Judgement Consolidated Appeals by special leave from two decrees of the High Court (January 12, 1909) affirming two decrees of the said Court in its extraordinary original civil jurisdiction (June 19, 1908). The questions decided were whether a search made by the appellant as chief magistrate of the district, accompanied by Mr. Luffman, district superintendent of police, upon the premises of the respondents constituted an actionable trespass, and whether the appellant was liable in damages therefor. The suits were brought on July 25, 1907, under the circumstances detailed in the judgment of their Lordships, in the Court of the third Subordinate Judge of Mymensingh. The respondents in their plaints alleged that the said search constituted a wanton and wrongful trespass, and they charged the appellant with having acted in a wholly illegal, wanton, and arbitrary manner, without any lawful or reasonable excuse, justification, or authority, and witt having acted wrongfully and maliciously and without any reasonable and probable cause in the matter, and they each prayed for a decree for the sum of Rs.10,500 as damages with costs. Law. Rep. 39 Ind. App. 163 ( 1911- 1912) Loftus Otway Clarke V. Brojendra Kishore Roy C howdhury 76 The appellant in each suit pleaded that the said search was necessary and justified under the circumstances, and under the powers conferred by ss. 94, 96, 105, and 165 of the Code of Criminal Procedure, and by s. 25 of the Indian Arms Act, 1878; and that he was not liable to suit by virtue of the provisions of Act XVIII. of 1850 (an Act for the protection of judicial officers). In January, 1908, the High Court in its extraordinary original civil jurisdiction by orders transferred to trial of the suits from the Court of the said Subordinate Judge to itself ; and by consent the trial proceeded only in one suit, the judgment therein to govern both suits. Fletcher J. on June 19, 1908, decreed in favour of the respondents for Rs.500 damages in each suit. He found that the appellant in determining upon the search acted bona fide and was not actuated by malice or other improper motives. Fletcher J. on June 19, 1908, decreed in favour of the respondents for Rs.500 damages in each suit. He found that the appellant in determining upon the search acted bona fide and was not actuated by malice or other improper motives. He held (l.)that s. 25 of the Arms Act did not afford a defence or justification, as before making the search the appellant had not, as directed by that section, recorded his grounds for his belief that arms were in the buildings ; (2.) that ss. 94, 96, and 105 of the Code of Criminal Procedure did not apply as the appellant was not acting as a " Court," and there was no proceeding pending before him ; (3.) that there was no defence or justification afforded by s. 165 of the Code of Criminal Procedure, as he was satisfied that the search was not intended to be made under that section, but was one for arms generally under the Arms Act; (4.) that the appellant was not protected by Act XVIII. of 1850 as he was- not discharging any judicial duty, and that under the common law he was liable for a trespass. The High Court in its appellate jurisdiction by a majority (Maclean C.J. and Harington J., Brett J. dissenting) dismissed the appellants appeals from the decrees of Fletcher J., but without costs. The majority agreed with the finding of Fletcher J. that the appellant had been placed in a position of great difficulty and emergency, that he acted in perfect good faith throughout, that there were no grounds whatever for charging him with malice, and that the charge to that effect was as unfounded as it was improper. They also in effect concurred in the decision of the lower Court as regards the defences under the Arms Act, Act XVIII. of 1850, and ss. 94—96 and 105 of the Code of Criminal Procedure. As regards the defence under s. 165 of the said Code, Harington J. held that the appellant was entitled to call it in aid, if it justified the search, whether it was present to his mind at the time or not; but that inasmuch as the superintendent of police was not called as a witness in this suit to prove the facts entitling him to enter and search, the section did not avail the appellant. Brett J. in his dissenting judgment held that the law applicable was not the common law of England, but the law of justice, equity, and good conscience, and that the appellant was justified in his action on the grounds pleaded by him. He found that the said search was made and intended to be made not only under the Arms Act, but also under the said provisions of the Code of Criminal Procedure, and was justifiable. The material portion of the judgment of the Chief Justice is as follows — " It will, perhaps, be convenient, in the first place, to deal with s. 