IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No 272 of 1983 For Approval and Signature: Hon'ble MR.JUSTICE R.K.ABICHANDANI and MR.JUSTICE M.C.PATEL ============================================================ . Whether Reporters of Local Papers may be allowed to see the judgements? Yes 2. To be referred to the Reporter or not? Yes @@ 2. To be referred to the Reporter or not? Yes @@ 2. To be referred to the Reporter or not? Yes @@ 2. To e referred to the Reporter or not? Yes @@ 2. To be ref rred to the Reporter or not? Yes @@ 2. To be referred o the Reporter or not? Yes @@ 2. To be referred to the Reporter or not? Yes @@ 2. To be referred to the Repor er or not? Yes @@ 2. To be referred to the Reporter or not? Yes @@ 2. To be referred to the Reporter or not? es @@ 2. To be referred to the Reporter or not? Yes @@ 2. To be referred to the Reporter or not? Yes @@ 2. To be referred to the Reporter or not? Yes @@ 2. To be referred to the Reporter or not? Yes @ 2. To be referred to the Reporter or not? Yes @@ 3. Whether Their Lordships wish to see the fair copy of the judgement? 4. Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? 2 to 5 No -------------------------------------------------------------- STATE OF GUJARAT Versus GOVINDBHAI JAKHUBHAI -------------------------------------------------------------- Appearance: MR.P.G.DESAI,GOVERNMENT PLEADER, with MR.M.A.BUKHARI,AGP, for Appellant. MR R.N SHAH for Respondent No. 1 NOTICE SERVED on Respondent No. 2 -------------------------------------------------------------- CORAM : MR.JUSTICE R.K.ABICHANDANI and MR.JUSTICE M.C.PATEL Date of decision: 22/12/98 ORAL JUDGEMENT(Per R.K.Abichandani,J.) The Appellant-State of Gujarat challenges in this appeal the judgment and order dated 3.9.1982 passed by the learned Civil Judge (S.D.), Himatnagar, in Special Civil Suit No.33 of 1979, holding it to be vicariously liable for the tortious act of its police constable and decreeing compensation of Rs.1,98,000/- with 6 per cent interest from the date of the suit till payment and costs, in favour of the present respondent No.1, Govindbhai, who was the original plaintiff. 2. The plaintiff's case was that at the relevant time when he had undertaken the work as a contractor for construction of Rajendranagar Dam, the present respondent No.2, Keshabhai, who is the original defendant No.2, was working as a Police Constable at Raigadh Outpost and was in the service of the appellant-State of Gujarat, who was the original defendant No.1. On 22.4.1976, after the close of the work for the day,the plaintiff was proceeding to Himatnagar for purchasing a kingpin for his damaged truck and when he was passing by the Raigadh Police Outpost, which is on the highway, he came to know that the truck-driver, Devan Ruda, who was carrying some of his labourers in his truck, was detained in the Outpost and was being manhandled. The plaintiff, therefore, went inside the Police Outpost and requested the Constable, defendant No.2, to desist from beating the driver, asking him that he may take legal action as may be warranted, but should not take law into his own hands. Thereupon, the defendant No.2-Constable became excited and started abusing the plaintiff and gave him threats. He asked another policeman to bring his rifle from the adjoining room, and on getting the rifle, he continued his hostility towards the plaintiff and before the plaintiff could run away, he fired a shot at him, which hit the plaintiff on his right thigh above the knee-cap. The plaintiff fell down and had to be carried by his son Hirjibhai in the jeep-car to the hospital at Himatnagar where he was admitted as an indoor patient. According to the plaintiff, he was transferred to the Civil Hospital, Ahmedabad for further treatment and thereafter was operated upon by an eminnent Orthopaedic Surgeon. The bullet-injury, however, did not heal and the plaintiff had to get his right leg amputated above the knee-cap. The plaintiff thus lost his limb because of illegal and unauthorised firing by the defendant No.2. According to the plaintiff, the defendant No.2 had acted wrongfully, illegally and unauthorisedly in assaulting and injuring the plaintiff. It was contended that since the defendant No.2 was in the service of the defendant No.1 at the relevant time and since the defendant No.2 acted illegally and wrongfully and fired the shot from his rifle at the plaintiff with a view to cause injury, the act of the defendant No.2 was a tortious act for which the defendant No.1 was vicariously liable. According to the plaintiff, because of his confinement to the