Orissa High Court
State Of Orissa vs Ramachandra Das on 13 November, 1990
Equivalent citations: AIR1991ORI197, 1991(I)OLR103, AIR 1991 ORISSA 197, (1991) 1 ORISSA LR 103 (1991) 71 CUT LT 612, (1991) 71 CUT LT 612
Author: A. Pasayat
Bench: A. Pasayat
JUDGMENT A. Pasayat, J.
1. State of Orissa questions the correctness of a reversing judgment holding it liable to reimburse cost of articles seized during a criminal proceeding and not returned to the owner.
2. A short but interesting point of law relating to claim of protection for sovereign function is involved in this appeal. A resume' of the factual position, which is almost undisputed, may be indicated.
3. Forty eight items of utensils were seized from the plaintiffs on 29-2-1969 by the Officer-in-charge of Jarada Police Station in connection with G. R. Case No. 240 of 1969, which was tried by the Judicial Magistrate, First Class, Berhampur. A copy of the seizure list as prepared by the Officer-in-charge was given to the plaintiff. Though the case ended in acquittal, there was an order for confiscation of the properties to the State. An appeal was carried before the Sessions Judge, Berhampur, who by his judgment dated 20-12-1975 directed return of the seized articles to the plaintiff. According to the plaintiff, in spite of repeated demands only twenty one items of seized articles were returned by the Officer-in-charge of the malkhana, while the balance twenty seven items were not returned. The plaintiff issued a notice under Section 80 of the Code of Civil Procedure, 1908 (in short the 'CPC') to the Collector, Ganjam and due intimation of such nptice was given to the Officer-in-charge of the Malkhana, but no steps were taken to return the articles. As the notice issued under Section 80, CPC did not yield any result, the suit out of which this appeal arises was instituted. The prayer in the suit was to pass a decree to return the remaining articles seized from the plaintiff, or in the alternative to pay a sum of Rs. 1,500/- being the value of the articles, and interest at the rate of 9% from 20-12-1975, i.e., the date on which judgment was passed by the learned Sessions Judge, with subsequent interest till the date of payment along with cost of the suit.
4. A written statement was filed by the State of Orissa, represented by the District Collector, Ganjam, inter alia, stating that the Officer-in-charge of the Court malkhana had returned twenty six items on 19-7-1976, but the remaining twenty nine items of properties could not be delivered as they were not available in the Court malkahan being misappropriated by the Court Sub-Inspector Shri D. V. S. Rao against whom a criminal case bearing G. R. Case No. 210 of 1975 (S. R. 30/75) had been instituted. According to the defendant, the goods had been received by Shri Rao under his responsibility, and, since he did not account for the same proper action has been taken in the court of law. It was also pleaded that the defendant was not liable for loss of the articles in the court malkhana under the indicated circumstances. It was also pleaded that the concerned C.S.I, was a necessary party and his non-impletion rendered the suit non-maintainable.
5. Four issues were framed, of which the first issue related to the entitlement of the plaintiff to articles or value thereof. Relying on a decision of the Supreme Court in the case of M/s. Kastury Lal v. State of Uttar Pradesh, AIR 1965 SC 1039, the trial court held that the plaintiff was not entitled to bring action for damages against the State for realisation of the value of the articles said to have been misappropriated by the ex CSI. It, however, held that the concerned official was not a necessary party. In view of the answer to the issue relating to maintainability of the suit for damages against the State, it was held that the Court had jurisdiction to try the suit. With the aforesaid conclusions, the suit was dismissed but without any order as to costs.
6. It may be indicated here that the trial court was of the view that the decision of the Supreme Court reported in 1977 Cri LJ 1141 (SC) : Smt. Basava Kom Dyamogouda Patil v. State of Mysore, had no application to the facts of the case, as the same was rendered in connection with an order passed under Section 517, Cr. P.C. It was of the view that the facts in Kasturi Lal's case (supra) were very much akin to the facts of the present case.
7. The matter was carried in appeal before the learned District Judge, Ganjam-boudh, Berhampur, who reversed the conclusions and held that the suit was maintainable and the State is liable. For coming to this conclusion, it was observed that the facts involved in Kasturi Lal's case (AIR 1965 SC 1039) (supra) were quite different from those involved in the present case, since according to him there was no evidence that the C.S.I, had actually committed misappropriation of twenty nine items of articles while he was discharging his statutory powers, and as such his action had no nexus with the sovereign power of the State. He placed reliance on the case of Smt. Basava Kom (supra) and observed that the Court had become custodia legis and if there was any loss thereof ends of justice required payment of the value of the properties. He allowed the appeal with costs.
8. As indicated above the only question that needs adjudication is whether State is liable to pay the claimant cost of goods, seized from him, but allegedly misappropriated and/or lost due to negligence of police officers employed by the State, and not returned despite order passed by a competent court of law. At first flush, the ratio of the decision in Kasturi Lal's case (AIR 1965 SC 1039) (supra) seems to be in all fours with the facts of the present case and, therefore the State placed strong reliance thereon. On the contrary, the claimant rests his case on the decision in Smt. Basava Kom's case (supra). The latter is being sought to be distinguished by the State on the ground that the same arose in a criminal proceeding, and the consideration in the case was an application under Section 517 of the Code of Criminal Procedure, 1898, corresponding to Section 452 of the Code of Criminal Procedure, 1973 (in short the 'Cr. P.C.'), and therefore, the principle of custodia legis as has been highlighted in the said case is not applicable to the facts of the present case. On behalf of the claimant it has been urged that Kasturi Lal's case (supra) did not arise out of any order of a competent Court, and in the present case, the cause of action has its foundation on the order passed by the criminal court which has directed return of the seized goods to the plaintiff. It has been emphasized that the liability to compensate the claimant in case of non-compliance with the criminal court's order, is the distinguishing feature, which did not exist in Kasturi Lal's case (supra).
