1. Spens C.J. This appeal arises out of a suit for damages for false imprisonment instituted by the appellants against the Government of Madras and four of its police officers. The incident complained of happened on January 13, 1937, at Kodaikanal Road, a station on the South Indian Railway. The appellants are mother and daughter; as there is no separate case on behalf of the second appellant who is a minor, the first appellant will be referred to as the appellant in the course of this judgment. Kodaikanal Road is about 52 miles from Kodaikanal, a hill station in south India. The headquarters of the district is Madura, about 20 miles further south from Kodaikanal Road on the south Indian Railway, Madura is the headquarters of the second defendant who at all material times was the District Superintendent of Police. The third defendant was a sub-Inspector belonging to the Madras Railway Police Service and defendants four and five are police constables of the same service. A brief narrative of the events that led up to the incident of January 13, 1937, will help to make the contentions raised in the case intelligible.

2. The appellant is the widow of the ex-Maharaja of Nabha. By an order of the Government of India, passed under the Bengal State prisoners Regulation (III of 1818) the ex-Maharaja was required to stay at Kodaikanal and had been so staying since 1928. He was apparently kept under close supervision for some time, but after a few months this was relaxed. The Government of India however wanted “a watch to be maintained by the police at any railway station where the detenu is likely to entrain and steps to be taken to ensure his re-arrest in the event of his absconding”. He was also forbidden to be absent from his residence at night [Exhibit VII (c)]. By Exhibit VII, dated August 24, 1928, the Inspector-General of Police, Madras, acting under instructions from the Government of Madras (to whom necessary directions had been conveyed by the Government of India) informed the District Superintendent of Police, Madura, of the Government's decision to restrict the movements of the ex-Maharaja of Nabha to the Kodaikanal municipal area. The same information was once again conveyed to the second defendant in June 1936 [vide Exhibit VII (a)].

3. The appellant who had been staying with her husband at Kodaikanal desired to go to Madras early in 1937 and necessary arrangements were made by her secretary (P.W. 6 in the case) for reserving accommodation for her in the “Trivandrum Express” (a train proceeding to Madras from the South) on January 13, 1937. That afternoon, the Station-house Officer at Kodaikanal, acting under the erroneous impression that the ex-Maharaja was arranging so proceed to Madras, sent a telegram (Exhibit IV) to the second defendant in the following terms: “Ex-Nabha Raja departuring to Madras Spencer Hotel with family in car M.D. 2037”. This is said to have been received by the second defendant at Madura at 6-30 P.M. In view of the possibility of the ex-Maharaja having left Kodaikanal by that time, the second defendant decided to take steps to prevent his boarding the train at Kodaikanal Road railway station. The “Trivandrum Express” was timed to leave Madura at about 7 P.M. and to reach Kodaikanal Road a few minutes after 8 P.M. The second defendant accordingly gave a call on the telephone to the railway police staff at the Madura station platform and as the third defendant answered, the second defendant attempted to instruct him to proceed by that train to Kodaikanal Road and there prevent the ex-Maharaja boarding the train. To the details of this conversation we shall advert later. In all probability, the third defendant caught or understood the instructions only vaguely and indistinctly, as the platform was noisy and his knowledge of English very poor and he had to catch the train in a hurry as it was about to leave. During the journey between Madura and Kodaikanal Road, he saw that one of the compartments in the train had been reserved for the Maharani of Nabha. Connecting this with the indistinct impressions that he had received from the telephone message at Madura, he seems to have made up his mind that the instructions given to him by the second defendant must have related to the Maharani. That he believed that the second defendant's instructions related to the Maharani and acted on that footing and did not intend to act in violation or in excess of those instructions is placed beyond doubt by the telegram, Exhibit O, which he sent to the second defendant, two hours later, from Kodaikanal Road. He there speaks of having “detained the Maharani as per the orders” of the second defendant.