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 Law. Rep. 39 Ind. App. 163 ( 1911- 1912) Loftus Otway Clarke V. Brojendra Kishore Roy C howdhury 77 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 Gandu Sheikh had been wounded. It is conceded that the defendant before making the search did not record the grounds 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. 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 pr« visions 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 man datory 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. " Then it is said that the search was warranted by s. 105 of the Criminal Procedure Code. That section runs as follows Any magistrate may direct a search to be made in his presence of any place for the search of which he is competent to issue a search warrant/ The magistrate can only act under this section where he is competent to issue a search warrant. That takes us to s. 96. That section applies to the issue of a search warrant by the Court. Here the defendant was not acting as a Court ; and all that s. 105 enacts is, that instead of the Court issuing a search warrant, the magistrate may direct a search to be made in his presence. It is reasonably obvious why this power is given to a magistrate; but the section does not assist the present defendant. Here the defendant was not acting as a Court ; and all that s. 105 enacts is, that instead of the Court issuing a search warrant, the magistrate may direct a search to be made in his presence. It is reasonably obvious why this power is given to a magistrate; but the section does not assist the present defendant. " Then, reliance is placed upon s. 165 of the same Code, and the argument is that, inasmuch as Mr. Luffman might have made a search under that section, the search must be treated as having been made under that section, and the defendant can so shelter himself. The answer to this contention seems to be that the search was not an was never intended to be a search under this section, and the search was not by Mr. Luffman or by any police officer making an investigation. It was a search conducted by and under the directions of the magistrate. Mr. Clarke says so himself. He says ‘ I thought I was justified in making the search myself and I did want to make the search myself. It must, I think, be taken that the search was by him. Mr. Luffman was not called to prove that this was a search under this section, or that he was exercising the powers conferred upon him by this section. Mr. Luffman did not go into the box. Sect. 165 does not mention the magistrate. Where there are special provisions in an Act of the Legislature dealing with the case of a search for arms, and laying down what are the conditions precedent to making such a search, and there are general provisions in another Act of the Legislature dealing with searches generally, and in point of fact the search is one made for arms, it ought, in the absence of evidence to shew that the search was made under the general as opposed to the specific legislation, to be taken that the search was made, not under the general provisions authorizing searches, but under the special provisions authorizing a search for arms, and especially so when the search is made by one who, in the circumstances, had no power of search under the general provisions as to searches. Nothing is specifically said about arms under s. 165, and Law. Rep. 39 Ind. App. Nothing is specifically said about arms under s. 165, and Law. Rep. 39 Ind. App. 163 ( 1911- 1912) Loftus Otway Clarke V. Brojendra Kishore Roy C howdhury that section does not appear to protect the defendant. " The scheme as regards searches under the Code of Criminal Procedure is reasonably clear. The Court can issue a search warrant under s. 96, or in lieu of that the magistrate may himself search under s. 105. Sect. 165 deals with searches by a police officer, and not by a magistrate. " The only other Act relied upon is Act XVIII. of 1850. The preamble of that Act is, for the greater protection of magistrates and others acting judicially, and there is only one section, which runs as follows No judge, magistrate, justice of the peace, collector or other person acting judicially shall be liable to be sued in any civil Court for any act done or ordered to be done by him in the discharge of his judicial duty, whether or not within the limits of his jurisdiction provided that he, at the time, in good faith believed himself to have jurisdiction to do or order the act complained of and no officer of any Court, or other person bound to execute