GOURI PRASAD DEY Vs. CHARTERED BANK OF INDIA

JUDGEMENT

(1.) The issue in this suit is of fundamental importance for it touches the liberty of the subject. The plaintiff claims damages for false imprisonment, and it becomes necessary to consider under what conditions in India a private individual is entitled to cause the arrest of another person. Now, the Court is a jealous guardian of the right of personal freedom, and requires any interference with the liberty of the subject to be strictly justified. Until the 6nal address of counsel the bearing of the suit proceeded upon the assumption that the law in India on this matter was analogous to that obtaining in England. In both countries various statutes are in existence under which in the particular circumstances therein referred to a tight of arrest is given, but in England the common law relating to the right of arrest possessed by a private person is in an anomalous and unsatisfactory state. At common law a private individual is justified in himself arresting a person or causing him to be arrested when a felony has been committed, and he has reasonable ground of suspicion that the person accused is guilty of the felony for which he has been arrested. Where a misdemeanour has been committed, however, under the common law the arrest of the offender by a private individual cannot be justified. It is true that very often there is a duty cast upon a person to put the law in motion in order to bring the offender to justice, and it is no doubt for reasons of public policy that some excuse limited in character is permissible in an action for damages at civil law for false imprisonment) when a private parson has wrongly caused the arrest of another ... But be it observed that this concession is limited to felonies, and although a misdemeanour, which may be a more serious crime than some felonies, may have been committed, yet, if a person causes a wrongful <JGN>Page</JGN> 2 of 5 arrest, however serious the misdemeanour may be, it cannot be made the basis of any legal excuse if the party has been wrongfully arrested. When a person instead of having recourse to legal proceedings by applying for a judicial warrant for arrest, or laying information or issuing other process well-known to law gives another into custody he takes a risk upon himself by which he must abide, and if in the result it turns out that the person arrested was innocent, and that, therefore, the arrest was wrongful he cannot plead any lawful excuse unless he can bring himself within the proposition of law which I have enunciated in this judgment {per Isaacs, Chief Justice, Walters V/s. W. H. Smith & Son, Ltd. [1914] 1 K.B. 595].

(2.) Now, in India the distinction between felonies and misdemeanours, which has almost become obsolete in England, has never been recognised, and, in my opinion, the common law of England relating to the light of arrest by a private individual does not run in India. I am of opinion that the general law on this subject is to be found in Section 59 of the Code of Criminal Procedure. 1 refer to the Section in its present form, as amended by the Criminal Procedure Code Amendment Act (XVIII of 1923, Section 12), for the material provisions of the Section are in substance the same as the provisions of the Section in its unamended form, Section 59 (1): "Any private person may arrest any person who In his view commits a non- bailable and cognizable offence, or any proclaimed offender, and without unnecessary delay, shall make over any person so arrested to a police officer, or in the absence of a police officer take such person or cause him to be taken in custody to the nearest police-station." The section is not happily worded, but the intention of the Legislature appears to have been to restrict the right of arrest by a private individual to cases in which a cognizable and non- bailable offence has been committed in the presence of the person who arrests or causes the arrest of the offender, [see Queen Empress V/s. Patadu [1888] 11 Mad. 480]. In my opinion, it is not essential that a private individual, in whose presence a non-ball-able and cognizable offence is committed, should himself physically arrest the offender. He may cause such offender to be arrested by another person. In so far as the ratio decidendi of the case of Bolai De V/s. Emperor [1908] 35 Cal. 361, is not in accordance with the view which I have expressed, with all due respect to the learned Judges who decided it, I am unable to acquiesce in it. In a suit for false imprisonment, therefore, it is incumbent upon the defendant to prove either (i) that he did not arrest or cause the arrest of the plaintiff, or (ii) that the offence was cognizable and non-bailable, and had been committed in his presence. If the defendant satisfies the Court as to either of these propositions in my opinion, the plaintiff's claim must fail. I am further of opinion that the issue as to whether in arresting or causing the arrest of the plaintiff the defendant bad reasonable and probable cause for so doing is immaterial. Now, inasmuch as the offence with which the plaintiff in this suit was charged was not committed in the presence of the defendant bank or of Mr. Clark, who is the agent of the bank, the only issues which fall for determination are: (i) Did the defendants or either of them cause the arrest of the plaintiff? <JGN>Page</JGN> 3 of 5 (ii) If yes, what damage has the plaintiff suffered by reason of such arrest ?

(3.) The facts so far as material, I find to be as follows: On or about the 81 December 1921, Mr. Clark, the agent of the bank, discovered that certain demand drafts on the branch of the bank in England were missing from the bank's premises in Calcutta. According to the normal practice of the bank demand drafts are not permitted to leave the bank until they have been paid for. The plaintiff was a senior cashier of the bank, and was responsible for the safe custody of the drafts. It appeared, however, that some little time before the 31 December 1921 the plaintiff in breach of his duty had delegated the duty of keeping the bank drafts in proper custody to another employee of the: bank, Krista Ghose. Although the bank drafts ought to have been paid for, according to the practice in the bank, not later than 7 2 hours after issue the agent of the bank discovered that a number of drafts had been outstanding for a much longer period without notice having been given by the plaintiff to the accountant's department. The plaintiff was sent for, and informed Mr. Clark that he knew a customer of the bank who apparently had obtained possession of certain of these drafts without previously having paid for them, and had negotiated them in the market. The plaintiff further admitted that he had borrowed money from Chandna which had not been repaid. The value of the bank drafts which were found to be missing was about Rs. 2,70,000. On the evening of the 8ist December Krista was sent for, and saw Mr. Clark to whom he confessed his complicity in the criminal transaction. Mr. Clark gave information to the police, and having requested the police to investigate the matter, Mr. Bird, a Deputy Commissioner of Police, detailed Inspector Robertson to institute an enquiry. On the 31 December inspector Robertson arrested Krista, and thereafter commenced a detailed investigation into the problem as to how this crime had been committed. It is admitted that the plaintiff gave assistance to the police officer who was investigating the matter, and on the 9 January 1922 Chandna was arrested. A few hours later he made a confession, but) in that confession he in no way suggested that the plaintiff was a party or privy to the crime. The plaintiff remained in the employment of the bank, and carried out his duties as cashier until the 23 January. Meanwhile, Chandna had made a second confession while in custody and in that second confession he stated a number of facts which, if the statement was to be relied upon, were evidence that the plaintiff was concerned in the crime. After having received the second confession of Chandna Inspector Robertson had an interview with Mr. Bird, and apparently, Mr. Bird came to the conclusion that there was sufficient evidence to put the plaintiff upon his trial for conspiring with Krista and Chandna to commit a criminal breach of trust. Accordingly, about midday on the 28 January Inspector Robert" son sought an interview with Mr. Clark at the bank, and in the course of the interview the plaintiff was sent for and was arrested. Ha was removed from the bank in custody by Inspector Robertson and taken to the Hare Street Police Stallion, where he was detained for an hour, and then taken before a Presidency Magistrate at Bankshall Street. The charge was preferred against him, and the Magistrate remanded him in custody. Subsequently, all three accused were committed for trial to the July sessions of the High Court. The accused were charged with conspiracy to commit theft and also with conspiracy to commit breach of trust. <JGN>Page</JGN> 4 of 5 Krista Ghose and Chandna were convicted, and the plaintiff was unanimously acquitted.