TEAM CODE-A2

DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY, LUCKNOW

MOOT COURT & CLINICAL LEGAL EDUCATION

Before,
THE HON’BLE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION UNDER ARTICLE 133(1) AND 134A OF

THE CONSTITUTION OF INDIA

CHEMANLAL…………………………………………………………APPELLANT

V.

STATE OF UP…………………………………………………………...RESPONDENT

ON SUBMISSION TO THE SUPREME COURT OF INDIA

 TABLE OF CONTENTS

LIST OF ABBREVIATIONS---------------------------------------------------------------------3

INDEX OF AUTHORITIES ---------------------------------------------------------------------4

STATEMENT OF JURISDICTION -------------------------------------------------------------5

STATEMENT OF FACTS ------------------------------------------------------------------------6

STATEMENT OF ISSUES -----------------------------------------------------------------------8

SUMMARY OF ARGUMENTS -----------------------------------------------------------------9

ARGUMENTS ADVANCED -------------------------------------------------------------------10

1. THIS WAS A CASE OF NEGLIGENCE OF THE POLICE OFFICERS AND THE

RESPONDENT STATE IS VICARIOUSLY LIABLE FOR THE LOSS RESULTING

FROM SUCH NEGLIGENCE--------------------------------------------------------------10

2. THE APPELLANT'S CLAIM FOR A MONEY DECREE AGAINST THE

RESPONDENT IS JUSTIFIED DESPITE THE DEFENCE OF SOVEREIGN

POWER CLAIMED BY THE RESPONDENT-------------------------------------------15

PRAYER---------------------------------------------------------------------------------------------18

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MEMORIAL ON BEHALF OF THE APPELLANTS
 LIST OF ABBREVIATIONS

AIR ALL INDIA REPORT

ART. ARTICLE

i.e., THAT IS

HON’BLE HONOURABLE

ORS. OTHERS

SC SUPREME COURT

SCC SUPREME COURT CASES

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MEMORIAL ON BEHALF OF THE APPELLANTS
 INDEX OF AUTHORITIES

Cases

• State of Bombay (Now Gujarat) v Memon Mahomed Haji Hasam 1967 AIR 1885

• Basavva Kom Dyamangouda Patil vs The State Of Mysore And Ors.AIR 1977 SC

1749

• P & O Steam Navigation Co. v Secretary of State (1861) 5 Bom. H.C.R. App. I,p.1

• State of Rajasthan v Vidhyawati 1962 AIR 933

• Secretary of State v Hari Bhanji (1882) ILR 5 Mad 273

• Kasturilal Ralia Ram Jain v State of Uttar Pradesh 1965 AIR 1039

• N. Nagendra Rao & Co. v State of Andhra Pradesh 1994 AIR 266

• State of M.P. v. Chironji Lal

• Satyawati Devi v. Union of India

• Chairman, Railway Board v. Chandrima Das

• State of M.P. v. Chironji Lal

• Union of India v. Sugrabai

• Saheli, A Women’s Resources v. Commissioner Of Police

• State of Gujarat v. Haji Memon

Statutes

• Art. 300, The Constitution of India

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MEMORIAL ON BEHALF OF THE APPELLANTS
 STATEMENT OF JURISDICTION

The appellant humbly submits this memorandum application under the civil appeal filed
before the Hon’ble Supreme Court of India under Article 133(1) and Article 134A of the
Constitution of India.
The present memorandum sets forth the facts, contentions, and arguments in the present
case.

