1942 (3) TMI 19

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....the usual Income Tax grounds and that on 30th August, 1939, the second defendant "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 de....

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....ve purported, to act as such in seizing the plaintiffs books of account. That in itself, 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 ....