the lawful warrants or orders of any such judge, magistrate, justice of the peace, collector or other person acting judicially shall be liable to be sued in any civil Court for the execution of any warrant, or order which he would be bound to execute, if within the jurisdiction of the person issuing the same. Can it be said that in conducting this search the magistrate was acting judicially ? Was this act done in the discharge of his judicial duty? The Act itself draws a distinction between an executive as opposed to a judicial act; for it protects not only the person who acts judicially, but also the person who executes the order of the person so acting judicially. The duties of a magistrate in this country are at once judicial and executive. But here the search must be taken to have been conducted by the magistrate in his executive and not in his judicial capacity. The duties of a magistrate in this country are at once judicial and executive. But here the search must be taken to have been conducted by the magistrate in his executive and not in his judicial capacity. There is, therefore, no statute which protects the magistrate in his prima facie wrongful act in trespassing upon the plaintiffs cutcherry." Sir Erie Richards, K.C., and Kenworthy Brown, for the appellant, contended that the decisions of the Courts below should be reversed. The evidence distinctly proved the necessity and justification for the search complained of. It was also proved that the appellant and also the district superintendent of police in good faith believed and had substantial grounds for believing that there were concealed arms in the cutcherries which they searched. Under the circumstances of the case the search did not constitute an actionable trespass. The appellant pleaded statutory authority. As regards Act V. of 1898 (the Criminal Procedure Code) they referred to s. 94 and s. 95, sub-s. 2, as to pro duction and inspection of documents, s. 96 as to issue of search warrants, s. 105 as to the power of a magistrate to issue them, ss. 154—160 as to the procedure to be adopted, and s. 165 as to the power of search by a police officer, being the section relied upon by the appellant for his justification and protection. Sect. 96 was also relied upon, and it was contended that the word " Court" in that section did not mean that the power given should be exercised only by the appellant when sitting as a Court and acting in some proceeding initiated before him under the Code 3ee s. 94. The power was conferred on the appellant as one of his ordinary powers as a magistrate see s. 36 and Sched. III. (8.). Reference was also made to the Police Act (V. of 1861), s. 4, and to the Arms Act (XL of 1878), ss. 25 and 26. The search was made and intended to be made under powers conferred by the Criminal Procedure Code in connection with the offences committed with firearms on April 29, 1907, as well as generally under the Arms Act. 25 and 26. The search was made and intended to be made under powers conferred by the Criminal Procedure Code in connection with the offences committed with firearms on April 29, 1907, as well as generally under the Arms Act. As regards the contention that the appellant ought to have recorded the grounds of his belief that arms were concealed in the cutcherries before he made the search and that by omitting to do so he could not avail himself of the protection afforded by s. 25 of the Arms Act, the direction to record his grounds of belief was merely directory and not imperative. Reference was made to Liverpool Borough Bank v. Turner (( 1860) 30 L. J. (Ch.) 379.); Margate Pier Co. v. Hannam (( 1819) 3 13. & Ald. 266, 269.); King v. Patteson ((1832) 4 13. & Ad. 9.) ; Maxwell on Interpretation of Statutes, 5th ed., p. 608, as to stat. 13 Hen. 4, c. 7. But in any event the appellant was protected from liability to this action by Act XVIII. of 1850, entitled " An Act for the protection of judicial officers," for there was no doubt that he was acting in a judicial capacity. See Law. Rep. 39 Ind. App. 163 ( 1911- 1912) Loftus Otway Clarke V. Brojendra Kishore Roy C howdhury 79 Hope v. Evered (( 1886) 17 Q. B. 1). 338) ; Lea v. Char ring ton (( 1889) 23 Q. 13. 1). 