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TMI Blog1964 (9) TMI 62X X X X Extracts X X X X X X X X Extracts X X X X ..... he was passing through the Chaupla Bazar with this object, he was taken into custody by three police constables. His belongings were then searched and he was taken to the Kotwali Police Station. He was detained in the police lock-up there and his belongings which consisted of gold, weighing 103 tolas 6 mashas and 1 ratti, and silver weighing 2 maunds and 6 1/2 seers, were seized from him and kept in police custody. On the 21st September, 1947 he was released on bail, and some time thereafter the silver seized from him was returned to him. Ralia Ram then made repeated demands for the return of the gold which had been seized from him, and since he could not recover the gold from the police officers, he filed the present suit against the respondent in which he claimed a decree that the gold seized from him should either be returned to him, or in the alternative, its value should be ordered to be paid to him. The alternative claim thus made by him consisted of ₹ 11,075-10-0 as the price of the gold and ₹ 355 as interest by way of damages as well as future interest. This claim was resisted by the respondent on several grounds. It was urged that the respondent was not lia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate that it has come to this Court by an appeal. On behalf of the appellant, Mr. M. S. K. Sastri has urged that the High Court was in error in both the findings recorded by it in favour of the respondent. The first finding is one of fact and the second is one of law. In dealing with the question of negligence, it is necessary to refer to the evidence adduced in this case. The material facts leading to the seizure of gold are not in dispute. The only question which calls for our decision on this part of the case is whether the loss of gold can be legitimately attributed to the negligence of the police officers in charge of the police station where the gold and silver had been kept in custody. Ganga Prasad is the first witness to whose evidence it is necessary to refer. He was Class II Officer in Meerut Kotwali at the relevant time. He swears that Mohammad Amir who was in charge of the Malkhana, had fled away to Pakistan without delivering the keys to any one and without obtaining permission for leaving his post of duty. The Malkhana was accordingly checked and it disclosed that considerable properties kept in the Malkhana were missing. On the 26th October, 1947, Ganga Prasad retu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that valuables are not sent by the police officers to the Treasury unless they got orders to that effect. That is the whole of the material evidence bearing on the question of negligence of the police officers. In appreciating the effect of this evidence, it is necessary to refer to some of the relevant provisions, in regard to the custody of the goods seized in the course of police investigation. Section 5 4 (I) (iv) of the Code of Criminal Procedure provides that any police officer may, without an order from a Magistrate and without a warrant, arrest any person in whose possession anything is found which may reasonably be suspected to be stolen property and who may reasonably be suspected of having committed an offence with reference to such thing. It is under this provision that Ralia Ram was arrested at midnight. It was apprehended by the police officers that the gold and silver articles which he was carrying with him might be stolen property, and so, his arrest can be said to be justified under section 54 (I) (iv). Section 550 confers powers on police officers to seize property suspected to be stolen. It provides inter alia, that any police officer may seize property which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch will be kept by the Prosecuting Inspector in a separate box under lock and key in the treasury, will remain in the custody of the malkhana moharrir under the general control and responsibility of the Prosecuting Inspector until it has been finally disposed of. The wording of the Regulation is somewhat complex and con- fusing, but its purport and meaning are clear. In substance, it provides that property of every description will remain in the custody of the malkhana moharrir under the general control and responsibility of the Prosecuting Inspector until it has been finally disposed of. This provision is subject to the instructions to the contrary which the Magistrate may issue. In other words, unless the Magistrate directs otherwise, the normal rule is that the property should remain in the Malkhana. But this rule does not apply to cash exceeding ₹ 100 and property of equal value and property pertaining to cases of importance. Property falling under this category has to be kept by the Prosecuting Inspector in a separate box under lock and key in the treasury. If the Magistrate issues a direction that property not falling under this category should also be kept in the t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y be extending the principle recognised by this Court in State of Rajasthan v. Mst. Vidhyawati and Anr. [1962] Supp. 2 S.C.R. 989. In that case, respondent No. 1's husband and father of minor respondent No. 2 had been knocked down by a Government jeep car which was rashly and negligently driven by an employee of the State of Rajasthan. The said car was, at the relevant time, being taken from the repair shop to the Collector's residence and was meant for the Collector's use. A claim was then made by the respondents for damages against the State of Rajasthan and the said claim was allowed by this Court. In upholding the decision of the High Court which had granted the claim, this Court observed that the liability of the State for damages in respect of a tortious act committed by its servant within the scope of his employment and functioning as such was the same as that of any other employer. In support of this conclusion, this Court observed that the immunity of the Crown in the United Kingdom on which basically the State of Rajasthan resisted the respondents' claim, was based on the old feudalistic notions of justice, namely that the King was incapable of doing a wro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es like those in which a corresponding Province might have sued or been sued if the Constitution had not been enacted. In other words, when a question arises as to whether a suit can be filed against the Government of a State, the enquiry has to be could such a suit have been filed against a corresponding Province if the Constitution had not been passed The third part of the article provides that it would be competent to the Parliament or the Legislature of a State to make appropriate provisions in regard to the topic covered by Art. 300(1). Since no such law has been passed by the respondent in the present case, the question as to whether the respondent is liable to be sued for damages at the instance of the appellant, has to be determined by reference to another question and that is, whether such a suit would have been competent against the corresponding Province. This last enquiry inevitably takes us to the corresponding provisions in the respective Constitution Acts of India; they are s. 65 of the Government of India Act, 1858, S. 32 of the Government of India Act, 1915 and s. 176 of the Government of India Act, 1935. It is unnecessary to trace the pedigree of this