the Government of India, passed under the Bengal State Prisoners
Regulation (3 of 1818), the ex-Maharaja was required to stay at Kodaikanal and had been so staying since 1928. He was apparently kept under
close supervision for some time, but after a few months this was relaxed. The Government of India however wanted
a watch to be maintained by the police at any railway station where the detenue is likely to entrain and steps to be taken to ensure his re-arrest in
the event of his absconding.
He was also forbidden to be absent from his residence at night (Ex. 7 (c)). By Ex. 7,.dated 24th August 1928, the Inspector-General of Police,
Madras, acting under instructions from the Government of Madras (to whom necessary directions had been conveyed by the Government of India)
informed the District Superintendent of Police, Madura, of the Government''s decision to restrict the movements of the ex-Maharaja of Nabha to
the Kodaikanal municipal area. The same information was once again conveyed to defendant 2 in June 1936 (vide Ex. 7 (a).
The appellant who had been staying with her husband at Kodaikanal desired to go to Madras early in 1937 and necessary arrangements were
made by her Secretary (P. W. 6 in the case) for reserving accommodation for her in the ""Trivandrum Express"" (a train proceeding to Madras from
the South) on 13th January 1937. That afternoon, the Stationhouse Officer at Kodaikanal, acting under the erroneous impression that the ex-
Maharaja was arranging to proceed to Madras, sent a telegram (Ex. 4) to defendant 2 in the following terms: ""Ex-Nabha Raja departuring to
Madras Spencer Hotel with family in car M.D. 2037."" This is said to have been received by defendant 2 at Madura at 6-30 P.M. In view of the
possibility of the ex-Maharaja having left Kodaikanal by that time, defendant 2 decided to take steps to prevent his boarding the train at
Kodaikanal Road railway station. The ""Trivandrum Express"" was timed to leave Madura at about 7 P.M. and to reach Kodaikanal Road a few
minutes after 8 P.M. Defendant 2 accordingly gave a call on the telephone to the railway police staff at the Madura station platform and as
defendant 3 answered, defendant 2 attempted to instruct him to proceed by that train to Kodaikanal Road and there prevent the ex-Maharaja
boarding the train. To the details of this conversation we shall advert later. In all probability, defendant 3 caught or understood the instructions only
vaguely and indistinctly, as the platform was noisy and his knowledge of English very poor and he had to catch the train in a hurry as it was about
to leave. During the journey between Madura and Kodaikanal Road, he saw that one of the compartments in the train had been reserved for the
Maharani of Nabha. Connecting this with the indistinct impressions that he had received from the telephone message at Madura, he seems to have
made up his mind that the instructions given to him by defendant 2 must have related to the Maharani. That he believed that defendant 2''s
instructions related to the Maharani and acted on that footing and did not intend to act in violation or in excess of those instructions is placed
beyond doubt by the telegram, Ex. O, which he sent to defendant 2, two hours later, from Kodaikanal Road. He there speaks of having ""detained
the Maharani as per the orders"" of defendant 2.
When the train arrived at Kodaikanal Road, defendant 3 informed P.W. 6, who was waiting on the platform, that he had instructions to prevent
the Maharani boarding the train. She was at that time sitting in her car within the railway compound, expecting to be called to the train by her
Secretary (p.w. 6) after her luggage had been placed in the compartment reserved for her. It is unnecessary to refer here to the details of the
conversation that is said to have taken place between defendant 3 and P.W. 6 or between P.W. 6 and the appellant. The train was delayed for a
few minutes beyond the scheduled time, apparently as a result of this discussion. After it had left, defendant 3 sent the telegram, Ex. O, already
referred to and its concluding words ""advise as what to do"" are significant in their bearing on the appellant''s contention on the case of false
imprisonment. On receipt of Ex. O, defendant 2 sent the reply telegram, Ex. 3:
Your orders were to detain Raja and not Maharani. Maharani may proceed anywhere and you should afford any assistance which the Maharani
may require.
By this time, defendant 2 had been informed by a second telegram (Ex. 6) sent by the Station-house Officer, Kodaikanal, that the ex-Maharaja
had""returned on sending family."" Exhibit 3 is said to have been received by defendant 3 at Kodaikanal Road at 9-45 p.m. The appellant states that
from the time of the arrival of defendant 3 at Kodaikanal Road station till the time that this telegram was received, the only gate through which she
and her ear could have gone out of the railway station compound remained closed under the orders of defendant 3 and that defendants 4 and 5
had posted themselves at that gate with a view to prevent her egress. When the gate was opened, she left by car for Trichinopoly, about 85 miles
further north, in a vain attempt to catch the Trivandrum Express at that station. The appellant claimed that the above acts of defendants two to five
had no legal justification and that as they had led to a complete deprivation of her liberty for the time being, they constituted false imprisonment.
