Kasturilal Ralia Ram Jain v State of UP|1

IN THE HON’BLE SUPREME COURT OF

INDIA

In the matter of
Appellants: Kasturilal Ralia Ram Jain
Vs.
Respondent: State of UP

ON SUBMISSION TO THE SUPREME COURT

MEMORANDUM FOR THE APPELLANT

COUNSEL FOR THE APPELLANT

ARSH KAUL
Roll. No. 29 Semester: III

HIDAYATULLAH NATIONAL LAW UNIVERSITY

ATAL NAGAR, RAIPUR
 Kasturilal Ralia Ram Jain v State of UP|2

TABLE OF CONTENTS

S no TITLE Page No

1 LIST OF ABBREVIATIONS 3
2 INDEX OF AUTHORITIES 4
4 STATEMENT OF JURISDICTION 5
5 STATEMENT OF FACTS 6
6 ISSUES RAISED 8
7 SUMMARY OF PLEADINGS 9
8 WRITTEN PLEADINGS 11
9 PRAYER FOR RELIEF 19
 Kasturilal Ralia Ram Jain v State of UP|3

LIST OF ABBREVIATIONS

Hon’ble Honourable

u/s Under Section

& And

AIR All India Reporter

SC Supreme Court

HC High Court

Ors. Others

UP Uttar Pradesh

AP Andhra Pradesh

v Versus

i.e. That is

ed Edition

Art. Article

EIC East India Company

ILR Indian Law Reports

ACJ Accident Claims Journal

 Kasturilal Ralia Ram Jain v State of UP|4

INDEX OF AUTHORITIES

1) Books
th
VN Shukla and Mahendra Pal Singh, Constitution of India, 13 ed 2016,
th
EBC Dr. RK Bangia, Law of Torts, 24 ed 2017, Allahabad Law Agency
th
Dr. RK Bangia, Contract-I, 7 ed 2017, Allahabad Law Agency
2) Cases
Peninsular and Oriental Steam Navigation Company v. The Secretary of State
1
for India
The Secretary of State for India in Council v Hari
2 3
Bhanji Rup Ram v The Punjab State
State of Rajasthan v Vidyawati
4 5
State of MP v Shantibai
6
N. Nagendra Rao v. State of A.P
3) Statutes
The Constitution of India
Criminal Procedure Code,

1973 Indian Penal Code, 1860

U.P. Police Regulations

Government of India Act 1858, Government of India Act 1915,
Government of India Act 1935
4) Dictionaries
th
Bryan A. Garner, Black’s Law Dictionary (8 ed., 2004).
Oxford English Dictionary (10th ed., Oxford University Press, 2003).
5) Websites
www.manupatra.com

www.scconline.in

www.indiankanoon.com

1
1861 5 BOM H.C.R. App. I
2
I.L.R. 1882 5 Madras 273
3
AIR 1961 Punjab 336
4
AIR 1962 SC 933
5
2005 A.C.J 313 MP
6
AIR 1994 SC 2663
Kasturilal Ralia Ram Jain v State of UP|5

STATEMENT OF JURISDICTION
 K a s t u r i l a lR a l i a R a m J a i n v S t a t e o f U P | 6

STATEMENT OF FACTS

The appellant is a firm which deals in bullion and other goods at Amritsar. It was duly

registered under the Indian Partnership Act. Ralia Ram was one of its partners. On the 20th

September, 1947 Ralia Ram arrived at Meerut by the Frontier Mail about midnight. His object in

going to Meerut was to sell gold, silver and other goods in the Meerut market. Whilst he was

passing through the Chaupla Bazar with this object, he was taken into custody by three police

constables. His belongings were then searched and he was taken to the Kotwali Police Station.

