1942 (3) TMI 19

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..... alleging and purporting to act under the order of a superior officer (who was at that time the first defendant) entered (the Plaintiffs) premises and took away all the plaintiffs books of accounts against his will and consent. That is in paragraph 7 of the plaint. Paragraph 11 goes on to say that the second defendant when questioned as to the authority by which he trespassed into the said premises of the plaintiff and wrongfully took away the said account books intimated and represented to the plaintiff that he was, in so acting, acting under the directions and orders of this officer namely the first defendant. The defendants in their written statements deny the allegations of the plaintiff and issue was jointed on those pleadings. I ha .....

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..... f, in my opinion, would be enough to raise the question of the application of this section. Of the many authorities which have been cited, it is clear that the motive with which the act is done is immaterial. What has to be looked at is that the offence must be in respect of an act done or purported to be done in execution of a duty i.e., in the discharge of an official duty. In Hori Ram Singh v. The Crown Sulaiman, J., observed as follows :- It must purport to be done in the official capacity with which he pretends to be clothed at the time, that is to say under the cloak of an ostensibly official act, though, of course, to be done in execution of duty unless the offender professes to be acting in pursuance of his official duty and me .....

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..... entire suit had been heard out and those imputations proved on the facts to be untrue. The suit would in that case fall under Section 270 (2) of the Government of India Act and the defendant would have no additional protection by reason of the existence of sub-section (1) of this section. Here as I have said the plaintiff in his plaint specifically sets up what is not the defendants case in alleging that the second defendant trespassed as an Income Tax Officer in purported execution of his duty as such and acting under the orders of his superior officer and with regard to the first defendant that he gave directions and others to the second defendant to do what he did. I therefore come to the conclusion that the preliminary point succee .....

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