She further claimed that the Government of Madras-whom she impleaded as defendant 1-was also liable for damages, since the other defendants
had invaded her right to freedom in the course and as part of their official employment, alleging it to be within the scope of their official authority.
The defendants filed written statements, more or less on the same lines so far as the facts were concerned. As a matter of law, defendants 1 and
2 stated that the plaintiffs had no cause of action against them. All the defendants denied that there had been anything in the nature of false
imprisonment. They asserted that acting under the supposed order of defendant 2, defendant 3 had only prevented the appellant boarding the train
at Kodaikanal Road, that he never gave orders to defendants 4 and 5 to close the gate of the compound and that the gate was in fact not closed. It
was added that except that the plaintiffs were prevented from going by that train, they were at absolute liberty to go anywhere they liked and that
this was made clear to them even in the first instance. Defendants 4 and 5 also denied that they closed the gate or were ordered by defendant 3 to
close the gate. A plea that the suit was not maintainable without the sanction of the Provincial Government under Section 270 (1), Government of
India Act, 1935, and a further plea of limitation, either under Article 2, Limitation Act, or under Section 53, Madras District Police Act, were also
taken. It is unnecessary to refer to the other pleas.
The trial Court as well as the High Court accepted the appellant''s version of the incident as substantially true, including the allegation that the
gate of the railway compound within which the appellant was staying in her car was closed under the orders of defendant 3 and that defendants 4
and 5 posted themselves there under his orders. Without repeating the reasons given in their judgments, we may say we concur in this finding. The
learned Subordinate Judge further held that in view of the attitude and declarations of defendant 3 these acts amounted to false imprisonment, but
the learned Judges of the High Court thought otherwise. They say,
plaintiff 1 must have thought that she was confined within the railway fencing where her car was standing and would not be permitted to leave it, if
she tried so to do... that must have been her feeling from the subjective point of view; but that would not be enough for us to hold that she was
actually confined or imprisoned and not merely restrained from proceeding by the Trivendrum Express. Had there been proof on the record that
there was total restraint of plaintiff 1''s movements or liberty during the period that she was in her car by the use or threat of force or by
confinement, she could be said to have been imprisoned.
If it were necessary to decide this question, we should have hesitated to concur in this opinion of the learned Judges of the High Court. On the
questions of law, both Courts have held that the plaintiffs had no cause of action against defendants 1 and 2 and that the suit was not maintainable
against defendants 2 to 5 without the sanction of the Provincial Government under Section 270 (1), Constitution Act. The learned Judges of the
High Court also held that the suit was barred by Article 2, Limitation Act, and Section 53, Madras District Police Act, as it had not been instituted
within three months of the incident. They granted a certificate under Section 205, Constitution Act, on the ground that the case involved a
substantial question of law as to the interpretation of Section 270 (1) of the Act. Hence this appeal.
The case against defendants 1 and 2 can be briefly disposed of. The learned Judges of the High Court based their decision in favour of
defendant 1 on two grounds: (1) that defendants 2 to 5 acted in exercise of their ""statutory power"" and that in such circumstances a person
aggrieved by their acts could have no claim against the Government, and (2) that the State could not be held liable for the improper conduct of
public servants unless those acts had been done under the orders of the Government or had been subsequently adopted and ratified by it. They
also referred, to a line of cases in India distinguishing between claims against the Government on the basis of contracts or other business
transactions entered into by public servants on behalf of the Government and claims in respect of tortious acts committed in the discharge of
governmental functions as a sovereign. There are obvious difficulties in this case in accepting the view that defendants 2 to 5 were discharging a
statutory duty"" in their dealings with the appellant. As we however agree with the learned Judges as to the other ground of their decision in favour
of defendant 1, it is unnecessary to discuss this aspect of their decision.