He was detained in the police lock-up there and his belongings which consisted of gold,

weighing 103 tolas 6 mashas and 1 ratti, and silver weighing 2 maunds and 6 1/2 seers, were

seized from him and kept in police custody. On the 21st September, 1947 he was released on

bail, and some time thereafter the silver seized from him was returned to him. Ralia Ram then

made repeated demands for the return of the gold which had been seized from him, and since

he could not recover the gold from the police officers, he filed the present suit against the

respondent in which he claimed a decree that the gold seized from him should either be

returned to him, or in the alternative, its value should be ordered to be paid to him. The

alternative claim thus made by him consisted of Rs. 11,075-10-0 as the price of the gold and

Rs. 355 as interest by way of damages as well as future interest. The respondent alleged that

the gold in question had been taken into custody by one Mohammad Amir, who was then the

Head Constable, and it had been kept in the police Malkhana under his charge. Mohd. Amir,

however, misappropriated the gold and fled away to Pakistan on the 17th October, 1947. He

had also misappropriated some other cash and articles deposited in the Malkhana before he

left India. The respondent further alleged that a case under section 409 of the Indian Penal

Code as well as s. 29 of the Police Act had been registered against Mohd. Amir, but nothing

effective could be done in respect of the said case because in spite of the best efforts made by

the police department, Mohd. Amir could not be apprehended. The trial Court found in favour

of the appellant on both these issues, and since the gold in question could not be ordered to

be returned to the appellant, a decree was passed in its favour for Rs. 11,430-10-0.

The respondent challenged the correctness of this decree by an appeal before the Allahabad

High Court and it was urged on its behalf that the trial Court was in error in regard to both the

findings recorded by it in favour of the appellant. These pleas have been upheld by the High

Court. It has found that no negligence had been established against the police officers in

question and that even if it was assumed that the police officers were negligent and their
 K a s t u r i l a lR a l i a R a m J a i n v S t a t e o f U P | 7

negligence led to the loss of gold, that would not justify the appellant's claim for a money decree

against the respondent. The appellant then moved for and obtained a certificate from the said High

Court and it is with the said certificate that it has come to this Court by an appeal.
 K a s t u r i l a lR a l i a R a m J a i n v S t a t e o f U P | 8

ISSUES RAISED

1. Whether the police officers in question were guilty of negligence in the

matter of taking care of the gold which had been seized from Ralia Ram?

2. Whether the respondent is liable to be sued for damages at the instance

of the appellant?

3. Whether the respondent was liable to compensate the appellant for the loss
caused to it by the negligence of the public servants employed by the respondent?

4. Whether the Police has failed to perform its duty as a bailee?

 K a s t u r i l a lR a l i a R a m J a i n v S t a t e o f U P | 9

SUMMARY OF PLEADINGS

1. Whether the police officers in question were guilty of negligence in the

matter of taking care of the gold which had been seized from Ralia Ram?
From the evidence of the 3 witnesses it is clear that not only was the property not
kept in safe custody in the treasury, but the manner in which it was dealt with at
the Malkhana shows gross negligence on the part of the police officers all of which
is given under Regulations 165 and 166 of UP Regulations Act. A list of articles
seized does not-appear to have been made and there is no evidence that they were
weighed either. It is true that the respondent's case is that these goods were
misappropriated by Head Constable Mohd. Amir; but that would not assist the
respondent in contending that the manner in which the seized property was dealt
with at the police station did not show gross negligence.

2. Whether the respondent is liable to be sued for damages at the instance

of the appellant?
According to Art 300(1) the Union of India and the State Government can sue or be

sued in the like cases as the Dominion of India and the corresponding Indian States

might have sued or been sued if the constitution had not been enacted. The

corresponding provisions in the respective Constitution Acts of India i.e. u/s 65 of the

Government of India Act, 1858, u/s 32 of the Government of India Act, 1915 and u/s 176

of the Government of India Act, 1935 show the position in pre-constitutional days. By

taking the help of Sec 65 of the Government of India Act, 1858 the Supreme Court at

Calcutta in 1861 in the case of the Peninsular and Oriental Steam Navigation Company

v. The Secretary of State for India held that the EIC could be sued but it would be liable

only if tort was committed while performing non-sovereign functions. The Court is

therefore requested to answer this question in the affirmative.

3. Whether the respondent was liable to compensate the appellant for the loss
caused to it by the negligence of the public servants employed by the respondent?
As the following cases Peninsular and Oriental Steam Navigation Company v. The

Secretary of State for India, The Secretary of State for India in Council v Hari Bhanji,

Rup Ram v The Punjab State, State of Rajasthan v Vidyawati, State of MP v Shantibai,
 Kasturilal Ralia Ram Jain v State of U P | 10

N. Nagendra Rao v. State of A.P show the instances where HC and SC have held

the State responsible for the negligence caused by their servants. The Court is

requested to make the State liable to compensate the appellant for the loss caused

to it by the negligence of the public servants employed by the respondent.

