August 2020 - Page 11 of 18

This article is written by Shambhavi Shree, a student of KIIT School of Law, Bhubaneswar (4th year).

INTRODUCTION

Indian Parliament introduced a completely new act by replacing the Consumer Protection Act, 1986. It came into effect on 20th July 2020. The main objective of this act is to provide convenience and to look after the unfair trade practices that can cause harm or injury to the customers. This act consists of more stringent punishment if there is a violation of consumers right by the person who is providing services. If there is any defect or act of omission in terms of warranty or terms and conditions or failed to exercise reasonable care or due diligence or modification of the product then there is a liability of:

Product manufacturer under section 84 of the Consumer Protection Act, 2019.
Product service provider under section 85 of the Consumer Protection Act, 2019.
Product seller under section 86 of the Consumer Protection Act, 2019.

Who is a Consumer?

The word consumer is defined under section 2(7) of the Consumer Protection Act, 2019. A consumer is a person who buys goods for their consumption. The goods are stored for their personal use. World Consumer Rights Day is celebrated on 15th March every year. It is celebrated to create awareness and to protect the rights of the customers at large. The consumer has the following rights under section 2(9) of the Consumer Protection Act, 2019:

Right to safety.
The consumer has the right to receive information about the products and services.
Right to be heard if they are deprived of their rights and file a complaint in Consumer Redressal Forums.
The right to access a variety of goods at reasonable prices.
The right to get compensation for a wrongful act.
The right to full information about the quality, quantity, nature, price, and description of the goods purchased.

Important Terminologies

Goods: Any movable property defined under section 2(21) of Consumer Protection Act, 2019, and section 3(1)(j) of the Food Safety and Standard Act, 2006 which is for the consumption of human beings.
Services: Any description which is made available to the consumers such as transport, entertainment, construction, banking, and many more which is defined under section 2(42) of the Consumer Protection Act, 2019. In the new act, telecom has also been added to the definition of services.
Product: Defined under section 2(33) of the Consumer Protection Act, 2019 which states any article, goods, substance, or raw material that is manufactured for sale.
Person: It has been defined under section 2(31) of the Consumer Protection Act, 2019. It is an individual, artificial person, firm, Hindu Undivided Family, cooperative society, or association of persons that is registered under the Societies Registration Act, 1860.
Unfair Contract: It is a contract between a manufacturer or trader or service provider that obligates the right of consumers defined under section 2(46) of the Consumer Protection Act, 2019.
Unfair Trade Practice: According to section 2(47) of the Consumer Protection Act, 2019 any trade practice which is for the promotion of the sale, supply of goods or services, adopts any unfair means including a misleading or false statement about the product, promise to repair or replacement, warranty or guarantee of performance is known as unfair trade practice.

Difference between Consumer Protection Act 1986 and Consumer Protection Act 2019

In Consumer Protection Act, 1986 there were no provisions for E-commerce but it has been defined under the new act. E-commerce or electronic commerce refers to the buying and selling of goods and services through electronic media. The customers find it more convenient to avail of the services through an online mode without stepping out of their homes.
Now a complainant can file a complaint in their nearest Consumer Redressal Forum through an online mode. It is a time-consuming process.
Section 10 of the Consumer Protection Act, 2019 includes the establishment of a regulator known as the Central Consumer Protection Authority (CCPA). It includes: (i) If there is a violation of consumer rights in terms of buying of the products and services from the manufacturer, dealer, or seller then it is the responsibility of CCPA and a director-general to investigate the matter. (ii) CCPA has the authority to take action against any individual involved in the false spreading of the advertisement which may cause harm to the customers. The accused person shall be liable with a penalty of ‎₹10 lakhs and which may extend to ‎₹50 lakhs. (iii) If the manufacturer found in misleading statements or advertisements shall be liable with imprisonment for up to 2 years.
District Commission is supposed to take action if there is a complaint and the cost paid by the complainant to the seller does not exceed ₹1 crore. In the previous act, the limit of District Forum was up to ₹20 lakhs.
State Commission is supposed to take action against the consumer complaints if the cost paid to the seller does not exceeds ₹10 crores. In the previous act, the limit was up to ₹ 1crore.
National Commission is authorized to take action against the consumer complaints if the cost paid to the seller exceeds ₹10 crores. In the previous act, the limitation was up to ₹1 crore.
Unfair trade practices are considered to be unlawful as it is a deceptive and fraudulent act practiced to cause harm or injury to consumers. Earlier there were six provisions for unfair trade practices but three more have been added in the new act. If the goods bought don’t have a bill or cash memo or the service provider refused to take back the defective product or refused to refund the amount paid or refused to refund goods and services within 30 days or disclosure of customer’s information leads to unfair trade practices.
Courts can resolve the matter by settlement through mediation. No such legal provisions for mediation existed earlier.
Section 34 of the Consumer Protection Act, 2019 states that compensation shall be awarded in case of any inconvenience caused by the product manufacturer, service provider, and the seller.
If a person found liable not agreeing with the orders of the commissions then he shall be liable with imprisonment up to 3 years or with a fine, not less than ₹25,000 which may exceed ₹1 lakh or with both. Earlier there was punishment ranging between 1 month and 3 years or with a fine ₹2,000 to ₹10,000 or with both.
In case of death of the customer caused due to products containing adulterant or false products then the accused person shall be liable with imprisonment from 7 years to life or a fine up to ₹10,00,000 or both.

