United Provinces v. Kasturi Lal Ralia Ram — 1960 DIGILAW 89 (ALL)

JUDGMENT Dwivedi, J. - The facts leading up to this appeal lie within a narrow compass. At the relevant time the Plaintiff firm was a dealer in bullion and other goods at Amritsar and was registered under the Indian Partnership Act. Ralia Ram, a partner of the firm, arrived at Meerut by the Frontier Mail at about midnight of 20-9-1947 for selling gold, silver and other goods in the Meerut market and while passing through the Chaupla Bazar, was taken into custody by three police constables. After his belongings had been searched, he was taken by the constables to the Kotwali police station. He was detained in the police lock up there and his belongings, which consisted of gold, weighing 103 Tolas in Mashas and 1 Ratti according to the Meerut weight and silver, weighing 2 maunds and 6 seers, were kept in the police custody. He was released on bail on 21-9-1947 and sometime thereafter the entire silver was returned to him. We are, therefore, not concerned any more with the silver in this case. The gold was, however, not returned to him in spite of repeated requests and the Plaintiff firm, which was the owner of the gold, accordingly instituted a suit against the UP Government for a decree directing the return of the detained gold and in the alternative for a decree for a sum of Rs. 11,075/10/0, which was the price of the gold and Rs. 355/- on account of interest thereon by way of damages as well as future interest. 2. The UP Government filed a written statement denying its liability to return the gold or to pay its price notwithstanding its admission that the gold was not returned to the Plaintiff firm. According to the Government, the gold was taken into custody by Mohammad Amir, head constable and placed in the police Malkhana under his own charge, but he misappropriated the gold and fled away to Pakistan on 17-10-1947 without giving the key and the charge of the Malkhana. He also misappropriated some cash and articles deposited therein. It was further alleged that a case u/s 409, IPC and Section 29 of the Police Act was registered against Mohammad Amir and investigations were made against him, but he could not be apprehended in spite of earnest efforts. He also misappropriated some cash and articles deposited therein. It was further alleged that a case u/s 409, IPC and Section 29 of the Police Act was registered against Mohammad Amir and investigations were made against him, but he could not be apprehended in spite of earnest efforts. It was then said that the employer was not liable for the criminal acts of its servant if he did not act in the course of his employment and misconducted himself not for his master's benefit but for his own gain. In the end it was also alleged that the suit was not maintainable against the Government. 3. The trial court found that the gold, not returned to the Plaintiff, weighed 103 Tolas 6 Mashas and 1 Ratti according to the Meerut weight, that the police constables arrested Ralia Ram because they suspected that he was carrying stolen property, that in arresting him the constables acted within their power u/s 54, Code of Criminal Procedure that there was constituted the relationship of bailor and bailee between the Government and the Plaintiff firm, that the Defendant and their employees, namely, the police constables and the Sub-Inspector, in charge Kotwali police station, had not taken reasonable care or the care expected from an ordinary prudent man in keeping and guarding the gold, that on account of the negligence of the Defendant's employees the gold was either lost or stolen away and that the Defendant was liable for the negligence of its employee?. In view of its findings the trial court granted a decree for Rs. 11,430/- in favour of the Plaintiff firm against the Defendant with interest and costs. Aggrieved by the judgment and decree of the trial court, the UP Government has preferred the present appeal. 4. We are unable to agree with the trial court that the relationship between the Plaintiff and the Defendant was that of a bailor and bailee. That relation is ordinarily the creature of a contract. But in this case there was no contract between the Plaintiff firm on the one hand and the Government or its employees on the other hand thus the latter would keep in custody the gold on the condition that it would be returned to the former when the purpose of its custody had been accomplished. But in this case there was no contract between the Plaintiff firm on the one hand and the Government or its employees on the other hand thus the latter would keep in custody the gold on the condition that it would be returned to the former when the purpose of its custody had been accomplished. The police arrested Ralia Ram, a partner in the Plaintiffs firm, on suspicion of his being in possession of stolen goods under the 4th clause of Section 54(1) Code of Criminal Procedure. u/s 51 of the Code they made a search of his person and took the gold in his possession into custody and deposited it in the police Malkhana. 