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MEMORIAL ON BEHALF OF THE APPELLANTS
 STATEMENT OF FACTS

• Chemanlal was a bullion merchant. On the 20th of September, 2021 Chemanlal

arrived at Jodhpur by the Suryanagari Express about midnight. His object in going to
Jodhpur was to sell gold, silver, and other goods in the Jodhpur market.
• Whilst he was passing through the Swasthi gate with this object, he was taken into
custody by one police Head constable who was on duty of patrol. His belongings were
then searched, and he was taken to the Police Station. He was detained in the police
lock-up there and his belongings which consisted of gold, weighing 6kgs in ornament
form, silver weighing 7kgs and cash of Rs.1,11,000/-, were seized from him and kept
in police custody.
• On the 21st of September 2021 he was released on bail, and sometime thereafter the
silver seized from him and an amount of Rs.11,000/- and was returned to him.
Chemanlal then made repeated demands for the return of the gold and cash which had
been seized from him, and since he could not recover from the police officers, he filed
a suit against the State of UP and obtained a decree in his favour for his recoveries,
but the high court reversed the judgment.
• The respondents alleged that the gold and cash in question had been taken into
custody by the Head Constable, and it had been kept under his charge. That head
constable, however, was not finding for past days. He had also misappropriated some
other cash and articles deposited in the Police Malkhana before he left the station. A
case under section 409 of the Indian Penal Code as well as s. 29 of the Police Act had
been registered against the Head constable, but nothing effective could be done in
respect of the said case because despite the best efforts made by the police
department, could not be apprehended.
• The appellant alleged that not only was the property not kept in safe custody in the
treasury, but the way it was dealt with at the Malkhana shows gross negligence on the
part of the police officers. No ittla report (information before FIR). A list of articles
seized does not made.
• According to the Head Constable Service record earlier he faced several allegations as
he is working with some naxalite group for which he was suspended, anyhow

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MEMORIAL ON BEHALF OF THE APPELLANTS
 allegations failed to prove the guilty. According to the informers’s assumption he
might have joined in naxalite group.
• The respondent challenged the correctness of trail court decree by an appeal before
the High Court. 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 negligence led to the
loss of gold and cash, that would not justify the appellant's claim for a money decree
against the respondent because of their sovereign power.
• The appellant then moved for and obtained a certificate from the said High Court and
it is with the said certificate making an appeal.

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MEMORIAL ON BEHALF OF THE APPELLANTS
 STATEMENT OF ISSUES

1. Whether this was a case of negligence of the police officers and whether the
respondent State could be held vicariously liable for the loss resulting from such
negligence?
2. Whether the appellant's claim for a money decree against the respondent is justified
despite the defence of sovereign power claimed by the respondent.

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MEMORIAL ON BEHALF OF THE APPELLANTS
 SUMMARY OF ARGUMENTS

1. THIS WAS A CASE OF NEGLIGENCE OF THE POLICE OFFICERS AND

THE RESPONDENT STATE IS VICARIOUSLY LIABLE FOR THE LOSS
RESULTING FROM SUCH NEGLIGENCE

The fact that after the seizure of the valuables, no attempt was made by any police
personnel to inventory the items and prepare the item list and ensure their safe and
appropriate custody is clear proof of negligence of the police in this case. There was
also an implied legal obligation to preserve title property intact and to take reasonable
care of it to enable it to be returned in the same condition in which it was seized. The
position of the respondents was that of a bailee and thus they are vicariously liable for
tortious acts of their employees, that is, the police officers.

2. THE APPELLANT'S CLAIM FOR A MONEY DECREE AGAINST THE

RESPONDENT IS JUSTIFIED DESPITE THE DEFENCE OF SOVEREIGN
POWER CLAIMED BY THE RESPONDENT.

The respondents must compensate the appellant as the employee belonged to the
category of sovereign power. Secondly, the tortious act by its servant within the scope
of his employment. Thirdly, the act done by him was unauthorized and unwarranted by
law. According to the modern concept of sovereignty, 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 interfering with life and the liberty of a citizen
not warranted by law and the state is vicariously liable to compensate.

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MEMORIAL ON BEHALF OF THE APPELLANTS
 ARGUMENTS ADVANCED

1. WHETHER THIS WAS A CASE OF NEGLIGENCE OF THE POLICE

OFFICERS AND WHETHER THE RESPONDENT STATE COULD BE HELD
VICARIOUSLY LIABLE FOR THE LOSS RESULTING FROM SUCH
NEGLIGENCE?

[1.1] THE POLICE WAS NEGLIGENT IN HANDLING THE PROPERTY OF

THE APPELLANT

In the case of State of Bombay (Now Gujarat) v Memon Mahomed Haji Hasam1, the

Court had found the police authorities to have been negligent in their handling of the

respondent’s vehicles and held that “there was a clear obligation to return the vehicle to

the owner if the appeal went in his favour. There was also an implied legal obligation to

preserve title property intact and to take reasonable care of it so as to enable it to be

returned in the same condition in which it was seized.”

