ASAN ALLIAR MARAIKAYAR Vs. TBMASILAMANI NADAR

JUDGEMENT

(1.) 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.

(2.) 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. Under Section 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.

(3.) 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.