4. When the train arrived at Kodaikanal Road the third defendant informed P.W. 6, who was waiting on the platform, that he had instructions to prevent the Maharani boarding the train. She was at that time sitting in her car within the railway compound, expecting to be called to the train by her secretary (P.W. 6) after her luggage had bean placed in the compartment reserved for her. It is unnecessary to refer here to the details of the conversation that is said to have taken place between the third defendant and P.W. 6 or between P.W. 6 and the appellant. The train was delayed for a few minutes beyond the scheduled time, apparently as a result of this discussion. After it had left, the 3rd defendant sent the telegram, Exhibit O, already referred to and its concluding words “advise as what to do” are significant in their bearing on the appellants' contention on the case of false imprisonment. On receipt of Exhibit O, the second defendant sent the reply telegram, Exhibit III, “Your orders were to detain Raja and not Maharani. Maharani may proceed anywhere and you should afford any assistance which the Maharani may require.” By this time, the second defendant had been informed by a second telegram (Exhibit VI) sent by the Station-house Officer, Kodaikanal, that the ex-Maharaja had “returned on sending family.” Exhibit III is said to have been received by the third defendant at Kodaikanal Road at 9-45 p.m. The appellant states that from the time of the arrival of the third defendant at Kodaikanal Road station till the time that this telegram was received, the only gate through which she and her car could have gone out of the railway station compound remained closed under the orders of the third defendant and that the fourth and fifth defendants had posted themselves at that gate with a view to prevent her egress. When the gate was opened, she left by car for Trichinopoly, about 85 miles further north, in a vain attempt to catch the Trivandrum Express at that station. The appellant claimed that the above acts of defendants two to five had no legal justification and that as they had led to a complete deprivation of her liberty for the time being, they constituted false imprisonment. She further claimed that the Government of Madras — whom she impleaded as the first defendant — was also liable for damages, since the other defendants had invaded her right to freedom in the course and as part of their official employment, alleging it to be within the scope of their official authority.

5. The defendants filed written statements, more or less on the same lines so far as the facts were concerned. As a matter of law, the first and second defendants stated that the plaintiffs had no cause of action against them. All the defendants denied that there had been anything in the nature of false imprisonment. They asserted that acting under the supposed order of the second defendant, the third defendant had only prevented the appellant boarding the train at Kodaikanal Road, that he never gave orders to defendants 4 and 5 to close the gate of the compound and that the gate was in fact not closed. It was added that except that the plaintiffs were prevented from going by that train, they were at absolute liberty to go anywhere they liked and that this was made clear to them even in the first instance. Defendants 4 and 5 also denied that they closed the gate or were ordered by the third defendant to close the gate. A plea that the suit was not maintainable without the sanction of the Provincial Government under S. 270 (1) of the-Government of India Act, 1935, and a further plea of limitation, either under article 2 of the Limitation Act or under Section 53 of the Madras District Police Act, were also taken. It is unnecessary to refer to the other pleas.

6. The trial court as well as the High Court accepted the appellant's version of the incident as substantially true, including the allegation that the gate of the railway compound within which the appellant was staying in her car was closed under the orders of the third defendant and that defendants 4 and 5 posted themselves there under his orders. Without repeating the reasons given in their judgments, we may say we concur in this finding. The learned Subordinate Judge further held that in view of the attitude and declarations of the third defendant, these acts amounted to false imprisonment, but the learned Judges of the High Court thought otherwise. They say

“the first plaintiff mast have thought that she was confined within the railway fencing where her car was standing and would not be permitted to leave it, if she tried so to do … . that must have been her feeling from the subjective point of view; but that would not be enough for us to hold that she was actually confined or imprisoned and not merely restrained from proceeding by the Trivandrum Express. Had there been proof on the record that there was total restraint of the first plaintiff's movements or liberty during the period that she was in her car by the use or threat of force or by confinement, she could be said to have been imprisoned.”

7. If it were necessary to decide this question, we should have hesitated to concur in this opinion of the learned Judges of the High Court. On the questions of law, both courts have held that the plaintiffs had no cause of action against defendants 1 and 2 and that the suit was not maintainable against defendants 2 to 5 without the sanction of the Provincial Government under S. 270 (1) of the Constitution Act. The learned Judges of the High Court also held that the suit was barred by article 2 of the Indian Limitation Act and S. 53 of the Madras District Police Act, as it had not been instituted within three months of the incident. They granted a certificate under Section 205 of the Constitution Act, on the ground that the case involved a substantial question of law as to the interpretation of S. 270 (1) of the Act. Hence this appeal.

8. The case against defendants 1 and 2 can be briefly disposed of. The learned Judges of the High Court based their decision in favour of the first defendant on two grounds: (1) that defendants 2 to 5 acted in exercise of their “statutory power” and that in such circumstances a person aggrieved by their acts could have no claim against the Government, and (3) that the State could not be held liable for the improper conduct of public servants unless those acts had been done under the orders of the Government or had been subsequently adopted and ratified by it. They also referred to a line of cases in India distinguishing between claims against the Government on the basis of contracts or other business transactions entered into by public servants on behalf of the Government and claims in respect of tortious acts committed in the discharge of governmental functions as a sovereign. There are obvious difficulties in this case in accepting the view that defendants 2 to 5 were discharging a “statutory duty” in their dealings with the appellant. As we however agree with the learned Judges as to the other ground of their decision in favour of the first defendant, it is unnecessary to discuss this aspect of their decision.

