Asan Alliar Maraikayar and Another vs T.B. Masilamani Nadar and Another

Seshagiri Aiyar, J.—This is a suit against two policemen for damages for illegal search of the plaintiff''s house. On the 29th January 1915, the

two defendants undoubtedly conducted the search. The District Munsif held that the search was illegal and awarded Rs. 100 as damages against

each of the defendants. In appeal the District Judge exonerated the 2nd defendant altogether and gave a rupee damage against the 1st defendant.

The plaintiffs have preferred this second appeal and the 1st defendant has filed a memorandum of objections.

On the question whether the 2nd. defendant should be held liable I have come to the conclusion that the District Judge is right. The main

argument addressed to us by the learned vakil for the appellant was that the 2nd defendant was not an officer in charge of a police station and that

consequently he had no power to make the search. u/s 4, Clause (p) of the Code of Criminal Procedure an officer in charge of a police station

includes, when a permanent incumbent is absent or unable to perform his duties, "" the police officer present at the station-house who is next in rank

to such officer and is above the rank of a constable."" In the present case, the Sub-Inspector as he is called, who is the officer in charge of the

police station of Valliyoor left his jurisdiction for the purpose of pursuing a gang of thieves. This was on the 26th January 1915. The only evidence

we have in the case as to what happened when he left the station is the deposition of the 2nd defendant in which he says : "" I am the general charge

officer and I look after the station work during the Sub-Inspector''s absence as senior officer of the station."" Relying upon this evidence the District

Judge has come to the conclusion that the 2nd defendant was put in charge of the station when the permanent incumbent went out of the

jurisdiction. I see no reason to differ from this finding of fact.

It is in evidence, however, that the 2nd defendant left the headquarters of the station on the 26th to inspect some of the outlying villages within

his jurisdiction. There is some doubt whether he returned back on the 29th or not. I am of opinion having regard to what he states in the earlier

portion of his deposition, that he was not in the station house on the 29th. But that does not matter. If he was deputed to be in charge of the

station, the fact that he was doing duty elsewhere does not deprive him of his capacity of station house officer. If Mr. Gurusami Aiyar''s contention

were upheld, every moment that the officer in charge of a police station leaves the station house a new station house officer must be installed there.

Take for example a case in which the permanent incumbent who left the jurisdiction returns to the jurisdiction under his charge but hot to the station

house; if the contention for the appellants were upheld, until he takes charge of the station house, he cannot exercise the functions of an officer in

charge of the police station. I am unable to agree with this contention. The object of the definition is to permit of the discharge of duties which can

only be done by an officer in charge of a police station by some person who is deputed to look after that work. The aim is to bring in more men so

that the duties of the office may be performed without delay, and not to exclude persons who were either permanent incumbents or who have been

appointed to act for the permanent incumbent. My opinion, therefore, is that as the 2nd defendant was within the jurisdiction of the police station

and as he was appointed to act for his superior when the latter went outside the jurisdiction, he was an officer in charge of a police station. It may

be that Arunachallam Pillai, the station writer as he is called was also an officer in charge of a police station, but it is not necessary to consider that

matter. I am clear that the 2nd defendant was an officer in charge of the police station of Valliyoor. I do not think that the words ''present at the

station house'' would necessarily have the effect of depriving an officer of his functions if he happens to go out of the station house. That clause, as I

said before, is intended to empower more men to discharge these duties and not to deprive others of their functions. In this view, I am of opinion

that the 2nd defendant in conducting the search, acted within his powers. There is the finding by the District Judge that in exercising those powers

he did not act harshly or oppressively. I am of opinion that the exoneration of the 2nd defendant was right. Therefore the appeal so far as he is

concerned must be dismissed with costs.

