The judgment established the principle that the State is liable for the tortious acts of its servants if the acts are not related to sovereign functions and if there is a legal obligation, such as a court order, to return seized goods.

ARIJIT PASAYAT, J.

( 1 ) STATE of Orissa questions the correctness of a reversing judgment holding it liable to reimburse cost of articles seized during a criminal proceeding and not returned to the owner.

( 2 ) A short but interesting point of law relating to claim of protection for sovereign function is involved in this appeal. A resume' of the factual position, which is almost undisputed, may be indicated.

( 3 ) FORTY eight items of utensils were seized from the plaintiffs on 29-2-1969 by the Officer-in-charge of Jarada Police Station in connection with G. R. Case No. 240 of 1969, which was tried by the Judicial Magistrate, First Class, Berhampur. A copy of the seizure list as prepared by the Officer-in-charge was given to the plaintiff. Though the case ended in acquittal, there was an order for confiscation of the properties to the State. An appeal was carried before the Sessions Judge, Berhampur, who by his judgment dated 20-12-1975 directed return of the seized articles to the plaintiff. According to the plaintiff, in spite of repeated demands only twenty one items of seized articles were returned by the Officer-in-charge of the malkhana, while the balance twenty seven items were not returned. The plaintiff issued a notice under S. 80 of the Code of Civil Procedure, 1908 (in short the 'cpc') to the Collector, Ganjam and due intimation of such notice was given to the Officer-in-charge of the Malkhana, but no steps were taken to return the articles. As the notice issued under S. 80, CPC did not yield any result, the suit out of which this appeal arises was instituted. The prayer in the suit was to pass a decree to return the remaining articles seized from the plaintiff, or in the alternative to pay a sum of Rs. 1,500/- being the value of the articles, and interest at the rate of 9% from 20-12-1975, i. e. , the date on which judgment was passed by the learned Sessions Judge, with subsequent interest till the date of payment along with cost of the suit.

( 4 ) A written statement was filed by the State of Orissa, represented by the District Collector, Ganjam, inter alia, stating that the Officer-in-charge of the Court malkhana had returned twenty six items on 19-7-1976, but the remaining twenty nine items of properties could not be delivered as they were not available in the Court malkhana being misappropriated by the Court Sub-Inspector Shri D. V. S. Rao against whom a criminal case bearing G. R. Case No. 210 of 1975 (S. R. 30 / 75) had been instituted. According to the defendant, the goods had been received by Shri Rao under his responsibility, and, since he did not account for the same proper action has been taken in the court of law. It was also pleaded that the defendant was not liable for loss of the articles in the court malkhana under the indicated circumstances. It was also pleaded that the concerned C. S. I. was a necessary party and his non-impletion rendered the suit non-maintainable.

( 5 ) FOUR issues were framed, of which the first issue related to the entitlement of the plaintiff to articles or value thereof. Relying on a decision of the Supreme Court in the case of M/s. Kastury Lal v. State of Uttar Pradesh, AIR 1965 SC 1039, the trial court held that the plaintiff was not entitled to bring action for damages against the State for realisation of the value of the articles said to have been misappropriated by the ex CSI. It, however, held that the concerned official was not a necessary party. In view of the answer to the issue relating to maintainability of the suit for damages against the State, it was held that the Court had jurisdiction to try the suit. With the aforesaid conclusions, the suit was dismissed but without any order as to costs.

( 6 ) IT may be indicated here that the trial court was of the view that the decision of the Supreme Court reported in 1977 Cri LJ 1141 (SC) : Smt. Basava Kom Dyamogouda Patil v. State of Mysore, had no application to the facts of the case, as the same was rendered i