Facts
- Ralia Ram, one of the partners of a firm of jewellers, Kasturi Lai Ralia Ram Jain, at Amritsar happened to go to Meerut, reaching there on the midnight of 20th September, 1947 by Frontier Mail.
- He had gone to Meerut in order to sell gold and silver, etc. in the Meerut market.
- While he was passing through one of the markets with his belongings, he was taken into custody by three police constables on the suspicion of possessing stolen property and then he was taken to the police station.
- On search, it was found that he had been carrying 103 tolas of gold and over 2 maunds of silver.
- He was kept in police lock−up and his belongings were also kept in the custody of the police under the provisions of the Criminal Procedure Code.
- Next day, he was released on bail and sometime thereafter the silver was returned to him.
- The gold had been kept in the police Malkhana under the charge of the then Head Constable Mohammad Amir. The Head Constable misappropriated the gold and lied to Pakistan in October, 1947
- The plaintiff brought an action against the State of U.P. claiming either the return of the gold, or in the alternative, compensation amounting to over Rs. 11,000 in lieu there of.
Principles
- Supreme court
- “If the tortious act is committed by a public servant and it gives rise to a claim for damages, the question to ask is :
- Was the tortious act committed by the public servant in discharge of statutory functions which are referable to, and ultimately based on, the delegation of the sovereign powers of the State of such public servant? If the answer is in the affirmative, the action for damages for loss caused by such tortious act will not lie.
- On the other hand, if the tortious act has been committed by a public servant in discharge of duties assigned to him, not by virtue of the delegation 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.”
- “If the tortious act is committed by a public servant and it gives rise to a claim for damages, the question to ask is :
- The State of U.P. was held to be not liable on the grounds that :
- (i) the police officials were acting in discharge of statutory powers
- (ii) the power of the police official in keeping the property in the Police Malkhana was a sovereign power.
- In Headmistress, Govt. Girls High School v. Mahalakshmi,1 the‘Aya’ who was a servant of a Govt, managed girls school asked a young girl student of the 9th standard to bring water on a cycle carrier for school children, which was otherwise the duty of the ‘Aya’ herself. The spring from the cycle carrier suddenly came off and hit the girl in her right eye and she lost that eye. For this fault of the ‘Aya’, i.e., the Govt, servant in negligently delegating her authority, the State running the school was held vicariously liable School was performing a welfare function − not sovereign