hospital for a period of more than six months and loss of his leg, he was not able to attend to his work as a contractor for 12 months. He was having a monthly income of Rs.3,500/at the relevant time,which was lost to him for a period of 12 months. Moreover, he had to employ two persons for getting the work done,which he would have done himself and had, therefore,to spend Rs.1500/- per month. He had lost his earning capacity by 50% as a result of this tortious act of defendant No.2 and his yearly economic loss would come to Rs.18,000/-, and that, at the multiplier of 7, he was entitled to claim Rs.1,26,000/by way of compensation. For loss of enjoyment of life and diminution in full pleasures of living, he claimed Rs.25,000/-. For the personal expenses, he claimed a further sum of Rs.25,000/-; for mental shock, he claimed Rs.25,000/-,and, for diminished capacity to work, a further sum of Rs.25,000/-. He also claimed Rs.25,000/for future expenses on medical treatment.The total claim was put up at Rs.2,26,000/-. Statutory notice under Section 80 of the Code of Civil Procedure, 1908 was sent by the plaintiff to the State, which was served on 15.2.1979. According to the plaintiff, both the defendants were liable for the tortious act of the defendant No.2 which resulted in grievous injury to the plaintiff. 3. In the written statement, Exh.25, the allegations regarding the incident were denied. It was alleged that on the contrary the plaintiff and others had tried to attack the Police Outpost and had obstructed the public servants in discharge of their duties. It was alleged that the plaintiff had received injuries due to his own wrong. It was denied that he was illegally, wrongfully or unauthorisedly assaulted and injured by the defendant No.2. It was alleged that the plaintiff had taken law in his own hands and tried to overawe the public servants in discharge of their duties by criminal assault and intimidation. In the alternative, it was contended that the defendant No.2 Constable did not have any authority to fire from his rifle and that he had deliberately fired from his rifle with a view to cause injury to the plaintiff, for which the State of Gujarat is not liable. It was contended that for unauthorised and deliberate acts of its employees, the State of Gujarat was not liable and there was no vicarious responsibility on the part of the State of Gujarat for the alleged wrong done to the plaintiff. The plaintiff was put to strict proof regarding the amputation of his right leg and its being lost because of the unauthorised and illegal firing of the defendant No.2 and also to the strict proof of proving that he was not in a position to walk or that he had to walk on crutches. It was denied that the defendant No.2 committed any tortious act, during the course of the employment of the defendant No.1. It was also denied that the deprivation of leg had resulted in great financial loss to the plaintiff. Various other contentions raised in the plaint were specifically denied. 4. Issues were framed at Exh.23 and on the question of tortious liability of the defendant No.2 and the vicarious liability of the defendant No.1, though no separate issue was framed, both the sides had understood the pleadings, as it transpires from the record and the arguments made before the trial Court, and they seem to have argued on that aspect under issue No.1, which is an omnibus issue on the question of the tortious liability of both the defendants. 5. The trial Court, on the basis of the evidence on record, came to a finding that the defendant No.2 had illegally, wrongfully and unauthorisedly injured the plaintiff by firing a gun shot at him during the course of his employment with the State of Gujarat. The contention that the State of Gujarat was not vicariously liable for such tort committed by the defendant No.2 was negatived. After referring to the decision in Storey v. Ashton (1968-69) 4 QBD 476, the provisions of Art.300 of the Constitution, the decision of the Supreme Court in Kasturi Lal Balia Ram Jain v. State of U.P., AIR 1965 SC 1039 and a decision of the Allahabad High Court in Uttar Pradesh Government v. Ram Milan and others, reported in AIR 1967 Allahabad 287, the trial Court came to a finding that the defendant No.2 Constable had committed the tortious act during the course of his employment with the defendant No.1-State of Gujarat and that the State of Gujarat was vicariously liable for such tort committed by its employee. The trial Court rejected the defence that the State was not vicariously liable because the act was relatable to the sovereign powers of the State. Considering the claim made under various heads by the plaintiff, the trial Court awarded a total amount of Rs.1,98,000/- by way of damages to the plaintiff with interest and costs. 