9. As regards the second defendant also, we must hold that the plaintiffs have not made out any ground to make him legally liable. We cannot however help feeling that on his own statement that it was not easy to make the third defendant understand his instructions, the second defendant would have done better to have taken greater care to make his instructions clear and specific. Some questions in the course of the evidence and some discussion in the judgments in the Courts in Madras have been, directed to the ascertainment of the exact words used by the second defendant in giving instructions to the third defendant. He naturally said that he was unable to recall the exact words used by him and we are unable to hold that the third defendant spoke the truth when he said that the second defendant specifically referred to the Maharani as the person whom he was to prevent from proceeding to Madras. Two of the disputed matters are [i] whether the second defendant instructed the third defendant to detain anybody or merely to prevent him from boarding the train and, [ii] whether he used the singular, referring only to the ex-Maharaja or used the plural so as to include in his direction the ex-Maharaja's party as well. In view of the possibilities of legal arguments that were raised by the pleadings in the case as to what would constitute “false imprisonment,” the third defendant, instead of pleading failure of memory insisted that only the word “prevent” was used. But the learned Judges of the High Court have rightly attached some importance to the wording of the telegram (Exhibit O) which the Sub-Inspector sent a few hours later from Kodaikanal Road to the second defendant at Madura. He there reports that he “detained Maharani of Nabha from going by six as per your orders.” On his own evidence, the third defendant was not very well conversant with English and it is quite likely that he was repeating the word “detain” as he heard it on the telephone on the Madura platform. The language of the instructions is even more important with reference to the person or persons asked to be dealt with. The second defendant is positive that he mentioned only the ex-Maharaja, but he cannot say whether he added anything like “only” or “alone.” It is common ground between him and the third defendant that the third defendant had some difficulty in hearing the second defendant's instructions on the telephone. The second defendant admittedly referred to the “party” or “family” of the ex-Maharaja as among those intending to proceed to Madras, and if he had not definitely instructed that only the ex-Maharaja was to be prevented from proceeding, it would be no wonder if a person of the third defendant's standing had understood that members of the “party” or “family” were to be likewise prevented, whether the ex-Maharaja was with them or not.

10. It does not however seem so easy to exonerate the third defendant from legal liability. As observed by the High Court, the third defendant cannot rely upon S. 54 of the Criminal Procedure Code, because the appellant was not charged with or suspected of any offence and there was no requisition to the third defendant specifying any offence or other cause against the appellant, so as to make it appear to him that the appellant might lawfully be arrested without a warrant even by the second defendant. Clause (9) of S. 54 throws a certain measure of responsibility even on the officer to whom the requisition is addressed. We doubt if the third defendant can take shelter even under S. 21 of the District Police Act, 1859, because that section only commands obedience to and execution of orders and warrants lawfully issued. In this case there was, in fact, no order or warrant to detain the appellant and none-such could have been lawfully issued. It is however unnecessary for us to decide this question, in view of the conclusion that we have come to on the plea raised under S. 270 (1) of the Constitution Act.

11. It was argued on behalf of the appellant that the third defendant could not claim the benefit of S. 270 (1) as his acts could not be brought within the description “done or purporting to be done in the execution of his duty as a servant of the Crown.” It was also contended that as the third defendant falsely denied having done anything beyond preventing the appellant from boarding the train at Kodaikanal Road, he should not, now that he is found to have gone much farther and improperly detained the appellant within the station compound by getting defendants 4 and 5 to close the gate, be allowed the benefit of a plea under 3.370 (1) in respect of this latter act, as he did not claim it in the written statement. It was said that on his own evidence that he was only asked to “prevent” the appellant from boarding the train at Kodaikanal Road, his acts, in so far as they went further were clearly in wanton excess of his duty and that such conduct was not protected by S. 270 (1). It was lastly contended that if the instructions given by the second defendant related only to the ex-Maharaja, it could not be held that the third defendant was acting in the execution of his duty in detaining the appellant. On the other side, the Advocate-General pointed out that the plaintiffs themselves had alleged in paras 7 and 17 of the plaint that the acts of defendants 2 to 5 “were purported to be done in their official capacity and in the course, and as part, of their official employment and alleged to be within the scope of their official authority” and he contended that it was not now open to the plaintiffs to say that the acts complained of were not acts done or purporting to be done by defendants a to 5 in the execution of their duty as servants of the Crown. Whatever might have been the position, if the case had been argued on demurrer, before the evidence had been led, we do not feel that it would be proper at this stage to deal with the question as one to be decided merely on the pleadings. The passage relied on by the Advocate-General from the opinion of Lord Macmillan in R. & W. Paul, Ltd., v. The Wheat Commission does not seem to treat the allegations in the plaint as concluding the plaintiffs, but only as supporting the conclusion which the House was inclined to come to on the facts. Likewise, we have to deal with the plea of the defendants under S. 270 (1) as a general plea to the whole case of the plaintiffs and to consider whether even on the facts, as we find them, the action of the defendants can be regarded as taken or purporting to be taken in the execution of their duty as servants of the Crown.