45.); Mahomed Jackariah v. Ahmed Mahomed (( 1887) I. L. R. 15 Calc. 109, 139, 140.) ; and Seshaiyangar v. Raghunatha Row. (( 1870) o Madr. H. C. 345, 353.) De Gruyther, K.C., and J. M. Parikh, for the respondents, contended that the search of their premises by and under the direction of the appellant was not under the circumstances warranted by law and constituted an actionable wrong. The search was a general search of all the cutcherries for arms and not for any particular weapon. The appellant had not acted with any judicial discretion, and his search was not and was never intended to be under s. 165 of the Criminal Procedure Code, and there was no evidence that any police officer was acting thereunder. The appellant had failed to prove any necessity for his forcible entry and also any statutory authority applicable under the circumstances. The appellant had failed to prove any necessity for his forcible entry and also any statutory authority applicable under the circumstances. There was no provision in the Criminal Procedure Code which justified or authorized his action. The powers of the various classes of magistrates and other judicial officers were specified in ss. 31 and 32 and Sched. II., chap. 8. In such a case as this an information should have been laid, and a police report obtained after investiga tion see Criminal Procedure Code, ss. 105, 106, 107, 133, 149, 155—157, 160, 161. Chap. XV. of the Code was also referred to, ss. 190 and 191 of which it was contended governed this case. Action ought not to be taken on the oral statements of police officers. The appellant did not act judicially or as "a Court/ As to what constitutes an " inquiry " see s. 200. If a magistrate acts as in this case on his own suspicion he must issue summonses or warrants as the case may be see ss. 68, 75, 94, 165, 200, 204, 206, 241, 251. He could not under the circumstances, where no proceeding or inquiry had been instituted before him, issue a search warrant under ss. 105, 94, and 96 see Rash Behary Lal Mandal v. Emperor (( 1908) I. L. R. 35 Calc. 1076, 1081.); In re Harilal Buck. (( 1897) I. L. R, 22 Bomb. 949, 955, 956.) Further the appellant could not claim pro tection under Act XVIII. of 1850, for he was not acting in the exercise of judicial functions see Doswell v. Impey ((1823) 1 B. & C. 163; S. C. I L. J. (O.S.) (KB.) 99.), Houlden v. Smith (( 1850) 19 L. J. (Q.B.) 170.), Mitchell v. Foster (( 1840) 9 L. J. (M.C.) 95; S. C. 12 Ad. & R. 472.), and Sinclair v. Broughton. (( 1882) L. R. 9 Ind. Ap. 152.) With regard to the Arms Act the appellant admitted that he never recorded the grounds of his belief as required by s. 25 of that Act, which was a condition precedent to his authority to order a search thereunder. He not merely omitted to record his grounds, but the evidence shewed that no information had reached him of the nature contemplated by that section as sufficient to authorize a search. He not merely omitted to record his grounds, but the evidence shewed that no information had reached him of the nature contemplated by that section as sufficient to authorize a search. Sir Erle Richards, K.C., in reply, contended that the appellant was acting in a judicial capacity, and referred to 11 & 12 Vict. c. 44, which relates to the jurisdiction of justices, and to Calder v. Halket. (( 1840) 3 Moo, P. C. 28, 74 ;2 Moo. Ind. Ap. 293, 307.). The judgment of their Lordships was delivered by LORD MACNAGHTEN. The pecuniary amount involved in this appeal is comparatively trifling. But the case is one of grave importance, and their Lordships are compelled to add that, in their opinion, there has been a serious miscarriage of justice in both the Courts which dealt with the matter in India. In April, 1907, Mr. Clarke, the appellant, was the district magistrate of Mymensingh, an extensive district in the Province of Bengal. The principal suit, the result of which governs this consolidated appeal, was brought by the first respondent, as plaintiff, claiming damages for trespass on the allegation that Mr. Clarke had illegally and wantonly searched his cutcherry, and that Mr. Clarke had not only acted illegally, but that he had acted out of personal malice and ill-will. The suit originally brought in the Court of the third Subordinate Judge of Mymensingh was transferred, at the plaintiffs instance, to the High Court in its extraordinary original civil jurisdiction. It was tried by Fletcher J. He Law. Rep. 39 Ind. App. 163 ( 1911- 1912) Loftus Otway Clarke V. Brojendra Kishore Roy C howdhury 80 found in favour of the plaintiff and gave a decree for Rs.500, but without costs. Costs were not awarded to the successful plaintiff on account of the charge of personal misconduct, which his Lordship held to be unfounded and grossly improper. Mr. Clarke appealed to the High Court in its appellate jurisdiction. The plaintiff filed cross-objections, reiterating his charge of personal misconduct. The Court of Appeal, consisting of the late Chief Justice and Harington J. (Brett J. dissenting), dismissed the appeal, but without costs. Mr. Clarke appealed to the High Court in its appellate jurisdiction. The plaintiff filed cross-objections, reiterating his charge of personal