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State of Orissa Vs. Padmalochan Panda - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberA.H.O. No. 18 of 1972
Judge
Reported inAIR1975Ori41
ActsCode of Civil Procedure (CPC) , 1908 - Order 41, Rules 1 and 4; Constitution of India - Articles 53, 73, 162 and 300
AppellantState of Orissa
RespondentPadmalochan Panda
Appellant AdvocateR.C. Patnaik, Addl. Govt. Adv.
Respondent AdvocateS. Misra (1) and A.K. Rao
DispositionAppeal allowed
Cases Referred(Baxi Amrik Singh v. The Union of India).
Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot.....g.k. misra, c.j.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......
Judgment:

G.K. Misra, C.J.

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 save out to break law and order by picketing and committing cognizable offences. In the meantime the S.D.O.'s office had been cor-doned 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:

(i) Though the plaintiff received injuries he failed to establish that he received injuries in the hands of defendants 2 and 3.

(ii) Plaintiff did not instigate the students.

(iii) Plaintiff happened to come to the side of the crowd when the police personnel made lathi charge in self-defence whereby he sustained injuries.

(iv) No order under Section 144. Cr. P. C. had been promulgated.

(v) If the paintiff were entitled to any damages, then he would have been awarded Rs. 5,000 towards general damages and Rs. 400 towards special damages.

(vi) Injuries caused by the police personnel were in the purported exercise of the sovereign power of the first defendant which has no liability to pay damages.

On the conclusion that the plaintiff failed to prove that defendants 2 and 3 caused injuries to him, the suit was dismissed against them. The suit was dismissed against the first defendant on thefinding that it was not vicariously liable for any act done in exercise of the sovereign power. Thus, the plaintiff's suit was dismissed against all the defendants.

Against the adverse decree of the trial court plaintiff filed First Appeal No. 38 of 1968 against all the defendants. The appeal was not subsequently prosecuted against defendants 2 and 3. Consequently, the appeal was dismissed against them and it proceeded against the first defendant alone.

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.

4. Mr. patnaik, the learned Additional Govt. Advocate, advanced two contentions :

(i) (a) The positive case of the plaintiff that defendants 2 and 3 caused injuries to him by assault having failed and the suit having been dismissed against them, no decree for damages could be passed against defendant No. 1.

(b) The suit having been dismissed against defendants 2 and 3 and the First Appeal not having been prosecuted against them, the trial court decree against defendants 2 and 3 became final and conclusive. Any decree against the first defendant on the identical cause of action would lead to two inconsistent decrees in the course of the same litigation. The learned Single Judge should have held that the entire appeal before him abated as a result of the appeal against defendants 2 and 3 having been dismissed.

(ii) Even assuming that plaintiff received injuries from the cordoning military police, he is not entitled to claim damages against the first defendant as the injuries were caused by the police personnel in exercise of the sovereign function of the first defendant.

Each of these contentions requires careful examination.

5. There is considerable force in the contention of Mr. Patnaik that once the specific case of the plaintiff that defendants 2 and 3 committed assault on him failed, no decree can be passed against the first defendant on merits. Doubtless, the plaintiff received injuries in the melee on that fateful day. But the mere proof of the fact that plaintiff received injuries is not enough to say that he received injuries through the police personnel. Even if he received injuries through the police personnel other than defendants 2 and 3, he cannot be allowed to get damages on a new case completely different from what was averred in the plaint and stated in evidence.

6. The positive case set up in the plaint, reinforced ,by the evidence of the plaintiff (P.W. 1), is that he received injuries by the lathi blows of defendants 2 and 3 and not from any other police personnel. P.W. i admits this at different places in his deposition. It would suffice to extract his statement given at one place which runs thus:--

'While I was going through the copy of the judgment in my Sherista under that banian tree in front of the room of the C.S.I, to draft a memo of appeal, suddenly without any warning I was dealt some lathi blows by the defendants 2 and 3 (Jangbahadur Thapa and Giriridra Chhabi) on my head.'

If the plaintiff's case were true that defendants 2 and 3 assaulted him, it was open to him to claim damages against the first defendant alone without impleading defendants 2 and 3 as parties to the suit. But when the plaintiff chose to make defendants 2 and 3 as parties to saddle them with the personal liability and the suit was dismissed against them, then the appeal against the first defendants 2 and 3 would lead to two inconsistent decrees in the course of the same litigation and would abate. The principle is clearly enunciated in AIR 1966 SC 1427 (Sri Chand v. Jagdish Pershad Kishan Chand) where their Lordships observed that an appellate court has no power to proceed with an appeal and to reverse and vary the decree in favour of all the plaintiffs or defendants under Order 41, Rule 4, C.P.C. when the decree proceeds on a common ground to all the plaintiffs or defendants, if all the plaintiffs or the defendants appeal from the decree and any of them dies and the appeal abates so far as he is concerned.