9. On consideration of the rival contentions, I find that the question whether the Government is or is not liable for tortious acts of its servants despite Court's order for return would depend on several factors. It may be indicated here that the right to sue the Government, Central or State, form of such suit and the matters to which the suit may relate, are provided in Article 300 of the Constitution of India. In order to determine whether a suit of a particular nature would lie against the Government, it is to be seen whether the suit is of such a character where it concerns exercise of powers usually called sovereign powers, by which is meant powers which cannot be lawfully exercised except by a sovereign, or a private individual delegated by a sovereign to exercise them and no action will lie against the Government for such sovereign acts. However, a suit will lie against the Government in regard to the acts done by its servants in the conduct of undertaking which might be carried on by private individuals, without any delegation of sovereign right. This position was succinctly stated by Chief Justice Peacock, Supreme Court of Calcutta in the case of Peninsular and Oriental Steam Navigation Company v. Secretary for State in India (1868-69) Bom HCR Appendix A, page 1. Professor Holland in his famous book 'Jurisprudence' has stated (at page 50) that the sovereignty of the ruling part has two aspects. It is 'external' as independent of all control from without; 'internal' as paramount over all action within. 'Sovereignty' as observed by Hibbert in his illustrious book 'Jurisprudence', being a human institution and the result of historical development, does not admit of an absolute definition. Hibbert has stated, as follows, in the aforesaid book (page 58):
"The term 'sovereign' means a political superior who is not subject to any other political superior."
This concept was accepted by a Full Bench of the Pepsu High Court in the case of Gurdwara Sahib Shri Gaja v. Piyara Singh, AIR 1953 Pepsu f. In ultimate analysis the position emerges that (1) under Article 300 of the Constitution of India, the Union of India and the State in our republic, have the same liability for being sued for torts committed by their employees as was that of the East India Company; (2) Government is not liable if the tortious act complained of has been committed by its servant in exercise of its sovereign powers, by which is meant powers that cannot be lawfully exercised except by sovereign or a person by virtue of delegation of sovereign rights; (3) Government is vicariously liable for the tortious acts of its servants or agents which are not proved to have been committed in the exercise of Us sovereign functions or in exercise of the sovereign powers delegated to such public servants; (4) the mere fact that the act complained of was committed by a public servant in course of his employment is not enough to absolve the Government of the liability for damages for injury caused by such act; (5) when the State pleads immunity against claim for damages resulting from negligent act of its servants, the area of employment referable to sovereign powers must be strictly determined, and it has to be found by the Court that the impugned act was committed in the course of an undertaking or an employment which is referable to the exercise of the delegated sovereign powers; (6) in determining the question of nature of the act, transaction in the course of which it is committed, nature of the employment of the person committing it and occasion for it, have all to be considered. Some of these tests were indicated by a Full Bench of the Punjab and Haryana High Court in Bakshi Amrik Singh v. Union of India, 1974 ACJ 105. There may be cases where goods are seized pursuant to powers given by a statutory enactment, and its confiscation to the State depends upon the adjudication of the question whether the same was liable for confiscation. Once in a statutory proceeding it is found that the property seized cannot be retained and has to be returned to the owner under the statutory provisions, a statutory obligation exists to return the goods to the owner. The property is liable to be retained with the seizing authority until the adjudication becomes final. Consequentially, there is an implied obligation to preserve the property intact and for that purpose to take such care of it as a reasonable person in like circumstances is expected to take. To draw a parallel, finder of property is to return it when its owner is found and demands it. Similarly the State is bound to return the articles, once it is found that the seizure and confiscation is not tenable. Thus, there is not only a legal obligation to preserve the property intact, but also the obligation to take reasonable care of it so as to enable the Government to return in the same condition in which it was seized, the position of the Government, until the order becomes final, being that of a bailee. If, however, in the meantime the State has precluded itself from returning the property either by its own act or that of its agents or servants, it is certainly liable for the tortious act. Even if the State Government cannot be said to be in the position of a bailee, it was in any case bound to return the property by reason of its statutory obligation, or to pay its value if it had disabled itself from returning it either by its own act or by any act of its agents or servants. This view was expressed by the Supreme Court in the case of State of Gujarat v. Memon Mohommed Haji Hasan, AIR 1967 SC 1885. In that case also the ratio in Kasturi Lal's case (supra) was pressed into service by the State to deny its liability. But the same did not find favour with the Court, and it was held that the pleadings of the parties and the cause of action as pleaded by the parties were distinct. In the instant case, the order of the Sessions Judge directing refund of the seized articles undisputedly is an order by a competent court of law, in exercise of statutory powers. The cause of action of the plaintiff is based on the order by a competent court of law directing return of articles. This has been categorically stated in the plaint, and the liability to return was by reason of the legal obligation created by an order of the Court, The relief that was prayed for by the plaintiff in the suit was not for compensation for loss caused by negligence, either by the own act of the State or that of its agents or employees. On the other hand, the suit was founded on the plaintiff's right to get back the seized articles pursuant to an order of the competent court of law. In the background of the Supreme Court's decision in Memon Mahomed's case (supra), the stand of the State is not tenable.
10. The State has squarely failed to indicate that it is entitled to immunity in the facts of the present case. The State's appeal is accordingly dismissed. In the peculiar circumstances of the case, there shall be no order as to costs.