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TMI Blog2000 (4) TMI 817X X X X Extracts X X X X X X X X Extracts X X X X ..... sum of ₹ 10 lacs as damages on account of the negligence of the defendant which had resulted in the death of Challa Chinnappa Reddy. The suit was contested by the State of Andhra Pradesh on two principal grounds, namely, that the suit was barred by limitation and that no damages could be awarded in respect of sovereign functions as the establishment and maintenance of jail was part of the sovereign functions of the State and, therefore, even if there was any negligence on the part of the Officers of the State, the State would not be liable in damages as it was immune from any legal action in respect of its sovereign acts. Both the contentions were accepted by the trial court and the suit was dismissed. On appeal, the suit was decreed by the High Court for a sum of ₹ 1,44,000/- with interest at the rate of 6 per cent per annum from the date of the suit till realisation. It is this judgment which is challenged in this appeal. Ms. K.Amreshwari, learned Senior Counsel appearing on behalf of the State of Andhra Pradesh has contended that the suit was barred by time as the period of limitation, as provided by Article 72 of the Limitation Act, 1963, was only one year and sinc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f any enactment in force for the time being in India." _____________________________________________________" Article 113 of the Limitation Act, 1963, upon which reliance has been placed by the respondents, is quoted below:- "Description of suit Period of Time from which limitation period begins to run ___________________________________________________ Any suit for which no Three When the right period of limitation years. to sue accrues. is provided elsewhere in this Schedule." ___________________________________________________" These Articles, namely, Article 72 and 113 are applicable to different situations. In order to attract Article 72, it is necessary that the suit must be for compensation for doing or for omitting to do an act in pursuance of any enactment in force at the relevant time. That is to say, the doing of an act or omission to do an act for which compensation is claimed must be the act or omission which is required by the statute to be done. If the act or omission complained of is not alleged to be in pursuance of the statutory authority, this Article would not apply. This Article would be attracted to meet the situation where the publi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the statute, secondly the act must have been performed under colour of a statutory duty, and thirdly, the act must be in itself a tort in order to give rise to the cause of action. It is against such actions for tort that the statute gives protection." (26) These cases have rightly decided that Art.2 cannot apply to cases where the act or omission complained of is not alleged to be in pursuance of statutory authority." In Jailal vs. The Punjab State & Anr., AIR 1967 Delhi 118, it was held by the Delhi High Court that protection under Article 72 could be claimed only when the act was done under the colour of statutory duty but if the person acted with the full knowledge that it was not done under the authority of law, he could not claim the benefit of the shorter period of limitation prescribed under this Article. In Jaques & Ors. vs. Narendra Lal Das, AIR 1936 Calcutta 653, it was held that this Article would not protect the public officer acting mala fide under the colour of his office. To the same effect is the decision of the Punjab High Court in The State of Punjab & Ors. vs. Lalchand Sabharwal, AIR 1975 Punjab 294 = 77 Punjab LR 396. In Punjab Cotton Press Co. Ltd. v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t though the deceased and he himself had requested the police to provide protection to them as their lives were in danger, their requests were not heeded to. The High Court while examining the evidence on record came to the following conclusion:- "It is thus clear that though 9 members of the police party must stay in the sub-jail premises during the night, only two were there on that night. The witness did not produce his General Diary maintained in the Police Station to establish that 9 members of the guardian party were staying in the Sub-jail on that night. The learned Magistrate who visited the jail immediately after receiving the information and on learning of the incident, stated in his report, Ex.A-9, submitted to the Addl. District & Sessions Judge, Kurnool, that only two Constables were guarding the jail that night. He opined "I am inclined to think that the alleged explosion in Cell No.7 is on the first-floor, and that the culprits put up a ladder, tied with a rope to the wooden parapet, went up to the first-floor and threw the bomb into Cell No.7. He also reported that while going away, when they were challenged by three persons sleeping outside the jail (kept ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... piracy, the act in not providing adequate security at the jail cannot be treated to be an act or omission in pursuance of a statutory duty, namely, Rule 48 of the Madras Prison Rules, referred to by the High Court. Moreover, the action was wholly mala fide and, therefore, there was no question of the provisions of Article 72 being invoked to defeat the claim of the respondents as the protection of shorter period of limitation, contemplated by that Article, is available only in respect of bona fide acts. In our opinion, the High Court in the circumstances of this case, was justified in