misconduct. The Court of Appeal, consisting of the late Chief Justice and Harington J. (Brett J. dissenting), dismissed the appeal, but without costs. The result is that a magistrate placed in a very difficult position and called upon to act on a sudden emergency has been adjudged guilty of trespass and subjected to a fine though he seems to have acted properly, with courage and good sense, and strictly in accordance with the powers committed to him. The facts of the case are not relly in dispute. Jamalpur is a sub-division of Mymensingh. The zamindars in that part of the country are Hindus, most of them, apparently, absentees living in Calcutta. The bulk of the population is Mahomedan. For some time before the occurrence which led to this suit, owing, it was said, to the measure known as the Partition of Bengal, there had been a good deal of disaffection and excitement in the district, and the relations between the Hindus and the Mahomedans were dangerously strained. On April 21, 1907, there was a large fair or mela held at Jamalpur. Some Hindus, apparently at the instance of the servants and agents of the plaintiff and his co-sharers known collectively as the Gouruckpur zamindars, tried to prevent the sale of bideshi or foreign goods. The Mahomedans resented this attempt. There were serious disturbances out of which there sprang up a bitter feeling between the Hindus and the Mahomedans. On the evening of April 27 some Hindus dressed or supposed to be dressed in Mahomedan clothes were observed wandering about the town. They were followed by a band of Mahomedans. The Hindus turned on the men following them and fired three or four revolver shots, and a Mahomedan was wounded. An uproar followed. Mr. Barniville, the sub-divisional magistrate of Jamalpur, and Mr. Luffman, the district superintendent of police, who were then in the dak bungalow, hastened to the scene of disturbance. They met some Mahomedans carrying away the wounded man, and they received information that the persons who had committed this offence had fled in the direction of the cutcherries of the Gouruckpur zamindars. These cutcherries appear to be close together in an open piece of ground. Hard by is a temple of Thakurain Doya Moyee. They met some Mahomedans carrying away the wounded man, and they received information that the persons who had committed this offence had fled in the direction of the cutcherries of the Gouruckpur zamindars. These cutcherries appear to be close together in an open piece of ground. Hard by is a temple of Thakurain Doya Moyee. An excited crowd of Mahomedans was collected there, apparently bent on attacking the cutcherries. The sub-divisional magistrate and the district superintendent of police found forty or fifty men armed with lathis. After they had disarmed them they were told that armed men were concealed in the temple. They went there. They found the doors locked and were refused admittance. The sub-divisional magistrate ordered the persons inside to open the doors, assuring them of protection. In response several shots were fired from inside, and a man was wounded slightly. The two officers then withdrew after dispersing the Mahomedan crowd outside. The sub-divisional magistrate wired at once to the Commissioner of the division, and the district superintendent of police sent a telegram to Mr. Clarke to the following effect " Serious riot just averted, come at once." Mr. Clarke received this telegram at 2 a.m. on the morning of April 28, He started for Jamalpur by the first train and arrived there at 10 a.m. On his arrival he found the following telegram from the Commissioner headed " Urgent" " Barniville has wired for available armed police by special train, saying serious disturbance impending. What do you know ? Can you send Gurkhas from Mymensingh to be replaced if required by men from here.—Dacca." Mr. Clarke, who had spent most of his time after the mela disturbance between Jamalpur and Law. Rep. 39 Ind. App. 163 ( 1911- 1912) Loftus Otway Clarke V. Brojendra Kishore Roy C howdhury 81 Mymensingh, and knew the state of feeling in the district, took counsel with the superin tendent of police and the sub-divisional magistrate. From what he heard and from what he knew himself he came to the conclusion that it was his duty to search the cutcherries. And accordingly he did so, accompanied by the sub-divisional magistrate, the police officer, and a force of police. The plaintiffs cutcherry was found locked. From what he heard and from what he knew himself he came to the conclusion that it was his duty to search the cutcherries. And accordingly he did so, accompanied by the sub-divisional magistrate, the police officer, and a force of police. The