S. Megarajan v. O. S. Duraisamy — 1999 DIGILAW 509 (MAD)

Judgment :- The 1st defendant is the appellant. The plaintiff filed a suit against the 1st defendant and the State of Tamil Nadu as the 2nd defendant, claiming a sum of Rs. 24,936/- as damages: — 2. Briefly stated, the case of the plaintiff runs as follows: — The plaintiff is a respectable, and influential landlord. He has been the President of the Tamil Nadu Vettuva Gounder Sangam and he was also a Trustee of Arulmighu Arasalaman and Arulmighu Subramania Swami Temples at Arachalur. The plaintiff is held in high esteem not only by the members of his own community, but by also the general public. Concerning the death of one Ramasamy of Kattupalayam, a case was registered against Viswanathan, Namakutty @ Ramasami and Doraisamy under Section 302 read with 109 I.P.C., in Cr. No. 594 of 1978 in Arichalur Police Station. The 1st defendant was the Inspector of Police, Erode Taluk at Erode having Jurisdiction over Arachalur. Two months prior to 26.12.1978, the plaintiff conveyed information to the police over phone about illicit distillation of arrack within the limits of his village. The 1st defendant who was in the station, took up the call and when he insisted upon the informant to disclose his identity, the plaintiff refused to do so and rang off. Subsequently , the plaintiff came to know that the 1st defendant had ascertained the source of phone call and found that it was made by the plaintiff. In the course of investigation of Cr. No. 1594 of 1978, when the plaintiff went to Arachalur Police Station, the 1st defendant questioned him regarding the delay in furnishing sketches of the scene of occurrence, to which, the plaintiff replied that it was not his duty, but that of the ‘karnam’. The 1st defendant was put out by the reply given by the plaintiff. Hence he has been nurturing a grievance. On 29.1.1979, the 1st defendant arrested the plaintiff at about 5 p.m. and took him to Arachalur Police Station, searched him and locked him up. The indignity suffered by the plaintiff was witnessed by the huge crowd gathered at the time of arrest. The first defendant created records to show that he was arrested at 11.15 p.m in that night. He was produced before the Additional Judicial II Class Magistrate, Erode, on 30.1.1979 and remanded to custody. The indignity suffered by the plaintiff was witnessed by the huge crowd gathered at the time of arrest. The first defendant created records to show that he was arrested at 11.15 p.m in that night. He was produced before the Additional Judicial II Class Magistrate, Erode, on 30.1.1979 and remanded to custody. In Crl.M.P. No. 367 of 1979, the plaintiff was granted bail with condition that he should reside at Salem. In Crl.M.P. No. 437 of 1979, the condition was relaxed, permitting the plaintiff to report before the Salem Police Station, once in three days. It was later modified in Crl.M.P. No. 545 of 1979, the plaintiff to reside within the limits of Erode Municipality and report before the Erode Town Police Station once in two days, and forbidding the plaintiff from visiting the village. The relaxation petitions filed in Crl.M.P. No. 690 of 1979, 820 of 1979, 930 of 1979, 1088/79 were all dismissed. On 26.4.1979, in Crl. M.P. No. 1274 of 1979, the court relaxed the condition., Subsequently charge sheet was filed in that case against Viswanathan, Ramsai @ Ramkumari and Duraisamy along and the case was later committed, whic h ended in acquittal in S.C. No. 30 of 1979, on 1510.1979, after his arrest, the plaintiff was suspended from the office of Village Munsif. From 30/1/1979 to 27/4/1979, the plaintiff was not able to look after his lands and attend to his duties as Village Munsif and “Dharmakarta’. The plaintiff was denied an opportunity to attend the festival and thereby, his prestige was lowered in the public. Hence the suit is filed for damages for defamation and for false imprisonment. 3. The 1st defendant/contended as follows: — It is not admitted that the plaintiff is a respectable landlord of Vadugapatti Village, or that he was the President of Tamil Nadu Vettuva Gounder Sangam and trustee of the Temples. It is also not admitted that the plaintiff has been holding high office in the Government or that he is held in high esteem among the members of his community and public. The 1st defendant took charge as Inspector of Police, Erode Taluk, on 14.2.1977, which charge he held till the end of 1979. As Inspector of police of taluk circle, he was in charge of four police stations. From the records maintained in Arichalur Police Station, it is seen that the plaintiff is involved in Cr. Nos. The 1st defendant took charge as Inspector of Police, Erode Taluk, on 14.2.1977, which charge he held till the end of 1979. As Inspector of police of taluk circle, he was in charge of four police stations. From the records maintained in Arichalur Police Station, it is seen that the plaintiff is involved in Cr. Nos. 392/71, 206/72, 10/73, 132/73 and 15/74. The plaintiff was the main accused in all those cases. However, all the cases ended in acquittal, as the plaintiff was able to tamper with the prosecution witnesses. The plaintiff is having a set of rowdy elements in his control. There are adverse entries noted against the plaintiff in Part IV Register maintained in Arachalur Police Station, relating to Vadugapatti Village, the plaintiffs brother was in Police Department and this emboldened the plaintiff. One Ramasamy of Kattupalayam was found murdered and a case was registered in Cr. No. 594 of 1978. on 27.12.1978, the case was taken up for investigation by the 1st defendant. In the course of investigation witnesses Palaniswamy Sadayappa Gounder and Nagamalai Gounder gave statement relating to the commission of offence in Cr. No. 594 of 1978, implicating the plaintiff as an abettor. As this information was found creditable, the 1st defendant has arrested the complainant in