5. The view of the trial court is directly opposed to the dictum of Seth, J. in the case of Ram Gulam and Another Vs. Government of U.P., AIR 1950 All 206 , who dealing with the identical question, observed: The first ground (that the position of the Government was that of a bailee) is manifestly untenable and does not deserve any serious consideration, for the obligation of a bailee is contractual obligation and springs only from the contract of bailment. It cannot arise independently of a contract. In this case, the ornaments were not made over to the Government under any contract whatsoever in fact the ornaments were not at all handed over by the Plaintiffs to the Government. The Government, therefore, never occupied the position of a bailee and is not liable as such to indemnify the Plaintiffs. 6. Learned Counsel for the Plaintiff then fell back upon the plea that the police officers, who detained the Plaintiffs gold, were negligent in keeping and guarding the gold in the police Malkhana and that the Government as their employer, was therefore liable to pay damages for their negligence. The finding of the trial court is that the gold was kept in the police Malkhana in contravention of the relevant police regulations. According to it, the gold should have been sent to the treasury and the Sub Inspector, in charge of the Kotwali police station, acted in disregard of the relevant rules and was guilty of negligence. The finding of the trial court is that the gold was kept in the police Malkhana in contravention of the relevant police regulations. According to it, the gold should have been sent to the treasury and the Sub Inspector, in charge of the Kotwali police station, acted in disregard of the relevant rules and was guilty of negligence. It repelled the plea of the Defendant that there was no negligence on the part of the Sub Inspector in keeping the gold in the police Malkhana, as he had made proper arrangement for its watch, because in its view the police guard could only check outsiders from pilfering the gold but could not check Mohammad Amir, Head constable, who himself was in charge of the Malkhana and held its keys. 7. It may be observed that the finding about negligence is rested solely upon the non observance by the police of certain regulations regarding the transfer of the gold to the treasury. Reliance was placed by the Court upon Regulations 165(vi) and 166 of Chap. XIV of the Police Regulations. We have carefully read those regulations but we are unable to agree with the trial court that they obligated the Kotwali police to send the gold to the treasury. Regulation 165(vi) prescribes the method of transmitting gold from the police station and does not lay down that the gold must not be retained at the police station. Nor does Regulation 166 direct the police staff to transfer gold from the police station. Neither Chap. XIV nor the Manual of Government Orders contains any clear provision requiring the transfer of gold from the police station to the treasury. We have therefore come to the conclusion that the Kotwali police staff cannot be held to be negligent on account of having retained the gold in the Kotwali police Malkhana, from where it became untraceable. 8. Assuming, for the sake of argument, that the police officers were negligent, the question is whether the Government can be held to be liable to indemnify the Plaintiff for their negligence. In Ram Gulam and Another Vs. Government of U.P., AIR 1950 All 206 some ornaments, stolen from the house of the Plaintiffs in that suit, were recovered from another house on a search by the police. In Ram Gulam and Another Vs. Government of U.P., AIR 1950 All 206 some ornaments, stolen from the house of the Plaintiffs in that suit, were recovered from another house on a search by the police. They were seized as stolen property in exercise of the powers conferred on that behalf by the Code of Criminal Procedure and were produced as exhibits in court and were kept in custody in the Collectorate Malkhana, from where they were again stolen and became untraceable. The Plaintiffs suit against the Government for damages for the negligence of its employees was dismissed on the ground, to quote Seth, J. again, that The rule embodied in the maxim Respondent superior is subject to the well recognised exception that a master is not liable for the acts of his servants performed in discharge of a duty imposed by law. Authority for this proposition is to be found in Viscount Canterburry v. Queen (1843) 4 StTr NS 767, Tobin v. The Queen (1864) 16 CB (NS) 310 , 33 LJ PC 199 and Shivabhajan Durgaprasad v. The Secy of State 28 Bom 314 : 6 Bom. LR 65. 9. The above observations squarely apply to the facts of the instant case. 10. Again in similar circumstances, this Court in M.M.I. Kkan v. Government of UP 1955 ALJ 697 held that the Government was not liable for the negligence of its officers while acting in discharge of their legal duty. Brij Mohan Lall, J. observed, But where the servant acts in performance of the duties imposed upon him by law, the master has no right to control him nor to give him any instructions. He is obeying the law and not the master and naturally the master should not be held liable for anything which the servant does while carrying out the aforesaid duties. 