The question of the liability of the 1st defendant is somewhat different. He is not attached to the Valliyoor station. He is the head of another

station. Therefore, prima facie he acted without jurisdiction making the search. u/s 166 of the Code of Criminal Procedure if a theft is committed

within the limits of a police station, and if the property is concealed within the limits of another station, the officer in charge of the station where the

theft was committed can requisition the aid of the officer in charge of the station where the thief has secreted the property to cause a search to be

made. That is not this case. The plaintiffs against whom the suspicion of having received stolen property was entertained had their house within the

limits of Vallejo station. Therefore the 1st defendant had absolutely no right to make any search. I find no provision of law which would enable a

police officer who did not belong to the constabulary of a particular police station 1o come within its limits and to help in the search of property. I

must therefore hold that the 1st defendant acted without jurisdiction.

It was suggested in the course of the hearing that as the 2nd defendant was acting within his powers in making the search, the association of the

1st defendant did not matter. In Morris v. Wise (1860) 2 P.& F. 51 it was held that a person assisting a constable or other officer engaged in

carrying out a lawful process of law would be justified as it would not be unlawful to take part in a lawful act. Having regard to the rank of the 1st

defendant, it is doubtful whether he can be said to have simply assisted the 2nd defendant. But the 2nd defendant had jurisdiction to conduct the

search and was doing a lawful act. Consequently, if the entry into the plaintiff''s house for the purpose of a search was lawful, can it be said that the

association of another in this act was an actionable wrong? After consideration I am inclined to agree with my learned brother, that he too was not

liable. It is unnecessary to consider the other questions argued before us. I agree therefore that the memorandum of objections should be allowed

with costs.

Phillips, J.

Plaintiff''s suit is for damages for wrongful trespass committed by defendants in searchin gtheir house. The District Judge has found that 2nd

defendant was the officer in charge of the Valliyoor Police Station within the limits of which the search was conducted. The evidence of defendants

1 and 2 supports this finding and I think it may be accepted. The contention put forward by Mr. Gurusami Aiyar that the Sub-Inspector, who, had

been put in charge of the station, could be the only officer in charge of the station, subject to the proviso in Section 4(p) of the Criminal Procedure

Code does not appear to be correct. The Sub-Inspector was absent from the station on special duty and during his absence it would be necessary

to have some other officer in charge and the evidence is that 2nd defendant was that other officer. Section 4(p) of the Criminal Procedure Code

only provides that in the temporary absence of the officer in charge the next senior officer above the rank of constable shall also be deemed to be

officer m charge of the station. This does not take away the power of acting as such from the officer who is really in charge of the station, for it is

only necessary to state the proposition to see its absurdity. It would mean that as soon as such officer left the station house, the next senior officer

would be the only officer in charge and no search outside the station house could be conducted by the officer in charge. Accepting this finding the

suit was rightly dismissed as against 2nd defendant,

The District Judge has, however, found that 1st defendant acted without jurisdiction in that he took part in a search which he had no jurisdiction

to make. The search being conducted by 2nd defendant was made with jurisdiction and the fact that a person not authorised by the Code to

conduct the search took part in it, does not invalidate the search. It is not necessary that a person who conducts a search should do all the acts

connected with the search with his own hand, but it is sufficient if he is present and personally supervises the proceedings. Vide Sri Sri Nadaduru

Raiaguru Satagopala Charlu Vs. Satrughna Behara and Another, . In most searches one or more constables assist the officer conducting the

search, and sometimes a cooly is employed to do manual labour, such as digging up the floor, etc., to facilitate the search. I do not for a moment

think that such assistants could be held to be liable in damages for rendering such assistance. In the present case the 1st defendant being 2nd

defendant''s superior officer, no doubt took a considerable part in effecting the search, but that is no reason for saying that he conducted the

search, for he had been careful enough to send for 2nd defendant to conduct the search, knowing that he had no jurisdiction to conduct it himself.

In doing what he did he cannot be said to have exceeded his jurisdiction, and he is not liable in damages to plaintiffs. In this view the second appeal

must be dismissed with costs, and in allowance of the memorandum of objections plaintiff''s suit must be dismissed with costs throughout.