connection with the said case and sent him up for remand. The 1st defendant had no ill-will or malice. As a Public Officer, in his official capacity based upon creditable information, bona fide believing the said information to be true and sufficient, the 1st defendant arrested the plaintiff. The 1st defendant thus acted in good faith and exercised his powers in accordance with statute and is entitled to protection as a ‘Public Authority’. It is necessary for the plaintiff to prove that the 1st defendant was actuated by malice and he has been arrested without reasonable ground or suspicion. The suit filed by the plaintiff is nothing but an abuse of process of law. The plaintiff came out on bail even before he was taken to sub-jail. It is not true that the plaintiff rang up to Arachalur Police Station two months prior to 26.12.1978 and passed of some information about the illicit distillation of arrack in the Village, nor it is true that the 1st defendant received the message and insisted upon the plaintiff to give his identity. It is not true that the plaintiff rang up to Arachalur Police Station two months prior to 26.12.1978 and passed of some information about the illicit distillation of arrack in the Village, nor it is true that the 1st defendant received the message and insisted upon the plaintiff to give his identity. It is also not true that the plaintiff came to Arichalur Police Station, while the case in Cr. No. 594 of 1978 was under investigation and the plaintiff was questioned by the 1st defendant as to the delay in furnishing the sketches. It is only the Investigating Officer, who prepares the sketches and the assistance of Village munsif is never required. The plaintiff never met the 1st defendant during the course of investigation, nor the 1st defendant asked the help of the plaintiff to prepare the sketches. The plaintiff is not even present at the time of occurrence. The 1st defendant never harboured any grievance against the plaintiff. It is not true to say that the defendant is waiting for an opportunity to cause harm to the plaintiff. It is not true to say that the 1st plaintiff was arrested at 5 p.m. on 29.1.1979. On the other hand, he was arrested at 11.15 P.M on 29.1.1979, and on 30.1.1979, he was produced before the Additional Judicial II Class Magistrate, Erode. As regards the bail application dated 20.1.1979, the public prosecutor was heard and the accused was released on bail even before the 1st defendant could give instruction as required by the Police Department Rules. The 1st defendant has given necessary instructions to the Public Prosecutor, the 1st defendant has not done anything in his personal capacity. It is not admitted that the Public Prosecutor submitted before court on 27.4.1979 that no offence is made out against the plaintiff. The successor of the defendant had taken legal opinion from the Assistant Public Prosecutor and has chosen to drop further action. As required under law, since the plaintiff being a Village Munsif, the 1st defendant sent a report to the Tashildar about his arrest Whether the plaintiff is suspended from service or not the defendant is not aware. It is not true to say that the 1st defendant instructed the public prosecutor to oppose the bail application with the intention of denying the plaintiff an opportunity to attend temples and the lower the prestige of the plaintiff. It is not true to say that the 1st defendant instructed the public prosecutor to oppose the bail application with the intention of denying the plaintiff an opportunity to attend temples and the lower the prestige of the plaintiff. The suit filed without serving notice, is not bona fide under law. The 1st defendant is sued as a public Officer. The claim for damage is excessive. 4. The 2nd defendant has filed a statement, pleading as follows: — The allegations made in the plaint are not admitted and the plaintiff is put to strict proof of the same. The 2nd defendant learns that a case in Cr.No/594 of 1980 was registered against Viswanathan, Ramasami and Doraisamy and during the course of investigation, the 1st defendant learnt that the plaintiff had instigated offence. Since the 1st defendant had reasonable ground so suspect the involvement of the plaintiff, he was arrested. There were sufficient materials to prove the complicity of the plaintiff. In discharge of his duty, he was arrested by the 1st defendant. It is also learnt that after completion of the investigation, 164 statements was recorded. It is further learnt that on the advice of the additional public prosecutor, charge sheet was filed, dropping the plaintiff. There is no cause of action to the file suit against the 2nd defendant. The plaintiff is not entitled to any claim, much less Rs. 24,936/-. It is further submitted that no action would lie against the state for injury done to an Individual, while acting in discharge of the official duties. Therefore, the arrest done fall under the category of sovereign functions of the State, and hence, the suit is not maintainable. The suit has to be dismissed with costs. 5. Before the II Additional Sub-Judge, Erode who conducted the trial, the plaintiff examined himself besides five witnesses, while the 1st defendant was examined as D.W.1 and another witness was examined as D.W.2 Exs.A1 to A14 and B1 to B8 were marked. The II Additional Sub-Judge, Erode, decreed the suit and ordered the 1st defendant to pay a compensation of Rs. 5,000/- and dismissed preferred by the 1st defendant against the same before the sub-court in A.S. No. 37 of 1986 was dismissed by the Principal Sessions Judge, Erode on 13.4.1987. Hence, this Second Appeal. 6. The II Additional Sub-Judge, Erode, decreed the suit and ordered the 1st defendant to pay a compensation of Rs. 5,000/- and dismissed preferred by the 1st defendant against the same before the sub-court in A.S. No. 37 of 1986 was dismissed by the Principal Sessions Judge, Erode on 13.4.1987. Hence, this Second Appeal. 