12. Assuming that the acts complained of cannot be regarded as done by defendants 3 to 5 in the execution of their duty, there still remains the other alternative, namely, whether they purported to be so done. The word “purporting” would be rendered nugatory if the section were to be limited to acts justified or authorised by law. Cf. Wilson v. Nathmull; see also Dicker v. Angerstein. The interpretation of this provision was discussed at some length in the judgments delivered in Hori Ram Singh v. The Crown. As observed by one of us there, the question is substantially one of fact to be determined with reference to the nature of the act complained of and the attendant circumstances. English decisions construing similar language in a provision in the Public Authorities Protection Act, 1893, make it clear that the benefit of that statute can be claimed even by an officer who has acted under a mistaken view as to his duty, whether the mistake be one of fact or one of law, if only he honestly believed that he was acting in the discharge, of his duty. (See Newell v. Starkie. Scammell etc. v. Hurley; and Selmes v. Judge; In Belts v. Receiver for the Metropolitan Police District and Carter Peterson & Co. Du Parcq J. expressed a doubt “whether the Act protects a public officer who, while rightly apprehending the facts, takes a mistaken view as to his legal obligations, and executes or intends to execute some function which he has no duty to execute.” It is unnecessary in the view that we take on the facts of this case to determine whether S. 270 (1) will also include cases of officers acting under a mistaken view of law as to their duty. The language of the English statute is not identical with that employed in S. 270 (1) of the Constitution Act, but we think that the principle of the cases above referred to, in so far as they extend the statutory protection even to officers acting under a mistaken view as to their duty, is equally applicable here. It is true that S. 270 (1) of the Constitution Act goes much further than the Public Authorities Protection Act, in that the former places an aggrieved person at the mercy of the executive government before he can institute a suit even in a civil court in respect of an alleged misconduct of a public servant, whereas the English Act only provides for a shorter period of limitation and for previous notice to the public officer. But this does not relieve the court of its duty of giving due effect to the terms of the statutory provision.

13. We have already held that the third defendant must have believed, however mistaken this belief was that the second defendant had instructed him to detain the appellant. It is clear from his conduct that he also honestly thought that it was his duty to obey those instructions. It was argued on behalf of the appellant that when as the evidence shows, the third defendant declined to accede to the request of P.W. 6 to wire to the second defendant, even while the train was at the Kodaikanal Road Station, so as to get definite instructions from the second defendant, he must be taken to have acted maliciously, so as to disentitle him to the benefit of S. 270 (1). The English cases no doubt deny the benefit of the Public Authorities Protection Act to officers who act maliciously or only in ‘pretended’ execution of their duty. It is unnecessary to decide in this case whether the same principle would govern the interpretation of S. 270 (1) of the Constitution Act, because we agree with the learned Judges of the High Court that the conduct of the third defendant could not be held to have been malicious or mala fide. In the witness box, he denied that P.W. 6 made any request to him to the above effect and he suggested that he was only asked if the appellant could go back to Kodaikanal and he replied that she was free to do so. We are unable to believe this version. As the subsequent conduct of the appellant showed, she was eager to go to Madras and it was only natural that, in that situation, the Private Secretary would have asked the third defendant to obtain definite instructions from the second defendant, especially when there was good reason to think that there could have been no order against the appellant and that there must be some mistake somewhere The attitude of the third defendant to that request was only what is usual with most police officers when they imagine that they are carrying out orders and though he has added to his difficulties by his statements from the witness box, we think it would be too much to read into his conduct at the time anything like malice or want of good faith.