Case Analysis

Dharangadhara Chemical Works Limited V. State of Saurashtra 1957 AIR 264, 1957 SCR 152

In this case, a thin line of difference was drawn between a contract for services and a contract of service. In a contract for services, a master instructs how a work should be done in exchange for monetary consideration. In a contract of services, the master commands its agent in exchange for money.

R. D. Saxena V. Balram Prashad Sharma 22^nd August, 2000

The relative term misconduct means wrong conduct or improper conduct. It was further contended by the Supreme Court that the service provider is involved in wrongful conduct to gain an advantage arising out of it.

Indian Medical Association V. V.P. Shantha and Ors on 13th November, 1995

Issues

Whether a medical practitioner could be regarded as rendering service under section 2(1)(0) of the Consumer Protection Act, 1986?

Whether the service rendered at a hospital could be regarded as a service?

In this case, if a doctor is unable to provide appropriate service then the patient can claim compensation. Supreme Court stated that a patient is a customer as long as they are making payment for the services rendered. Service rendered by the medical practitioner by way of consultation, diagnosis, and treatment, both medical and surgical would fall under the ambit of service. But the service rendered free of cost not to be considered as service under this act.

CONCLUSION

The consumer is often deprived of their rights in modern days and ages. Justice must be provided to the customers facing problems regarding their regular needs and demands. However, the introduction of electronic commerce and addressing complaints through online technologies like video conferencing, online video application, face to face interaction, voice messages, sending images and videos online have helped a lot. Because of the amendment of the new act, there are fewer misunderstandings, miscommunications, and assumptions.

REFERENCE

http://angelalagu.blogspot.com/2016/04/contract-of-services-vs-contract-for.html#:~:text=The%20law%20makes%20a%20distinction,of%20an%20independent%20sub%2Dcontractor.
https://www.google.com/search?q=Protector+%26+Gamble+Home+Products+V+Raj+Dev+Bharadwaj+detrgent+case&sxsrf=ALeKk00VXRJTyIYoPGeAxzZeYFa4t1Mpig:1597082945347&source=lnms&tbm=isch&sa=X&ved=2ahUKEwi6j4nNnZHrAhUDOSsKHWLvAvgQ_AUoAnoECAwQBA&biw=1271&bih=568
https://indiankanoon.org/doc/66903437/
https://www.google.com/search?q=K.+Vishnu+v+National+Consumer+Disputes+Redressal+Commission+%26+Anr&oq=K.+Vishnu+v+National+Consumer+Disputes+Redressal+Commission+%26+Anr&aqs=chrome..69i57.260j0j7&sourceid=chrome&ie=UTF-8
https://www.lexology.com/library/detail.aspx?g=592f2bfc-30c8-4af6-88a8-61ad1f104492

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Report by- Riddhima Bhadauria

The Supreme Court has adjourned till 14 August, a hearing over a bunch of petitions challenging the conduct of final-year exams, after the University Grants Commission (UGC) submitted an affidavit mentioning that all universities in the country must conduct final-year exams by the end of September 2020.The bench comprising justices Ashok Bhushan, R Subhash Reddy and MR Shah asked if the Disaster Management Act overrides the UGC’s guidelines and sought a reply. The bench further posted the hearing for 14 August.

In the affidavit submitted on Thursday, 30 July, the UGC had justified its guidelines prescribing final-year exams on the grounds that students will be given an opportunity to appear for special exams if they are unable to write the ones scheduled in September.

The UGC also said that it was working in the best interests of students.