6. At the time when the Second Appeal was admitted, the following points were formulated for consideration: — (i) Whether the courts below were right in saddling the liability upon the appellant alone excluding the Government notwithstanding that the action complained of has been indisputably committed in the course of exercise of Government function and discharge of official duties:? (ii) Whether the courts below were right in deciding the issue relating to the legality or otherwise of the arrest in a suit for damage as if they were proceeding against the validity of the arrest itself? (iii) Whether an investigating officer arresting a person in the course of investigation on the basis of information received is entitled to immunity and protection from a claim for damages in civil law? (iv) Whether the courts below were right in throwing the burden of justifying the arrest upon the appellant; when it should have been placed upon the plaintiff to prove the factom of unlawful arrest and consequent defamation and damages? 7. The Points : — The above suit has been filed claiming compensation for false arrest. The plaintiff does not allege anywhere in the plaint that the arrest of the plaintiff was without any reasonable and probable cause. It is also specifically alleged that it was malicious arrest. Of course, the plaintiff would set out two circumstances, which according to the plaintiff furnished the necessary ill-will for the arrest. False imprisonment is committed if the arrest and imprisonment of a person is made without lawful justification. When arrest is made without any reasonable and probable cause or where malice is proved, the person affected can lawfully maintain an action for the damages. The defence raised in this case is that the 1st defendant being a Police Officer was acting on credible information and therefore, he is not liable for damages. Thus, he relied upon his statutory power to effect arrest, which power according to him was exercised on the basis of credible information that he received. The defence raised in this case is that the 1st defendant being a Police Officer was acting on credible information and therefore, he is not liable for damages. Thus, he relied upon his statutory power to effect arrest, which power according to him was exercised on the basis of credible information that he received. According to him, the offence being an arrestable offence, the 1st defendant did the right thing and that such an act of the 1st defendant in making the arrest of the accused and producing him before the court cannot be called in question, much less would form a basis for tortious liability. 8. Section 41 of Cr.P.C. empowers a Police Officer to arrest any person without any order from a Magistrate and without a warrant, if the said person is concerned in cognizable offence or against whom credible information has been received or where a reasonable suspicion exists of his having been so concerned. Thus Section 41 of Cr.P.C gives wide power to a Police Officer to make the arrest. The Apex Court has also considered this aspect in Johinder Kumar v. State of Uttar Pradesh , holding that the power to arrest is one thing and the power for exercise of it is quite another, what is a reasonable complaint and credible information would depend upon circumstances of each particular case. It must be not mere vague surmise or information. The credibility and the information must have reference to the mind of the person receiving the information and such information must afford sufficient materials for the exercise of independent judgment. 9. Firstly, it has to be considered as to whether there was any motive behind the arrest. The plaintiff would allege that some months prior to 26.12.78, he gave an information over phone to the Arachalur Police Station about illicit distillation of arrack within the limits of his village, and the person who attended the phone, happened to be the 1st defendant and when the 1st defendant required the caller to disclose his name, the plaintiff rang off and that the 1st defendant viz., the Inspector of Police somehow came to know that it was the plaintiff, who made that call. How, let us see whether the incident alleged in the plaint could have in any manner hurted the feelings of the 1st defendant or could have made him nature any grievance on that ground towards the plaintiffs. 10. As to when the call was made by him, the plaintiff has not chosen to give any specific particulars, but has stated generally that it was 2 months prior to 26.12.1998. The plaintiff, as Village Administrative Officer, under law, is obliged to make a complaint to the police of such illicit distillation, when it comes to his notice. If really he was afraid of any backlash from the villages, he could have made it known to the Inspector that the source of information should be kept secret. It is also stated as to how the 1st accused came to know about the source of information or about the incident. In the course of his chief examination, he has not stated as to when he conveyed the information to the police. In the course of cross-examination, he has admitted that about the thefts and illicit distillation of arrack in the Village, he had conveyed information to the police several times over phone, and on those occasions, he never disclosed his name over the phone. He admits that before making that call, he had never met the 1st defendant nor had talked with him. He further admits that from the voice he heard on the phone that day, he could not find out as to who that person was. Though he would say that some of the police men in the station came and told him about that he admits that he does not know the names or numbers of the constables. In the notice given by him before filing the suit, he has not mentioned this fact viz., that from the police constables, he came to know that it was the Inspector, who