14. A further contention was urged that the third defendant who belonged to the railway police was under no duty to obey the orders of the second defendant who belonged to the District Police and that therefore the third defendant could not be held to have acted in execution or purported execution of his duty. This contention has, in our opinion, no substance. The third defendant stated from the witness box that though orders are generally communicated to the officers of the Railway Police through their own Superintendent the District Superintendent of Police issues orders directly to the subordinate officers of the Railway Police when a matter is urgent and that the fact of his having issued such orders is merely communicated to the Superintendent of Railway Police. The second defendant and D.W. 7, the Deputy Inspector-General of Police, were examined some days later and no question was put to them in cross-examination to suggest that such was not the practice or the true legal position. Indeed, the practice seems quite natural and probable in view of the scheme of the Police Act and the rules framed thereunder. Though for purposes of administrative convenience, the Railway Police is classified as a separate unit, it forms part of one and the same general police force with the District Police, and the Police Manual suggests that there should be full and complete co-operation between the two sections of the force. The third defendant is accordingly entitled to claim that the suit is not maintainable without the sanction of the Provincial Government. So far as defendants 4 and 5 are concerned, their case clearly falls within S. 270 (1).

15. The appeal must fail on the grounds so far dealt with and it is not necessary to consider the plea of limitation. We wish to guard ourselves against being understood as concurring in the view of the High Court that the suit is barred either by article 2 of the Limitation Act or S. 53 of the Police Act.

16. There is one episode which at this stage has no bearing on the decision of the case, but which, we think, requires a passing notice, as the learned Judges of the High Court have commented on it. Referring to a letter of apology (Exhibit R) sent to the appellant by the Deputy Inspector-General of Police, the learned Judges expressed regret “that due advantage was not taken of the Government's gesture of goodwill”. If this observation was intended to imply any appreciation of the attitude of the Government or any blameworthiness on the part of the appellant in that connections we are unable to concur in it. The second defendant no doubt had the courtesy to write a letter of apology (Exhibit VIII) on the 21st of January 1937. But he unfortunately thought fit to address the letter in the terms which the appellant had been protesting against for at least two years before and the result was that the letter returned to the second defendant with the envelope unopened. There is thus nothing to show that the appellant was aware of this apology. Notice under S. 80 of the Civil Procedure Code of the intended suit was given to arid received by the Government of Madras in the last week of January and all that appears in the evidence is that early in February the authorities busied themselves with collecting evidence for the suit. (See Exhibits I and II and the cross-examination of D.W. 5 as to his having asked the Deputy Superintendent of Police to make an enquiry and report). If is true that Exhibit R was sent by the Deputy Inspector-General of Police but this was on. August 18, 1937, that is, nearly two months after summons in the suit had been served on the Government. When it came to defending the suit, the defendants contended that the suit should have been filed within three months of the incident but it took more than six months after the incident to send this letter of apology. The averments in para. 19 of the first defendant's written statement would seem to deprive this letter of apology of even such little grace as it might otherwise have possessed. It was probably sent under legal advice, with a view to found a plea on the provisions of S. 53 of the District Police Act which says that no plaintiff shall recover in any such action if tender of sufficient amends shall have been made before such action is brought or if a sufficient sum of money shall have been paid into court after such action is brought. That this must have been the object of the letter is shown by the defendant's insistence on raising this question by the 8th issue in the case. As we have already said, this is however only by the way.

17. We have carefully considered the question of costs in this appeal. Both in the trial court and in the High Court, the parties have been directed to bear their own costs. We are however unable to follow the same course here. Whatever might be the grievance of the appellant, her case had been fully considered and examined by two courts and both of them had concurrently held that the suit was not maintainable. Any further attempt to agitate the question could be made by the appellant only at her own risk and subject to the usual obligations of a litigant who fails in his appeal. The appellants must accordingly pay the respondents' costs of this appeal; only one set.

18. ZAFRULLA KHAN J. As I have the misfortune to dissent from the view taken by my Lord and my learned brother on the question whether the provisions of S. 270 (1) of the Constitution Act operate as a bar to the maintainability of the suit against defendants 3 to 5, I am under the necessity of stating the grounds of my dissent somewhat fully.

19*. The pleadings reveal a good deal of difference between the parties regarding the facts. It is therefore necessary to set out the facts as established by the evidence. At the outset it may be observed that the appellant's late husband never left his house on the afternoon of 13th January 1937, when the appellant left for Kodaikanal Road station. There was thus no justification for the telegram sent by the Station-house Officer to the second defendant announcing that the ex-Maharaja had left for Madras (Exhibit IV), and the whole train of unfortunate incidents that followed resulted from a misapprehension which could easily have been cleared up by the exercise of a little care by the subordinate police officers at Kodaikanal.

