STATE OF ORISSA Vs. PADMALOCHAN PANDA

JUDGEMENT

(1.) Plaintiff is an Advocate practising at Bargarh in the district of Sambalpur. He filed the suit for recovery of Rs. 10,500 as general damages and Rs. 500 as special damages from the defendants. The first defendant is the State of Orissa. The second and the third defendants were members, at the relevant time, of the 4th Battalion Orissa Military Police at Rourkela. Plaintiff's case may be stated in short. There was student's agitation at Bargarh on 28th of October, 1964. The incident whereby the plaintiff received injury took place at about 4 p.m. He was having his office under a banian tree in a grove at a distance of about 30 feet from the court building of the Sub-Divisional Officer, Bargarh. While he was perusing a judgment in a criminal case he found that the O.M.P. personnel started assaulting innocent persons in front of the court premises indiscriminately and recklessly when the normal court work was going on. Plaintiff himself was a victim to such assault by defendants 2 and 3. Defendants 2 and 3 did not contest and were set ex parte. The case of the first defendant is that on the fateful day a procession of students came to the court room of the S.D.O. and four students out of the processionists went inside the office of the S.D.O. and asked him to comply with their demands which they had submitted to him two days earlier. The S.D.O. told the students that their demands had been forwarded to the Collector, Sambalpur, and he was ignorant of the decisions taken on the demands. The four students threatened the S.D.O. saying that they would break law and order if the decisions on their demands were not communicated to them by the evening of that day. The S.D.O. tried to pacify them by saying that he would get the decision of the Collector over phone. The four students had some discussion with the members of the public and gave out to break law and order by picketing and committing cognizable offences. In the meantime the S.D.O.'s office had been cordoned by the Orissa Military Police in two rows. At about 4 p.m. at the instigation of the plaintiff and others the students rushed towards the cordoning constables, snatched away their lathis and kicked them. The students and the public pelted stones towards the police officers in front of the court building. The constables of the outer cordon were forced to resort to mild lathi charge in self-defence, to maintain law and order and to keep away the unruly crowd who were rushing towards the court premises. The lathi charge was for a few seconds resulting in simple injuries to the plaintiff and others in the crowd. The unlawful assembly consisting of the students and the public including the plaintiff who was then the President of the Jana Sangha violated an order promulgated under Section 144, Cr. P. C. The first defendant is not liable to pay damages to the plaintiff for the alleged acts, if any done by defendants 2 and 3, which they were doing in exercise of the sovereign function of maintenance of law and order and preservation of Government property.

(2.) The learned Subordinate Judge, Bargarh, recorded the following findings :

(3.) The matter was heard by our learned brother B. K. Ray, J. He held that the plaintiff received injuries by the police force which did not act in self-defence nor in exercise of the sovereign power and that the appeal against the first defendant alone was competent though it had been dismissed against defendants 2 and 3. In this view of the matter he decreed the plaintiff's suit for Rs. 5,440 on the basis of the finding of the trial court as to the quantum of damages. This A.H.O. has been filed by the first defendant.