took the receiver on that day. Further, from the evidence of D.W.1 it is clear that if some information is received about distillation of arrack, it would be made note of at the police station. But, the said Register has not been sent for by the plaintiff. Thus, the very reason given by the plaintiff as to why and how the 1st defendant became prejudiced against him is so shallow and artificial. But, the said Register has not been sent for by the plaintiff. Thus, the very reason given by the plaintiff as to why and how the 1st defendant became prejudiced against him is so shallow and artificial. Moreover, just because some body declined to disclose his name over phone, can it be said that it would fur, such feeling of anger as to developments enmity or vengeance. There is no proper discussion on this aspect by the courts below. A reading of the trial Courts judgment would show that the plaintiffs case on this aspect has not been supported by any independent evidence. Thus, in effect, the trial Court has not chosen to accept these two circumstances cited by the plaintiff as cause or reason for the false imprisonment. The lower appellate courts has also not properly approached this aspect. Therefore the first circumstance put forward by the plaintiff is a non-existent one. 11. Let us now consider the plaintiffs case with regard to the second circumstances alleged. The plaintiff would allege that after 26.12.1978 while the 1st defendant was investigating the case in Cr. No. 594 of 1978, the plaintiff went to Archalur Police Station and at that time, he was questioned by the 1st defendant as to why there was delay in furnishing the requisite sketches and then the plaintiff retorted by stating that it was not his business to furnish the police sketches by this reply the first defendant felt quit out and that on that account put out he has been harbouring a grievance against the plaintiff and was waiting for an opportunity to cause harm to the plaintiff. 12. First of all, it is not explained as to why he went to the police station. When a case is taken up for investigation, it is the Inspector who visits the scene of occurrence and prepares the sketch. In the preparation of the sketch, normally, he is assisted by the Sub-Inspector of Police or constables. It has never been the practice of any Village Administrative Officer to prepare the sketch required for the purpose of investigation. Therefore, this reason put forward by the plaintiff is equally meaningless. In the preparation of the sketch, normally, he is assisted by the Sub-Inspector of Police or constables. It has never been the practice of any Village Administrative Officer to prepare the sketch required for the purpose of investigation. Therefore, this reason put forward by the plaintiff is equally meaningless. It is also to be pointed out that when the plaintiff filed bail applications, he never urged these reasons or stated that there was any private enmity as between him and the Inspector and therefore he has been falsely implicated. The 1st defendant has stated clearly that it is only the practice of the police to prepare the sketch of the scene of occurrence. Therefore, the two reasons given by the plaintiff as to the circumstances that fueled the anger of the 1st defendant against him, fail to impress this court. It is nowhere stated by the plaintiff that there was any reason or cause for enmity. Even according to him, he had never seen the 1st defendant before and never talked him before. Therefore, it has to be taken that there could not have been any cause for enmity between the plaintiff and the 1st defendant and hence the allegation made in the plaint is nothing but a cock and bull story. 13. It is not in dispute that on 26.12.1978 a murder had taken place in the village of Vadugapatty, in connection with the said crime, the plaintiff herein was arrested by the police and on the next day he was produced before the Magistrate for remand. It is necessary in this context to refer to the antecedents of the plaintiff. The plaintiff admits clearly that he was an accused in a number of cases. Though he would say that he was never arrested in any of the cases, the fact that he was an accused in several cases, is admitted by him. It is also spoken to by D.W.1 and D.W.2. It is also clear that he was an accused in a case of murder of his brother and he was later acquitted. The offences concerned in those cases, admittedly, all took place prior to the occurrence dated 26.12.1978. Of course, the fact remains that in none of the cases, the plaintiff was ever convicted. On the side of the 1st defendant, the Part IV Register maintained in the Police Station, relating to Vadugampatti has been produced. The offences concerned in those cases, admittedly, all took place prior to the occurrence dated 26.12.1978. Of course, the fact remains that in none of the cases, the plaintiff was ever convicted. On the side of the 1st defendant, the Part IV Register maintained in the Police Station, relating to Vadugampatti has been produced. From it, we find that there were factions in the village and that the plaintiff was heading one faction. Thus, in that context, we have seen whether the arrest of the plaintiff was an arrest made with probable and reasonable cause. In Ex.A4, which is the bail application filed by him, he has simply stated that the case has been foisted against him at the instigation of the parties inimically disposed of towards him. He has not stated that there was any private vendetta for the Inspector and that his arrest was made by the Inspector of Police in that context. On the other hand, he has definitely, stated that a case has been foisted against him at me instigation of the parties inimically disposed of towards him. In other words, he has admitted that he was implicated in the case by persons, who are inimically disposed of towards him. 14. According to the plaintiff, he was arrested