20. The main controversy between the parties centred round what occurred at the railway station on the arrival of the Trivandram Express. The third defendant stopped the appellant's Private Secretary (P.W. 6) from putting her baggage in the compartment reserved for her and informed him that he had orders to prevent the appellant from boarding the train and to detain her. P.W. 6 told him that they had received no such order and wanted to know whether there was any order in writing. The third defendant replied that he had received oral orders over the telephone. P.W. 6 then asked him to put down his own order in writing so that he could show it to the appellant. This the third defendant declined to do. P.W. 6 then went to the appellant who was waiting in her car in the station compound and told her what had happened. She asked him to clear the matter up with the District Superintendent of Police by getting a telegram despatched to him and to somehow arrange for her to travel by the Express. In the meantime the third defendant had directed the fourth and fifth defendants to close and guard the gate which afforded the only egress from the station compound and they carried out the direction. P.W. 6 asked the third defendant to send a telegram to the District Superintendent of Police as it was possible that a mistake had been made, and told him that the station master (P.W. 4) would be requested to detain the train for a short time to enable the appellant to travel by it on receipt of a reply from the District Superintendent. The request was supported by the station master who offered to try to obtain the Controller's orders for the detention of the tram. The third defendant declined to move in the matter on the ground that his orders were definite. After the departure of the train, P.W. 6 asked him to permit the gate to be opened so that they could now make a move. To this he replied that the appellant having been detained under the orders of the District Superintendent, she could not be allowed to move till further orders were received from that officer. P.Ws. 4 and 5 suggested that he might obtain further orders by telegram. He then despatched the telegram (Exhibit O) to the second defendant, a quarter of an hour after the departure of the train. The reply (Exhibit III) was received an hour later and thereupon he informed the appellant that she was now free to go anywhere she liked.

21. That the appellant was wrongfully confined by defendants 3 to 5 can on these facts admit of no doubt whatever. On behalf of the respondents no legal justification or excuse was sought to be urged before us for the wrongful confinement. Counsel for the respondents admitted that if the bar created by S. 270 (1) of the Constitution Act could not be availed of by defendants 3 to 5, the appellant would be entitled to recover against them. Section 270 (1) of the Constitution Act provides that no proceedings civil or criminal shall be Instituted against any person in respect of any act done or purporting to be done in the execution of his duty as a servant of the Crown in India before the relevant date, except with the consent of the Governor-General or the Governor of the Province as the case may be. Much argument was addressed to us on the exact meaning of the words “act purporting to be done in the execution of his duty as a servant of the Crown”. I find myself in entire agreement with the majority of the Court that the question is substantially one of fact to be determined with reference to the nature of the act complained of and the attendant circumstances. They go on, however, to express the view that the words are wide enough to cover the case of an officer who has acted under a mistaken view as to his duty, whether the mistake be one of fact or one of law, if only he honestly believed that he was acting in the discharge of his duty.

22. I feel considerable hesitation in subscribing to that proposition without qualification, as with all respect I consider that it interpreted literally it would be found to state the principle too widely. A Superintendent of Police might direct a sub-inspector to take a couple of constables with him and arrest and produce before him X, a perfecty peaceful and law-abiding citizen, whom he proposed to interrogate in order to obtain information which might be useful to him for some private or public purpose, but without disclosing to the sub-inspector any ground that would justify X's arrest. If the sub-inspector and the constables proceeded to execute these orders, it might be argued on their behalf that they had honestly believed that they were acting in the discharge of their duty. That the matter might be further complicated by their arresting Y, honestly believing that the orders related to him rather than to X, might in their eyes make no difference to the case. I cannot bring myself to believe that Parliament in enacting S. 270 (1) had in mind a case of this kind which in its essentials is not distinguishable from the case before us. If this section or other similar enactments are held to cover cases like these, the result would be that whatever may be the position with regard to a superior officer issuing an unlawful order, his subordinates executing such an order could always take shelter behind such provisions, a state of affairs which would amount to putting a premium upon official high-handedness and would reduce the rights of the subject to security of life end limb, liberty and the peaceful enjoyment of property to a mockery. A line must be drawn somewhere and it is not suggested by the majority where it should be drawn.