plaintiffs cutcherry was found locked. It seems that the jamadar in charge of the building had locked it up and left at 1 p.m. There was no one on the ground to open the doors. So the doors were forced open. Boxes in the cutcherry were also opened and their contents taken out. The actual search within the building was made by the police, but Mr. Clarke had charge and direction of the whole proceeding. He remained outside. There was nothing of an incriminating nature found in the cutcherries. The question and the only question on this appeal is whether Mr. Clarke was authorized by law to make the search. That depends on the provisions of the Code of Criminal Procedure and on nothing else. It cannot be denied that a serious offence had been committed against the public tranquillity and that under the Indian Penal Code (which defines offences against the public tranquillity and is summarized in chapter viii. of Sched. II. of the Criminal Procedure Code) every member of the unlawful assembly from which the shots proceeded was equally guilty of the offence. Nor can it be disputed that it was the duty of the district magistrate to inquire into that offence. Now s. 177 of the Code provides that every offence shall ordinarily be inquired into and tried by a Court within the local limits of whose jurisdiction it was committed. Mr. Clarke, by virtue of his superior rank, superseded the sub-divisional magis trate of Jamalpur and properly assumed jurisdiction there. An inquiry under the Code is a proceeding distinct from a trial. There is no definition of the word " inquiry " in the interpretation clause, s. 4. But there is this explanation of the term as used in the Code " (k.) Enquiry includes every enquiry other than a trial conducted under this Code by a magistrate or Court.” Sect. 36 is in the following terms " All district magistrates, sub-divisional magistrates, and magistrates of the first, second, and third classes have the powers hereinafter respectively con ferred upon them and specified in the Third Schedule. 36 is in the following terms " All district magistrates, sub-divisional magistrates, and magistrates of the first, second, and third classes have the powers hereinafter respectively con ferred upon them and specified in the Third Schedule. Such powers are called their ordinary powers. " Sched. III., referring back to s. 36, defines the " ordinary powers " of provincial magistrates beginning with magistrates of the third class. Every magistrate of a higher class is invested with all the " ordinary powers " of a magistrate of the class immediately below that to which he belongs, with further powers appertaining to magistrates of his own grade. Among the " ordinary powers " of a magistrate of the third class specified in Sched. III. is " (8.) Power to issue search warrants. Section 96." In s. 96 the following provision occurs " Where the Court considers that the purpose of any enquiry, trial, or other pro ceeding under this Code will be served by a general search or inspection, it may issue a search warrant." Then s. 105 provides as follows " Any magistrate may direct a search to be made in his presence of any place for the search of which he is competent to issue a search warrant." Law. Rep. 39 Ind. App. 163 ( 1911- 1912) Loftus Otway Clarke V. Brojendra Kishore Roy C howdhury 82 It seems clear from these sections and Sched. III. that Mr. Clarke was authorized by the Code to direct a search of the plaintiffs cutcherry in his presence if he considered it advisable to do so. Now the learned trial judge disposes of Mr. Clarkes defence in rather a summary manner. Beyond referring to s. 105 he does not consider or refer to any one of the sections on which the defence is based, nor does he deal with Sched. III. at all. All that the learned judge says on this part of the case is this " It is obvious in the present case the defendant was not competent to issue a search warrant under the provisions of the Criminal Procedure Code. The defendant was not acting as a Court within the meaning of s. 94-of the Criminal Procedure Code, as there was no proceeding pending before him." On appeal the late Chief Justice and Harington J. took the same view and dealt with the matter much in the same way. The defendant was not acting as a Court within the meaning of s. 94-of the Criminal Procedure Code, as there was no proceeding pending before him." On appeal the late Chief Justice and Harington J. took the same view and dealt with the matter much in the same way. After citing s. 105 the learned Chief Justice proceeds as follows " The magistrate can only act under this section where he is competent to issue a search warrant. That takes us to s. 96. That