As regards defendant 2 also, we must hold that the plaintiffs have not made out any ground to make him legally liable. We cannot however help
feeling that on his own statement that it was not easy to make defendant 3 understand his instructions, defendant 2 would have done better to have
taken greater care to make his instructions clear and specific. Some questions in the course of the evidence and some discussion in the judgments
in the Courts in Madras have been directed to the ascertainment of the exact words used by defendant 2 in giving instructions to defendant 3. He
naturally said that he was unable to recall the exact words used by him and we are unable to hold that defendant 3 spoke the truth when he said
that defendant 2 specifically referred to the Maharani as the person whom he was to prevent from proceeding to Madras. Two of the disputed
matters are (i) whether defendant 2 instructed defendant 3 to detain anybody or merely to prevent him from boarding the train and, (ii) whether he
used the singular, referring only to the ex-Maharaja or used the plural so as to include in his direction the ex-Maharaja''s party as well. In view of
the possibilities of legal arguments that were raised by the pleadings in the case as to what would constitute ""false imprisonment"", defendant 3,
instead of pleading failure of memory, insisted that only the word ""prevent"" was used. But the learned Judges of the High Court have rightly
attached some importance to the wording of the telegram (Ex. O), which the Sub-Inspector sent a few hours later from Kodaikanal Road to
defendant 2 at Madura. He there reports that he ""detained Maharani of Nabha from going by six as per your orders."" On his own evidence,
defendant 3 was not very well conversant with English and it is quite likely that he was repeating the word ""detain"" as he heard it on the telephone
on the Madura platform. The language of the instructions is even more important with reference to the person or persona asked to be dealt with
Defendant 2 is positive that he mentioned only the ex-Maharaja, but he cannot say whether he added anything like ""only"" or ""alone."" It is common
ground between him and defendant 3 that defendant 3 had some difficulty in hearing defendant 2''s instructions on the telephone. Defendant 2
admittedly referred to the ""party"" or ""family"" of the ex-Maharaja as among those intending to proceed to Madras, and if he had not definitely
instructed that only the ex-Maharaja was to be prevented from proceeding, it would be no wonder if a person of defendant 3''s standing had
understood that members of the ""party"" or ""family"" were to be likewise prevented, whether the ex-Maharaja was with them or not.
It does not however seem so easy to exonerate defendant 3 from legal liability. As observed by the High Court, defendant 3 cannot rely upon
Section 54, Criminal P.C. because the appellant was not charged with or suspected of any offence and there was no requisition to defendant 3
specifying any offence or other cause against the appellant, so as to make it appear to him that the appellant might law-fully be arrested without a
warrant even by defendant 2. Clause (9) of Section 54 throws a certain measure of responsibility even on the officer to whom the requisition is
addressed. We doubt if defendant 3 can take shelter even under Section 21, District Police Act, 1859, because that section only commands
obedience to and execution of orders and warrants lawfully issued. In this case there was, in fact, no order or warrant to detain the appellant and
none such could have been lawfully issued. It is however unnecessary for us to decide this question, in view of the conclusion that we have come to
on the plea raised under Section 270 (1), Constitution Act.
It was argued on behalf of the appellant that defendant 3 could not claim the benefit of Section 270 (1) as his acts could not be brought within
the description ""done or purporting to be done in the execution of his duty as a servant of the Crown."" It was also contended that as defendant 3
falsely denied having done anything beyond preventing the appellant from boarding the train at Kodaikanal Road, he should not, now that he is
found to have gone much farther and improperly detained the appellant within the station compound by getting defendants 4 and 5 to close the
gate, be allowed the benefit of a plea under Section 270 (1) in respect of this latter act, as he did not claim it in the written statement. It was said
that on his own evidence that he was only asked to ""prevent"" the appellant from boarding the train at Kodaikanal Road, his acts, in so far as they
went further, were clearly in wanton excess of his duty and that such conduct was not protected by Section 270 (1). It was lastly contended that if
the instructions given by defendant 2 related only to the ex-Maharaja, it could not be held that defendant 3 was acting in the execution of his duty in
detaining the appellant. On the other side, the Advocate-General pointed out that the plaintiffs themselves bad alleged in paras. 7 and 17 of the
plaint that the acts of defendants 2 to 5
were purported to be done in their official capacity and in the course, and as part, of their official employment and alleged to be within the scope of
their official authority
and he contended that it was not now open to the plaintiffs to say that the acts complained of were not acts done or purporting to be done by
defendants 2 to 5 in the execution of their duty as servants of the Crown. Whatever might have been the position, if the case had been argued on
demurrer, before the evidence had been led, we do not feel that it would be proper at this stage to deal with the question as one to be decided
merely on the pleadings. The passage relied on by the Advocate-General from the opinion of Lord Macmillan in R. and W. Paul, Ltd. v. The
Wheat Commission (1937) 1937 A. C. 139 at p. 161 does not seem to treat the allegations in the plaint as concluding the plaintiffs, but only as
supporting the conclusion which the House was inclined to come to on the facts. Likewise, we have to deal with the plea of the defendants under
Section 270 (1) as a general plea to the whole case of the plaintiffs and to consider whether even on the facts, as we find them, the action of the
defendants can be regarded as taken or purporting to be taken in the execution of their duty as servants of the Crown.