not applying the provisions of Article 72 and invoking the provisions of Article 113 (the residuary Article) to hold that the suit was within limitation. We may now consider the next question relating to the immunity of the State Government in respect of its sovereign acts. The trial court relying upon the decision of this Court in Kasturi Lal Ralia Ram Jain vs. State of U.P.. AIR 1965 SC 1039 = 1965 (1) SCR 375, dismissed the suit on the ground that establishment and maintenance of jail being a part of the sovereign activity of the Government, a suit for damages would not lie as the State was immune ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other respects, speaking generally, is to abolish the immunity of the Crown in tort and to equate the Crown with a private citizen in matters of tortious liability." Thus, the Crown in England does not now enjoy absolute immunity and may be held vicariously liable for the tortious acts of its officers and servants. The Maxim that King can do no wrong or that the Crown is not answerable in tort has no place in Indian jurisprudence where the power vests, not in the Crown, but in the people who elect their representatives to run the Government, which has to act in accordance with the provisions of the Constitution and would be answerable to the people for any violation thereof. Right to Life is one of the basic human rights. It is guaranteed to every person by Article 21 of the Constitution and not even the State has the authority to violate that Right. A prisoner, be he a convict or under-trial or a detenu, does not cease to be a human being. Even when lodged in the jail, he continues to enjoy all his Fundamental Rights including the Right to Life guaranteed to him under the Constitution. On being convicted of crime and deprived of their liberty in accordance with the procedure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was laid down that convicts are not denuded of all the Fundamental Rights they possess. Chandrachud, J. (as he then was) held : "The security of one's person against an arbitrary encroachment by the police is basic to a free society and prisoners cannot be thrown at the mercy of policemen as if it were a part of an unwritten law of crimes. Such intrusions are against the very essence of a scheme of ordered liberty." [See: (1975) 3 SCC Page 188 Para 9] In Charles Shobraj vs. Superintendent, Central Jail, Tihar AIR 1978 SC 1514, Krishna Iyer, J. observed as under : "True, confronted with cruel conditions of confinement, the court has an expanded role. True, the right to life is more than mere animal existence, or vegetable subsistence. True, the worth of the human person and dignity and divinity of every individual inform articles 19 and 21 even in a prison setting. True constitutional provisions and municipal laws must be interpreted in the light of the normative laws of nations, wherever possible and a prisoner does not forfeit his part III rights." (See: AIR 1978 Page 1517 Para 14) In Francis Coralie Mullin vs. The Administrator, Union Territory of Delhi, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rights cannot be defeated by pleading the old and archaic defence of immunity in respect of sovereign acts which has been rejected several times by this Court. In N. Nagendra Rao & Co. vs. State of A.P., AIR 1994 SC 2663 = (1994) 6 SCC 205, it was observed:- "But there the immunity ends. No civilised system can permit an executive to play with the people of its country and claim that it is entitled to act in any manner as it is soverign. The concept of public interest has changed with structural change in the society. No legal or political system today can place the State above law as it is unjust and unfair for a citizen to be deprived of his property illegally by negligent act of officers of the State without any remedy. From sincerity, efficiency and dignity of State as a juristic person, propounded in Nineteenth Century as sound sociological basis for State immunity the circle has gone round and the emphasis now is more on liberty, equality and the rule of law. The modern social thinking of progressive societies and the judicial approach is to do away with archaic State protection and place the State or the Government at par with any other juristic legal entity. Any watert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt, through a stream of cases, has already awarded compensation to the persons who suffered personal injuries at the hands of the officers of the Government including Police Officers & personnel for their to tortious act. Though most of these cases were decided under Public law domain, it would not make any difference as in the instant case, two vital factors, namely, police negligence as also the Sub-Inspector being in conspiracy are established as a fact. Moreover, these decisions, as for example, Nilabti Behera vs. State of Orissa, (1993) 2 SCC 746 = 1993 (2) SCR 581 = AIR 1993 SC 1960; In Re: Death of Sawinder Singh Grower, (1995) Supp. (4) SCC 450 = JT 1992 (6) SC 271 = 1992 (3) Scale 34; and D.K. Basu vs. State of West Bengal, (1997) 1 SCC 416 = AIR 1997 SC 610, would indicate that so far as Fundamental Rights and human rights or human dignity are concerned, the law has marched ahead like a Pegasus but the Government attitude continues to be conservative and it tries to defend its action or the tortious action of its officers by raising the plea of immunity for sovereign acts or acts of State, which must fail. For the reasons stated above, we do not find any merit in this a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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