on that day at 5.30 p.m. whereas according to the police he was arrested at 11.30 a.m., It is not necessary to go into that aspect as to when he was arrested. The courts below have rather missed this aspect. They have failed to note that aspect. The plaintiff has not stated in the bail application that he was arrested at 5.30 p.m. When really accused is the plaintiff a case was foisted on account of personal enmity between the Inspector and the plaintiff and he has been arrested, one would expect the plaintiff to have mentioned about the personal enmity between him and the Inspector and also to state that he was not arrested at the time and place mentioned by the Inspector, but he was arrested earlier and kept unnecessarily in the jail. Such an allegation is not made in the bail application. Moreover it is admitted by him that when he was produced before the Magistrate, he did not make any complaint. Such an allegation is not made in the bail application. Moreover it is admitted by him that when he was produced before the Magistrate, he did not make any complaint. If really he was arrested at 5.30 p.m. on that day and not 11.30 p.m. nothing prevented the plaintiff from placing it before the Magistrate. When he was questioned by the Magistrate on his production for remand. The plaintiff is not an ordinary person. At the relevant point of time, he was the Village Administrative Officer. He was a K.L.A. for some time. He claims to be Trustee of two temples. He also claims to be the leader of his community. Therefore, a person in his position would definitely, if it was true, bring to the attention of the authorities concerned about the fact viz., that he has been arrested and implicated in this case on account of personal grudge, the Inspector had against him and that he was arrested much earlier and kept in the lock up and not at the time and place mentioned by the police. The courts below have omitted to consider these aspects. Without any basis, they have chosen to conclude that the plaintiff must have been arrested only at 5.30 p.m. The court is expected to see whether there exist any legal evidence supporting the contention and not to enter into conjectures. Unfortunately, both the courts below have been guilty of it. 15. I have already rendered to the fact that in the bail application, there is not whisper about the existence of any motive on the part of the Inspector of Police and with a view to humiliate him on a private vendatta, it has been done by the Inspector of Police. On the other hand, his case is that a false case has been foisted against him at the investigation of parties inimically disposed of towards him. Thus this statement made in the bail application would show that there were persons in the village, who were inimically disposed of towards him. Therefore, according to him, these persons were responsible for foisting of the case against him. 16. Thus this statement made in the bail application would show that there were persons in the village, who were inimically disposed of towards him. Therefore, according to him, these persons were responsible for foisting of the case against him. 16. Of course, in an action for damages for false arrest, the plaintiff actually need not prove malice as such, But, here the plaintiff has come forward with a definite case that there was malice and this malice is on account of two circumstances, pleaded by him in the plaint. I have already held that these two circumstances pleaded by him are not made out. There is no proof that the 1st defendant was actuated by any malice. At the earliest point of time, when the plaintiff had an opportunity he did not come out with such a case. The fact remains that the plaintiff had been antecedents in the sense that he was involved in a number of cases, which included an offence under Section 302 of I.P.C. He was heading a particular faction of the community. His own statement would show that he had enemies, who were behind the foisting of a case against him. In that background, we have to further take note of the fact that the plaint does not mention that there was no reasonable or probable cause for the arrest of the petitioner by the 1st defendant. 17. Now, in that context one has to see whether the case of the 1st defendant that on credible information he arrested the 1st accused is correct. In this connection on the side of the defendants the statements alleged to have been made by witnesses Palanisami, Sadayappa Gounder and Nagamalai are produced and marked as Ex.B1 to B3. These statements are dated 22.1.1979. The arrest in this case was made on 29.1.1979. D.W.1 has stated in his evidence that after occurrence, the plaintiff was not seen in the Village and he was absconding. Of course there was no suggestion put to D.W.1 that these statements were fabricated by the 1st defendant after filing of the suit. Of Course, it is stated by him that he has not produced the statements into court though there was an order by the Magistrate, requiring him to produce the same. Can from that one come to conclusion that this statement is not genuine statement? Of Course, it is stated by him that he has not produced the statements into court though there was an order by the Magistrate, requiring him to produce the same. Can from that one come to conclusion that this statement is not genuine statement? The information, an inspector receives always need not be in the form of statement. The recording of statement comes only later on. Only after taking of the investigation and after making inquiry relating to a murder case, the picture will be unfolded to the Inspector and the question of recording of statement all will follow thereafter. The 1st defendant has stated that on the basis of credible information, he was satisfied that the accused had something to do with the murder and therefore, he was arrested. It is of course true that when charge sheet was filed, his name was not included, and the charge sheet came to be filed only long after the 1st defendant, leaving that place. It is argued that in the final report, the plaintiff was not arrayed as an accused, and it will lead to the only inference that there was no legal evidence to proceed against the accused. Therefore it is stated that no information could have been available to the 1st defendant. 