4. Whether the Police has failed to perform its duty as a bailee?

By the concept of vicarious liability and Duty of Bailee u/s 151 of Indian
Contract Act 1872 the State of UP must be held liable.
 Kasturilal Ralia Ram Jain v
Stateof U P | 11

WRITTEN PLEADINGS

1 Whether the police officers in question were guilty of negligence in the

matter of taking care of the gold which had been seized from Ralia Ram?

Ganga Prasad is the first witness to whose evidence it is necessary to refer. He

was Class II Officer in Meerut Kotwali at the relevant time. He swears that

Mohammad Amir who was in charge of the Malkhana, had fled away to Pakistan

without delivering the keys to any one and without obtaining permission for

leaving his post of duty. The Malkhana was accordingly checked and it

disclosed that considerable properties kept in the Malkhana were missing. On

the 26th October, 1947, Ganga Prasad returned the silver articles to the

appellant. Gold was, however, not found in the Malkhana, and so, it could not

be returned to it. Ganga Prasad then refers to theinvestigation carried out

against Mohd. Amir for an offence of misappropriation and his evidence shows

that Mohd. Amir had absconded, and since the police department was unable

to apprehend him from Pakistan, the investigation in question became

ineffective. According to this witness, the silver and gold of the appellant had

not been attached in his presence. He admits that the goods of the .appellant

remained in the Malkhana of the Kotwali. No list of these goods was forwarded

to any officials. This witness further added that valuables are generally kept in

the wooden box and the key is kept by the officer-in-charge of Malkbana. The

gold -and silver articles seized from the appellant had not been kept in that box

in his presence. He could not explain why the said gold and silver articles were

not kept in the Treasury.

The next witness is Mohd. Umar. He was Sub-Inspector II in the Kotwali in

September, 1947. He swears to the seizure of the ,gold and silver articles from

Ralia Ram and deposes to the fact that they were not kept in the Malkhana in

his presence. Both the arrested person and the seized articles were left in

charge of the Head Constable who had been instructed by Mohd. Umar to keep

the goods in the Malkhana. This witness admitted that no list was prepared of

the seized goods and he was not able to say whether proper precaution were

taken to safeguard the goods in the Malkhana.

The third witness is Agha Badarul Hasan. He was station officer of the police

station in question in September, 1947. He swears that it was a routine

 Kasturilal Ralia Ram Jain v
Stateof U P | 12

requirement that every day in the morning one Sub-Inspector had to inspect

the, Malkhana under his order. He knew that Ralia Ram had been kept in the

lock-up and his articles were kept in the Malkhana, but he added that in his

presence these articles were neither weighed nor kept in the Malkhana. He

claims to have checked up the contents of the Malkhana. but he conceded that

he had made no note about this check in the Diary. He purported to say that

when he checked the Malkhana, gold and silver were there. He kept the

valuables in the Malkhana without any further instructions from the officers,

and he was not present when they were kept in the box. This witness claims

that valuables are not sent by the police officers to the Treasury unless they

got orders to that effect. That is the whole of the material evidence bearing on

the question of negligence of the police officers.

Following sections of CrPC have been used here.

Section 54 (I) (iv) of the Code of Criminal Procedure provides that any police officer

may, without an order from a Magistrate and without a warrant, arrest any person in

whose possession anything is found which may reasonably be suspected to be

stolen property and who may reasonably be suspected of having committed an

offence with reference to such thing. It is under this provision that Ralia Ram was

arrested at midnight. It was apprehended by the police officers that the gold and

silver articles which he was carrying with him might be stolen property, and so, his

arrest can be said to be justified under section 54 (I) (iv).