section applies to the issue of a search warrant by the Court. Here the defendant was not acting as a Court, and all that s. 105 enacts is that instead of the Court issuing a search warrant the magistrate may direct a search to be made in his presence. It is reasonably obvious why this power is given to a magistrate, but the section does not assist the present defendant." The opinion of Harington J. is to the same effect. He says " In my opinion s. 96 only authorizes the magistrate to issue a search warrant when sitting as a Court, i.e., when some proceeding under the Code has been initiated before him. And this view is strengthened by the form of the search warrant given in Sched. V. which recites that information has been laid or complaint has been made." If his Lordship had read to the end of the form in Sched. V, he would have seen that it disposes of his theory altogether. The form contemplates the issue of a search warrant before any proceedings of any kind are initiated and in view of an " enquiry about to be made." It would seem that the trial judge and both the learned judges who formed the majority of the Court of Appeal were misled by the use of the word " Court" in s. 96. For the sake of brevity the Code uses the terms " Court" and " magistrate " generally if not always as convertible terms. Sect. 6, headed "Classes of Criminal Courts," enacts that " Besides the High Courts and the Courts constituted under any law under this Code for the time being in force there shall be five classes of Criminal Courts in British India, namely —I. Courts of Session. II. Presidency Magistrates. III. Magistrates of the First Class. IV. Magistrates of the Second Class. 6, headed "Classes of Criminal Courts," enacts that " Besides the High Courts and the Courts constituted under any law under this Code for the time being in force there shall be five classes of Criminal Courts in British India, namely —I. Courts of Session. II. Presidency Magistrates. III. Magistrates of the First Class. IV. Magistrates of the Second Class. V. Magistrates of the Third Class." Sect. 36 taken in conjunction with Sched. III. places the matter beyond all doubt. The ordinary powers of all provincial magistrates are declared to be those "hereinafter conferred upon them and specified in the Third Schedule." That means con ferred upon them by the Act and specified in the Third Schedule to the Act. . As appears by the schedule the power to issue search warrants is specified among the " ordinary powers " of all provincial magistrates, but the only section conferring the power is s. 96, to which the schedule itself refers. It seems to their Lordships therefore clear that what Mr. Clarke did was warranted by the Code. If that be so there is an end of the case. Two other points were discussed by the trial judge and the learned judges of appeal at much greater length than the ground on which the real defence to the action was based. It seems that the defendant or his advisers, not content with relying on the Code of Criminal Procedure, unwisely perhaps prayed Law. Rep. 39 Ind. App. 163 ( 1911- 1912) Loftus Otway Clarke V. Brojendra Kishore Roy C howdhury 83 in aid s. 25 of the Indian Arms Act, 1878, and also Act No. XVIII. of 1850, entitled "An Act for the protection of judicial officers." The one seems inapplicable ; the other in the present case wholly unnecessary. Their Lordships are disposed to agree with the majority of the Court of Appeal that Mr. Clarke not having complied with the preliminary condition prescribed by the Arms Act cannot defend his action under that statute. On the other hand they have no doubt that Mr. Clarke in directing a general search of the plaintiffs cutcherry in view of an inquiry under the Code of Criminal Procedure was acting in the discharge of his judicial functions, and they think that if it had been necessary he might have appealed for protection to the Act No. XVIII. of 1850. Clarke in directing a general search of the plaintiffs cutcherry in view of an inquiry under the Code of Criminal Procedure was acting in the discharge of his judicial functions, and they think that if it had been necessary he might have appealed for protection to the Act No. XVIII. of 1850. Their Lordships think that there was no foundation for the suit. Mr. Clarkes action under the circumstances was quite justified. The charge of personal misconduct advanced and reiterated without any shadow of proof deserves the severest reprobation. Their Lordships will therefore humbly advise His Majesty that this appeal ought to be allowed, the order of the Court of Appeal discharged, and the suit dismissed with costs in both Courts. The respondent must pay the costs of the appeal.