Assuming that the acts complained of cannot be regarded as done by defendants 3 to 5 in the execution of their duty, there still remains the
other alternative, namely, whether they purported to be so done. The word ""purporting"" would be rendered nugatory if the section were to be
limited to acts justified or authorised by law: Wilson v. Nathmull (''30) 17 A.I.R. 1930 Mad. 458 at p. 464; see also Dicker v. Angerstein (1876)
3 Ch.D. 600. The interpretation of this provision was discussed at some length in the judgments delivered in Hori Ram Singh v. Emperor (''39) 26
A.I.R. 1939 P.C. 43. As observed by one of us there, the question is substantially one of fact to be determined with reference to the nature of the
act complained of and the attendant circumstances. English decisions construing similar language in a provision in the Public Authorities Protection
Act, 1893, make it clear that the benefit of that statute can be claimed even by an officer who has acted under a mistaken view as to his duty,
whether the mistake be one of fact or one of law, if only he honestly believed that he was acting in the discharge of his duty: see Newell v. Starkie
(1919) 2 Ir. Rule 325, Scammell and C.V. Hurley (1929) 1 K.B. 419 and Selmes v. Judge (1871) 6 Q.B. 724 In Betts v. Receiver for the
Metropolitan Police District (1932) 2 K.B. 595 at p. 602, Du Parcq J. expressed a doubt ""whether the Act protects a public officer who, while
rightly apprehending the facts, takes a mistaken view as to his legal obligations, and executes or intends to execute some function which he has no
duty to execute.
It is unnecessary in the view that we take on the facts of this case to determine whether Section 270 (1) will also include cases of officers acting
under a mistaken view of law as to their duty. The language of the English statute is not identical with that employed in Section 270 (1),
Constitution Act, but we think that the principle of the cases above referred to, in so far as they extend the statutory protection even to officers
acting under a mistaken view as to their duty, is equally applicable here. It is true that Section 270 (1), Constitution Act, goes much farther than the
Public Authorities Protection Act; in that the former places an aggrieved person at the mercy of the executive government before he can institute a
suit even in a civil Court in respect of an alleged misconduct of a public servant, whereas the English Act only provides for a shorter period of
limitation and for previous notice to the public officer. But this does not relieve the Court of its duty of giving due effect to the terms of the statutory
provision.
We have already held that defendant 3 must have believed, however mistaken this belief was, that defendant 2 had instructed him to detain the
appellant. It is clear from his conduct that he also honestly thought that it was his duty to obey those instructions. It was argued on behalf of the
appellant that when, as the evidence shows, defendant 3 declined to accede to the request of P.W. 6 to wire to defendant 2, even while the train
was at the Kodaikanal Road Station, so as to get definite instructions from defendant 2, he must be taken to have acted maliciously, so as to
disentitle him to the benefit of Section 270 (1). The English cases no doubt deny the benefit of the Public Authorities Protection Act to officers who
act maliciously or only in ""pretended"" execution of their duty. It is unnecessary to decide in this case whether the same principle would govern the
interpretation of Section 270 (1), Constitution Act, because we agree with the learned Judges of the High Court that the conduct of defendant 3
could not be held to have been malicious or mala fide. In the witness box, he denied that P.W. 6 made any request to him to the above effect and
he suggested that he was only asked if the appellant could go back to Kodai-i kanal and he replied that she was free to do so. We are unable to
believe this version. As the subsequent conduct of the appellant showed, she was eager to go to Madras and it was only natural that, in that
situation, the Private Secretary would have asked defendant 3 to obtain definite instructions from defendant 2, especially when'' there was good
reason to think that there could have been no order against the appellant and that there must be some mistake somewhere. The attitude of
defendant 3 to that request was only what is usual with most police officers when they imagine that they are carrying out orders and though he has
added to his difficulties by his statements from the witness box, we think it would be too much to read into his conduct at the time-anything like
malice or want of good faith.