In this case the suit was dismissed against defendants 2 and 3. The First Appeal was not prosecuted and was dismissed against them. The result is that the trial court's finding that plaintiff failed to establish the case of assault by defendants 2 and 3 became final and conclusive. The claim for damages against the first defendant is based on the identical cause of action that it is vicariously responsible for the assault committed by defendants 2 and 3. If a decree is passed against defendant No. 1 in the same litigation there would be two inconsistent decrees. The inconsistency would lie in the fact that the plaint case is rejected by not accepting the assertion that defendants 2 and 3 caused injuries to the plaintiff while the suit against defendant No. 1 is to be decreed on the contrary finding that defendants 2 and 3 assaulted the plaintiff. The net result, therefore, is that when the appeal was not prosecuted against defendants 2 and 3 the appeal against the first defendant abated.

It is one thing that plaintiff could have filed a suit against first defendant alone for damages on the theory of vicarious liability for assaults committed by defendants 2 and 3 without impleading them as parties. It is quite a different thing to advance the same claim against the first defendant in appeal after the plaintiff was unsuccessful to get the relief against defendants 2 and 3 who were parties to the litigation on the finding that they did not assault. The learned Single Judge acted contrary to law in making the following observation:--

'True, it has not been established that defendants Nos. 2 and 3 committed the tortious act but it is true that the police personnel in course of their lathi charge injured the plaintiff. The liability of the State in a case like this being both joint and several, there is no impediment in passing a decree for damages against the State in the absence of defendants Nos. 2 and 3. I am supported in my view by an authority reported in AIR 1964 Assam 35.'

The aforesaid observation suffers from the fallacy that plaintiff framed the suit in the specific way that defendants 2 and 3 and not any other police personnel caused the injuries. If the plaintiff had framed the suit by saying that the police personnel, without specifying any particular member of the police force, caused injuries to him, the decree would have been competent. Proof of injury by unspecified member of the police force could have entitled the plaintiff to sue the State for damages. AIR 1964 Assam 85 (Premraj v. Promode Kumar) on which the learned Single Judge relied has no application to the facts of this case. In the Assam case the question of abatement did not arise. An objection was taken that some of the joint tort-feasors had not been impleaded as parties and the suit was liable to be dismissed on account of the non-joinder. Their Lordships held that a suit cannot fail for non-joinder of one of the tort-feasors. The question arising in this case is altogether different. The tort-feasors were specifically named and impleaded and the first defendant was held not to be vicariously liable. When the suit against the real tort-feasors failed and the appeal against them was finished due to non-prosecution, the question for consideration is whether the appeal against the first defendant would abate. It is not a case of non-impletion of some of the tort-feasors in the suit itself. As has already been indicated, it was open to the plaintiff to maintain a suit against defendant No, 1 alone without impleading either defendants 2 and 3 or any other police personnel by basing the cause of action on injury caused by the police personnel without anybody being specified or impleaded as a party. Plaintiff, however, did not choose to frame the suit in that manner and contented himself by describing defendants 2 and 3 alone as the real tort-feasors. On the aforesaid analysis, we are satisfied that the appeal against the first defendant alone abated.

7. Even assuming that the appeal did not abate and the plaintiff would be permitted to advance a case that he received injuries by assault from the police personnel other than defendants 2 and 3, the question for consideration is whether the first defendant is vicariously liable for damages for such injuries. The law on the point is no longer res integra and is concluded by AIR 1965 SC 1039 ( Kasturi Lal v. The State of Uttar Pradesh). It is not necessary to repeat the analysis made by their Lordships with reference to the earlier decisions. It would be sufficient to notice their conclusion and apply the same to the facts of this case.

8. Art. 300(1) of the Constitution runs 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 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.'

The position of law as developed by authorities is now the same as it was prior to the Constitution. The East India Company not only exercised powers of Government, but also carried on trade as merchants. The fact of the Company's having been invested with powers usually called sovereign powers did not constitute them sovereigns. This is one aspect of the matter which was emphasised by their Lordships. A clear distinction between acts done in the exercise of what are usually termed sovereign powers, and acts done in the conduct of undertakings which might be carried on by private in-dividuals without having such powers delegated to them was drawn. By sovereign powers it was meant Dowers which cannot be lawfully exercised except by sovereign, or private individual delegated by a sovereign to exercise them.