The case of Basavva Kom Dyamangouda Patil vs The State Of Mysore And Ors.2, has

facts which closely mirror that of the present case. In this particular case, the police had

recovered the appellant’s stolen ornaments and stored them in the guardroom, from where

they were subsequently stolen. The Supreme Court held, "Where the property is stolen,

lost or destroyed and there is no prima facie defence made out that the state or its officers

had taken due care or caution to protect the property, the Magistrate may, in appropriate

case, where the ends of justice so require, order payment of the value of the property."

1
State of Bombay (Now Gujarat) v Memon Mahomed Haji Hasam 1967 AIR 1885
2
Basavva Kom Dyamangouda Patil vs The State Of Mysore And Ors.AIR 1977 SC 1749

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MEMORIAL ON BEHALF OF THE APPELLANTS
 These case laws, along with the Statutes provided above, clearly show that the police

officers were negligent in the present case, and cases with similar negligence shown by

the police authorities have been held to be such by the Courts of India.

The fact that the valuables, in our present case, were seized by, and kept under the charge

of, the head constable does not negate the police department’s negligence.

The fact that after the seizure of the valuables, no attempt was made by any police

personnel to inventory the items and prepare the item list and ensure their safe and

appropriate custody is clear proof of negligence of the police in this case.

[1.2] THE STATE IS VIACRIOUSLY LIABLE FOR THE ACTS OF ITS

EMPLOYEE DONE DURING THE COURSE OF EMPLOYMENT

Article 300 of the Constitution of India states that the Government of India may sue and

be sued by the name of Union of India and the Government of a State may sue and be

sued by the name of the State. Article 300, thus, provides that the Union of India and the

States are juristic persons for the purpose of suit or proceedings. Although the Union of

India and State Governments can sue and be sued, the circumstances under which that can

be done have not been mentioned. According to Article 300, the Union of India and the

State Governments 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.3

While the constitution fails to provide any scope as to the state’s liability for tortious acts,

we can refer to certain case laws to show why the state ought to be held liable in this case.

The first key judgment, which considered state liability for tortious acts of public

servants, was P & O Steam Navigation Co. v Secretary of State4. This case involved a

3
Art. 300, The Constitution of India
4
P & O Steam Navigation Co. v Secretary of State (1861) 5 Bom. H.C.R. App. I,p.1

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MEMORIAL ON BEHALF OF THE APPELLANTS
 claim for damages for injury caused to the appellant’s horse due to the negligence of

workers in a government dockyard. The issue was whether the Secretary of State would

be liable for the negligence of the workers. Peacock C.J. held that the Secretary of State

would be liable for negligence. Peacock C.J. reasoned that state liability for tortious acts

of public servants would arise in those cases where the tortious act would have made an

ordinary employer liable.

The decision of the Supreme Court in State of Rajasthan v Vidhyawati5 was one of the

earliest decisions on the issue of state liability for the tortious acts of public servants after

the Constitution came into force. In this case, a government servant negligently drove a

government vehicle and injured a pedestrian, who later succumbed to his injuries. The

Supreme Court followed the decision of Peacock C.J. in P & O Steam Navigation Co. to

hold that the Government of Rajasthan would be liable for the tortious acts of its servants

like any other private employer. The Supreme Court also observed that "there is no

justification, in principle, or in public interest, that the State should not be held liable

vicariously for tortious acts of its servant.”

Supplementary to the above reasonings, a few High Courts adopted a narrower view of

the ambit of sovereign functions. The most significant example of this is the decision in

Secretary of State v Hari Bhanji6. In this case, Turner C.J. rejected the plain distinction

between sovereign and non-sovereign functions; and held that immunity from liability for

tortious acts of public servants would only be available in respect of acts done in the

exercise of sovereign power and without the sanction of a statute. For acts done pursuant

to a statute, or in exercise of powers conferred on a public servant by a statute, no

5
State of Rajasthan v Vidhyawati 1962 AIR 933
6
Secretary of State v Hari Bhanji (1882) ILR 5 Mad 273

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MEMORIAL ON BEHALF OF THE APPELLANTS
 immunity would be available, even though such acts might be done in exercise of

sovereign powers.