A further contention was urged that defendant 3 who belonged to the railway police was under no duty to obey the orders of defendant 2 who
belonged to the District Police and that therefore defendant 3 could not be held to have acted in execution or purported execution of his duty. This
contention has, in our opinion, no substance. Defendant 3 stated from the witness box that though orders are generally communicated to the
officers of the railway police through their own Superintendent, the District Superintendent of Police issues orders directly to the subordinate
officers of the railway police when a matter is urgent and that the fact of his having issued such orders is merely communicated to the
Superintendent of Railway Police. Defendant 2 and D. W. 7, the Deputy Inspector-General of Police, were examined some days later and no
question was put to them in cross-examination to suggest that such was not the practice or the true legal position. Indeed, the practice seems quite
natural and probable in view of the scheme of the Police Act and the rules framed there under. Though for purposes of administrative convenience,
the railway police is classified as a separate unit, it forms part of one and the same general police force with the District Police, and the Police
Manual suggests that there should be full and complete co-operation between the two sections of the force. Defendant 3 is accordingly entitled to
claim that the suit is| not maintainable without the sanction of the Provincial Government. So far as defendants 4 and 5 are concerned, their case
clearly falls within Section 270 (1).
The appeal must fail on the grounds so far dealt with and it is not necessary to consider the plea of limitation. We wish to guard ourselves
against being understood as concurring in the view of the High Court that the suit is barred either by Article 2, Limitation Act, or Section 53, Police
Act.
There is one episode which at this stage has no bearing on the decision of the case, but which, we think, requires a passing notice as the
learned Judges of the High Court have commented on it. Referring to a letter of apology (Ex. R) sent to the appellant by the Deputy Inspector-
General of Police, the learned Judges expressed regret ""that due advantage was not taken of the Government''s gesture of goodwill."" If this
observation was intended to imply any appreciation of the attitude of the Government or any blameworthiness on the part of the appellant in that
connexion, we are unable to concur in it. Defendant 2 no doubt had the courtesy to write a letter of apology (Ex. 8) on 2lst January 1937. But he
unfortunately thought fit to address the letter in terms which the appellant had been protesting against for at least two years before and the result
was that the letter returned to defendant 2 with the envelope unopened. There is thus nothing to show that the appellant was aware of this apology.
Notice under Section 80, Civil P.C. of the intended suit was given to and received by the Government of Madras in the last week of January and
all that appears in the evidence is that early in February the authorities busied themselves with collecting evidence for the suit. (See Exs. 1 and 2
and the cross-examination of D.W. 5 as to his having asked the Deputy Superintendent of Police to make an enquiry and report.) It is true that Ex.
R was sent by the Deputy Inspector-General of Police; but this was on 18th August 1937, that is, nearly two months after summons in the suit had
been served on the Government. When it came to defending the suit, the defendants contended that the suit should have been filed within three
months of the incident, but it took more than six months after the incident to send this letter of apology. The averments in para. 19 of defendant 1''s
written statement would seem to deprive this letter of apology of even such little grace as it might otherwise have possessed. It was probably sent
under legal advice, with a view to found a plea on the provisions of Section 53, District Police Act, which says that no plaintiff shall recover in any
such action if tender of sufficient amends shall have been made before such action brought or if a sufficient sum of money shall have been paid into
Court after such action brought. That this must have been the object of the letter is shown by the defendant''s insistence on raising this question by
issue 8 in the case. As we have already said, this is however only by the way.
We have carefully considered the question of costs in this appeal. Both in the trial Court and in the High Court, the parties have been directed
to bear their own costs. We are however unable to follow the same course here. Whatever might be the grievance of the appellant, her case had
been fully considered and examined by two Courts and both of them had concurrently held that the suit was not maintainable. Any further attempt
to agitate the question could be made by the appellant only at her own risk and subject to the usual obligations of a litigant who fails in his appeal.
The appellants must accordingly pay the respondents'' costs of this appeal, only one set.
Zafrulla Khan, J.
As I have the misfortune to dissent from the view taken by my Lord and my learned brother on the question whether the provisions of Section
270 (1), Constitution Act, operate as a bar to the maintainability of the suit against defendants 3 to 5, I am under the necessity of stating the
grounds of my dissent somewhat fully. The pleadings reveal a good deal of difference between the parties regarding the facts. It is therefore
necessary to set out the facts as established by the evidence. At the outset it may be observed that the appellant''s late husband never left his house
on the afternoon of 13th January 1937, when the appellant left for Kodaikanal Road station. There was thus no justification for the telegram sent
by the Station-house Officer to defendant 2 announcing that the ex-Maharaja had left for Madras (Ex. 4), and the whole train of unfortunate
incidents that followed resulted from a misapprehension which could easily have been cleared up by the exercise of a little care by the Subordinate
Police Officers at Kodaikanal.
The main controversy between the parties centred round what occurred at the railway station on the arrival of the Trivendrum Express.
