L O CLARKE Vs. BROJENDRA KISHORE ROY CHOWDHRY

JUDGEMENT

(1.) The plaintiff is a zemindar residing in the District of Mymensingh. The defendant is a member of the Indian Civil Service, and, at the date of the transaction in question, was District Magistrate of Mymensingh. The plaintiff seeks to recover damages for a trespass alleged to have been committed by the defendant in searching the plaintiff's cutchchery at Jamalpur on the 28 of April 1907. The defendant, in substance, pleads not guilty by Statute and relies upon th6 Statutes to which reference will be made later on.

(2.) The facts appear to be these: For sometime previous to the 28 of April 1907 the state of feeling between the Hindus and Mahomedans at Jamalpur ran very high and there can be no doubt but that for some days the town had been in a condition of very great excitement. On the 28 of April 1907, the date of the search which undoubtedly took place on the afternoon of that day the defendant was at Mymensingh; and in consequence of a telegram, which he received from Mr. Barniville, the Sub-divisional Officer, and Mr. Luff man, the Head of the Police at Jamalpur, he left for Jamalpur and arrived there at about 10. o clock in the morning. He was then informed by Mr. Luffman that on the previous evening a man named Genda Sheikh had been wounded by a revolver shot; and he was also informed that the police had reason to believe that fire-arms were stored in the cutcheries of the zemindars. In consequence of this information the defendant determined to search, amongst others, the plaintiff's cutchery; and in the presence of certain gentlemen as witnesses of the search and accompanied by Mr. Barniville, Mr. Luffman and several police, he searched the plaintiff's cutchery in the afternoon. This is the trespass complained of. It is unnecessary to go more in detail into the facts of this part of the case, because there is no dispute as to the facts stated above. The fact of the search and that it was conducted by the order and under the directions of the defendant is not denied. It seems, therefore, unnecessary to discuss what took place on the evening of the 27 of April or to go more minutely into the question of the excitement or the cause of the excitement and the state of feeling between the Hindus and Mahomedans at that time. Unless the search were warranted by some Statute, the defendant had no right to make it; and the question we have to decide is whether the defendant is protected, in other words, was he acting and did he act under any, and if so, what power conferred upon him by law. The plaintiff has charged the defendant with having acted maliciously and without reasonable and probable cause in making the search. I have no hesitation in saying that there is no ground whatever for charging the defendant with malice, nor any hesitation in saying that the defendant acted in perfect good faith in making the search that he did.

(3.) It will, perhaps, be convenient, in the first place, to deal with Section 25 of the Indian Arms Act, 1878, upon which the defendant relies. That section runs as follows: "Whenever any Magistrate has reason to believe that any person residing within the local limits of his jurisdiction has in his possession any arms, ammunition or military stores for any unlawful purpose or that such person cannot be left in the possession of any such arms, ammunition or military stores without danger to the public peace, such Magistrate, having first recorded the grounds of his belief, may cause a search to be made of the house or premises occupied by such person or in which such Magistrate has reason to believe such arms, ammunition or military stores are, or is, to be found, and may seize and detain the same, although covered by a license in safe custody, for such time as he thinks necessary. The search in such case shall be conducted by, or in the presence of, a Magistrate, or by, or in the presence of, some officer specially empowered in this behalf by name, or in virtue of his office, by the Local Government." The search was undoubtedly a general search for arms, not, as is now suggested at the Bar, for the revolver, with which Genda Sheikh had been wounded. It is conceded that the defendant before making the search did not record the ground of his belief. The question then is whether, not having complied with the terms of the Statute, the defendant can justify the search under that section. It is contended for him that the words "having first recorded the grounds of his belief," are merely directory and not imperative or mandatory. It is difficult to accept this view. A special and drastic power is by this section granted to the Magistrate. Without it, he could not have made the search, unless, as it is suggested, certain provisions of the Criminal Procedure Code apply to a case such as the present. These words must have been inserted in the section with an object and the object probably was to protect the public against searches being inconsiderately directed and to insure the exercise of deliberation by the Magistrate before he ordered the search. A fine distinction is often drawn between what is mandatory and what is merely directory in the language of any particular Statute. The present case appears to fall within that-class of cases in which, when a Statute creates a special right, but certain formalities have to be complied with antecedent to the exercise of that right, a strict observance of the formalities is essential to the acquisition of the right. As the defendant, in the case now before us, did not comply with the required formality by recording the grounds of his belief before he proceeded to search, this section does not appear to protect him from the consequences of his action.