“UGC has issued such guidelines to protect the academic future of students across the country which will be irreparably damaged if final year or terminal semester examinations are not held, while also keeping in mind their health & safety.”

According to the UGC, universities were asked to inform the status of holding the exams and responses were received from 818 universities including 121 deemed, 291 private, 51 central and 355 state universities. Of the total 818 universities, 603 have either conducted or are planning to hold the examinations, while 209 have already conducted exams in either online or offline mode. As per the report, 394 universities are planning to hold exams (online/ offline/blended mode) in August and September.

Recently the Delhi government submitted before the supreme court that deputy chief minister/delhi higher and technical education minister of NCT of Delhi directed that all delhi state universities to cancel all written online and offline semester exams including final year exams.

Key points..

Advocate Alakh Alok Srivastava, lawyer appearing for 31 students, said that he would request the top court to grant relief to students considering their health, safety and job/admission opportunities. Anubha Srivastava Sahai, the chief of the India Wide Parents’ Association also hoped for a verdict in the students’ favour.
During the previous hearing on July 31, the top court had refused to pass any interim order. However, it had asked the Centre to clear the stand of Ministry of Home Affairs (MHA) on the issue.
SC Mehta had told the court that they are only concerned with final-year exams and out of over 800 universities in the country, 209 have completed the examinations. He said that around 390 universities are in the process of conducting the examinations.
On decisions of some states like Maharashtra and Delhi to cancel final-year exams, the commission had said that it directly affects the standards of higher education and will be an encroachment on the legislative field of coordinating and determining the standards of higher education that is exclusively reserved for Parliament under Schedule VII of the Constitution.
It said that the Universities/Institutions may conduct such special examinations as and when feasible so that the students concerned are not put to any inconvenience or disadvantage.

Decision till now..

The Supreme Court of India has adjourned the hearing on the UGC Case challenging the decision to conduct the final year examinations till August 14.

REPORT BY- RIDDHIMA BHADAURIA

The supreme court in June has asserted that a criminal protest against a police officer or a public servant cannot be engaged without previous sanction or assent from the government as is said under section 197 of the code of criminal procedure. The bench comprising Justice R Banumathi and Indira Banerjee held that the law on the question is settled and has been set down. The judgement takes note of that if a challenge is mounted under section 482 of Crpc to a decision of the trial court to engage an objection against a public servant without authorization, the high court should practice its jurisdiction to suppress such a grievance.

Appellant’s contention

The appealing party in this case was a deputy commissioner against whom the respondent has filed a complaint of sick treatment and police excesses during custody.
The accused appellant has stated that police officers of the Crime Department enquired into the history of the respondent and his family and found that the respondent was involved in various cases under IPC.
the learned Additional Chief Metropolitan Magistrate I, Bengaluru remanded the respondent to police custody, observing that the respondent had not complained of any ill-treatment by the Police. The Investigating Officer seized a stolen car being Tata Manza car which was parked on the road adjacent to the respondent’s house, allegedly pursuant to a voluntary statement of the respondent.
The father of respondent filed a petition of habeas corpus and allegations made by the respondent and/or his father, of ill-treatment of the respondent, by the Police. The respondent was taken to hospital for check-up and treatment. The doctors gave a detailed report ruling out any abnormalities and injuries on the respondent.The Karnataka High Court later dismissed the Habeas Corpus Petition being filed by the respondent’s father, observing that eight criminal cases were pending against the respondent and that he had been produced before the jurisdictional Magistrate in accordance with law.
3rd Additional Chief Metropolitan Magistrate, Bengaluru, was pleased to take cognizance against the appellant even though no previous sanction had been obtained from the Government. The accused appellant filed Criminal Petition under Section 482 of the Code of Criminal Procedure in the Karnataka High Court at Bengaluru inter alia for quashing the order.
Mr. Saajan Poovayya the learned counsel of appeallent submitted that the private complaint as also the Magistrate taking cognizance of the private complaint, ought to have been quashed by the High Court, in the absence of sanction under Section 197 of the Code of Criminal Procedure read with Section 170 of the Karnataka Police Act, 1963.
Mr. Poovayya argued that even otherwise there was no case against the accused appellant. Even assuming that there was any ill treatment meted out to the appellant, while he was in police custody, there was no specific allegation against the accused appellant, who was not the Investigating Officer, but the Deputy Commissioner of Police.
Mr. Poovayya also argued that the respondent was arrested and produced before the Magistrate on which date he was remanded to police custody with the finding that there was no ill-treatment by the police. Even after the respondent’s father filed the Habeas Corpus Petition in the High court and there was no record of ill treatment by the police.
He also contended that allegation of police excesses in the course of investigation, and police custody of the respondent, has a reasonable nexus with the duty of the appellant as a police officer. Even if the act was in dereliction of duty or in excess of duty, it was nevertheless in exercise of authority as a police officer, in connection with investigation of an alleged crime in which the respondent was alleged to be involved. The police officers were duty bound to investigate an offence. The excesses alleged were in the course of discharge of such official duty of investigating into an offence and no prosecution is to be entertained against a Police Officer, except with the previous sanction of the Government, in case of any wrong alleged to have been done by such officer, by any act in pursuance of any duty imposed or authority conferred on him by any provision of the Karnataka Police Act, 1963, or even any act done under the exercise of duty.
Hence, the criminal complaint against the accused appellant should, therefore, have been quashed under Section 482 of the Criminal Procedure Code for want of sanction under Section 197 of the Code of Criminal Procedure 1973, read with Section 170 of the Karnataka Police Act, 1963.
Mr. Poovayya argued that the accused appellant had been arrayed as accused vindictively, out of vengeance, since the accused appellant had, in his capacity as Deputy Commissioner of Police (Central Crime Branch), submitted an affidavit in the Habeas Corpus Petition filed by the respondent’s father in the Karnataka High Court. The said affidavit led to the dismissal of the Habeas Corpus Petition. Case referred to(State of Haryana and Others v. Bhajan Lal and Others)