Defendant 3 stopped the appellant''s Private Secretary (P.W. 6) from putting her baggage in the compartment reserved for her and informed him
that he had orders to prevent the appellant from boarding the train and to detain her. P.W. 6 told him that they had received no such order and
wanted to know whether there was any order in writing. Defendant 3 replied that he had received oral orders over the telephone. P.W. 6 then
asked him to put down his own order in writing so that he could show it to the appellant. This defendant 3 declined to do. P.W. 6 then went to the
appellant who was waiting in her car in the station compound and told her what had happened. She asked him to clear the matter up with the
District Superintendent of Police by getting a telegram despatched to him and to somehow arrange for her to travel by the Express. In the
meantime, defendant 3 had directed defendants 4 and 5 to close and guard the gate which afforded the only egress from the station compound and
they carried out the direction. P.W. 6 asked defendant 3 to send a telegram to the District Superintendent of Police as it was possible that a
mistake had been made, and told him that the station master (P.W. 4) would be requested to detain the train for a short time to enable the
appellant to travel by it on receipt of a reply from the District Superintendent. The request was supported by the station master who offered to try
to obtain the Controller''s orders for the detention of the train. Defendant 3 declined to move in the matter on the ground that his orders were
definite. After the departure of the train, P.W. 6 asked him to permit the gate to be opened so that they could now make a move. To this he
replied that the appellant having been detained under the orders of the District Superintendent, she could not be allowed to move till further orders
were received from that officer. P.Ws. 4 and 5 suggested that he might obtain further orders by telegram. He then despatched the telegram (Ex. O)
to defendant 2, a quarter of an hour after the departure of the train. The reply (Ex. 3) was received an hour later and thereupon he informed the
appellant that she was now free to go anywhere she liked.
That the appellant was wrongfully confined by defendants 3 to 5 can on these facts admit of no doubt whatever. On behalf of the respondents
no legal justification or excuse was sought to be urged before us for the wrongful confinement. Counsel for the respondents admitted that if the bar
created by Section 270 (1), Constitution Act, could not be availed of by defendants 3 to 5, the appellant would be entitled to recover against
them. Section 270 (1), Constitution Act, provides that no proceedings civil or criminal shall be instituted against any person in respect of any act
done or purporting to be done in the execution of his duty as a servant of the Crown in India before the relevant date, except with the consent of
the Governor-General or the Governor of the Province as the case may be. Much argument was addressed to us on the exact meaning of the
words ""act purporting to be done in the execution of his duty as a servant of the Crown."" I find myself in entire agreement with the majority of the
Court that the question is substantially one of fact to be determined with reference to the nature of the act complained of and the attendant
circumstances. They go on, however, to express the view that the words are wide enough to cover the case of an officer who has acted under a
mistaken view as to his duty, whether the mistake is one of fact or one of law, if only he honestly believed that he was acting in the discharge of his
duty.
I feel considerable hesitation in subscribing to that proposition without qualification, as with all respect I consider that if interpreted literally it
would be found to state the principle too widely. A Superintendent of Police might direct a Sub-Inspector to take a couple of constables with him
and arrest and produce before him X, a perfectly peaceful and lawabiding citizen, whom he proposed to interrogate in order to obtain information
which might be useful to him for some private or public purpose, but without disclosing to the Sub-Inspector any ground that would justify X''s
arrest. If the Sub-Inspector and the constables proceeded to execute these orders, it might be argued on their behalf that they had honestly
believed that they were acting in the discharge of their duty. That the matter might be further complicated by their arresting Y, honestly believing
that the orders related to him rather than to X, might in their eyes make no difference to the case. I cannot bring myself to believe that Parliament in
enacting Section 270 (1) had in mind a case of this kind which in its essentials is not distinguishable from the case before us. If this section or other
similar enactments are held to cover cases like these, the result would be that whatever may be the position with regard to a Superior officer issuing
an unlawful order, his subordinates executing such an order could always take shelter behind such provisions, a state of affairs which would amount
to putting a premium upon official high-handedness and would reduce the rights of the subject to security of life and limb, liberty and the peaceful
enjoyment of property to a mockery. A line must be drawn somewhere and it is not suggested by the majority where it should be drawn.
