FACT SHEET 11

Remedy available to Y: The best remedy available to Y is too file a complaint against the police
officers instead of the state then there will be some or the other benefits.

Case Laws relating to it:

Kasturilal Ralia Ram Jain vs The State Of Uttar Pradesh on 29 September, 1964

Some police officers of the State seized gold from the appellant in exercise of their statutory
powers, but were negligent in dealing with its safe custody.  As a result of such negligence the
gold was not returned to the appellant and so, he filed the suit against the State claiming   the
value of the gold.  The suit was decreed by the trial court but was dismissed by the High Court
on appeal.  In the appeal to the Supreme Court, it is held that the power to arrest a person, to
search him. To seize property found with him, are powers conferred on specified officers by
statute and are powers which could be properly characterized  as sovereign powers.  Therefore,
though   the negligent act   was committed by the employees of the respondent-State during the
course of their employment, the claim against the State could not be sustained, because the
employment in question was of the category which could claim the special characteristic of
sovereign power.

In the case of 'Ram Ghulam v. Government of U. P.', AIR 1950 All 206 (E). In that case stolen
property had been recovered by the police authorities and deposited in the Malkhana. After
being deposited there it was again stolen from the Malkhana. A suit was brought by the owner
of the property against the Government of U. P. Seth J. who wrote an elaborate judgment,
concluded it by saying that the Government was not liable when the servant who was guilty of a
tortious act was performing duty in the discharge of obligations imposed on him by
law.https://indiankanoon.org/doc/1314333/

It was pointed out in Shivabhajan Durgaprasad v. Secy. State, 28 Bom. 314: (6 Bom. L. R. 65),
that the Secretary of State could only be held responsible if the responsibility was incurred on
behalf of the Indian government. The facts of the Shivabhajan case: (28 Bom. 314: 6 Bom. L. R.
65), were that some bales of hay were tied up by the Mahim police chief, because they were
considered stolen property; the plaintiff, whose possession of the hay bales were tied, was
prosecuted and acquitted, but did not recover all the bundles tied because they were lost. He filed
a lawsuit against the secretary of state to seek compensation for the loss due to the chief of
police’s negligence. On the basis of these facts, it was held that, to be arguable against the
Secretary of State, the prosecution must be one in which the East India Company could have
been held responsible, subject to this further condition that the responsibility is to be incurred
due to the Government of India. It was pointed out that the executive government of Bombay
was headed by the Governor of Bombay and as the Chief of Police was not appointed by the
Governor of Bombay, responsibility could not be considered to have arisen because of the
government. from Bombay. India. 
The State Of Rajasthan vs Mst. Vidhyawati And Another on 2 February, 1962

The defendant's husband and father 1 Minor of Defendant No. 2 was on February 11, 1952,
Downed by a government jeep recklessly and Driven by negligence by a state employee
Rajasthan, while being transported from the repair shop To the mosque's headquarters, and then
He died in the hospital. On a suit by respondents to Damages, the court of first instance ruled the
same width Against the driver, but he turned it down in return The state, considering that the car
was present They are kept for compound use, at Performing his official duties, if they were It
was not used for any state purpose At the time of this, that was enough To exempt the state from
any liability on behalf of employer. The Supreme Court on appeal, In violation of the court of the
first instance, the case was issued Against the state as well. It is held that if it is a state
responsibility Damages in relation to a discretionary act you committed His maid in his work and
It works the same way as any Other employer. Relevant provisions to determine The extent of
that liability was not that contained In the arts. 294 and 295 which were in the first place
Concerned with delegating rights and assets And responsibilities but those of art. 300 (1) of the
Constitution, which uses the expression "in such cases, "in its second part, defines the term From
that liability and legally indicated The position obtained before the law was passed..
Article 300  (1)https://indiankanoon.org/doc/1933577/, read in the light of s. 176 (1)
https://indiankanoon.org/doc/1093471/of the Government of India Act of 1935, s. 32 of the
Government of India Act, 1915, and s. 65 of the Government of India Act, 1858, left no manner
of doubt  that the  extent of  the liability  of a State must  be the  same as that of the East India
Company as decided  by  the Supreme Court of Calcutta, in  the ca of Peninsular and Oriental
Steam Navigation Co. v. The Secretary of State for India. 990 Peninsular and Oriental Steam
Navigation Co.v. The Secretary of State for India, (1868-69) 5 Bom. H. C. R. 1, approved.
Regard being had to the stages by which the State of Rajasthan was ultimately formed, it was not
possible in order to judge  the liability of that State  under Art, 300 (1) to go beyond the last stage
of integration leading to the formation of the Rajasthan Union on the eve of the Constitution and
that Union  would be the corresponding State as contemplated by the Article. In the absence
therefore, of any law providing otherwise, the Union of Rajasthan, just as the Dominion of India
or any of its constituent provinces, would be vicariously liable for the acts of its servant. Viewed
from the stand-point of the first principles, the conclusion could not be otherwise. Ever since the
days of the Fast India Company, the Sovereign was held liable to be sued in tort or in contract
and the English Common law immunity as it existed in England before  the enactment of Crown
Proceedings Act,  1947, never  operated in  India. With  the advent of the Constitution  and
inauguration of the Republic with a view to establishing a Socialistic State  with its varied
industrial and other activities engaging large number of employees there could be no
justification, in principle or public interest, that the State should not  be held  vicariously liable
for the tortious acts of its servants.
In the case of State of  Bihar v. Abdul Majid, [1254] S.C.R.786, referred to As  neither  the 
Parliament  nor any State Legislature had thought fit  to enact any law on the matter,  a right 
saved by Art, 300 of the Constitution, the law must continue to be the same as it  had been since
the  days of the East India Company.https://indiankanoon.org/doc/480602/

Argument in favour of Y: There can be no escape from the conclusion that the police officers
were negligent in dealing with the property after it was seized. 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 and the police cops need to give answer
for these questions because whatever the property they may acquire that should be safely
protected in one or the other safer place. The following are some of the questions relating to it.

 i) Total number of properties detained by Police due to their involvement in various offenses.
Provide details on the type of vehicles, period of custody and condition of vehicles.

(ii) If the seized properties lie inside the police station. Otherwise, if the police have
arrangements to guard them or if they are lying on the road or in public space.

(iii) The status of the claim relating to said properties with respect to whether custody of said
properties has been claimed and, if so, the reason for non-delivery of the vehicles.

(iv)  Measures to ensure the safety of those particular properties.

v) The status of the proceeding in which the properties are involved in relation to whether the
proceeding is still pending or is definitively terminated.

Cases relating to it are mentioned above.