11. Here too the Plaintiffs gold was seized by the police officers and kept in their custody in the police Malkhana in the exercise of their statutory duty under the relevant provisions of the Code of Criminal Procedure. The police officers were therefore, not acting as servants of the Govt. but were acting in the discharge of their statutory duty and were not amenable to the control of the Government in the discharge of their duty (this is made further clear by Section 23, Code of Criminal Procedure), so that the Govt. The police officers were therefore, not acting as servants of the Govt. but were acting in the discharge of their statutory duty and were not amenable to the control of the Government in the discharge of their duty (this is made further clear by Section 23, Code of Criminal Procedure), so that the Govt. even though it is their employer would not be liable for their negligence. 12. Learned Counsel for the Plaintiff contended that the aforesaid decisions are no longer good law and should not stand in the Plaintiffs way. He placed reliance upon the recent judgment of a learned single Judge of this Court, in Dominion of India v. Anirudh Dotiyal 1959 ALJ 845. The Plaintiff of that case, having received an injury in an accident caused by a military truck, instituted a suit for damage against the Government and the broad contention of the Government that it was not liable for the tort of its employee was negatived by the learned Judge. It was held that, in the circumstances of that case, the Government was liable to pay damages for the injury caused to the Plaintiff by the truck driver, who was its employee. It is obvious that the facts of that case are entirely different from the facts of this case. There the employee of the Government was not acting in the discharge of any statutory duty, whereas in the present case the employees of the Government, who arrested Ralia Ram and detained his gold in police custody, were acting in exercise of their statutory powers u/Ss 54 and 51, Code of Criminal Procedure. The result of this vital factual difference is that, whereas in the first case the motor truck driver was acting within the scope of his employment and was amenable to the control of his master, in the instant case the police officers were acting in the discharge of their independent statutory obligation and were not amenable to the control of their master, the Government. In view of this factual diversity the maxim 'Respondent superior' would apply in the earlier case, but not in this case and the Government will not be vicariously responsible for the negligence of its police officers. The other cases cited by the Respondent's counsel are also not germane to the limited question arising in this case. 13. In view of this factual diversity the maxim 'Respondent superior' would apply in the earlier case, but not in this case and the Government will not be vicariously responsible for the negligence of its police officers. The other cases cited by the Respondent's counsel are also not germane to the limited question arising in this case. 13. The result of the foregoing discussion is that the Defendant's appeal must be allowed and the Plaintiffs suit must be dismissed. 14. Before parting with the case, we would like to point to the variance in judicial opinion about the suability of the Government for the tortious acts of its employees. It is not necessary to catalogue here the entire case law on the subject, because the conflict is evident. The governmental freedom from suability was justified either as an absolute survival of the monarchial privilege, or as an immanation from majestas or was pegged on the cold logic. Whatever may have been in the past the justification for the view that the Government was not suitable for the tortious acts of its employees, that view no longer seems to accord with the current constitutional reality in the country. The people are now the real sovereign and the Government is only their delegate. As observed by Bose, J. ...We do not found on the will of the Government. We are no longer concerned with principalities and powers. We have upon us the whole armour of the Constitution and walk from henceforth in its enlightened ways, wearing the breast plate of its protecting provisions and flashing the flaming sword of its inspiration. 15. See Virendra Singh and Others Vs. The State of Uttar Pradesh, AIR 1954 SC 447 . 16. The rule of governmental immunity runs counter to modern democratic notion of the moral responsibility of the State and the matter, in our view, now men's early attention of the legislative organ of the Government. 17. We allow the Defendant's appeal, set aside the judgment and decree of the trial court and dismiss the Plaintiffs suit. In the circumstances of this case, the costs of the appeal as well as of the suit shall be borne by the parties.