9. It would be profitable to extract the ultimate conclusion of their Lordships in paragraph 21 of the judgment:--

'Thus, it is clear that this case (5 Bombay HCR App 1, Peninsular and Oriental Steam Navigation Co. v. Secretary of State for India in Council) recognises a material distinction between acts committed by the servants employed by the State where such acts are referable to the exercise of sovereign powers delegated to public servants, and acts committed by public servants which are not referable to the delegation of any sovereign powers. If a 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 sovereign powers of the State to such public servants? If the answer is in the affirmative, 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 He. 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. This distinction which is clear and precise in law, is sometimes not borne in mind in discussing questions of the State's liability arising from tortious acts committed by public servants. That is why the clarity and precision with which this distinction was emphasised by Chief Justice Peacock as early as 1861 has been recognised as a classic statement on this subject.'

10. The following principles emerge out of the aforesaid Supreme Court decisions :

(i) The Union of India and the States have the same liability for being sued in tort committed by their servants which the East India Company had.

(ii) The Union and the States are liable for damages for injuries caused by their servants if such injuries would render a private employer liable.

(iii) The Government is not liable for tort committed by its servants if the act was done in exercise of sovereign power.

(iv) Sovereign powers mean powers which can be lawfully exercised only by a sovereign or by a person by virtue of delegation of sovereign powers.

(v) Government is vicariously liable for tortious acts of its servants which have not been committed in exercise of sovereign functions.

(vi) The court is to find out in each case if the impugned act was committed in exercise of delegated sovereign power.

(vii) No well defined tests as to the meaning of sovereign power have been attempted or can be precisely laid down. Each case must be decided on its own facts. Functions relating to trade, business and commercial undertakings and other socialistic activities by a welfare State do not come within the purview of delegated sovereign authority.

(viii) The sovereign function of the State must necessarily include the maintenance of the army, various departments of the Government for maintenance of law and order and proper administration of the country which would include magistracy and police and the machinery for administration of justice.

(ix) Where the employment in the course of which a tortious act is committed is of such a nature that any private individual can engage in it then such functions are not in exercise of sovereign power.

(x) In determining whether immunity should be allowed or not, the nature of the act, the transaction in the course of which it is committed, the nature of the employment of the person committing it and the occasion for it have all to be cumulatively taken into consideration.

11. The real difficulty in a case of this nature, however, is the application of the principles laid down by the Supreme Court to the facts of each case.

Mr. Misra very seriously contended that no function would come within the ambit of sovereign power unless the same is conferred by a statute. This contention is not sound. A bare reference to Articles 53, 73 and 162 of the Constitution would make the position clear that sovereign executive power can be exercised even in a sphere where there is no legislation.

Article 53 lays down that the executive power of the Union shall be vested in the President and shall be exercised by him either directly or through officers subordinate to him in accordance with the Constitution.

Article 73 prescribes the extent of executive power of the Union. Subject to the provisions of the Constitution the executive power of the Union shall extend to matters with respect to which Parliament has power to make law and to the exer-cise of such rights, authority and jurisdiction as are exercisable by the Government of India by virtue of any treaty or agreement. The Article itself shows that even if there is no statute in a particular field, the executive power of the Union extends to such matters.

Art. 162 is in similar language with reference to the State.

It is. therefore, not correct to contend that unless a function is authorised by a statute the Governmental function or act cannot be done in exercise of sovereign power of the State.

12. We would now proceed to examine some of the authorities placed before us on either side.

AIR 1966 Andh Pra 225 (The State v. Pabbisetty) and AIR 1966 Andh Pra 277 (Venkataramdas v. Latchanna) are two Single Judge decisions which do not refer to AIR 1965 SC 1039. These two cases require no discussion.

AIR 1967 Andh Pra 41 (State of Andhra Pradesh v. Ankannal) is a single Bench decision laying down that collection of land revenue is a sovereign function which is delegated to certain specified authorities under the Revenue Recovery Act. It was contended therein that as the delegation was under a statute the function will cease to have the essential character of a sovereign function. The contention was rightly rejected.

AIR 1967 Madh Pra 246 (State v. Dattamal) is a Division Bench decision. The facts in that case were that a suit was filed for damages for loss of life and property resulting from police firing to quell a riot. Their Lordships held that even if the shooting exceeded the direction of the authority which had ordered it, the act was in exercise of the sovereign power of the State for the simple reason that the police officers purported to disperse the unruly mob. In every case where the Government is sought to be made vicariously liable for acts done by its servants there is invariably an element of irregularity, excess or misuse of power. This decision was correctly decided.

