JAGAT RAM ARYAN Vs. STATE OF J&K

JUDGEMENT

(1.) THIS is a revision application directed against the order of the learned District Judge, Bhaderwah, dated 5 -9 -1966. The petitioner brought a suit in forma pauperis against the State of Jammu & Kashmir and two other defendants Uttam Singh and Khajoor Singh, Sub inspector and Head Constable of Police respectively stationed at Bhadarwah, on the relevant dated i. e. 19 -8 -1956. This suit was for an amount of Rs. 10,000 claimed as damages against the defendants for keeping the petitioner plaintiff in wrongful confinement and for setting up a false case by the defendants 2 and 3 against him. His further allegation was that there was no cause for arresting or detaining him (the plaintiff). The case as a result of which the plaintiff had been kept in judicial lock up was fabricated by the defendant No. 2 in conspiracy with defendant No. 3, because the plaintiff was on bad terms with the defendant No. 2. A preliminary objection was taken before the trial court, namely the court of District Judge, that the suit did not lie because the action of the defendants was protected under law. This objection prevailed with the trial court. The trial court relied upon the authority of the Supreme Court namely M/s Kasturi Lal Ralia Ram Vs The State of Uttar Pradesh reported as AIR 1965 Supreme Court, 1039 and dismissed the suit by its order dated 5 -9 -1966. It is against this order of dismissal that the present revision application has been preferred.

(2.) I have heard the arguments of the learned counsel for the parties.

(3.) IN the Supreme Court case, the suit was brought against the State of Uttar Pradesh alone for tortious acts committed by a public servant. In that case the plaintiff was arrested by the Police officer in Uttar Pradesh on suspicion of possessing stolen property and on a search of his property, a large quantity of gold was seized under the provisions of the Code of Criminal Procedure. Ultimately he was released but the gold seized was not returned to him as the Head Constable who was in charge of the Malkhana where the gold was kept, had absconded with the gold and other things. The plaintiff brought a suit against the Government for the return of the gold seized from him or in the alternative a claim for damages for the loss caused to him. It was held by the Court that the manner in which the gold was seized from the plaintiff had been dealt with at the Malkhana showed a gross negligence on the part of the police officers and that the loss suffered by the plaintiff was due to the negligence of the police officers of the State but it was at the same time held "that the act of negligence was committed by the police officers while dealing with the property of the plaintiff which they had seized in exercise of their statutory powers. The power to arrest a person, to search him, and to seizure property found with him, are powers conferred on the specified officers by statute and in the last analysis, they are powers which can be properly characterised as sovereign powers and so the act which gave rise to the present claim for damages had been committed by the employment but the employment in question being of the category which can claim the special characteristic of sovereign power, the claim could not be sustained Their Lordships in the course of the judgment made a distinction between the sovereign powers delegated to public servants and tortious acts committed by public servants. In some transactions which were more or less not of a commercial nature when any tortious act was committed by an employee of the State that would be in the discharge of the sovereign power delegated to him and a suit against the State would not lie. But if the tortious act had been committed by a public servant in the discharge of duty assigned to him not by virtue of the delegation of any sovereign power, an action for damages would lie. In the latter case it was held that the act of public servant committed by him was an act of a servant who might have been employed by a private individual for the same purpose. Their Lordships recorded that this distinction which was precise was not some times borne in mind. It was further held: