Smt.

V D SIDDHARTHA LAW COLLGE

MOOT COURT COMPETITION 2019

21ST MARCH 2019

BEFORE

THE HON’BLE MOOT COURT OF JUDICATURE

DISPUTE RELATING TO

NEGLIGENCE AND VICARIOUS LIABILITY OF THE STATE IN SOVERIGN

FUNCTIONS

CRIMINAL CASE NUMBER.____________/2019

In the Matter of

MR.RAMU………………..APPELLANT

STATE OF AP……………RESPONDENT

MEMORIAL for APPELLANT

KIRAN KUMAR JASTHI (1/3 LLB)

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 TABLE OF CONTENTS

LIST OF ABBREVIATIONS………………………………………………………………Page 2

INDEX OF AUTHORITIES……………………………………………………………… Page 3

STATEMENT OF FACT………………………………………………………………… Page 4

STATEMENT OF ISSUES…………………………………………………………… Page 4,5

SUMMERY OF ARGUMENTS………………………………………………………… Page 5

ISSUE 1: WHETHER THE STATE OF AP IS LIABLE TO COMPENSATE APPELLANT

FOR THE LOSS CAUSED BY NEGLIGENCE OF ITS PUBLIC SERVANTS?… Page 5,6

ISSUE 2: IS THIS GROSS NEGLIGENCE PERMITTED OR AUTHORISED BY THE

REGULATIONS?......................................................................................................Page 7

ISSUE 3: CAN SOVEREIGN IMMUNITY BE CLAIMED FOR DOING A ACT FOR

WHICH THERE IS NO GROUND OR JUSTIFICATION OR SUSPICION?...........Page7,8

ISSUE 4: INFACT AS REGARDS THE SEIZURE,CUSTODY,SAFE DEPOSIT OF

SUCH GOODS IS GOVERNED BY AP POLICE REGULATIONS?........................Page 9

THE PRAYER……………………………………………………………………………Page10

LIST OF ABBREVIATIONS

S.No ABBREVIATIONS FULL FORM

1 AIR All India Report
2 SC SUPREME COURT
3 AP ANDHRA PRADESH
4 Hon’ble Honorable

MEMORIAL for APPELLANT TABLE OF CONTENTS

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 INDEX OF AUTHORITIES

STATUES REFERRED:

1.CrPc 1973

2.AP Police Manual

3.Constitution of India

CASES REFERRED:

1. State of Rajasthan Vs. Vidyawati, AIR 1962 SC 933

2. Challa Ramakonda Reddy v. State of A.P A.I.R 1989 A.P. 235

3. Saheli V. Commissioner of Police A.I.R 1990 S.C. 513

4. Common Cause, A Registered Society V. Union of India AIR 1996 SC 3538

5. Martin Burn Ltd. Vs. Calcutta Corporation AIR 1966 SC 529 at 535

6. Smt. Basavva Kom Dyamangouda vs State Of Mysore And Anr. 19 April, 1977
7. N. Nagendra Rao v. State of AP AIR 1994 SC 2663

BOOKS REFERRED

1 . CONSTRITUTION OF INDIA

2. CODE OF CRIMINAL PROCEDURE 1973

3 AP POLICE MANUAL

ELECTRONIC SOURCES

1.www. Indiankanoon.org

2.www.lawyersservices.in

3.www.lawctopus.com

MEMORIAL for APPELLANT INDEX OF AUTHORITIES

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 STATEMENT OF FACTS

BACK GROUND

The APPELLANT ,Mr Ramu is one of the partner of a firm doing jewellery business in
Vijayawada.One day while he was carrying gold ornaments near Samarangam chowk,he
was arrested by the police suspecting that those ornaments were stolen property. later
he was released on bail but the ornaments were seized and kept in police custody at one
town police station,pending investigation.

DISPUTE AND THE SUITE

1)Kotaiah ,head constable of one town police station Vijayawada ,has misappropriated
the gold and fled away and his whereabouts were unknown.

2)APPELLANT Mr Ramu made repeated demands for the recovery of the gold
ornaments, and could not recover the same due to its misappropriation .Hence Ramu
was constrained to file a suit against the State of AP for the recovery of its value.

STATEMENT OF ISSUES

ISSUE 1: WHETHER THE STATE OF AP IS LIABLE TO COMPENSATE APPELLANT

FOR THE LOSS CAUSED BY NEGLIGENCE OF ITS PUBLIC SERVANTS.

(A) : The negligence was contributory.

ISSUE 2:IS THIS GROSS NEGLIGENCE PERMITTED OR AUTHORISED BY THE

REGULATIONS?

(A) Not permitted by the Constitution of India, AP Police Manual,CrPc.

MEMORIAL for APPELLANT STAMENT OF FACTS

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ISSUE 3:CAN SOVEREIGN IMMUNITY BE CLAIMED FOR DOING A ACT FOR
WHICH THERE IS NO GROUND OR JUSTIFICATION OR SUSPICION?

(A)The counsel on behalf of APPELLANT contends that there is no Ground or

Justification for Suspicion.

ISSUE 4: INFACT AS REGARDS THE SEIZURE,CUSTODY,SAFE DEPOSIT OF

SUCH GOODS IS GOVERNED BY AP POLICE REGULATIONS?

(A)It is humbly submitted before this Hon’ble court the police officers duty to
keep the

SUMMARY OF ARGUMENTS

ISSUE 1: WHETHER THE STATE OF AP IS LIABLE TO COMPENSATE

APPELLANT FOR THE LOSS CAUSED BY NEGLIGENCE OF ITS PUBLIC
SERVANTS.

The counsel humbly submits to this Hon’ble court that the State of AP is liable to pay the
damages to the APPELLANT .Thus APPELLANT entitled to receive the compensation.

(A) The Negligence was Contributory.

a. Negligence in safe guard the seized the property
b. Negligence in filling Property search& Seizure form
c. Negligence in list of property on search of a person after
arrest(Sec 51 CrPc)
d. Negligence in list of property sent to magistrate.

1) In Mst Vidyavati’s case # State of Rajasthan Vs. Vidyawati, (AIR 1962 SC 933)
… In this case, the claim for damages was made by the dependents of a person
who died in an accident caused by the negligence of the driver of a jeep
maintained by the Government for official use of the Collector of Udaipur while it
was being brought back from the workshop after repairs. The Rajasthan High
Court took the view-that the State was liable, for the State is in no better position
in so far as it supplies cars and keeps drivers for its Civil Service.
MEMORIAL for APPELLANT SUMMARY OF ARGUMENTS

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 The Supreme Court upheld the same and observed that for acts done in the
course of employment but not in connection with sovereign powers of the State,
State like any other employer is vicariously liable.
2) In Memon Mahhomed case # State of Gujarat Vs Memon Mahomed (AIR 1967
SC 1885)… in this case the customer officer seized Memon Mahomed’s truck
and the goods in it under a bias, that they were smuggled.The APPELLANT
proved that they were not smuggled goods and paid duty paid .The Revenue
Tribunal ordered the customs officer to return the truck and goods to the
owner.The custom’s officer failed to return. The Supreme Court held that the
government was a bailee of the goods and the customs officer acted against the
law, therefore state was liable and ordered to pay compensation to the owner of
the goods
Every state exercises sovereign power in its territory and to enjoy the sovereign
immunity need to follow the conditions. The employees of the state must exercise
the sovereign functions legally. If they violate the law , their act cannot be treated
as an act of sovereign functions , and the state shall be held responsible.
Maintenance of law and order, services of defense forces ,administration of
justice etc, are considered to be the sovereign functions.
3) The act of negligence was committed by the police officers. While dealing with
the property of APPELLANT which they had seized in exercise of their statutory
powers. N Nagendra rao v State of A P AIR 1994 SC 2663
4) Now the power to arrest a person, to search him and seizure the property found
with him, are powers conferred on the specified officers by statue, they are
powers which can be properly characterized as sovereign powers.
5) Under sec 459 of CRPC . Gold and Silver Items:- Where Gold and Silver items
are produced before the Court by police, they should be certified and weighed at
the authorized Dharma kata and shall obtain a certificate to that effect. The
magistrate shall out his initial and date on such certificate issued by Goldsmith
and on the Dharma kata slip. If there is any difference of weight is found to the
entries made in the list of property and the Certificate issued by the Goldsmith,
both should be noted in the Property register.

MEMORIAL for APPELLANT SUMMARY OF ARGUMENTS

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ISSUE 2: IS THIS GROSS NEGLIGENCE PERMITTED OR AUTHORISED BY THE
REGULATIONS?

This gross negligence is not an incidental to the performance of the statutory duties,
.The act in question of ,misappropriation , absconding with the seized property, are
independent acts, not authorized or contemplated by any Regulation or statute.
It provides that property of every description will remain in the custody of the SHO of
Vijayawada one town police station. The general control and Responsibility of the
prosecuting inspector unit l it has been finally disposed of based on Magistrate
instructions.
It is thus clear that gold and silver which had been seized from Mr .Ramu 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.”
Hence the acts which are not done in pursuance of statutory provisions, can not be
brought under the category of statutory authority as a defence?

ISSUE 3: CAN SOVEREIGN IMMUNITY BE CLAIMED FOR DOING A ACT FOR

WHICH THERE IS NO GROUND OR JUSTIFICATION OR SUSPICION?

No doubt the Criminal Procedure Code confer certain powers on the Police officers of
arrest , seizure of property etc. but this power can be made use of only after a suspicion
has arisen not otherwise….
In the present case, the acts of arrest and seizure of property are done without any basis
there is no suspicion.
The police officers have not suspected that Mr Ram was moving about in suspicious
circumstances or that they suspected that he was carrying stolen goods or that they
suspected him it-Does he have any history of offences ?
If the present case is considered as an authority, it will mean that any police officer or
any person to whom sovereign powers are delegated and who wants’ property, money
etc, can simply arrest a person who has property seize the property, keep life in his
custody, release the arrested person at a later date, claim that the act was done in
pursuance of sovereign powers and without returning the property, quietly abscond with
the property.
The Government or the employer claim sovereign immunity and the tort-feasor will not
be available for being sued-or prosecuted. Another point is, if the police does not
prosecute the arrested person, can the employee or the state claim sovereign immunity
for the act of arrest, seizure?
The sovereign immunity stops at this point does not extend further. It does not cover the
act done thereafter , misappropriation of seized property.

MEMORIAL for APPELLANT SUMMARY OF ARGUMENTS

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Similarly, in Basavva Kom Dyamangouda Patil v. State of Mysore, the question arose
regarding powers of the Court in indemnifying the owner of the property which is
destroyed or lost whilst in the custody of the Court. The goods were seized from the
possession of the accused. They were placed in the custody of the Court. When the
appeal of the accused was allowed and goods were directed to be returned it was found
that they had been lost. The Court, in the circumstances, held : (SCC pp. 361-62, para 6)
"It is common ground that these articles belonged to the complainant/appellant and had
been stolen from her house. It is, therefore , clear that the articles were the subject-
matter of an offence. This fact, therefore, is sufficient to clothe the Magistrate with the
power to pass an order for return of the property. Where the property is stolen, lost or
destroyed and there is no prima facie, where the ends of justice so require, order
payment of the value of the property.

Matter may be examined from yet another angle. Article 300 of the Constitution of India
is extracted below :

"300. Suits and proceedings.- (1) 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. (2) If at
the commencement of this Constitution

(a) any legal proceedings are pending to which the Dominion of India is a party, the
Union of India shall be deemed to be substituted for the Dominion in those proceedings;
and

(b) any legal proceedings are pending to which a Province or an Indian State is a party,
the corresponding State shall be deemed to be substituted for the Province or the Indian
State in those proceedings."

MEMORIAL for APPELLANT SUMMARY OF ARGUMENTS

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ISSUE 4: INFACT AS REGARDS THE SEIZURE,CUSTODY,SAFE DEPOSIT OF
SUCH GOODS IS GOVERNED BY AP POLICE REGULATIONS?

Chapter 24 of AP police Manual prescribes the duty’s and functions of the police
officials about the property search , seized and disposed.

1)Order 440 of sub section 8 The seizures made from the persons should be
listed separately from the seizures made from the place.
2)Order 440 of sub section 9 A copy of the list of seizures should be furnished
to the person present at the place under acknowledgment.
3)Order 440 of sub section 10 Whenever a subordinate is deputed for search,
the authorization must be in writing.
4) Order 440 of sub section 12 The search proceedings shall be rendered in
Form 57 and seizures list prepared in Form 58 & 59.

5) Order 446 of sub section 12: According to Section 451 of CrPC, when any
property, regarding which any offence appears to have been committed or which
appears to have been used for the commission of any offence is produced
before any criminal court during any inquiry or trial, the court may make such
order, as it thinks fit for the proper custody of such property pending the
conclusion of the inquiry or trial. If the property is subject to speedy or natural
decay or if it is otherwise expedient so to do, the court may, after recording such
evidence as it thinks necessary, order it to be sold or disposed. This section
provides for the interim custody of property.
Disposal of the Property coming into the hands of the Police
1) Order 442 of Chapter 24 : Form 60 should be used for sending property to
the Magistrate. Three copies of the form should be prepared by means of
carbon paper. The triplicate should be retained in the station and the remaining
two copies sent to the Magistrate with the property. When the duplicate copy is
received back from the Magistrate, with his orders thereon, it should be pasted
in the book. The Investigating Officer shall write a case diary for dispatch of the
property to the court and for the endorsement made by the Magistrate on the
duplicate copy of Form 60.
But in this case the police officer has not performed afore said duties against the seized
property .Hence it is the clear negligence of the statutory duties as per the AP Police
Manual .

MEMORIAL for APPELLANT SUMMARY OF ARGUMENTS

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 PRAYER

Wherefore , in the light of facts stated ,the cases cited , issues raised , arguments
advanced and authorities cited , it is most humbly prayed and implored before Hon’ble
Moot court of Judicature at Siddhartha law college , that it may be graciously pleased to
adjudge and declare that :

1) The Respondent is liable for negligence and liable to pay damages to the appellant as
sought.

2)The Respondent be directed to pay the amount which is equal to the value of the
seized gold along with simple compound rate of interest(12%) from the date of seized.

3)The Respondent be directed to pay the expenses ie (General expenses to attend the
court , Advocate fees) incurred to the Appellant.

Also pass any other order that the court may deem fit in the favour of Respondent to
meet the ends of equity , justice and good conscience.

For the act of kindness, the Appellant shall duty bound forever pray.

Place : Vijayawada Respectfully Submitted,

Date: 18th March 2019 Counsel for APPELLANT

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MEMORIAL for APPELLANT
PRAYER

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