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Allahabad High Court · body

1956 DIGILAW 256 (ALL)

State of U. P. v. Sahdeo

1956-08-20

R.N.GURTU

body1956
JUDGMENT R.N. Gurtu, J. - The facts which give rise to this second appeal are as follows: Sahdeo Plaintiff and Shiva Charan were brothers. It has been found by both the courts below that they were members of a joint Hindu family and were pint owners of the property attached. The property was attached Under Sections 87 and 88 of the Code of Criminal Procedure by the Magistrate, Defendant No. 2, as Shiva Charan had been challaned by station officer, Sri Kartar Singh, Defendant No. 3, in a dacoity case and was reported to be absconding or concealing himself. After' attachment, part of the attached property was given in the supurdagi of Altaf Husain, Defendant No. 4 and Mohammad Umar, Defendant No. 5. 2. The Plaintiff was in hospital at the time of the attachment and when he came out he moved the learned Magistrate, Defendant No. 2, under the provisions of Section 88(6-A) of the Code of Criminal Procedure for release of the attached goods as he claimed them to be his own. The learned Magistrate on 23-8-1948 ordered the release of some of the attached goods and cattle to the Plaintiff but they were never delivered to him. In consequence, the Plaintiff filed a suit against the State of U.P., Defendant No. 1, the Magistrate, Defendant No. 2, station officer Kartar Singh, Defendant No. 3, and the two supurdars, Altaf Husain, Defendant No. 4 and Mohammad Umar, Defendant No. 5 and claimed Rs. 2,000/- as damages in respect of the goods not returned. 3. The learned trial court dismissed the suit holding that in view of the provisions of the Judicial Officer's Protection Act No. XVIII of 1850 the suit against Defendants Nos. 2 and 3 was not maintainable. It was also of opinion that Defendant No. 1, the U.P. Government, was not liable and that the Plaintiff had failed to prove any amount of damages. On these findings, the learned trial court dismissed the suit. 4. The Plaintiff went up in appeal to the court below and it decreed the suit for recovery of Rs. 1,000/- as against the U.P. Government, Defendant No. 1, ordering that out of this amount, the Plaintiff could claim Rs. 240/8/- from Defendant No. 4 and Rs. 405 from Defendant No. 5. 5. Defendant No. 1, the State of U.P., appeals to this Court. 1,000/- as against the U.P. Government, Defendant No. 1, ordering that out of this amount, the Plaintiff could claim Rs. 240/8/- from Defendant No. 4 and Rs. 405 from Defendant No. 5. 5. Defendant No. 1, the State of U.P., appeals to this Court. It was urged before me that the State could not be made liable for the wrongful act of its servants--assuming that this act of attachment was wrongful. 6. In essence, in my view in this suit the State is not being sued for a tortuous act of its servants but it is being sued because u/s 88(7) of the Code of Criminal Procedure, property attached by virtue of Sections 87 and 88 of the said Code is deemed to be at the disposal of the State Government and vested in it. See the Secretary of State for India in Council v. Jagat Mohini Dassi and Anr. ILR 28 Cal. 540, and Alagammal Vs. Sadasiva Padayachi and Others, AIR 1930 Mad 1017 . The property having come to be vested in the State and at its disposal as a consequence of the order passed Under Sections 87 and (sic) of the Code of Criminal Procedure, upon the objection of the Plaintiff being allowed and some of the property being released, the State was liable to return the same and, and if it failed to return the same, to pay the value of the property by way of damages. Section 88(6-A) of the Code of Criminal Procedure, which allows the making of objections to an attachment by persons other than the proclaimed person and empowers the attaching Magistrate to allow the objections, in my view makes it obligatory by implication that the property which has been released should be delivered to the objector. There has, in this case, been no redelivery of the property released to the Plaintiff (who was the objector before the Magistrate), nor has there been delivery of the other property not released. Since it has been established that the Plaintiff was the owner of a half share in all the undivided property attached (and the State not having delivered the same), the Plaintiff was entitled to the value of a half share in the property attached by way of damages. Since it has been established that the Plaintiff was the owner of a half share in all the undivided property attached (and the State not having delivered the same), the Plaintiff was entitled to the value of a half share in the property attached by way of damages. It is possible that there was no direct liability of the supurdars to the Plaintiff because they probably gave an undertaking to return the property which had been given to them for custody to the court itself but they are not appealing and, in view of the fact that, in any case, they would be liable to the State, I do not think, it is necessary to disturb the decree which has been passed against them. On the strength of the two rulings referred to above viz. Secretary of State for India in Council v. Jagat Mohini Dassi and Ors. ILR 28 Cal. 540, and Alagammal Vs. Sadasiva Padayachi and Others, AIR 1930 Mad 1017 , and having regard to the language of Sections 87 and 88 of the Code of Criminal Procedure, in my view, the judgment and decree of the court below must be upheld. 7. Learned Counsel for the State has cited the case of AIR 1937 572 (Lahore) . I do not think that this case is precisely in point because it does not deal with a case where property has been attached Under Sections 87 and 88, Code of Criminal Procedure. Moreover, that was a case where stolen property recovered from the accused person had been kept in the custody of a person in charge of the Malkhana and the person in-charge of the Malkhana had absconded with the property and the State was sought to be made liable for the tort of its servant. 8. Accordingly, I dismiss this appeal with costs. Leave to file a special appeal is asked for and granted.