1. This is an appeal by the Local Government against the judgment of the Sessions Judge, Wardha, setting aside the conviction of the respondent Abasali under S. 409, I.P.C, on appeal from the judgment of the Sub-Divisional Magistrate, Warora, and directing him to be retried for such offences which the District Magistrate, Chanda, might order under the provisions of Section 197 of the Cr PC. The Sessions Judge has held that the action of the respondent in taking ornaments, which were seized in the course of an investigation into a reported case of theft, did not amount to criminal breach of trust within the meaning of S. 409, though it might amount to some other offence. The Local Government does not accept this view and has therefore appealed to this Court against the judgment.
2. It seems clear that the view taken by the Sessions Judge is incorrect, and, the Judge has perhaps gone wrong on a mistaken analogy of civil law and responsibility.
3. The facts of the case are briefly as follows: An offence was reported of a theft of gold ornaments, weighing 18 tolas, belonging to one Mt. Manki of mouza Seori Manki's nephew Doma was suspected of the theft, and Abasali was sent to investigate on 6th February 1934. He questioned Doma upon information received from Manki, and Doma made a confession and produced the ornaments and Rs. 60 in cash, which were the sale proceeds out of the sale of one of the ornaments, a gold ring. Abasali however instead of arresting Doma, came to an agreement with him by which Abasali took some of the ornaments and Rs. 50 in cash and gave Rs. 10 to Doma's wife on condition that Doma was not prosecuted. Abasali then tried to cover up the offence, made false entries in the diary, of which two pages are missing, and reported that no trace was found. Mt. Manki and other people of the village became suspicious and made an application to the District Superintendent of Police, upon which an enquiry was made through the Circle Inspector and the ornaments were recovered from Abasali. That Abasali misappropriated the ornaments there can be no doubt, but the view taken by the Sessions Judge is that he was never entrusted with the ornaments and had no dominion over them as a result of such trust, and therefore he could not commit criminal breach of trust. This view however is clearly wrong. The head constable Abasali was ordered to investigate the offence, and in the course of his duty under the provisions of Section 550 of the Cr PC, and the Police Act it was his duty to seize all property which was suspected of having been stolen. Having seized the property he was entrusted with dominion over it on behalf of the Crown, and, if he then misappropriated the property, he clearly committed breach of trust with regard to it. The argument of the Sessions Judge, namely, that the head constable entered into the agreement about the property before seizing it, is, in the nature of a quibble. The head constable could not escape responsibility in that way. He was a Government servant under orders; he had not resigned his service, and therefore he was bound to act according to the rules of the service and the Police Act; it was his duty to seize the property, and he must be held to have seized it. Further, it may be pointed out that, unless he had the power of seizure, he could not have entered, into the agreement; or rather, Doma would not have been willing to enter into the agreement; about the division of the property.
4. Again the arguments of the Sessions Judge, that the Government or Secretary of State would not be civilly liable for any tortious act done by the head constable, is fallacious because-Government, or the Crown, is not in the position of a private employer, and as a general rule Government is not liable for tortious acts of its servants performed in the course of their duty or under statutory authority. 16 will not however be necessary to go into the matter at any length. The matter has been discussed very fully in the cases cited by the Sessions Judge himself, namely, 1931 Rang 294(1), 1915 Mad. 434(2) and 1916 Mad. 1157(3). It may be taken as established that the Secretary of State is not usually liable for acts-done by Government servants and would only be liable in such cases as the East India Company was formerly liable. As regards the East India Company a distinction was drawn between sovereign acts and acts of trading. As regards sovereign acts the Company was held not to be liable for defaults of its servants. In the present case, then no argument can be put forward that the constable was not entrusted with dominion over the property on behalf of Government because Government would not be liable for his tortious acts. I therefore disagree with the Sessions. Judge and hold that the respondent Abasali had dominion over the property on behalf of Government, whether he formally seized it or not, and that in abuse of that dominion he misappropriated the property and committed a criminal breach of trust in his capacity as a public servant.
5. The acquittal of the respondent Abasali under S. 409, I.P.C, is therefore wrong, and the conviction by the Magistrate was correct. The respondent was sentenced by the Magistrate to rigorous imprisonment for one year and a fine of Rs. 49, but under the provisions of Section 423 of the Cr PC, I am now empowered to pass a new sentence within the powers of the Magistrate who tried the case. I am of opinion that the offence was a very serious one, committed by a responsible public servant in the course of his duty and that severer sentence should have been inflicted. I therefore find the respondent Abasali guilty under S. 409, I.P.C and sentence him to rigorous imprisonment for two years and a fine of Rs. 50; in default of payment of fine he will undergo a further period of rigorous imprisonment for three months.
6. Appeal allowed.