18. It is also admitted that the statements of certain witnesses under Section 164, Cr.P.C. were also recorded. When that fact is admitted it would follow that those witnesses must have been examined earlier by the inspector. Otherwise the question of recording of their statement under Section 164 of Cr.P.C. does not arise. For Section 164 of Cr.P.C. would come into play when in the course of investigation, confession or statement is made before the Magistrate. Making confession or statement before the Magistrate would come into play only after investigation has been done by the Inspector and after some questioning of the persons concerned and collecting of information from them have been made by the Inspector concerned. Therefore, it cannot be stated that there was no basis for the arrest of the plaintiff by the 1st defendant. There was at best some information for the 1st defendant to the effect that the plaintiff was concerned in the occurrence. Was it credible information? Therefore, it cannot be stated that there was no basis for the arrest of the plaintiff by the 1st defendant. There was at best some information for the 1st defendant to the effect that the plaintiff was concerned in the occurrence. Was it credible information? If, so whether the 1st defendant in exercise of his power was justified in making arrest by resorting to his power under Section 41 of Cr.P.C. and claim to have been justified in effecting arrest of the plaintiff. Will the fact that the plaintiff has not alleged that there is absence of any reasonable or probable cause for his arrest by the 1st defendant is material. If at all, the 1st defendant has only succeeded in showing that there was some information, based upon which the arrest of the plaintiff was made by the 1st defendant. Only when an arrest is effected in exercise of his powers and acting under the provisions of the Criminal Procedure Code and when there was credible information for the Inspector to act, the arrest cannot be questioned. Nor such arrest will provide the basis for the plaintiff to make a claim for compensation. But mere information without there being further materials to justify and warrant the exercise of power under Section 41 Cr.P.C. will not suffice. 19. For in law, in an action for damages for wrongful apprehension, it is not necessary to prove malice. It is true in a case of false imprisonment, when reasonable grounds or credible information is not there to support such an arrest, the person making the arrest is, in law, liable to pay damages. The House of Lords in 1914 SC 808 have laid down this proposition that what are all necessary for the pursuer to put in issue the words wrongfully and illegally, without any more, leaving any question of privileged situation to be dealt with by the learned Judge at the trial. Their Lordships have further observed as follows: “I do not think there is any principle of law which would throw that burden upon the pursuer. By the virtue of Section 88 of the Glasgow Police Act 1866, a Police Constable has power to arrest without a warrant any person who he may reasonably suspect of having committed a crime. But, it rests upon the constables to prove that his suspicion was reasonable, and his act therefore justifiable. . By the virtue of Section 88 of the Glasgow Police Act 1866, a Police Constable has power to arrest without a warrant any person who he may reasonably suspect of having committed a crime. But, it rests upon the constables to prove that his suspicion was reasonable, and his act therefore justifiable. . For if a constable has arrested a citizen without reasonable grounds even of suspicion against him, the law would demand no further proof of malice. And with regard to false or improper apprehension or imprisonment, the law is also elementary that malice is implied from recklessness whether the citizen arrested is innocent or not. It appears to me that Act simply lays down in so many terms in broad and popular terms, what might have been put in the old legal form by the words “Maliciously and without probable cause”. 20. The Apex Court has held in the decision reported in 1994 (4) SCC 260 ( Joginder Kumar v. State of Uttar Pradesh and others ) that arrest of a person should not be resorted to merely on suspicion about the persons complicity in the crime. The Police Officer must be satisfied about the necessity and justification of such arrest on the basis of investigation and reasons for arrest must be recorded by the Police Officer in his diary. 21. The Nagpur High Court held in the decision reported in AIR 1935 Nagpur 237 ( Hiralal v. Ramdulare ) that persons, who execute legal processes like warrant of arrest, attachment or search are protected from liability in respect of act authorised by warrant and that immunity can be claimed only if procedure prescribed is conformed to. It has been held that the defendant must prove good cause of excuse. 