Case laws cited by appellant’s counsel

D.T.Virupakshappa v. C. Subash
Virupaxappa Veerappa Kadambur v. State of Mysore,
Sankaran Moitra v. Sadhna Das and Another
K.K. Patel and Another v. State of Gujarat and Another
State of Orissa v. Ganesh Chandra Jew

Respondent’s contention

1. Mr. Sidharth Luthra, Senior Advocate appearing on behalf of the respondent argued that, whether sanction was necessary or not, had to be decided, keeping in mind the nature of the complaint, which, in this case, was of physical torture and illtreatment of the respondent. Ill-treatment and torture could never be in exercise of official duty, or even under the colour of official duty.

2. Mr. Luthra further argued that, in any case, whether sanction was necessary or not, would have to be determined in course of the trial. A complaint should not be denied in the earlier stage on the ground of want of sanction.

3. He also submitted that, an order of a Magistrate, taking cognizance of a complaint was not amenable to challenge under Section 482 of the Code of Criminal Procedure. The High Court rightly remanded the complaint to the Trial Court.

4. Mr. Luthra concluded with the argument that the accused appellant can have no grievance against the judgment and order under appeal, since the High Court has given the accused appellant the liberty to apply for discharge under Section 245 of the Code of Criminal Procedure and has directed the Trial Court to decide such

application, if made, before recording evidence on the merit of the

allegations made against him.

Cases cited by respondent’s counsel

Devinder Singh & Ors. v. State of Punjab
State of Maharashtra v. Atma Ram
Bhanuprasad Hariprasad Dave v. State of Gujarat
State of Andhra Pradesh v. N. Venugopal and Others
Satyavir Singh Rathi, Assistant Commissioner of Police

& Ors. v. State

Bakhshish Singh Brar v. Gurmej Kaur & Anr.
Om Prakash & Ors. v. State of Jharkhand & Anr.

Judgement

The Court held that Section 197 of the Code of Criminal Procedure, which is intended to prevent a public servant from being harassed does not apply to acts done by a public servant in his private capacity. This Court however left it open to the accused public servant to place materials on record during the trial to show that the acts complained of were so interrelated with his official duty as to attract the protection of Section 197 of the Criminal Procedure Code.The Court ought to have exercised its power to quash the complaint instead of remitting the appellant to an application under Section 245 of the Criminal Procedure Code to seek discharge.

The appeal is allowed. The judgment and order under appeal is set aside and the complaint is quashed. The supreme court recently reiterated that a criminal complaint against a police officer or a public servant cannot be entertained without prior sanction from the government, as is mandated under Section 197 of the Code of Criminal Procedure (CrPC).

Other cases referred from-

1.B. Saha v. M.S. Kochar

2.Rizwan Ahmed Javed Shaikh and others v. Jammal

Patel and Others

3.Pukhraj v. State of Rajasthan

4.Om Prakash and others v. State of Jharkhand and

Anr.