6. The learned Government Pleader, appearing for the appellant-State of Gujarat, contended before us that manning of a Police OutPost by the constabulary was an essential part of the exercise of the sovereign function of the State of wmaintaining law and order and therefore even if it is established that the Constable Keshabhai, respondent No.2, had, during the course of his employment at the Raigadh Out Post, committed the tortious act in purported discharge of his duties, the State of Gujarat cannot be held vicariously liable for such tort. The learned Counsel heavily relied on the decision of the Supreme Court in Kasturi Lal's case (supra) in which the Constitution Bench of the Supreme Court,while dealing with the case, where the property which was seized (gold) was not returned and a suit was filed to recover that property or in lieu thereof its value and damages, held that though the manner in which the gold seized from the plaintiff had been dealt with at the `Malkhana' showed a gross negligence on the part of the police officers and that the loss suffered by the plaintiff was due to negligence of the police officers of the State and the act which gave rise to the claim for damages had been committed by the employee of the State during the course of its employment, the employment in question being of the category which had the special characteristic of sovereign power, the claim could not be sustained. It was held that there was a material distinction between the acts committed by the servants employed by the State where such acts are referable to the exercise of sovereign powers delegated to public servants and acts committed by public servants which are not referable to the delegation of any sovereign powers. If a tortious act is committed by a public servant and it gives rise to a claim for damages, the question to ask is : Was the tortious act committed by the public servant in discharge of statutory functions which are referable to, and ultimately based on, the delegation of the sovereign powers of the State to such public servant? If the answer is in the affirmative, the action for damages for loss caused by such tortious act will not lie. On the other hand, if the tortious act has been committed by a public servant in discharge of duties assigned to him not by virtue of the delegation of any sovereign power, an action for damages would lie. The learned Government Pleader argued that since maintenance of law and order was purely a sovereign function, a tort committed by a Constable will not raise any vicarious liability on the part of the State and the State can successfully plead the defence on that ground. It was submitted that if such liability of the State is to arise due to such tortious acts of the constables, it would become impossible for the State to carry on its functions of maintenance of law and order smoothly. He further argued that even if the tortious act resulted in breach of fundamental right guaranteed by Article 21 of the Constitution, there was no liability on the part of the State, when the alleged wrongful act is relatable to the exercise of the sovereign powers of the State. It was finally urged that the evidence did not satisfactorily establish that the fundamental right of the respondent No.1 was violated by the tortious act of the respondent No.2-Constable. 7. The learned Counsel appearing for the respondent No.1 contended that the State cannot plead act of State in India because the States do not possess external sovereignty, which vests in the Union of India. He submitted that the concept of "King can do no wrong" was wholly inapplicable in Indian context. He submitted that the facts clearly established that the respondent No.2 Police Constable was tried under Sec.307 I.P.C. for having attempted to murder the respondent No.1 and that he was convicted by the High Court for the offence under Section 326 of the Indian Penal Code and sentenced to six months' rigorous imprisonment and to pay a fine of Rs.500/-, by judgment and order dated 8.11.1980 in Criminal Appeal No.59 of 1978. Referring to the certified copy of that decision, which is at Exh.79, he pointed out the observation of the Court to the effect that the case illustrates how dangerous it is to give fire-arm to a policeman who is irresponsible and untrained and how the weapons meant for the protection of the citizens could be used as