We are in this case concerned only with a mistake of fact. Defendant 2 asked defendant 3 to proceed to Kodaikanal Road station and prevent
the ex Maharaja from boarding the Trivandrum Express. On the basis of the information which defendant 2 had received, this was a perfectly
lawful order and was well within the authority of defendant 2. Though defendant 2 was satisfied that defendant 3 had understood his directions
correctly (lines 7 and 8, page 78 of the Record) defendant 3 somehow imagined that the person who was to be prevented from boarding the
Express was the appellant. Had defendant 3 made no mistake in interpreting the directions of defendant 2, and on arrival at Kodaikanal Road
station his inquiries had led him honestly to believe that a certain person present at the platform and seeking to board the train was the ex-
Maharaja, and had he proceeded to prevent that person from boarding the train, and it had subsequently transpired that that person was not the
ex-Maharaja but somebody else, there might perhaps have been force in the contention that defendant 3''s act fell within the purview of Section
270 (1), as an act purporting to be done in the execution of his duty. In this case a mistake occurred not in the execution of what defendant 3 had
correctly understood to be his duty, but in his imagining that a direction had been issued concerning Y, when in fact it had been issued concerning
x. I venture to think that the correct rule in cases of mistake of fact would be that for the purpose of determining whether an act done bona fide in
pursuance of a mistake of fact would be covered by the subsection, the true state of affairs must be deemed to have been what it was mistakenly
supposed to be. That is to say, in order to determine whether the language of the subsection applies to the case of defendants 3 to 5, it must be
assumed that defendant 2 had in fact directed defendant 3 to prevent the appellant from boarding the train. The effect of the mistake under which it
is alleged defendant 3 was labouring, cannot be stretched further to bring his acts and those of defendants 4 and 5 within the ambit of the
subsection. What then is the position? Nobody had any lawful authority to direct that the appellant should be prevented from boarding this
particular train or indeed from travelling by any other train or means which she might choose to travel by. That being so, there could be no basis for
any assumption on the part of defendant 3 that he had any lawful authority to prevent the appellant from boarding the train. He must be presumed
to possess some knowledge of the duties and authority of a police officer. On no construction which he could reasonably place upon the limits of
his lawful authority could he assume that he had authority to restrain the appellant from boarding the train. Nor was there anything in what
defendant 2 is alleged to have communicated to him, which could have led him to believe that defendant 2 himself had any authority to interfere
with the movements of the appellant. Therefore, even if defendants 3 to 5 had done nothing more than prevent the appellant from boarding the
train, I would have been reluctant to hold that under the circumstances of this case their acts were covered by the language of Section 270 (1),
Constitution Act. But the matter does not rest there. Defendant 2 is quite clear and emphatic that his direction was only to prevent the person
concerned from boarding the train. Defendant 3 does not allege any mistake or misunderstanding with regard to this part of the direction. He stated
at the trial (line 23, p. 69 of the Record):
I understood the District Superintendent of Police''s phone at Madura to mean that I should prevent the Maharani from going by train. I did not
understand it to mean that I should prevent her from going by car and boarding at any railway station further off.
Nothing could be clearer. His case through out has been that he clearly understood that the direction given to him was merely to prevent the lady
from boarding the train. If nevertheless he along with defendants 4 and 5 proceeded to wrongfully confine her, surely it cannot be urged on their
behalf that their acts in this connexion purported to be done in the execution of their duty. It was suggested that the language of Ex. O, the telegram
which defendant 3 despatched to defendant 2 after the departure of the train, indicated that the direction given to him was to detain the Maharani. I
do not think it would be justifiable to pick out that word from the telegram and attach to it its primary connotation. The word was used by
defendant 3 to describe something that was in his mind and he alone was in a position to explain what he had meant by it. His explanation is this:
The District Superintendent of Police used the word ''prevent.'' In Ex. 0, I used the word detained.that was because I thought both words meant
the same thing. (Lines 40 to 42, p. 69 of the Record.)