5.Bakhshish Singh Brar v. Gurmej Kaur

6.State of Maharashtra v. Atma Ram

7.Bhanuprasad Hariprasad Dave v. State of Gujarat

8.State of Andhra Pradesh v. N. Venugopal

9.Satyavir Singh Rathi, Assistant Commissioner of Police & Ors. v. State Thr.

CBI

10. Devinder Singh & Ors. v. State of Punjab through CBI

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Report by Karthi Shankar

This case has already given out some guidelines which was issued on 13.12.2018 by the Supreme Court of India. Further it was brought into attention currently due to the pandemic situation in a concern for old age people who are facing difficulties and not taken adversely taken care of.

Petitioner’s Contention

Dr. Ashwani Kumar is the person (Amicus Curae) who have filed the case in concern of older age citizens of the country that they were not treated well in the Pandemic times especially those who live alone are put into suffering and does not get sanitation materials and other essential goods which are in great demand at this time, this material gets out-of-stock within a limited time due to more demand, which makes it a struggle for the old age people to purchase the requisite materials. It is also been stated from the petition that, the caretakers of old aged people are also mostly untrained or lacks skill and also works without proper equipment when getting in contact with these people. Another important problem which mentioned by the petitioner was that there is a delay in payment of old age people who are really in need of a pension, this is a major drawback for them, as some have no other source of income other than from pension. The point which was discussed in relevance to the current situation was that the elderly people should get priority in government hospitals and the priority should not be given on the basis of their influence, the capacity to pay, etc, they need to be taken care off immediately as soon as possible.

Key Highlights

1. The petitioner has filed WRIT Petition under Article 32 in the Supreme Court regarding the rights of elderly people under Article 21. The rights were the following,

2. Pension for elderly people

3. Shelter for elderly people

4. Geriatric care and medical facilities for old age people

5. Effective implementation of maintenance and welfare of senior citizens.

The case has already issued directions but was re-applied to make clear of the ongoing pandemic situation favourably for the older age people and to get them due attention and utmost care.
This case is against the Union of India so the respondents comprised of centre and also all the states which has to respond to this Writ petition, as it is related to all the states.
In State of Punjab v. Mohinder Singh Chawla, Nagar Nigam v. AL Faheem Meat Exports (P) Ltd and in Occupational Health and Safety Association v. Union of India the right to health was given the status of a fundamental right flowing from Article 21 of the Constitution.

Respondent’s Contention

State is responsible for the welfare of it’s citizens irrespective of their age, but it should pay more care to old age people as they have less immune and more prone to deaths than other ageing groups. The elderly people who are alone are the more vulnerable ones as they should suffer and struggle for attention and care. The petition was responded with that each and every individual gets free treatment in a Government Hospital, and also the treatment to COVID-19 is totally free. The only thing which is missing is that the priority in admissions in accordance with their health condition and how far the virus have caused complications in their health. In case of any complaint made by elderly people, the hospital should immediately look after the respective person and should redress their grievances.

Supreme Court added flavours to the guidelines which was already issued in light of the Pandemic times

Based on the directions issued on 13.12.2018 for a Writ petition, SC has delivered some other points on the Re-application of the same Writ in relevance to the COVID-19. The court has asked the government hospitals to prioritise the health of elderly people and not delay them in admissions because they are more vulnerable ones especially to virus of this kind. Immediate actions should be taken against queries and complaints.

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Report by Karthi

Bombay High Court stated that the state cannot make any changes in the fee structure of private unaided schools that are not dependent on government. The resolution which was issued on 08.05.2020 regarding the fee structure which was stayed till further orders.

Petitioner’s Contention:

This case before the High court of Bombay is a writ petition filed during the pandemic crisis. This is not a single petition but collaged because of the similarity of the problem placed and for the relief claimed. The writs were filed based on a government resolution No.Misc-2020/CR33/SM-6 dated 8^th May,2020-08-09, which was issued by Principal Secretary to the Government of Maharashtra, School Education and Sports Department. Petitioners were individuals who runs private unaided schools with different boards like CBSE, ICSE , etc , therefore the fees collected from the students are the source of income as they are not aided by the government. The Resolution passed by the Principal Secretary was regarding the non-increase of the fees for the academic year 2020-2021, because the Epidemic Diseases Act and the Disaster Management act was implemented in the state due to the COVID crisis. The order issued in the name of Governor of Maharashtra. What the petitioners stated was that the power of approval of the fees was given to the executive committee of parent teachers association in accordance with the Maharashtra Educational Institutions Act, 2011.

