P. Kader Batcha vs K.A. Alagarswami Naicker

M. Anantanarayanan, Offg. C.J.

(1) This Letters Patent Appeal has been instituted by the defendant in an action for recovery of a sum of Rs. 1,000 as damages for a trespass to

person. After a review of the facts, and the principles of law applicable to a case of the kind, Ramachandra Iyer J. (As he then was) decided in S.

A. 1278 of 1960 firstly, that there was trespass committed by the appellant upon the person of a certain Alagarswami Naicker (plaintiff in the suit),

next that the trespass occurred under such circumstances of malicious and mala fide action as to entitle the plaintiff to damages, and, finally, that the

claim for damages is in regard to this tort was not barred by limitation, with respect to he processions of S. 53 of the Madras District Police Act.

The learned Judge quantified the damages at Rs. 100 and gave a decree for that amount, with subsequent interest and costs. He also granted

leave, and hence the Letters Patent Appeal by the defendant.

(2) The facts are practically not in dispute, and learned counsel for the appellant, Mr. Ahmed Meeran, has been fair enough to concede the major

facts which are incontrovertibly established by the record.

The appellant is a Sub Inspector of Police, and he arrested the plaintiff-respondent on the afternoon of 1-1-1957 in connection with injuries caused

to a certain Lakshmanpathi Naicker on 30-12-1956. The plaintiff was admittedly then produced by the police officer (appellant) before the Sub-

Magistrate, and remanded by the magistrate to the Sub Jail at Sattur. Immediately thereafter, the plaintiff complained of severe colic, and was

removed to the Government Hospital, at Satire, where he was an inpatient till 25-1-1957. Though the learned Judge (Ramachandra Iyer J.)

differed from the concurrent decrees of the Courts below dismissing the claim of the plaintiff, this is not upon any varying view of the merits of the

evidence, but on an analysis and application of the principles of law relevant to the faces; actually the learned Judge accepted the concurrent

findings of the trial and the first appellate Courts. It is clear form those findings that this police officer (appellant) went to the hospital the next

morning, and directed the police sentry guarding the plaintiff to put letters (handcuffs) on him; not merely this, the plaintiff was handcuffed and

chained like a dangerous animal, to a neighbouring window bar.

(3) A medical officer made his routine visit on 4-1-1957, saw the plaintiff chained in that manner, and raised objections. It was only thereafter that

the fetters and the chains were removed. On that very day, the Court removed. On that very day, the Court enlarged the plaintiff on bail.

Subsequently, the plaintiff was tried along with others upon a charge under S. 307 I.P.C., and acquitted. After the acquittal, the plaintiff preferred

the present claim for damages, for a tort committed on his person.

(4) Learned counsel for the Police Officer (appellant) has taken as through the entire record, and laid emphasis upon those parts of the evidence

which relate to a possible motive for the appellant to have wrecked vengeance upon the plaintiff, by having him chained in that brutal fashion.

According to the learned counsel, there is no reliable evidence about proof of either of the motives alleged. Even so, and accepting this argument,

the question is whether, nevertheless, the tort committed was not mala fide and malicious. It is not the law that, with reference to the commission of

a tort of that character, a motive or intention should be attributed and proved. If, the officer has exceeded and abused his authority it may be out of

arrogance, or even because of a temperamental defect which delights in cruelty, the act would be malicious, and mala fide, unless it can plausibly

be contended that the circumstances justified the use of the power. In the judgment of the learned Judge, we find a verbatim extract of Order 666

of the Madras Police Standing Orders, Chapter XXXI page 423 in Volume I (1960 Edn.) which gives detained instructions for the use of

handcuffs or fetters. It is not necessary to again cite the passage here. We think it is sufficient to observe that we have perused it every carefully,

and its purport and the limits specified in the instructions, are crystal clear.