23. We are in this case concerned only with a mistake of fact. The second defendant asked the third defendant to proceed to Kodaikanal Road station and prevent the ex-Maharaja from boarding the Trivandrum Express, On the basis of the information which the second defendant had received, this was a perfecty lawful order and was well within the authority of the second defendant. Though the second defendant was satisfied that the third defendant had understood his directions correctly (lines 7 and 8, page 78 of the Record) the third defendant somehow imagined that the person who was to be prevented from boarding the Express was the appellant. Had the third defendant made no mistake in interpreting the8directions of the second defendant, and on arrival at Kodaikanal Road station his inquiries had led him honestly to believe that a certain person present at the platform and seeking to board the train was the ex-Maharaja, and had he proceeded to prevent that person from boarding the train, and it had subsequently transpired that that person was not the ex-Maharaja but somebody else, there might perhaps have been force in the contention that the third defendant's act fell within the purview of S. 270 (1), as an act purporting to be done in the execution of his duty. In this case a mistake occurred not in the execution of what the third defendant had correctly understood to be his duty, but in his imagining that a direction had been issued concerning Y, when in fact it had been issued concerning X. I venture to think that the correct rule in cases of mistake of fact would be that for the purpose of determining whether an act done bona fide in pursuance of a mistake of fact would to covered by the sub-section, the true state of affairs must be deemed to have been what it was mistakenly supposed to be. That is to say, in order to determine whether the language of the sub-section applies to the case of defendants 3 to 5, it must be assumed that the second defendant had in fact directed the third defendant to prevent the appellant from boarding the train. The effect of the mistake, under which it is alleged the third defendant was labouring, cannot be stretched further to bring his acts and those of defendants 4 and 5 within the ambit of the sub-section. What then is the position Nobody had any lawful authority to direct that the appellant should be prevented from boarding this particular train or indeed from travelling by any other train or means which she might choose to travel by. That being so, there could be no basis for any assumption on the part of the third defendant that he had any lawful authority to prevent the appellant from boarding the train. He must be presumed to possess some knowledge of the duties and authority of a police officer. On no construction which he could reasonably place upon the limits of his lawful authority could he assume that he had authority to restrain the appellant from boarding the train. Nor was there anything in what the second defendant is alleged to have communicated to him, which could have led him to believe that the second defendant himself had any authority to interfere with the movements of the appellant. Therefore, even if defendants 3 to 5 had done nothing more than prevent the appellant from boarding the train, I would have been reluctant to hold that under the circumstances of this case their acts were covered by the language of S. 270 (1) of the Constitution Act.

24. But the matter does not rest there. The second defendant is quite clear and emphatic that his direction was only to prevent the person concerned from boarding the train. The third defendant does not allege any mistake or misunderstanding with regard to this part of the direction. He stated at the trial (line 23, page 69 of the Record): “I understood the District Superintendent of Police's phone at Madura to mean that I should prevent the Maharani from going by train. I did not understand it to mean that I should prevent her from going by car and boarding at any railway station further off”. Nothing could be clearer. His case throughout has been that he clearly understood that the direction given to him was merely to prevent the lady from boarding the train. If nevertheless he along with defendants 4 and 5 proceeded to wrongfully confine her, surely it cannot be urged on their behalf that their acts in this connection purported to be done in the execution of their duty.

25. It was suggested that the language of Exhibit O, the telegram which the third defendant despatched to the second defendant after the departure of the train, indicated that the direction given to him was to detain the Maharani. I do not think it would be justifiable to pick out that word from the telegram and attach to it its primary connotation. The word was used by the third defendant to describe something that was in his mind and he alone was in a position to explain what he had meant by it. His explanation is this: “The District Superintendent of Police used the word ‘prevent’. In Exhibit O, I used the word ‘detained’. That was because I thought both words meant the same thing”. (Lines 40 to 42. page 69 of the Record). Again, “The word ‘detained’ in Exhibit O means only prevented from going by train. I did not mean by it that I prevented the Maharani from going anywhere or detained her in a place. In that case I would have stated I arrested her”. (Lines 30 to 35, page 67 of the Record). To a person of the little education of the third defendant, “detain” might signify only stop or prevent.