weapons of oppression. The Court had observed that if the act like the one committed by the respondent goes unpunished, people will lose faith in the judiciary and the judicial system. It was observed that the respondent had no business to lose his temper and misuse the firearm which was given to him, to protect the lives and properties of citizens. He also pointed out the observation that there was no justification for the action of the respondent No.2 which had resulted in irreparable loss to an unarmed person, whose only fault was that he wanted to ventilate his grievance before the superior officer of the respondent-Constable. It was contended that the medical-evidence clearly establishes the grievous injuries which were caused by the respondent No.2. According to him, the evidence establishes that the respondent No.1 had gone to the police station to ensure that the driver of the truck was not manhandled any further and that since he told the Constable that he would complain to his superior, the Constable got enraged and fired from his rifle at him. It was submitted that such an act on the part of the Police Constable amounted to tort and for such tort, not only the Constable was liable for damages, but even the State was vicariously liable. He submitted that when there was breach of fundamental right by a public servant, the State was liable to compensate the victim. He submitted that the decision in Kasturi Lal's case (supra) cannot be invoked by the State because in that case it was a tort of conversion and there was no violation of any fundamental right. 8.1 The respondent No.1, in his deposition Exh.65, has narrated the incident that took place on 22.4.1976. He has stated that one of his trucks had left with the labourers and he had thereafter started in his jeep-car along with his son Hirjibhai on that evening for buying a kingpin. When they came near Raigadh Outpost, he learnt that his truck-driver Devdan Duda was detained at the Outpost and beaten up. He, therefore, went inside the Outpost and requested the respondent No.2, Keshabhai, who was a Constable on duty, not to beat his driver. At that time, the respondent No.2, who was drunk, gave abuses to the respondent No.1 and told him to leave the Outpost. Since he did not leave, the respondent No.2 called for his rifle and took an aim at the respondent No.1 and fired a shot that resulted in an injury on his right thigh. He fell down and his son Hirjibhai came inside the Outpost and took him to the Civil Hospital at Himatnagar in the jeep car. He had profusely bled and was treated as an indoor patient. He was removed to the Civil Hospital at Ahmedabad. He has produced Certificates, Exhs. 67 to 69 from the Civil Hospital, Ahmedabad,where he was kept for about 10 to 12 days. The injury by the bullet, according to him, was a serious one and was not healing and he had ultimately to get his right leg amputated below the knee-cap on the advice of the Surgeon, Dr.M.T.Mehta. According to him, he suffered unbearable pain and was not able to walk. He was advised to go to Military Hospital, Poona for further treatment. He has stated that he could not attend to work for nearly three months and that he was finding it difficult to walk even with crutches. Then he has spoken about the financial loss and expenses that he had to incur. He has denied the suggestion that the injury had occurred on account of his fault. There was no suggestion put in the cross-examination to him that he had tried to snatch the rifle from the Constable and that he came to be injured in that process, a story which has been put forth by the respondent No.2-Constable in his deposition. 8.2 It appears from the Certificate issued by the Medical Officer, Civil Hospital, Himatnagar, on 30.4.1976, which is at Exh.66, that the respondent No.1 Govindbhai was brought to the hospital with a Yadi from the P.S.I. on 22.4.1976 at 8.30 p.m. and on examination, the following injuries were found on his person:- "1. An oval punctured wound on the inner side of interior surface of right thigh, placed 2" above the right knee, size being 1 cm. x 2 cm. diameter. The edges of the wound were seen inverted. 2. A rounded, lacerated wound placed anteriorly and medially and just above of the wound No.1 size being of 2 cm. diameter approximately. 3. An abrasion on right thigh placed anteriorly and above of the wound No.1, size being 2 cm. x 1-1/2 cm. 4. A punctured wound placed posteriorly and laterally in right `politeal fossa' size 2 cm. diameter approximately. 