Assuming, as was sought to be argued in this case, that the officer was prompted to take extra precautions because certain instances of escape

form custody had previously occurred, and the higher police authorities had emphasised the need for vigilance, nevertheless, the particular use of

the fetters and the chain evidenced by the record in this case, has no shred of justification. In reality, the instructions do not relate to the use of any

chain at all for chaining an under-trial prisoner like a ferocious animal; that contingency is not even contemplated. The sue of fetters or handcuffs is

permitted, within strict limits, generally where a prisoner is being conveyed, and the escort reasonably apprehends that he might try to escape, if not

suitably restrained. In the present case, the prisoner (plaintiff) was in hospital, kept in bed upon a complaint of sever colic. There was a police

sentry guarding him. Even of the officer feared that he sentry might be negligent, his proper duty would be to warn the sentry, or to post another

guard if feasible. The imposition of handcuffs was not called for, even on the most liberal interpretation of the state of mind of the officer, or the

exigencies of the situation. Certainly, the chaining of the prisoner, to a window bar, was quite outside the ambit of the instruction, and can only be

characterised a as piece of brutality; indisputably amounting to a tort or a trespass on person.

(5) The learned Judge (Ramachandra Iyer J.) has quoted certain authorities for the view that, under such circumstances, the trespass must be

considered as both mala fide and malicious in law; the victim would be entitled to damages. One of those passages is from Flaming on Torts, 1957

Edn. and another is form Clark and Lindsell on Torts, 11th Edn. The learned Judge has also referred to Newel v. Starke 1919 89 LJPC 1 and the

true principle which applies to this situation was enunciated by Lord Atkinson in the form that ""A man is entitled to protection if he bona fide

considers that he is carrying out the authority conferred upon him"". We entirely agree with the learned Judge that, in the present case, the appellant

cannot invoke this protective factor of bona fides to justify his conduct. The test is, as stressed by the learned Judge, whether the circumstances

were such that the prosecution or act can only be accounted for by imputing mala fides, and that test is satisfied here, as the officer knew the limits

of the rules, and must also have known that he was using his power against the plaintiff in a cruel and humiliating manner, not at all warranted by the

actual contingency. We hence, agree with the learned Judge in his view that this was a trespass upon person, mala fide and malicious which entitled

the victim to the recovery of damages.

(6) The ground of limitation urged may now be briefly discussed. That is the ground upon which greater stress has been laid by learned counsel for

the appellant. Under S. 53 of the Madras District Police Act, 24 of 1959:

All actions and proceedings against any person, which may be lawfully brought for anything done or intended to be done, under the provisions of

this Act.. shall be commenced within 3 months after the act complained of shall have been committed and not otherwise"". If this limitation is to

apply, the claim is certainly time barred.

(7) This matter was considered, at some length, and with reference to the corresponding sections of English Acts upon which S. 53 is worded, by

Venkatasubba Rao J. Delivering the judgment on behalf of the Bench in Pulavarti Lakshmanaswami Vs. Mahammad Galah Hussain Saheb Garu

and Others, . The learned Judge referred to several English decisions and corresponding statutory provisions, and finally concluded statutory

provisions, and finally concluded that the protection given by S. 53 will not apply to an act of this character. He said:

If an act is done maliciously, upon the construction uniformly adopted, it ceases to be an act ''done or intended to be done under the provisions of

the Act'', and that construction is not in the least affected by there being a reference, in some section of the enactment, to malicious acts. The

moment an act is shown to be malicious, it ceases to be protected by S. 53..................

There is a reference both to the language of S. 53 and to the kind of situation to which that section might apply, in the decision of the Supreme

Court in The State of Andhra Pradesh Vs. N. Venugopal and Others, ,. But there is nothing in that decision which touches upon this question of

malice"" discussed in the Bench decision of this court earlier referred to or upon the principles of exception enunciated in that decision. Their

Lordships of the Supreme Court are clear that the protection of S. 53 would include acts done or intended to be done under the provisions of any

other law conferring powers on the police, such as the Criminal Procedure Code. The protection is not available where the act is outside this ambit

altogether. The protection will extend to any case in which ""the police officer or some other person may go beyond what is strictly justified in law.

This itself implies that the protection is not available to a tort not contemplated by the law at all, such as confining an under-trial prisoner, who is

further sick in hospital ward, by handcuffs and chain to a window bar like a dangerous animal, on the ground or pretext that he might otherwise

escape. We are, hence fully satisfied that the bar of limitation does not operate in the present case; of course, we are not laying down any general

principle, for obviously, each case will have to be decided upon its merits with regard to the extent to which it could be brought, even as an excess,

under ""some provision of law"", or must be construed as outside any legal power altogether.

(8) Indisputably, the question of damages awarded to the victim (plaintiff) by the learned Judge is very moderate and calls for no interference at our

hands. Under the circumstances, the Letters Patent Appeal is dismissed with costs.

(9) Appeal dismissed.