26. The position therefore is that the second defendant asked the third defendant to prevent the ex-Maharaja from boarding the train. By the time the third defendant arrived at th station, he began to imagine that the direction given was to prevent the appellant from boarding the train. This direction, if it bad in fact been given by the second defendant would have been neither lawful nor justified, but was in any case limited to prevention from boarding the train. It was so understood by the third defendant. Assuming that if defendants 3 to 5 had done no more than prevent the appellant from boarding the train their acts would have been covered by the language of S. 270 (1), what justification would there be for holding that the section would also cover their entirely unauthorized and high-handed action in wrongfully confining her It was argued that the fact that defendants 3 to 5 had falsely denied the wrongful confinement, should not operate to deprive them of the benefit of S. 270 (1), if the court came to the conclusion that though the appellant was wrongfully confined, the third defendant did honestly believe that the direction given to him by the second defendant was to confine her. But did the third defendant honestly hold that belief and could the court so find The question whether the appellant was or was not wrongfully confined is one, if I may say so, of external visible fact, which has to be determined on the evidence of the eye witnesses. The questions, what was the direction given by the second defendant, and what was it understood to be by the third defendant, are no doubt equally questions of fact, but the second relates to the state of mind of the third defendant upon which the primary and the best evidence can only be that of the third defendant himself. True it is that help could also be sought from inferences that might be drawn from his conduct, but even that conduct, so far as it relates to the despatch of Exhibit O, has been explained by him consistently with his direct evidence. Nor does it appear to me to follow that if his denial of wrongful confinement was false, his explanation of what he understood he had been directed to do must also be false. If I were to attempt to make a reading of the working of the third defendant's mind, the picture would be somewhat like this: He understood the second defendant to say that the ex-Maharaja and his party were proceeding to Kodaikanal Road station and that he was to prevent the ex-Maharaja from bearding the Trivandrum Express. During his journey from Madura to Kodaikanal Road, he noticed at an intermediate stop that a first class compartment had been reserved for the use of the appellant. On arrival at Kodaikanal Road he discovered that it was the appellant who was proposing to travel by that train and not the ex-Maharaja. He then imagined that perhaps his instructions were to stop the appellant from travelling by that train, as it would in his then state of knowledge appear to him absurd to have been told to stop the ex-Maharaja who was nowhere near the scene. Being clothed with a little authority, he arrogated to himself a great deal more, as is unfortunately often the case in this country, and not merely prevented the appellant from boarding the train, but proceeded wrongfully to confine her in the compound of the station for two hours. Knowing that he had no authority for such action and never intending to admit that he had so acted, when the matter came to the notice of his superiors, he not only denied the wrongful confinement himself but also persuaded defendants 4 and 5 to deny it. The wrongful confinement is denied not only in the written statements of defendants 3 to 5, but also in the written statements of defendants 1 and 2. This can be explained only on the hypothesis that the third defendant had done something that he knew was no part of his duty, was indeed unlawful and high-handed, and the doing of which he dared not admit to his official superiors. This conclusion, is strengthened by the refusal of the third defendant when requested so to do to furnish P.W. 6 with a written order directing the appellant to refrain from travelling by the Trivandrum Express and not to move out of the station compound, which incidentally would have put the question of the nature and scope of the directions given to him by the second defendant beyond doubt.

27. This is not conjecture. It is a more legitimate inference from the evidence and the conduct of the third defendant than the inference that though the second defendant swears that he asked the third defendant only to prevent the person concerned from catching the train, he has grossly perjured himself having in fact asked the third defendant to “detain”, i.e., to confine that person, and that though the third defendant swears that he understood that be was only to prevent the appellant from catching the train, he has equally perjured himself having in fact understood that he was to put her in confinement. In any case, it was for the third defendant to establish that the direction given to him was to detain, i.e., to confine, the appellant, or at least that he so understood or interpreted the direction. In the face of the sworn denial of the second defendant that he gave any such direction, and of the third defendant himself that he received any such direction, I do not conceive it to be any part of my duty to make out a contrary case on their behalf. On this finding it is not possible to hold that the acts of defendant 3 are covered by the language S. 270 (1) of the Constitution Act. His order to defendants 4 and 5 to close the gate to the station compound and to mount guard on it was manifestly unlawful and without any authority. In carrying oat that order they could not be held to be acting or to be purporting to act in the execution of their duty as servants of the Crown. Section 270 (1) would afford as little protection to them as to defendant 3.

28. It was conceded on behalf on the respondents that if S. 270 (1) was not applicable to the case, the suit would not be barred by limitation, either under Art. 2 of the First Schedule of the Limitation Act, or by virtue of the provisions of S. 53 of the Madras District Police Act.

29. On the quantum of damages, the appellant's counsel did not ask us for any higher sum than that assessed by the trial court, viz. Rs. 5,000. This was not contested on behalf of the respondents.

30. In my opinion the appellant is entitled to a decree against defendants 3 to 5 for Rs. 5,000 with proportionate costs throughout. But as the majority of the Court have taken a different view, the order of the Court will be as they have proposed.