AIR 1969 Bom 13 (Union of India v. Sugrabai) is a Division Bench decision of that court. In that case the transport of the Records Sound Ranging Machine and other equipment from the workshop to the School of Artillery was necessary for proper training of army personnel. They were being transported through a military truck driven by an employee of the Defence Department who committed the accident. In such a case their Lordships held that the State was vicariously liable for the act of its employee. The reason given was that the equipment could have been carried through a private carrier without any material detriment to the discharge by the State of its sovereign function of maintaining the army and training army personnel. The employee was held not exercising the delegated sovereign power of the State when he caused the fatal accident by negligence while driving the military truck. The case was correctly decided on its own facts and circumstances.

AIR 1971 All 162 (State v. Tulsi Ram) is a Single Judge decision. The facts were that the two plaintiffs and three others were prosecuted in a Sessions case. One of the plaintiffs was acquitted by the Court of Session and the other plaintiff was acquitted in the High Court. The convictions of other three were affirmed by the High Court. The judgment of the High Court authorised the arrest of the three convicted persons. The committing Magistrate however, issued warrant of arrest against all the five persons. In other words, though the plaintiffs had been acquitted they were arrested in execution of a warrant issued by the committing Magistrate clearly without jurisdiction. The learned Single Judge after referring to the Supreme Court decision held that the State was not vicariously liable though damages were awarded against the Magistrate exercising authority without jurisdiction. Doubtless, the Magistrate committed a serious error. In our view the Magistrate was exercising a sovereign function in the discharge of his duties and as such the State was not vicariously liable for damages. The learned Single Judge came to the same conclusion not by the aforesaid reasoning but by holding that the act itself was unau-thorised.

AIR 1972 All 486 (State v. Hindustan Lever Ltd.) is a Division Bench decision. In that case, their Lordships held that when Government was running a sub-treasury at which multifarious activities were undertaken, one of them being to receive money from private individuals for being credited to the accounts of different Government departments, and the plaintiff instructed its Bank to pay certain amount to one of the departments whereupon the Bank deposited the amount in the sub-treasury, it was an ordinary banking activity which was not such as may be referable to Government activity in which exercise of sovereign power was involved. On the other hand, such activity could be carried on by private individual and so the liability of Government would be the same as of private individual. Accordingly Government was made vicariously liable for the amount deposited by the plaintiff in the sub-treasury through Bank which was embezzled by the accountant and the treasury officer. Had it been purely a case of deposit in a Bank the conclusion in the aforesaid case might not be taken exception to. But where the deposit is to be made in the treasury there may be another view that maintenance and running of a treasury is integrally associated with discharge of sovereign functions. We do not propose to express any final view on the correctness of this decision.

In AIR 1972 J & K 22 (Roop Lal v. Union of India) the facts were that military Jawans in the employment of the Union of India lifted the drift wood belonging to the plaintiff and carried it through military vehicles for purposes of camp-fire and the fuel was used by them for their requirements. Their Lordships in a Division Bench held that the act must be taken to have been done by the Jawans in the course of the employment and the Union of India was liable for damages. The core of the reasoning in that case was that the illegal act in carrying away the firewood could be committed by the military Jawans by carrying it through any other truck which any private person could do. The case was rightly decided.

The last case on the point is reported in 1973 Punj LR 1 (Baxi Amrik Singh v. The Union of India). A Pull Bench of five Judges reviewed all the relevant cases. Their Lordships summarised their conclusions in paragraph 49. We are in respectful agreement with their views. The facts in that case were as follows: An army driver while driving an army truck caused accident to the plaintiff. The finding of the learned Judges was that at the time of the accident the driver was detailed on duty for checking military personnel on duty for the whole day. The question was whether the accident occurred in the course of discharge of the sovereign functions of the State. Their Lordships reasoned that only military men could be deputed to check the military personnel on duty. It was for that purpose that the army vehicle was placed at the disposal of the person who was placed on that duty and he himself drove the vehicle to go from place to place. He caused the accident while he was so going about. Their Lordships rightly came to the conclusion that the accident was caused in discharge of the sovereign functions of the State. In our view, this decision correctly lays down the law and reached the correct conclusion on facts.

