Case: State Of Andhra Pradesh Vs. Challa Ramkrishna Reddy

her family. She stated that her daughter, who was 5 years of age, and her sister who was looking after the daughter, were permitted to have interview with her only once in a month. Considering the petition, Bhagwati, J. (as he then was) observed at AIR pp. 753-54 in para 8 as under : (SCC pp. 619-20, para 9) 9. The same consequence would follow even if this problem is considered from the point of view of the right to personal liberty enshrined in Article 21, for the right to have interviews with members of the family and friends is clearly part of personal liberty guaranteed under that article. The expression personal liberty occurring in Article 21 has been given a broad and liberal interpretation in Maneka Gandhi case (1978 SC 212) and it has been held in that case that the expression personal liberty used in that article is of the widest amplitude and it covers a variety of rights which go to constitute the personal liberty of a man and it also includes rights which have been raised to the status of distinct fundamental rights and given additional protection under Article 19. There can therefore be no doubt that personal liberty would include the right to socialise with members of the family and friends subject, of course, to any valid prison regulations and under Articles 14 and 21, such prison regulations must be reasonable and non-arbitrary. If any prison regulation or procedure laid down by it regulating the right to have interviews with members of the family and friends is arbitrary or unreasonable, it would be liable to be struck down as invalid as being violative of Articles 14 and 21. * (See also : Sunil Batra v. Delhi Admn. (1978 SC 289) and Sunil Batra (II) v. Delhi Admn. (1979 SC 329) 18. Thus, fundamental rights, which also include basic human rights, continue to be available to a prisoner and those 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 19. In N. Nagendra Rao & Co. v. State of A.P. (1994 SC 798) it was observed : (SCC p. 235, para 25) 25. 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 sovereign. 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 on a par with any other juristic legal entity. Any watertight compartmentalisation of the functions of the State as sovereign and non-sovereign or governmental and non-governmental is not sound. It is contrary to modern jurisprudential thinking. The need of the State to have extraordinary powers cannot be doubted. But with the conceptual change of statutory power being statutory duty for sake of society and the people the claim of a common man or ordinary citizen cannot be thrown out merely because it was done by an officer of the State even though it was against law and negligent. Needs of the State, duty of its officials and right of the citizens are required to be reconciled so that the rule of law in a welfare State is not shaken. Even in America where this doctrine of sovereignty found its place either because of the financial instability of the infant American States rather than to the stability of the doctrines theoretical foundation, or because of logical and practical ground, or that there could be no legal right as against the State which made the law gradually gave way to the movement from, State irresponsibility to State responsibility. In welfare State, functions of the State are not only defence of the country or administration of justice or maintaining law and order but it extends to regulating and controlling the activities of people in almost every sphere, educational, commercial, social, economic, political and even marital. The demarcating line between sovereign and non-sovereign powers for which no rational basis survives has largely disappeared. Therefore, barring functions such as administration of justice, maintenance of law and order and repression of crime etc. which are among the primary and inalienable functions of a constitutional Government, the State cannot claim any immunity. * 20. The whole question was again examined by this Court in Common Cause, A Registered Society v. Union of India (1999 SC 503) in which the entire history relating to the institution of suits by or against the State or, to be precise against the Government of India, beginning from the time of the East India Company right up to the stage of the Constitution, was considered and the theory of immunity was rejected. In this process of judicial advancement, Kasturi Lal case (1964 SC 10) has paled into insignificance and is no longer of any binding value 21. This Court, 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 and personnel for their 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.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]9. The very manner in which the culprits gained entry into the jail shows that it could not have happened but for the negligence on the part of the police to guard the jail property and to ensure the safety of prisoners, as required by Rule 48 of the Madras Rules aforesaid. It may be noted that Kumool District is one of the districts in Rayalaseema area of the State, notorious for factions and blood feuds. Use of bombs is not a rare occurrence in that area. In such a situation, and more so when a specific request was made for additional precautions, the failure not only to provide additional precautions, but the failure to provide even the normal guard duty cannot but be termed as gross negligence. It is an omission to perform the statutory responsibility placed upon them by Rule 48 of the Madras Prisons Rules. It is a failure to take reasonable