22. Here, of course, the plaintiff has cited certain circumstances to point out that the officer concerned had thus malice. On a careful scrutiny, those circumstances are found to be not in existence. But here, the action is made for damages on the ground of false arrest. It is not a case filed for malicious prosecution. According to the Police Officer, the arrest has been made on credible information. Section 41 of Cr.P.C. provides that on credible information the Police Officer concerned is entitled to effect the arrest. The Apex Court has pointed out already as to how this power should be exercised by the authorities concerned. It is not a case filed for malicious prosecution. According to the Police Officer, the arrest has been made on credible information. Section 41 of Cr.P.C. provides that on credible information the Police Officer concerned is entitled to effect the arrest. The Apex Court has pointed out already as to how this power should be exercised by the authorities concerned. Therefore, in such circumstances even assuming that the plaintiff is unable to establish that there was really motive on account of certain circumstances for the Officer to effect arrest, from that, it would not follow that the case of the plaintiff must be thrown out. For in tort, the defendant is liable to pay damages to the plaintiff, if the arrest is made without any reasonable and probable cause for the same. In this case on hand the defendant would very strongly rely upon the statements of certain persons, as providing him the necessary basis for effecting the arrest. In other words, the statement of those persons provided the necessary information upon which the defendant is said to have acted. The statements of those persons were not produced into Court inspite of an order of the Court. Those statements were produced into Court only long afterwards, and in this proceedings. The Statements are alleged to have been recorded on 22/11/1979 and the same was produced into Court and marked as Exs.B1 to B3. Those statements were produced into Court only when the defendant took the witness stand. The statements also read that they are further statements of those three witnesses. As to what happened to their original statements, there is no explanation nor they were produced into court. The plaintiff herein, after he was arrested and produced before the court and remanded to custody, filed an application before the Magistrate, requesting for the production of the general diary and the records on the basis of which his arrest has been effected. But those materials were not produced into court then. The case diary also did not contain any endorsement to the effect that as the statement of those witnesses provided some information, which was credible in nature suggesting the complicity of the plaintiff in the crime, he was arrested. The said 3 witnesses were also not examined in Court. Therefore, there is nothing to suggest the authenticity of the statements. The case diary also did not contain any endorsement to the effect that as the statement of those witnesses provided some information, which was credible in nature suggesting the complicity of the plaintiff in the crime, he was arrested. The said 3 witnesses were also not examined in Court. Therefore, there is nothing to suggest the authenticity of the statements. It is also not explained as to why those three persons, who are said to have given statement, implicating the plaintiff in the case have not been examined. 23. In this connection, the Apex Court has held in the decision reported in 1983 Crl. L.J. 1276 ( Bhugdomal Gangaram v. State of Gujarat ) that the non-examination of the witnesses to testify the information would be fatal. In that case, their Lordships have held that since Pesumal has not been examined as a witness, the evidence of P.W.11 that Pesumal told him that accused No. 5 was the Manager of the truck is inadmissible. Therefore, the Apex Court has held that the evidence of Police Officer as to receipt of information by him as to certain accused would be following in taxi, a truck carrying prohibited liquor, is inadmissible in evidence, when the informant is not examined. Therefore, the mere production of the further statement of the three witnesses and marking them as exhibits cannot advance the case of the defendant, when the defendant has miserably failed to examine them. Therefore excepting the ipsidixit of the defendant, there is no other material produced to show that there really was available any credible information, suggesting the complicity of the plaintiff in the crime. If at all, the defendant can only say that there was some information. But, it is not shown that it was credible information. Admittedly there is no mention of the plaintiff in the complaint. The final report excluded him. Therefore, if the defendant wants to justify the arrest he has to show that there was not mere information but there was credible information and that reasonable suspicion existed. 24. Merely because the plaintiff was a leader of a group in the village or was involved in two other cases, it cannot be stated that this provided reasonable suspicion. In those two cases admittedly, the plaintiff was acquitted. Further, the case diary has not been produced in this case. 24. Merely because the plaintiff was a leader of a group in the village or was involved in two other cases, it cannot be stated that this provided reasonable suspicion. In those two cases admittedly, the plaintiff was acquitted. Further, the case diary has not been produced in this case. Nor the records are produced to suggest that there existed sufficient and reasonable grounds for suspicion and information that would justify the arrest of the plaintiff. Therefore, in the absence of the same, it has to be held that the arrest cannot be justified as one supported by credible information. 25. Learned counsel for the appellant relied upon Section 53 of the Madras District Police Act to argue that in view of the specific provision, the suit is barred by limitation. Section 53 of the Madras District Police Act provides period of limitation, and if Section 53 of the Act is held to be applicable, then on the face of it, the suit will be barred by limitation. For it reads as follows: “All actions and prosecutions against any person, which may be lawfully brought for anything done or intended to be done under the provisions of this Act or under the provisions of any other law for the time being in force conferring powers on the police shall be commenced within three months after the act complained of shall have been committed and not otherwise”. 