Section 550 confers powers on police officers to seize property

suspected to be stolen. It provides inter alia, that any police officer may
seize property which may be suspected to have been stolen; and so,
gold and silver in the possession of Ralia Ram were seized in exercise
of the powers conferred on the police officers u/s 550 of the Code.
After Ralia Ram was arrested and before his articles were seized, he was searched,

and such a search is justified by the provisions of Section 51 of the Code. Having

thus arrested Ralia Ram and searched his person and seized gold and silver

articles from him under the respective provisions of the Code, the police officers

had to deal with the question of the safe custody of these goods.
 Kasturilal Ralia Ram Jain v
Stateof U P | 13

Section 523 provides for the procedure in that behalf. It lays down, inter alia,

that the seizure by any police officer of property taken under s. 51 shall be

forthwith reported to a Magistrate, who shall make such order as he thinks fit

respecting the disposal of such property or the delivery of such property to the

person entitled to the possession thereof, or, if such person cannot be

ascertained, respecting the custody and production of such property.

The main question of negligence is proved by

U.P. Police Regulations. Chapter XIV of these Regulations deals with the custody and

disposal of property. Regulation 165 provides a detailed procedure for dealing with the

disposal of movable property of which the police takes possession. It is not necessary

to refer to these provisions; it would be enough to state that these provisions indicate

that when property is seized by the police officers, meticulous care is required to be

taken for making a proper list of the property seized, describing it, weighing it, and

taking all reasonable steps to ensure its safety. Clause (5) of Regulation 165 provides

that when the property consists of gold, silver, jewellery or other valuables, it must be

sent in a sealed packet after being weighed, and its weight must be noted in the

general diary and on the list which accompanies the packet. It requires that a set of

weights and scales should be kept at each police station. Regulation 166 is important

for our purpose. It reads thus :

"Unless the Magistrate otherwise directs, property of every description, except

cash exceeding Rs. 100 and property of equal value and_property pertaining to
cases of importance, which will be kept by the Prosecuting Inspector in a
separate box under lock and key in the treasury, will remain in the custody of
the malkhana moharrir under the general control and responsibility of the
Prosecuting Inspector until it has been finally disposed of."

The wording of the Regulation is somewhat complex and con- fusing, but its purport

and meaning are clear. In substance, it provides that property of every description will

remain in the custody of the malkhana moharrir under the general control and

responsibility of the Prosecuting Inspector until it has been finally disposed of. This

provision is subject to the instructions to the contrary which the Magistrate may issue.
 Kasturilal Ralia Ram Jain v
Stateof U P | 14

In other words, unless the Magistrate directs otherwise, the normal rule is that the

property should remain in the Malkhana. But this rule does not apply to cash

exceeding Rs. 100 and property of equal value and property pertaining to cases of

importance. Property falling under this category has to be kept by the Prosecuting

Inspector in a separate box under lock and key in the treasury. If the Magistrate issues

a direction that property not falling under this category should also be kept in the

treasury that direction has to be followed and the property in such a case cannot be

kept in the custody of the malkhana moharrir. It is thus clear that gold and silver which

had been seized from Ralia Ram had to be kept in a separate box under lock and key in

the Treasury; and that, admittedly, was not done in the present case. It is in the light of

the provisions contained in Regulation 166 that we have to appreciate the oral

evidence to which we have already referred. Unfortunately, in dealing with Regulations

165(5) and 166, the High Court has erroneously assumed that there was no obligation

on the police officers to deposit Ralia Ram's property in the Treasury. This conclusion

is apparently due to the fact that the words used in Regulation 166 are not as clear as

they should be and their effect has been misconstrued by the High Court. It is in the

light of this position that the oral evidence in the case has to be considered.

Thus considered, there can be no escape from the conclusion that the police officers

were negligent in dealing with Ralia Rani's property after it was seized from him. Not

only was the property not kept in safe custody in the treasury, but the manner in which

it was dealt with at the Malkhana shows gross negligence on the part of the police

officers. A list of articles seized does not-appear to have been made and there is no

evidence that they were weighed either. It is true that the respondent's case is that

these goods were misappropriated by Head Constable Mohd. Amir; but that would not

assist the respondent in contending that the manner in which the seized property was

dealt with at the police station did not show gross negligence.