Kasturilal Ralia Ram Jain v State of Uttar Pradesh7 mirrors the facts of this case closely.

Although the court in this case held the State not liable, the reasoning demands a closer

inspection. The court said that state liability for tortious acts of public servants would not

arise if the tortious act in question was committed by the public servant while employed

“in discharge of statutory functions which are referable to, and ultimately based on, the

delegation of the sovereign powers of the State.” Keeping aside the fact that the decision

made in this case has been subject to great criticism due to it enlarging the scope of

sovereign immunity beyond reasonable limits, the reasoning used to arrive at the decision

would not grant the same decision in the present case. In our present case, the arrest and

confiscation of property was indeed an act done by public servant in discharge of

statutory functions.

In N. Nagendra Rao & Co. v State of Andhra Pradesh8, the Supreme Court considered

whether the State of Andhra Pradesh could be held liable for the loss caused to the

appellant due to the negligence of its officers in returning goods seized from him under

the Essential Commodities Act, 1955. The Supreme Court held that the State was

vicariously liable for the negligence of its officers in complying with the provisions of the

statute. Further, the Court reiterated that not only do Constitutional Courts have to uphold

claims arising out of loss of life or liberty on account of violation of statutory duties of

public bodies, in private law actions, just and fair claims against public authorities must

be upheld and compensation awarded in tort.

7
Kasturilal Ralia Ram Jain v State of Uttar Pradesh 1965 AIR 1039
8
N. Nagendra Rao & Co. v State of Andhra Pradesh 1994 AIR 2663

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MEMORIAL ON BEHALF OF THE APPELLANTS
 In State of Bombay (Now Gujarat) v Memon Mahomed Haji Hasam9,the Supreme Court,

after comparing the position of the Government of Gujarat to that of a bailee, held that the

Government of Gujarat was vicariously liable for tortious acts of public servants such as

the police.

As discussed before briefly, in the case of Basavva Kom Dyamangouda Patil vs The State

Of Mysore And Ors.10, the State of Mysore was held liable for property which was lost

while in the custody of the police. The Supreme Court rejected the lower courts’ findings

and held, "Where the property is stolen, lost or destroyed and there is no prima facie

defence made out that the state or its officers had taken due care or caution to protect the

property, the Magistrate may, in appropriate case, where the ends of justice so require,

order payment of the value of the property."

The above authorities clearly and amply show that the State is not wholly immune to

tortious acts of its public servants and that it can, and has, been held liable for the same.

In the present case, the police detained the plaintiff and confiscated his property under

exercise of their sovereign powers. However, due to their negligence, which has been

established beyond all doubts, the plaintiff’s gold and cash amounting to Rupees 1 lakh

was not returned to him. By all reasonings and logic of similar case laws and the

principles of natural justice, which form the heart of our judicial system, the State should

be held vicariously liable for the negligence of the police.

The loss of property that was suffered by the plaintiff due to the negligence of police

officers would have made any ordinary employer liable for the tortious act.

9
State of Bombay (Now Gujarat) v Memon Mahomed Haji Hasam 1967 AIR 1885
10
Basavva Kom Dyamangouda Patil vs The State Of Mysore And Ors.AIR 1977 SC 1749

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MEMORIAL ON BEHALF OF THE APPELLANTS
 2. WHETHER THE APPELLANT'S CLAIM FOR A MONEY DECREE

AGAINST THE RESPONDENT IS JUSTIFIED DESPITE THE DEFENCE OF

SOVEREIGN POWER CLAIMED BY THE RESPONDENT?

It is humbly submitted that the appellant’s claim for money decree against the respondent is
justified despite the defence of sovereign power claimed by the respondent. It is further argued
that firstly, the actions of the constable do not fall into the concept of sovereign immunity;
secondly, even if it falls into the ambit of sovereign duty, it is violative of the modern concept
of sovereignty.

[2.1] TEST OF SOVEREIGN DUTY

It is hereby argued that for existence of sovereign immunity there must be a few essentials that
are fulfilled. The actions performed by the employee must be a part of sovereign duty for the
defence of sovereign immunity to exist. There are a few factors to determine whether the act
falls within the ambit of sovereign duty. Firstly, employee must belong to a category of
sovereign power11. Secondly, the tortious act by its servant within the scope of his
employment12. Thirdly, whether the act was unauthorized and unwarranted by law 13. Fourthly,
whether the act was of sovereign function 14.