26. While interpreting this provisions the Supreme Court has held in the decision reported in 1994 SC 1771 ( S.P. Vaithianathan v. K. Shanmuganathan ) that a plaint reading of this section makes it clear that all actions and prosecutions for anything done under the provisions of the Act or any other law in force conferring powers on the police must be commenced within three months after the act complained of and not otherwise. There is no doubt that the said provision applies to prosecutions also in respect of any action taken or anything done under the provisions of the Act or under the provisions of any other law conferring powers on the police. The questions therefore arise are whether the action of the respondent complained of done under the provisions of the act? Is the said action done under the provisions of any other law for the time being in force conferring powers on the Police?.. The questions therefore arise are whether the action of the respondent complained of done under the provisions of the act? Is the said action done under the provisions of any other law for the time being in force conferring powers on the Police?.. Unless a relationship is established between the provisions of law under which the respondent purports to act and the misdemeanor complained of, the provision of Section 53 will not be attracted. 27. A single Judge of this Court has held in the decision reported 1999 1 L.W.(Crl.) 539 ( Sudalaiyandi and another v. Gnana Chandra Singh ) that the when acts, complained of, could not be said to have been done or intended to be done under any provision of the Madras District Police Act or the Code of Criminal Procedure or any other law, conferring powers on the police and consequently, Section 53 of the act had no application. 28. The Apex Court has held in the decision reported in 1964 (1) Crl.L.J. 16 ( State of Andhra Pradesh v. Venugopal ) that the effect of Section 53 of the Madras District Police Act is that all prosecutions whether against a Police Officer or a person other than a Police Officer must be commenced within three months after the act complained of if this act is one which has been done or intended to be done under any of the provisions of the Police Act. It is clear that unless the Act complained of appears to have been done or intended to be done under the provisions of the Police At or of the other law conferring powers on the police, the protection of Section 53 will not be available. 29. Here in this case on hand, a person has been arrested. It has not been established that the arrest has been made on reasonable grounds or on the basis of credible information warranting such arrest. It cannot be stated that the authorities acting under the Madras District Police Act or any other provision of law have the power to arrest a person without reasonable and probable cause. It has not been established that the arrest has been made on reasonable grounds or on the basis of credible information warranting such arrest. It cannot be stated that the authorities acting under the Madras District Police Act or any other provision of law have the power to arrest a person without reasonable and probable cause. Therefore, when a Police Officer arrests a person without there being credible information, warranting such an arrest, and when there is no reasonable basis for effecting the arrest it must be held that the action of the Police Officer in arresting the person could not have been taken in pursuance of either the Madras District Police Act or any other provision of law. Neither the Madras District Police Act nor any other provisions of law empowers a police officer to arrest a person without reasonable and probable cause or justification. Therefore, when such arrest has been made it follows that it is an action that has not been done in pursuance of any of the provisions of the Madras District Police Act or any other law in force. Therefore, when it is the case, then the provision under Section 53 of the Act will not be available. The protection under Section 53 of the Act will be available to persons who bona fide exercise their power under the provisions of the Act. For persons who exercise the power under the provisions of this Act either on the basis of credible information or reasonable and probable cause, only then, the seal of protection granted under Section 53 can be put on to protect the concerned officer. But herein it is not the case, where, it has been established that the arrest has been made by the officer without there being credible information to do so. 30. Hence it being an arrest which is not authorised by the law or under the District Police Act, it is an action which can be questioned by the affected party in a court of law, in an action for tort without being pinned down by the limitation provided under Section 53 of the Act, however subject to the general law of limitation. This plea of limitation was not raised in the written statement or before the courts below and it was raised for the first time here. Therefore, to that extent, the respondent was taken by surprise. This plea of limitation was not raised in the written statement or before the courts below and it was raised for the first time here. Therefore, to that extent, the respondent was taken by surprise. But such a plea being purely a question of law, the learned counsel for the appellant was permitted to raise the same. After taking time, the learned counsel for the respondent submitted his reply thereto. 31. After hearing both the counsel on record, I have to hold that Section 53 of the Madras District Police Act will not applicable and therefore, the bar of limitation is not at all there, in respect of this action. It follows that there is no merit in this appeal. 32. In the result, this appeal is dismissed, but in the circumstances, without costs.