13. We now come back to AIR 1965 SC 1039. The question before their Lordships arose in the following way. The appellant was a firm which dealt in bullion and other goods at Amritsar. Ralia Ram was one of its partners. On the 20th of September, 1947, he arrived at Meerut by the Frontier Mail at about midnight. He came to sell gold, silver and other goods in the Meerut market. While he was on his way inside the town he was taken to custody by three police constables. His belongings were searched and he was taken to Kotwali Police Station. He was detained in the police lock-up. His belongings consisted of gold weighing about 103 tolas and silver weighing about 2 maunds. They were seized from him and kept in police custody. On the 21st of September, 1947 he was released on bail. Sometime thereafter the silver seized from him was returned to him. Despite repeated demands by him the gold was, however, not returned. The State took the defence that the gold in question had been taken into custody by one Moham-mad Amir who was then the Head Constable and it had been kept in the Police Malkhana under his charge. Mohammad Amir misappropriated the gold and fled away to Pakistan on the 17th October, 1947 and the State was not liable for damages. After examining the material evidence on record their Lordships held that the gold seized from Ralia Ram had not been returned to him and it was on account of the negligence of the police officers employed by the State. It is on this finding, their Lordships examined the law and came to hold that the State was not liable as the negligence was in course of the employment of the police officer in discharge of the sovereign function of the State.

14. The case before us stands on the same footing as was decided in the aforesaid Supreme Court decision. The findings and the undisputed facts in this case are that in apprehension of danger of an attack on the office of the S.D.O. and its properties by an unlawful mob which resorted to violence there was police cordoning in two rows by the Orissa Military Police under the control of supervising officers and Magistrates. Without any orders from the Magistrate or higher police authorities the police personnel assaulted members of the mob as a result of which the plaintiff received injuries. The question for consideration is whether the police personnel were exercising delegated sovereign function when they made lathi charge without orders from superior authority. Mr. Misra places reliance on Sections 127 to 130, Cr. P. C. and certain provisions of the Orissa Police Manual to show that dispersal of an unlawful assembly by force is to be preceded by a warning to the unlawful assembly and the responsibility of such dispersal is on the Magistrate or on the police officer in command of the party. To that extent the contention is sound. Section 127 confers the power to dispersean unlawful assembly on the Magistrate or the officer-in-charge of & police station. Under Section 128 they may disperse an unlawful assembly by force. Sections 129 and 130 authorise the Magistrate for dispersing such an assembly .by armed force by requiring the officer in command to use force for dispersing the assembly.

The question for consideration, however, is whether the illegality committed by the police personnel in making the lathi charge without any direction from a Magistrate or superior police officer comes within the purview of delegated sovereign function. It is not that the police personnel did not commit any illegality or did not act in excess. Mr. Misra concedes that posting of the police personnel for cordoning in front of the S.D.O.'s court was in exercise of the delegated sovereign function. If that be so, the fact that the police personnel committed excess in discharge of their function without authority would not take away the illegal act from the purview of delegated sovereign function. As was rightly observed in AIR 1967 Madh Pra 246, it is only when the servants act in excess of authority conferred on them the question of vicarious liability arises. On application of the principles formulated by us on an analysis of the relevant decisions we are clear in our mind that the injuries caused to the plaintiff by the police personnel with a view to disperse the unlawful crowd were in exercise of the sovereign function of the State. The State is, therefore, not liable to pay damages for illegal acts committed either by defendants 2 and 3 or by any other police personnel though the plaintiff suffered injuries.

15. We would sum up our conclusions thus:

(i) The positive case of the plaintiff that defendants 2 and 3 committed the assault and caused injuries on him having failed the suit is liable to be dismissed and cannot be decreed on a new ground that police personnel other than defendants 2 and 3 caused injuries on him. Factually, therefore, plaintiff's suit is to be dismissed on his failure to prove the case as presented in the plaint.

(ii) Plaintiff could have sued the State alone for damages by way of vicarious liability for tortious acts committed by defendants 2 and 3. Such a suit could be decreed by the plaintiff establishing in evidence that defendants 2 and 3 committed the assault and caused the injuries. Plaintiff, however, did not choose such a course. He impleaded defendants 2 and 3 to saddle them with personal liability and impleaded the State for vicarious liability. The suit having been dismissed against defendants 2 and 3 and the appealagainst them not having been prosecuted the decree in their favour became final and conclusive. If a decree is passed against the State for vicarious liability on the same facts with contrary conclusion, then there would be two inconsistent decrees in the course of same litigation. Accordingly the appeal against the State is to be dismissed as having abated.

(iii) Assuming that defendants 2 and 3 caused the assault and the appeal against the State did not abate, the, State cannot have any vicarious liability inasmuch as the function discharged by defendants 2 and 3 or any other police personnel was in exercise of the delegated sovereign function.

16. On the aforesaid analysis, the judgment of the learned Single Judge is set aside and the appeal is allowed. In the facts and circumstances of the case parties to bear their own costs through-out

Mohanty, J.

17. I agree.


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