Holding

Article 72 does not apply because the police acted malafide; the suit is governed by Article 113 and is within limitation, and the State is not immune from liability for negligence violating prisoners' right to life.

Summary

The State of Andhra Pradesh was sued by the family of Challa Chinnappa Reddy, who died after a bomb was hurled into his jail cell, alleging negligence of police officers who ignored repeated warnings of a conspiracy to kill the inmates. The trial court dismissed the suit on grounds of limitation and sovereign immunity; the Andhra Pradesh High Court allowed the suit, applying the three‑year limitation period of Article 113 of the Limitation Act, 1963. On appeal, the Supreme Court held that Article 72 (one‑year limitation) did not apply because the police acted malafide and not in pursuance of any statutory duty, so the residuary Article 113 governed and the suit was timely. The Court also rejected the State’s claim of immunity, emphasizing that prisoners retain fundamental rights, including the right to life under Article 21, and the State can be liable for tortious negligence in custodial settings. Consequently, the appeal was dismissed and the High Court’s decree stood.

Issues considered

The appropriate limitation period for a claim of compensation arising from alleged police negligence – whether Article 72 (one year) or Article 113 (three years) of the Limitation Act, 1963 applies.
Whether the State enjoys sovereign immunity from suit for damages arising out of the maintenance of jails and alleged police negligence.
Whether the police officers’ omission was done in pursuance of a statutory duty (bonafide) or was malafide, affecting the applicability of Article 72.
Whether the fundamental right to life under Article 21 of the Constitution is enforceable against the State in the context of custodial death.

Legislation cited

Constitution of Indias. Article 21, s. Article 300
Limitation Act, 1963s. Article 113, s. Article 72

Subjects

Limitation ActArticle 72Article 113Sovereign immunityRight to lifeArticle 21Prisoner rightsCustodial deathTort liabilityState liabilityPolice negligence

Judgment

A STATE OF ANDHRA PRADESH
v.
..... ..
CHALLA RAMKRISHNA REDDY AND ORS.

APRIL 26, 2000

B [S. SAGHIR AHMAD AND D.P. WADHWA, Ji.]

I.imitation Act, 1963 : Articles 72 and 113-Death of a prisoner caused ~-

in jail by some outsiders-Police officials involved in the conspira&y-Suit for
compensation filed by family of the deceased against the State on account of
c negligence resulting in death of the deceased-Suit dismissed being ban-ed by
limitation-A11icle 72 of the Act p1-escribing one year limitation period held
applicable-High Court dec1-eed the suit-On appeal, Held : A11icle 72 is
applicable only if the act or omission of a public officer pursuant to a statute
is bonafide and itself is a to11 causing injury to the person claiming .....
compensation-If act or omission is malafide then A1ticle 72 is not applica-
D
hie-Article 113, pmscribing three years limitation period will apply.

Constitution oflndiu.: Articles 21 and300-Right to life under 'A.rticle 21
is guaranteed to every person-Even a prisoner lodged in jail continues to
enjoy right to life-State cannot violate it even under the garb ofimmunity in ,,
E 1-espect of sovereign acts as prvvided in A11icle 300. -+
Respondent No. 1 and his father, involved in a criminal case, were
remanded to judicial custody and were lodged in Jail. Respondent No. 1
and his father informed the Inspector of Police that a conspiracy to kill
them was going on and their lives were in danger. A representation regard-
F
ing the same was also sent by them to the Collector and the Home Minister.
The Circle Inspector did not treat the matter seriously and inspite of the
representations made by them neither adequate protection was provided
to them; nor extra guards were put on duty. On the night of occurrence,
between 5th and 6th of May 1977, a bomb was hurled at them and as a
G result of the bomb explosion father of Respondent No. 1 died. In his dying
declaration, the deceased stated that he had information that a conspiracy
to kill them in jail was hatched and Sub-Inspector of Police (DW-1) was a
party to that conspiracy. Respondent No. 1, however, escaped with some
injuries. He alongwith his mother and four brothers filed a suit against the
H State for a sum of Rs. 10 Lakhs as damages on account of the negligence
644
STATE v. C.R. REDDY 645
which resulted in the death of the deceased. The appellant State contested A
the suit 0111 the ground of limitation and also on the ground of immunity
from legal action in respect of its sovereign acts. Accepting the contentions,
the trial C(Jlurt dismissed the suit. On appeal, High Court decreed the suit
for a sum of Rs. 1,44,000 along with interest. Hence, the present appeal.