provision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... age. It is this injury caused by the negligence of the servants of the Government employed in the Government dockyard that gave rise to the action. The. plaintiff company claimed damages against the Secretary of State for India for the damage caused by the said accident. The suit was tried by the Small Cause Court Judge at Calcutta. He found that the defendant's servants were wrongdoers inasmuch as they carried the iron funnel in the centre of the road. According to the learned Judge, the servants were thus liable for the injury caused by their negligence. He was, however, not clear on the question of law as to whether the defendant Secretary of State could be held liable for the tortious act of the Government servants which led to the accident. That is why he referred the said question to the Supreme Court of Calcutta, and the Supreme Court held that the Secretary of State in Council of India would be liable for the damages occasioned by the negligence of servants in the service of Government if the negligence is such as would render an ordinary employer liable. This question was considered by the Supreme Court in the light of s. 65 of the Act of 1858. The main object of that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e same liability attaches to the Secretary of State in Council, who is liable to be sued for the purpose of obtaining satisfaction out of the revenues of India. We are of opinion, said the learned Chief Justice emphatically, that this is a liability, not only within the words, but also within the spirit, of the 3rd 4th Wm. IV., c. 85, s. 9, and of the 21st and 22nd Vict., c. 106, S. 65, and that it would be inconsistent with commonsense and justice to hold otherwise. It then appears to have been urged before the Court in that case that the Secretary of State in Council must be considered as the State or as a public officer employed by the State, and the question of his liability determined on that footing. This argument was rejected on two grounds, that the relevant words of the statute did not justify it, and that the East India Company were not sovereigns, and therefore, could not claim all the exemption of a sovereign. That is how the learned Chief Justice took the view that the case did not fall under the principle of the cases with regard to the liabilities of such persons--[that is to say, public servants employed by the Sovereign]; but they were a company to whom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elegation of any sovereign power, an action for damages would lie. The act of the public servant committed by him during the course of his employment is, in this category of cases, an act of a servant who might have been employed by a private individual for the same purpose. This distinction which is clear and precise in law, is sometimes not borne in mind in discussing questions of the State's liability arising from tortious acts committed by public servants. That is why the clarity and precision with which this distinction was emphasised by Chief Justice Peacock as early as 1861 has been recognised as a classic statement on this subject. We have already indicated that this distinction has been uniformly followed by judicial decisions in India. In that connection, we will refer to a few representative decisions. In The Secretary of State for India in Council v. Moment (1912-13) 40 I. A. 48, the Privy Council had occasion to consider the effect of the provisions of s. 41 (b) of Act IV of 1898 (Burma), which is similar to the provisions of s. 65 of the Government of India Act, 1858. While holding that a suit for damages for wrongful interference with the plaintiff's prope ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ary road, is one of the functions of Government carried on in the exercise of its sovereign powers and is not an undertaking which might have been carried on by private persons. In the Secretary of State for India in Council v. Shreegobinda Chaudhuri(1932) I.L.R. 59 Cal. 1289, it was held by the Calcutta High Court that a suit for damages does not lie against the Secretary of State for India in Council for misfeasance, wrongs, negligence or omissions of duties of managers appointed by the Court of Wards, because the acts giving rise to the claim, were done by officers of Government in the course of exercise of powers which cannot be lawfully exercised save by the sovereign power. It is in this connection that Rankin C.J., enunciated the principle that no action in tort lies against the Secretary of State for India in Council upon the 'respondent superior'. The learned C. J., however, recognised that a suit may lie against the Secretary of State for India in Council for torts committed by the Government in connection with a private undertaking or an undertaking not in exercise of sovereign power. The same view has been taken by the Allahabad High Court in Mohammad Murad I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... than in that case, was committed by the employee of the State of Rajasthan while he was driving the jeep car from the repair shop to the Collector's residence, and the question which arose for decision was : did the negligent act committed by the Government employee during the journey of the jeep car from the workshop to the Collector's residence for the Collector's use give rise to a valid claim for damages against the State of Rajasthan or not? With respect, we may point out, that this aspect of the matter has not been clearly or emphatically brought out in discussing the point of law which was decided by this Court in that case. But when we consider the principal facts on which the claim for damages was based, it is obvious that when the Government employee was driving the jeep car from the workshop to the Collector's residence for the Collector's use, he was employed on a task or an undertaking which cannot be said to be referable to, or ultimately based on, the delegation of sovereign or govern- mental powers of the State. In dealing with such cases, it must be borne in mind that when the State pleads immunity against claims for damages resulting from injur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed as sovereign powers; and so, there is no difficulty in holding that the act which gave rise to the present claim for damages 'has been committed by the employee of the respondent during the course of its employment; but the employment in question being of the category which can claim the special characteristic of sovereign power, the claim cannot be sustained; and so, we inevitably hark back to what Chief Justice Peacock decided in 1861 and hold that the present claim is not sustainable. Before we part with this appeal, however, we Ought to add that it is time that the Legislatures in India seriously consider whether they should not pass legislative enactments to regulate and control their claim of immunity in cases like this on the same lines as has been done in England by the Crown Proceedings Act, 1947. It will be recalled that this doctrine of immunity is based on the Common Law principle that the King commits no wrong and that he cannot be guilty of personal negligence or misconduct, and as such cannot be responsible for the negligence or misconduct of his servants. Another' aspect of this doctrine was that it was an attribute of sovereignty that a State cannot ..... X X X X Extracts X X X X X X X X Extracts X X X X
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