care. On Issue 2 we disagree with the learned trial Judge. *10. It would thus be seen from the above that the deceased as also Challa Ramkrishna Reddy who apprehended danger to their lives, complained to the police and requested for adequate police guards being deployed at the jail, but their requests were not heeded to and true to their apprehension, a bomb was thrown at them which caused the death of Challa Chinnappa Reddy and injuries to Challa Ramkrishna Reddy (PW 1). In this process, one of the three persons, who was sleeping near the jail, was also killed. The Policer was also in the conspiracy and it was for this reason that in spite of their requests, adequate security guards were not provided. Even the normal strength of the guards who should be on duty at night was not provided and only two constables, instead of nine, were put on duty. Since ther of Police himself was in the conspiracy, 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 Prisons 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 acts11. 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 limitationWe may now consider the next question relating to the immunity of the State Government in respect of its sovereign acts12. The trial court relying upon the decision of this Court in Kasturi Lal Ralia Ram Jain v. State of U.P. 1964 SC 10 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 from being proceeded against in a court of law on that account. The High Court also relied upon the decision in Kasturi Lal case 1964 SC 10 but it did not dismiss the appeal on that ground. It went a step further and considered the provisions contained in Article 21 of the Constitution and came to the conclusion that since the right to life was part of the fundamental rights of a person and that person cannot be deprived of his life and liberty except in accordance with the procedure established by law, the suit was liable to be decreed as the officers of the State in not providing adequate security to the deceased, who was lodged with his son in the jail, had acted negligentlyImmunity of the State for its sovereign acts is claimed on the basis of the old English maxim that the king can do no wrong. But even in England, the law relating to immunity has undergone a change with the enactment of the Crown Proceedings Act, 194713. 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 servants14. The maxim that the 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 thereof15. 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 undertrial 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 established by law, prisoners still retain the residue of constitutional rightsPrison has been defined in Section 3(1) of the Prisons Act, 1894 as any jail or place used permanently or temporarily under the general or special orders of the State Government for the detention of prisoners. Section 3 contemplates three kinds of prisoners.n (2) of Section 3 defines criminal prisoner as a prisoner duly committed to custody under the writ, warrant or order of any court or authority exercising criminal jurisdiction or by order of a court martial. Convicted criminal prisoner has been defined in Section 3(3) as a prisoner under sentence of a court or court martial and includes a person detained in prison under the provisions of Chapter VIII of the Code of Criminal Procedure, 1882 or under the Prisoners Act, 1871. The corresponding provision in the new Code of Criminal Procedure is not being indicated as it is not necessary for purposes of this case. Civil prisoner has been defined in Section 3(4) as a prisoner who is not a criminal prisoner Thus, according to the definition under the Prisoners Act, there is a convict, there is an undertrial and there is a civil prisoner who may be a detenu under preventive detention law. None of the three categories of prisoners lose their fundamental rights on being placed inside a prison. The restriction placed on their right to movement is the result of their conviction or involvement in crime. Thus, a person (prisoner) is deprived of his personal liberty in accordance with the procedure established by law which, as pointed out in Maneka Gandhi v. Union of India (1978 SC 212) must be reasonable, fair and just16. The rights of prisoners, including their fundamental rights have been culled out by this Court in a large number of decisions, all of which may not be referred to here. In State of Maharashtra v. Prabhakar Pandurang Sanzgiri 1965 SC 155 it was held that conditions of detention cannot be extended to deprivation of other fundamental rights and the detenu, who had written a book in Marathi, could not be prohibited from sending the book outside the jail for its publication. In D. Bhuvan Mohan Patnaik v. State of A.P. (1974 SC 140) it was laid down that convicts are not denuded of all the fundamental rights they possess20. The whole question was again examined by this Court in Common Cause, A Registered Society v. Union of India (1999 SC 503) in which the entire history relating to the institution of suits by or against the State or, to be precise against the Government of India, beginning from the time of the East India Company right up to the stage of the Constitution, was considered and the theory of immunity was rejected. In this process of judicial advancement, Kasturi Lal case (1964 SC 10) has paled into insignificance and is no longer of any binding value21. This Court, 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 and personnel for their 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 ther being in conspiracy are established as a fact.