B
The appellant State contended that the suit was barred by time as
the time lill!lit provided by Article 72 of the Limitation Act, 1963 was one
year only whereas the suit was filed after three years. The appellant also
contended that maintenance of jails being a part of sovereign function of
the State tht~ suit for compensation was not maintainable. The respondents
contended that the period of limitation would be governed by Article 113 c
of the Act as the nature of the suit was not covered by any other Article.of
the Act and that the said Article prescribed a period of three years from
the date on which the right to sue accrued.

Dismissing the appeal, this Court
D
HELD : 1.1. Articles 72 and 113 of the Limitation Act, 1963 are ap·
plicable to different situations. In order to attract Article 72, it is nec~ary
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. Hthe act or
omission complained of is not alleged to be in pursuance of the statutory E
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 an-
other person who invokes the jurisdiction of the court to claim compensa- F
tion for that ac:t. Thus, where a public officer acting bona.fide under or in
pursuance of the Act of Legislature commits a ''tort'', the action complained
of would be governed by this Article which, however, would not protect a
.,ublic officer acting malafide under colour of his office. The Article, as
worded, does not speak of "bonafide" or "malafide" but it is obvious that
the shorter period of limitation, provided by this Article, cannot be claimed
G
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 unde1~ any enactment. [650-F-H; 651-A-C]

State of Punjab v. Mis. Modern Cultivators, AIR (1965) SC 17, relied H
646 SUPREME COURT REPORTS [2000] 3 S.C.R.
A on.

Mohammad Sadat Ali Khan v. Administrator, Corporation City of La-
hore, AIR (1945) Lahore 324; Secretary of State v. Lodna Colliery Co. Ltd.,
AIR (1936) Patna 513 and Punjab Cotton Press Co. Ltd. v. Secretary of State,
AIR (1927) PC 72, referred to.
B
Jailal v. The Punjab State & Am:, AIR (1967) Delhi 118; Jacques &
Ors. v. Narendra Lal Das, AIR (1936) Calcutta 653; The State of Punjab &
Ors. v. Lalchand Sabharwa4 AIR (1975) Punjab 294 and Pt. Shiam Lal v.
Abdul Raof, AIR (1935) Allahabad 538, affirmed.

C 1.2. Respondent No. 1 and his father (the deceased) who appre-
hended 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 deceased and injuries to Respondent 1. In this
D process, one of the three persons, who was sleeping near the jail, was also
killed. The Police Sub-Inspector was also in conspiracy and it was for
this reason that inspite 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 the Sub-Inspector of Police himself was in con-
E spiracy, the act in 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 whGlly malafide and, therefore, there was no question of the
provisions of Article 72 being invoked to defeat the claim of the respond-
F ents as the protection of shorter period of limitation, contemplated by that
Article, is available only in respect of bonafide acts. 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 to hold that the suit
was within limitation. [654-E-H; 655-A-B]

G 2.1. 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
H run the Government, which has to act in accordance with the provisions of
STATE v. C.R. REDDY 647
a )I.- the Constitution and would be answerable to the people for any violation A
thereof. (655-D-E]

Ratan Lal's, Law of Torts (23rd Edition), referred to.

is
2.2. Right to life is one of the basic human rights. It guaranteed to
B
every person by Article 21 of the Constitution and not even the State has
the authority to violate that Right. A prisoner, be be a convict or an
undertrial or a detenue, does not cease to be a human being. Even when
lodged in the jail, be continues to enjoy all bis Fundamental Rights includ-
ing the Right to Life guaranteed under the Constitution. On being con-
victed of crime and deprived of their liberty in accordance with the proce- c
dure established by law, prisoners still retain the residue of constitutional
rights. The 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. (656-E-G; 659-B) D
N. Nagendra Rao & Co. v. State of A.P., AIR (1994) SC 2663; Common
Cause, A Regd. Society v. Union of India & Ors., AIR (1999) SC 2979;
Nilabati Behera v. State of Orissa, AIR (1993) SC 1960; In Re : Death of
Sawinder Singh Grower, [1995) Supp. 4 SCC 450 and D.K. Basu v. State of
West Benga~ AIR (1997) SC 610, relied on. E

Kasturi Lal Ralia Ram Jain v. State of U.P., AIR (1965) SC 1039,
distinguished.