5. Fracture of the lower half femur into multiple irregular pieces shown in X-ray No.267 dated 22.4.1976 of the said person of right thigh (A.P. view) and knee. 8.3 It was also recorded in the Certificate that the patient was profusely bleeding from the wounds. The Medical Officer opined that the injuries Nos.1,2,4 and 5 may have been caused by any forceful projectile, bullet like object and injury No.3 by any forceful contact with rough surface. These injuries are borne out even from the certificates issued from the Civil Hospital, Ahmedabad, Exhs. 66,67, 68 and other medical papers which are proved. There is no dispute before us that the respondent No.1 did suffer the bullet injury and had undergone the medical treatment and that his right leg had to be amputated, since the bullet-injury did not heal and complications developed. Dr. M.T. Mehta's certificate dated 21.7.1976 at Exh.77 shows that the permanent disability of the respondent No.1 due to amputation of his leg was 60 per cent. All these injuries have been narrated also by the Medical Officer Dr. Jayant Gokhale, who had deposed in the Sessions Case and his deposition has come on record at Exh.80. Dr.M.T. Mehta in his deposition at Exh.86 has also referred to the bullet-injury caused to the respondent No.1 and to the fact that he had operated the patient for amputating his leg. He had also referred to the expenses which the respondent No.1 incurred and would have to incur. The evidence of the respondent No.1 is clearly supported by the medical evidence and we are satisfied, on the basis of the material on record, that the bullet-injury caused to the respondent No.1 by the respondent No.2-Constable on 22.4.1976 resulted in the loss of limb of the respondent No.1. 8.4 The witness K.M. Patel in his deposition at Exh.88 has stated that the firm in which the respondent No.1 was a partner was given the work of construction of the dam in 1976 and the work was to be completed before 30.5.1976. This witness, who is a Deputy Engineer in the Irrigation Department, has deposed that penalty of Rs.1,000/- was recovered for the late completion of the work. The son of the respondent No.1 Hirjibhai, in his deposition, Exh.92, has narrated the incident of 22.4.1976 and has stated that his father had received injuries on account of the wrongful act of the respondent No.2. He has spoken as to the expenses which were required to be incurred and the loss of income to his father. Witness Ahmed Hukka in his deposition at Exh.130 has stated that he was employed because the leg of the respondent No.2 had to be amputated and there was no one else to work for the firm. He has also stated that along with him another person Kanjibhai was also employed and that they were employed initially at the monthly salary of Rs.750/-, which was later raised to Rs.850/-. 9.1 Police Inspector N.M. Devda was examined for the original defendants and has deposed at Exh.133 that on 22.4.1976 the respondent No.2 Constable Keshabhai was on duty at Raigadh Out Post and on that day he was not given any order to open fire. In his cross-examination he has admitted that during investigation he found that the respondent No.2 had illegally opened fire and therefore he had issued a charge-sheet against him under Section 307 of the Indian Penal Code. He has stated that the gun was supplied to the respondent No.2 by the Government. He has admitted that when the respondent No.2 fired the rifle at Govindbhai, he was on duty. He has also admitted that the respondent No.2 was convicted by the High Court. 9.2 The respondent No.2 Keshabhai, in his deposition at Exh.134, has deposed that on 22.4.1976 he was on duty as a Police Constable at Raigadh Outpost. While he and Police Constable Motisinh were on the road, they saw truck No.4276 carrying 125 labourers. He stopped the truck and wrote down the name of the driver, who demanded a copy of the complaint. He, therefore, took the driver of the truck to the Outpost, prepared the complaint and gave a copy thereof to him. The driver then went away around 4.30 p.m. Thereafter at about 7.30 p.m., 17 persons came in a jeep-car and gave kicks to Head Constable Nanjibhai. The driver of the truck, who had also come, told the plaintiff that it was this witness who had lodged a complaint against him, and thereafter those 17 persons caused hurt to this witness by giving him fist and kick blows. He was then dragged to the jeep-car, but since two residents of Raigadh intervened, he jumped out of it and rushed to the Outpost with the group of 17 persons following him. He has then stated: "I came out with a loaded gun and told them to go away. Plaintiff of this suit started pulling