[2.2] EMPLOYEE MUST BELONG TO A CATEGORY OF SOVEREIGN POWER

In its decisional practices court has held that the State should be as much liable for tort in
respect of tortuous acts committed by its servant within the scope of his employment and
functioning as such, like any other employer.

In the present case it is thereby argued that Head constable who was in duty of patrol.15 The
gold and cash in question had been taken into custody by the Head Constable, and it had been
kept under his charge. 16

11
Kasturi Lal v. State of U.P.
12
State of Rajasthan v. Vidyawati
13
State of M.P. v. Chironji Lal
14
Satyawati Devi v. Union of India
15
Moot prop 1
16
Moot prop 2

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MEMORIAL ON BEHALF OF THE APPELLANTS
Thus, the actions of the police constable are well within the ambit of normal course of
employment of any other person in same job description and thus falls within the category of
sovereign power.

[2.3] THE TORTIOUS ACT BY ITS SERVANT WITHIN THE SCOPE OF HIS
EMPLOYMENT

It is held that the act committed by an employee must be within the course of employment, it
must be an act which is committed as per the job description of an employee and not outside
what is permitted within scope of work of the employee. 17

Under the scope of employment essential element, it is held that the action must be something
which is within the authority and powers of the employee and not beyond what is allowed.

In the present case, it is within the scope of employment of the constable to collect alleged
stolen items. Negligence while performance of sovereign duty falls outside the scope of being
reprimanded for. The employee was initially facing allegations of working with some Naxalite
group for which he was suspended, anyhow allegations failed to prove the guilty. His abolement
makes him a normal employee who acted within scope of employment. 18

[2.4] WHETHER THE ACT WAS UNAUTHORIZED AND UNWARRANTED BY LAW

It is held that the act must not be wilfully without any reasonable cause. It is held that the
function of the state is to make arrests and to maintain law and order is a sovereign function. 19

The Head Constable Service record earlier he faced several allegations as he is working with
some Naxalite group for which he was suspended. According to this assumption he might have
joined in Naxalite group. This makes his act unauthorized and illegal.

It is thereby argued that the actions of the police constable were violative of law and
unwarranted or unreasonable.

[2.5] WHETHER THE ACT WAS COVERED UNDER THE AMBIT OF SOVEREIGN
FUNCTION

17
Chairman, Railway Board v. Chandrima Das
18
Moot prop 5
19
State of M.P. v. Chironji Lal

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MEMORIAL ON BEHALF OF THE APPELLANTS
In deciding whether a particular act was done by a government servant in discharge of a
sovereign power delegated to him, the proper test is whether it was necessary for the State for
the proper discharge of its sovereign function to have the act done through its own employee
rather than through a private agency20.

In the present case the act of the head constable was both necessary for the functioning of the
state and it is an act which can exclusively only be performed by the state through police
officers and not by private players.

[2.6] MODERN CONCEPT OF SOVEREIGNTY.

The need of the state, the duty of its officials and the right of the citizens are required to be
reconciled so that the rule of law in a welfare state is not shaken. In the welfare state, functions
of the state are not the only defense 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 sphere21.

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 interfering with life and the liberty of a citizen not warranted by
law22. The state is vicariously liable to compensate. The doctrine of sovereign immunity has
negligible 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.23

20
Union of India v. Sugrabai
21
Saheli, A Women’s Resources v. Commissioner Of Police
22
State of Gujarat v. Haji Memon
23
N. Nagendra Rao v. State of A.P.

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MEMORIAL ON BEHALF OF THE APPELLANTS
 PRAYER

Wherefore in the light of the facts of the case, issues raised, arguments advanced and
authorities cited, may this Hon’ble Court be pleased to adjudge and declare that:

This was a case of negligence of the police officers and the respondent state is vicariously
liable for the loss resulting from such negligence.

The appellant's claim for a money decree against the respondent is justified despite the
defence of sovereign power claimed by the respondent.

And/Or
Pass any other order that it may deem fit in the interest of justice, equity, and good
conscience.
s/d
On behalf of Appellants

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