2. Whether the respondent is liable to be sued for damages at the instance

of the appellant?
This question essentially falls to be considered under Art. 300 (1) of the
Constitution. This article reads thus:
"The Government of India may sue or be sued by the name of the Union of India and the

Government of a State may sue or be sued by the name of the State and may, subject
 Kasturilal Ralia Ram Jain v
Stateof U P | 15

to any provisions which may be made by Act of Parliament or of the Legislature of

such State enacted by virtue of powers conferred by this Constitution, sue or be
sued in relation to their respective affairs in the like cases as the Dominion of India
and the corresponding Provinces or the corresponding Indian States might have
sued or been sued if this Constitution had not been enacted."
According to Art 300(1) the Union of India and the State Government can sue or be

sued in the like cases as the Dominion of India and the corresponding Indian

States might have sued or been sued if the constitution had not been enacted.

The corresponding provisions in the respective Constitution Acts of India; they are
u/s 65 of the Government of India Act, 1858, u/s 32 of the Government of India Act,
1915 and u/s 176 of the Government of India Act, 1935 show the position in pre-
constitutional days. For convenience, let us cite s. 65 at this stage:
"The Secretary of State in Council shall and may sue and be sued as well in India as in

England by the name of the Secretary of State in Council as a body corporate; and all

persons and bodies politic shall and may have and take the same suits, remedies and

proceedings. legal and equitable, against the Secretary of State in Council of India as

they could have done against the said Company; and the property and effects hereby

vested in Her Majesty for the purposes of the Government of India, or acquired for the

said purposes, shall be subject and liable to the same judgments and executions as

they would while vested in the said Company have been liable to in respect of debts

and liabilities lawfully contracted and incurred by the said Company."

The decision which is treated as a leading authority on this point was pronounced by

the Supreme Court at Calcutta in 1861 in the case of the Peninsular and Oriental Steam

Navigation Company v. The Secretary of State for India where the learned Chief Justice

remarked that if the East India Company were allowed, for the purpose of Government,

to engage in undertakings, such as the bullock train and the conveyance of goods and

passengers for hire, it was only reasonable that they should do so, subject to the same

liabilities as individuals; and in that view of the matter, the Chief Justice expressed the

opinion that for accidents like the one with which the Court was dealing, if caused by

the negligence of servants employed by Government, the East India Company would

have been liable. The EIC could be sued but it would be liable only if tort was

committed while performing non-sovereign functions.

 Kasturilal Ralia Ram Jain v
Stateof U P | 16

 Whether the respondent was liable to compensate the appellant for the loss
caused to it by the negligence of the public servants employed by the respondent?

There have instances in the judicial history of our country which answer
this in the affirmative.
The Secretary of State for India in Council v Hari Bhanji wherein
the position was explained in the following way
In this case, the Madras High Court held that State immunity was confined to

acts of State. In the P & O Case, the ruling did not go beyond acts of State,

while giving illustrations of situations where the immunity was available. It was

defined that Acts of State, are acts done in the exercise of sovereign power,

where the act complained of is professedly done under the sanction of

municipal law, and in exercise of powers conferred by law. The mere fact that it

is done by the sovereign powers and is not an act which could possibly be

done by a private individual does not oust the jurisdiction of the civil court. The

Madras judgment in Hari Bhanji holds that the Government may not be liable

for acts connected with public safety, even though they are not acts of State.

The Law Commission of India in its first report in 1956 has

discussed the whole question and according to its view “the law
was correctly laid down in Hari Bhanji’s case”.
In Rup Ram v The Punjab State, the Punjab HC held that the liability of State

in was exactly similar in extent and nature to that of an ordinary employer.

In State of Rajasthan v Vidyawati the SC observed that

“It has to be remembered that under the constitution, we have
established a welfare state, whose functions are not confined only to
law and order but extend to engaging in all activities including industry,
public transport. In so far as state activities as such wide ramifications
involving not only the use of sovereign powers but also its powers as
employers in so many public sectors, it is too much to claim that the
State should be immune from the consequences of tortious acts of its
employees committed in the course of their employment as such”.
In State of MP v Shantibai, the police had resorted to tear gas, lathi charge and

then firing in air to disperse striking mob. Bullets of police had hit two ladies
 Kasturilal Ralia Ram Jain v
Stateof U P | 17