Again,
The word ''detained'' in Ex. O means only prevented from going by train. I did not mean by it that I prevented the Maharani from going anywhere
or detained her in a place. In that case I would have stated I arrested her. (Lines 30 to 35, p. 67 of the Record:)
To a person of the little education of defendant 3, ""detain"" might signify only stop or prevent. The position therefore is that defendant 2 asked
defendant 3 to prevent the ex-Maharaja from boarding the train. By the time defendant 3 arrived at the station, he began to imagine that the
direction given was to prevent the appellant from boarding the train. This direction, if it had in fact been given by defendant 2 would have been
neither lawful nor justified, but was in any case limited to prevention from boarding the train. It was so understood by defendant 3. Assuming that if
defendants 3 to 5 had done no more than prevent the appellant from boarding the train their acts would have been covered by the language of
Section 270 (1), what justification would there be for holding that the section would also cover their entirely unauthorized and high-handed action
in wrongfully confining her? It was argued that the fact that defendants 3 to 5 had falsely denied the wrongful confinement, should not operate to
deprive them of the benefit of Section 270 (1), if the Court came to the conclusion that though the appellant was wrongfully confined, defendant 3
did honestly believe that the direction given to him by defendant 2 was to confine her. But did defendant 3 honestly hold that belief and could the
Court so find? The question whether the appellant was or was not wrongfully confined is one, if I may say so, of external visible fact, which has to
be determined on the evidence of the eyewitnesses. The questions, what was the direction given by defendant 2, and what was it understood to be
by defendant 3, are no doubt equally questions of fact, but the second relates to the state of mind of defendant 8 upon which the primary and the
best evidence can only be that of defendant 3 himself. True it is that help could also be sought from inferences that might be drawn from his
conduct, but even that conduct, so far as it relates to the despatch of Ex. O, has been explained by him consistently with his direct evidence. Nor
does it appear to me to follow that if his denial of wrongful confinement was false, his explanation of what he understood he had been directed to
do must also be false.
If I were to attempt to make a reading of the working of defendant 3''s mind, the picture would be somewhat like this: He understood
defendant 2 to say that the ex-Maharaja and his party were proceeding to Kodaikanal Road station and that he was to prevent the ex-Maharaja
from boarding the Trivandrum Express. During his journey from Madura to Kodaikanal Road, he noticed at an intermediate stop that a first class
compartment had been reserved for the use of the appellant. On arrival at Kodaikanal Road, he discovered that it was the appellant who was
proposing to travel by that train and not the ex-Maharaja. He then imagined that perhaps his instructions were to stop the appellant from travelling
by that train, as it would in his then state of knowledge appear to him absurd to have been told to stop the ex-Maharaja who was nowhere near
the scene. Being clothed with a little authority, he arrogated to himself a great deal more, as is unfortunately often the case in this country, and not
merely prevented the appellant from boarding the train, but proceeded wrongfully to confine her in the compound of the station for two hours.
Knowing that he had no authority for such action and never intending to admit that he had so acted, when the matter came to the notice of his
superiors, he not only denied the wrongful confinement himself but also persuaded defendants 4 and 5 to deny it. The wrongful confinement is
denied not only in the written statements of defendants 3 to 6 but also in the written statements of defendants 1 and 2. This can be explained only
on the hypothesis that defendant 3 had done something that he knew was no part of his duty, was indeed unlawful and high-handed, and the doing
of which he dared not admit to his official superiors. This conclusion is strengthened by the refusal of defendant 3 when requested so to do to
furnish P.W. 6 with a written order directing the appellant to refrain from travelling by the Trivandrum Express and not to move out of the station
compound, which incidentally would have put the question of the nature and scope of the directions given to him by defendant 2 beyond doubt.
This is not conjecture. It is a more legitimate inference from the evidence and the conduct of defendant 3 than the inference that though
defendant 2 swears that he asked defendant 3 only to prevent the person concerned from catching the train, he has grossly perjured himself having
in fact asked defendant 3 to ""detain,"" i.e., to confine that person, and that though defendant 3 swears that he understood that he was only to
prevent the appellant from catching the train, he has equally perjured himself having in fact understood that he was to put her in confinement. In any
case, it was for defendant 3 to establish that the direction given to him was to detain, i.e., to confine, the appellant, or at least that he so understood
or interpreted the direction. In the face of the sworn denial of defendant 2 that he gave any such direction, and of defendant 3 himself that he
received any such direction, I do not conceive it to be any part of my duty to make out a contrary case on their behalf. Ont his finding, it is not
possible to hold that the acts of defendant 3 are covered by the language of Section 270 (1), Constitution Act. His order to defendants 4 and 5 to
close the gate of the station compound and to mount guard on it was manifestly unlawful and without any authority. In carrying out that order they
could not be held to be acting or to be purporting to act in the execution of their duty as servants of the Crown. Section 270 (1) would afford as
little protection to them as to defendant 3.
It was conceded on behalf of the respondents that if Section 270 (1) was not applicable to the case, the suit would not be barred by limitation,
either under Article 2 of schedule 1, Limitation Act, or by virtue of the provisions of Section 53. Madras District Police Act. On the quantum of
damages, the appellant''s counsel did not ask us for any higher sum than that assessed by the trial Court, viz., Rs. 5000. This was not contested on
behalf of the respondents. In my opinion, the appellant is entitled to a decree against defendants 3 to 5 for Rs. 5000 with proportionate costs
throughout. But as the majority of the Court have taken a different view, the order of the Court will be as they have proposed.