Case: State Of Andhra Pradesh Vs. Challa Ramkrishna Reddy

Challa Chinnappa Reddy and his son Challa Ramkrishna Reddy were involved in Criminal Case No. 18 of 1997 of Owk Police Station in Baganapalle Taluk of Kumool District. They were arrested on 25-4-1977 and on being remanded to judicial custody on 26-4-1977, they were lodged in Cell No. 7 of Sub-jail, Koilkuntla. In the night between 5-5-1977 and 6-5-1977, at about 3.30 a.m., some persons entered the premises of the sub-jail and hurled bombs into Cell No. 7 as a result of which Challa Chinnappa Reddy sustained grievous injuries and died subsequently in Government Hospital, Kurnool. His son Challa Ramkrishna Reddy who was also lodged in Cell No. 7, however, escaped with some injuriesChalla Ramkrishna Reddy and his four other brothers as also his mother filed a suit against the State of Andhra Pradesh claiming a sum of Rs. 10 lakhs as damages on account of the negligence of the defendant which had resulted in the death of Challa Chinnappa ReddyThe 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 Rs. 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 appealMs K. Amreswari, 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, 1963The other question which was argued by the learned counsel for the parties with all the vehemence at their command was the question relating to the immunity of the State from legal action in respect of their sovereign acts. It was contended by the learned counsel for the appellant that the prisons all over the country are established and maintained either by the Central Government or by the State Government as part of their sovereign functions in maintaining law and order in the country and, therefore, the suit for compensation was not maintainable.Learned counsel for the respondents, on the contrary, has contended that the theory of immunity, professed by the appellant in respect of sovereign acts, has since been exploded by several decisions of this Court and damages have been awarded against the State even in respect of custodial deaths.Description of suit Period of Time from which period limitation begins to run ----------------------------------------------------------------------72. For compensation for One year When the act or omission doing or for omitting to do takes place. *an act alleged to be in pursuance of any enactment in force for the time being in the territories to which this Act extendsDescription of suit Period of Time from which period limitation begins to run ----------------------------------------------------------------------2. For compensation for Ninety When the act or omission doing or for omitting to do days takes place. *an act alleged to be in pursuance of any enactment in force for the time being in IndiaDescription of suit Period of Time from which period limitation begins to run ----------------------------------------------------------------------113. Any suit for which no Three When the right to sue period of limitation is years accrues. *provided elsewhere in this ScheduleThese articles, namely, Articles 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 public officer or public authority or, for that matter, a private person does an act under power conferred or deemed to be conferred by an Act of the legislature by which injury is caused to another person who invokes the jurisdiction of the court to claim compensation for that act. Thus, where a public officer acting bona fide under or in pursuance of an Act of the legislature commits a tort, the action complained of would be governed by this article which, however, would not protect a public officer acting mala fide under colour of his office. The article, as worded, does not speak of bona fide or mala fide but it is obvious that the shorter period of limitation, provided by this article, cannot be claimed in respect of an act which was malicious in nature and which the public officer or authority could not have committed in the belief that the act was justifiable under any enactmentIn State of Punjab v. Modern Cultivators 1964 SC 389 Hidayatullah, J. (as he then was) while approving the earlier decisions in Mohd. Saadat Ali Khan v. Administrator, Corpn. of City of Lahore: 1945 AIR(Lah) 324 (FB)) and Secy. of State for India in Council v. Lodna Colliery Co. Ltd.: 1936 AIR(Pat) 513) observed as under(25) This subject was elaborately discussed in Mohd. Saadat (ILR (1945) 26 Lah 523 : 1945 AIR(Lah) 324 (FB)) where all rulings on the subject were noticed. Mahajan, J. (as he then was) pointed out that the act or omission must be those which are honestly believed to be justified by a statute. The same opinion was expressed by Courtney Terrell, C.J. in Secy. of State v. Lodna Colliery Co. Ltd. ((ILR (1936) 15 Pat 510 : 1936 AIR(Pat) 513) in these words -The object of the article is the protection of public officials, who, while bona fide purporting to act in the exercise of a statutory power, have exceeded that power and have committed a tortious act; it resembles in this respect the English Public Authorities Protection Act. If the act complained of is within the terms of the statute, no protection is needed, for the plaintiff has suffered no legal wrong. The protection is needed when an actionable wrong has been committed and to secure the protection there must be in the first place a bona fide belief by the official that the act complained of was justified by 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 Article 2 cannot apply to cases where the act or omission complained of is not alleged to be in pursuance of statutory authority. *

Reasoning:
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.