standing on the roof of their house. The court held that the police
officers had duty to take care that no injury should be caused to the
persons living in the vicinity. Therefore, act of police officers was
negligent and the State Government was liable to pay compensation.
In N. Nagendra Rao v. State of A.P, the Supreme Court held that when due to the

negligent act of the officers of the state a citizen suffers any damage the state will

be liable to pay compensation and the principle of sovereign immunity of state will

not absolve him from this liability. The court held that in modern concept of

sovereignty the doctrine of sovereign immunity stands diluted and the distinction

between sovereign and non sovereign functions no longer exists. The court noted

the dissatisfactory condition of the law in this regard and suggested for enacting

appropriate legislation to remove the uncertainty in this area. Rejecting the

contention of the state the Supreme Court held that the state was liable vicariously

for the negligence committed by its officers in discharge of public duty conferred

on them under a statute. As regards the immunity of the state on the ground of

sovereign function, the court held that the traditional concept of sovereignty has

undergone a considerable change in the modern times and the line of distinction

between sovereign and non sovereign powers no longer survives. No civilised

system can permit an executive as it is sovereign. The concept of public interest

has changed with structural change in the society. No legal system can place the

state above law as it is unjust and unfair for a citizen to be deprived of his property

illegally by negligent act of the officers of the state without remedy. The need of the

state to have extraordinary powers cannot be doubted. But it cannot be claimed

that the claim of the common man be thrown out merely because the act was done

by its officer even though it was against law. Need of the state, duty of its officials

and right of the citizens are required to be reconciled so that the rule of law in a

welfare state is not shaken. In welfare state, functions of the state are not only

defence of the country or administration of justice or maintaining law and order but

it extends to regulating and controlling the activities of the people in almost every

sphere. The demarcation between sovereign and non-sovereign powers for which

no rational basis survives has largely disappeared. The court further said that

sovereign immunity was never available if the state was not involved in commercial

or private function nor it is available where its officers are guilty of

 Kasturilal Ralia Ram Jain v
Stateof U P | 18

interfering with life and the liberty of a citizen not warranted by law. In both the

cases the state is vicariously liable to compensate. The doctrine of sovereign

immunity has no relevance now when the concept of sovereignty has itself

undergone a major change. Sovereignty is now with the people. The people of

India made the Constitution and gave it to themselves. The structure and

functions of the state have been created and constituted to serve the people.

Accordingly, the state is liable for negligence of its officers. It also noted its

earlier decisions in Vidyawati’s case, recommendations of the law commissions

st
in its 1 report for statutorily recognizing the liability of the state as had been

done in England through the Crown Proceedings Act 1947 and in USA through

the Federal Torts Claim Act 1946.

Thus, SC has not only itself granted compensation as an interim measure but has

also expressly stated that the same is granted without prejudice to the right of the

petitioners to claim just compensation from the state by a subsequent regular writ.

4
 Whether the Police has failed to perform its duty as a bailee?
The Police here as a bailee had also failed to perform its duty under Section
151 in The Indian Contract Act, 1872.

151. Care to be taken by bailee—In all cases of bailment the bailee is bound to
take as much care of the goods bailed to him as a man of ordinary prudence
would, under similar circumstances, take of his own goods of the same bulk,
quantity and value as the goods bailed.

Vicarious liability, also known by the Latin term “respondeat superior,” is the holding of

a person or entity responsible for damages or harm caused by someone else. 7

Most commonly thought of in employee-employer relationships, it applies in other
situations in which a person or entity holds a superior position to an agent.
And therefore by vicarious liability principle State of UP must be held liable.
7Bryan A. Garner, Black’s Law Dictionary (8th ed., 2004).
 Kasturilal Ralia Ram Jain v
Stateof U P | 19

PRAYER FOR RELIEF

In light of the facts stated, issues raised, authorities cited and pleadings, the
Counsel on behalf of the Appellant humbly prays to the Hon’ble Court to:

Allow the appeal.

Provide compensation to appellant for loss of gold caused by
negligence of servants of respondent.
Also pass any other order, which this court may deem fit in the interest
of Justice, Equity and Good Conscience.

ALL OF WHICH IS RESPECTFULLY SUBMITTED

Place: INDIA Council for the Appellant

Date: 23th October 2018 ARSH KAUL