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Judgment
Collins, C.J.—This was a suit brought by four Hindus against a Police Superintendent of the Kistna District asking for a declaration that they
have a right to celebrate a festival in the public streets of Masulipatam with such music, garments, ensigns, &c., as plaintiffs may like, for an
injunction restraining defendant and his subordinates from interfering with such procession and for damages for taking possession of certain banners
and removing certain caps &c., from some of the processionists. Both the lower courts agreed in granting the plaintiffs a declaration that they had a
right to celebrate in the public streets a certain festival but an injunction was refused and no damages awarded for taking possession of certain
banners.
The only point that was argued in second appeal was that the plaintiffs were entitled in all events to nominal damages for the wrongful act of the
Police Superintendent in taking away the plaintiffs'' banners. It was not disputed that the banners were taken away by the orders of the defendant
but it was contended that the defendant acted in good faith, that he was justified in so doing as he believed these particular banners were
obnoxious to the, Mahomedans and if carried would produce a breach of the peace.
It is not disputed by the Government Pleader that the plaintiffs had a right to pass in procession through the streets of Masulipatam and the only
question that arises is, was the defendant justified in taking possession of the banners which undoubtedly he removed from the procession. I
carefully guard myself in this judgment by stating that it is the powers of the police in this District that I am alone dealing with and both Mr.
Pattabhiramayyar, the Vakil for the appellants, and the Government Pleader admit that the powers of the police over processions are defined by
the Madras Police Act XXIV of 1859. Section 49 of that Act defines the powers of the police--they may direct the conduct of all assemblies and
processions in the public streets, prescribe the routes by which and the times at which such processions may pass, keep order in the public streets
and prevent obstructions; they may also regulate the use of music in the streets on the occasion of native festivals and may direct crowds of twelve
or more persons to disperse when they have reason to apprehend any breach of the peace. The powers thus given to the police are large and set
out with particularity, but I fail to see that the Superintendent of Police has any power to remove from the procession any banners belonging to the
processionists and to order those banners to be taken to the Police Station. I am of opinion therefore that the respondent in taking possession of
the banners committed in law a tortious act, but under the circumstances 1 give only nominal damages, viz., one Rupee: in fact only nominal
damages has been asked for. The decree must be modified accordingly and in other respects I would dismiss the appeal.
It is also alleged that the defendant turned out of the processions certain persons wearing tinsel caps and robes. Whatever right of action these
persons may have against the defendant, it is impossible to say that the plaintiffs are entitled to damages. The action was really brought for a
declaration and also an injunction against the defendant. The plaintiffs have succeeded in obtaining a declaration against the Superintendent of
Police and no question was raised before us whether such a declaration was a proper one, or whether the four plaintiffs could jointly bring such an
action. The District Munsif has found that the plaintiffs preferred a seriously false allegation that their procession was entirely stopped and taking
into consideration all the circumstances of the case I would direct that each party bear his or their own costs throughout.
Shephard, J.
As observed by the District Judge this case is really a simple one. It has been unnecessarily complicated by the nature of the relief asked for and
by the defence set up by the defendant. The simple question is whether the plaintiffs have suffered any wrong at the hands of the defendant and if
so to what damages they are entitled. That is the only question that ought to have been tried, for the case is not one in which a declaration or
injunction is either necessary or proper. On the contrary such relief is obviously futile for it could bind only the defendant personally. There is
however no appeal filed on his behalf and it is only necessary to mention it as a reason for dismissing the appeal so far as it seeks to obtain any
relief of that character for the plaintiffs.
We must take the finding of fact as recorded by the District Judge in para 3 of his judgment. There it is found that the defendant took possession
of two banners and that he turned out of the procession some singers and then permitted the procession to proceed. It is of these acts that the
plaintiffs complained in the 9th para of the plaint. It is not explained how the plaintiffs come to treat these acts of the defendant as torts for which
they have a joint right of action. No objection, however, was taken on that ground. The District Judge holds that the defendant was justified in
doing what he did because there was dagner of a breach of the peace and the action was taken in good faith to prevent it. It is this ruling which is
questioned in the appeal before us.
Prima facie the act of the defendant in taking away banners from the hands of the plaintiffs and keeping them is wrongful. That is the only act of
which the plaintiffs personally complain. Such an act constitutes a trespass and however laudable the motive may have been, the injured person is
entitled to damages. The defendant can only be excused from liability if it is shown that as a Superintendent of Police he was by law justified in
doing what otherwise would have been wrongful.
The 49th section of the Madras Police Act gives the Superintendent power as occasion requires to direct the conduct of all assemblies and
processions and prescribe the routes by which they may pass. It also gives him power to regulate the use of music in the streets on the occasion of
festivals and ceremonies and lastly to direct all crowds of twelve or more persons to disperse when he has reason to apprehend any breach of the
peace.
Section 21 of the same Act declares the general duties of Police Officers including that of using their best endeavours to preserve the peace. It is
argued on behalf of the respondent that these provisions of the Act justified him in taking away the banners from the plaintiff and that, although an
express power to do such acts is not given by the Act, it must be taken to be included in the larger powers which are conferred. It may not
unreasonably be said that on occasions serious inconvenience and risk of disturbance is likely to occur if the police does not possess the power of
depriving persons of banners, emblems or other objects which are calculated to provoke a breach of the peace on the part of persons to whom
they are obnoxious. We must, however, see whether such a power is conferred by the legislature. With regard to processions express provisions
are made of a particular character and under certain conditions power is given to disperse crowds. The latter provision does not, in my opinion,
relate to processions. With regard to processions the Superintendent may as occasion requires do certain things, but the Act does not say he may
take away flags or obnoxious devices carried by members of the procession and I do not see on what principle it can be said that the legislature
intended to give this power by implication. On the contrary the mention of specific things which may be done is unfavorable to any inference in
favor of measures which are not mentioned.
In my opinion the respondent has failed to show that his acts are rendered legal by the provision of the Police Act and it is not said that there is
any other statute under which he can claim immunity. Chapter XIII of the Criminal Procedure Code gives the police certain powers in the way of
preventive action but the present case cannot be brought within its provisions. It follows that the District Judge was wrong in refusing to give
damages but having regard to the other findings of the District Judge and the finding of the District Munsif on the question of damages, 1 think that
nominal damages only should be awarded.
I would modify the decree of the District Judge by giving the plaintiffs one Rupee damages. In other respects 1 would dismiss the appeal and I
would direct each party to bear his own costs throughout.