Key Highlights:

The State is not empowered with any laws to issue such a resolution in accordance to the fee of private institutions.
Because of the compulsion to pay fee by the institutions the state exercised Section 21 of the Maharashtra Educational Institutions Act,2011 and Section 26(i) of Disaster Management Act,2005 and have made some decisions in the following:- Payment in Installations, Online mode of payment, no hike in fees for the academic year and reduction in fees proportionate to reduction in usage of reduction in resources.
Whether the Resolution passed by the State could be justified with the power of state to take an executive action under Article 162 of the Indian constitution.
TMA Pai Foundation vs State of Karnataka,2002 8 SCC 481, this case stated that it is totally unacceptable for the government to interfere in determining the fee structure of Private schools especially which is not aided by the Government.
Based on having the above case as a Precedent, Supreme court in State of Bihar vs Project Uccha Vidya Shiksha Sangh said that with precedents it is clear that article 19 cannot be achieved by issuing a circular of resolution under Article 162 of the Constitution of India.
The court also asked the management to consider the difficulties faced by the parents in this pandemic situation and their financial struggle, therefore provide them to pay fees in instalments and provide online payment facilities.

Respondent’s Contention

When we look it from the State’s perspective it is done for the welfare of the people of the state as they were compelled to pay fees and to protect them from the increase of fees the Principal Secretary has passed such a resolution. Section 25 of the Disaster Management Act, 2005 has given the powers to the State Executive Committee in an event of Disaster situation and to look after the welfare of people, clause (i) empowers the state executive committee to build temporary plans for the welfare of the state and also to remove hazardous plans that will affect public. Later it was stated by the court that the resolution passed on 08.05.2020 was issued without Jurisdiction. Right to establish educational institution is a fundamental right which is mentioned in Article 19(1)(g) of the Indian Constitution and the fees must be fixed reasonably and also for the betterment of the institution.

The Government Resolution order issued on 08.05.2020 was Stayed until further Orders.

With all the statues and favourable precedents, it was a decision favoured for the petitioners for the private aided schools which are unaided by the government. It was explicitly stated that there were no provisions for the government to interfere in the fee structure or alter any fees module of Private schools. The entire power to fix the fee lies with the private school and is left for approval with the Parent-teacher Association. No article in the constitution allows the state to take decisions on the fee structure even during the time of disaster as stated above, even with Article 162 where it is stated that the state could exercise executive powers. The Petitioners were asked to consider the financial struggle of the parents and do the need by the Bombay High Court.

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Case number

105 of 1963

Citation

AIR 1965 SC 1039

Bench

Gajendragadkar, P.B. (CJ)

Wanchoo, K.N.

Hidayatullah, M.

Dayal Raghubar

Mudholkar, J.K.

Decided on

29^th September, 1964

Relevant section

300(1) of the Constitution of India

Brief facts

Ralia Ram was one of the partners of a firm that deals in bullion and other goods at Amritsar. He was taken into custody by three police constables on suspicion of owning the stolen property at the bazaar of Meerut, where he went to sell his goods. He was detained into lock-up and his belongings, gold and silver were seized and kept into Malkhana till the disposal of the case. The next day he was released on bail and after sometimes the seized silver has been returned to him. He then made the demand for the seized gold, and since he could not recover the gold from the officers, he filed the current suit and claimed a decree that either his gold should be returned to him or the equivalent amount should be paid to him. The claim was resisted and it was urged that the respondent was not liable to pay either the gold or the relevant amount. The respondent alleged that the head constable, Mohammad Amir, then in charge misappropriated the gold and some cash deposited in Malkhana and flew away to Pakistan and the case against him was also filed but nothing effective could be done in the said case. Alternatively, the respondent pleaded, it is not a case of negligence and if it is then also the state is not liable for loss incurred by such negligence.

Issue before the Court

Whether the tort of negligence committed by public servant in discharge of statutory function, which can be categorized under sovereign powers, be held liable?

Ratio of the case

The powers conferred on a specified officer by statute, here the power to arrest a person, to search him, and to seize property, can categorized as sovereign powers and the Supreme Court also held that the act which gave rise to the present claim for damages has been committed by the employee of the respondent during the course of its employment, but the employment in question in categorized under sovereign powers.

Decision of the court

The Supreme Court held that it was negligence on the part of respondent’s employee, but the employee was discharging his sovereign powers, hence the claim of the appellant fails and the parties had to bear the cost of damage.