2.3. None of the three categories of prisoners as defined under the F
Prisoners Act, 1894 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 estab-
lished by law which must be reasonable, fair and just. [657-C-D)
G
Maneka Gandhi v. Union of India, AIR (1978) SC 597; State of
Maharashtra v. Pra!J.hakar Pandurang Sanzgiri, AIR (1966) SC 424;
D. Bhuvan Mohan Patnaik v. State of Andhra Pradesh, AIR (1974) SC 2092;
Charles Shobhraj v. Superintendent, Central Jail, 1ihar, AIR (1978) SC 1514;
Francis Corallie Mullin v. The Administrator, Union Territory of Delhi, H
648 SUPREME COURT REPORTS [2000] 3 S.C.R.
A Am (1981) SC 746; Sunil Batra (I) v. Delhi Administration, Am (1978) SC
1675 and Sunil Batra (JI) v. Delhi Administration, Am (1980) SC 1679,
relied on.

CIVIL APPELL.A.'.fE JURISDICTION: Civil Appeal No. 3969 of 1989.

· B From the Judgment and Order dated 17 .2.89 of the And.bra Pradesh
High Court in A No. 2162 of 1986.

Ms. K. Amareshwari, B. Sridhar, Y. Subba Rao and K. Ram Kumar for
the Appellant.

AT.M. Sampath and V. Balaji for the Respondents.
c
The Judgment of the Court was delivered by

S. SAGHm AHMAD, J. Challa Chinnappa Reddy and his son Challa
Ramkrishna Reddy were involved in Criminal Case No.18/1997 of Owk
_Police Station in Baganapalle Taluk of Kurnool District. They were arres1.t:u
D on 25th of April, 1977 and on being remanded to judicial custody on 26th
of April, 1977, they were lodged in Cell No.7 of Sub-jail, Koilkuntla. In the
night between 5th and 6th of May, 1977, at about 3.30 AM., some persons
entered the premises of Sub-jail and hurled bombs into Cell No.7 as a result
of which Challa Chinna{lpa Reddy sustained grievous injuries and died
E subsequently in Government hospital, Kurnool. His son Challa Ramakrishna
Reddy who was also lodged in Cell No.7, however, escaped with some
injuries.

Challa Ramakrishna Reddy and his four other brothers as also his
mother filed a suit against the State of Andhra Pradesh claiming a sum of
F Rs.10 lacs as damages on account of tl1e 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
G maintenance of jail was prut of the sovereign functions of the State and,
therefore, even:lt. there was any negligence on the part of the Officers of the
State, the State would 1'.0t 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
H was d~reed by the High Court for a sum of Rs.1,44,000 with interest at the
STATE v. C.R. REDDY [S. SAGHIR AHMAD, J.] 649
_rate of 6 per cent per annum from the date of the suit till realisation. It is A
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 since the act complained of took place in the night
B
intervening 5th and 6th of May, 1977, the suit which was instituted on 9th
of June, 1980, was barred by time. Learned counsel appearing on behalf of
the respondents has, on the other hand, contended that the period of limitation
would be governed by Article 113 of the Limitation Act, 1963 which
prescribed a period of three years from the date on which the right to sue c
accrued. It is contended that Article 113 was the residuary Article and since
the nature of the present suit was not covered by any other Article of the
Limitation Act, it would be governed by the residuary Article, namely, Article
113 and, therefore, the suit, as held by the High Court, was within limitation.

The other question which was argued by the learned counsel for the
D
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
E

compensation was not rnaintainable. 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 F
in respect of custodial deaths.

We will first take up the question of limitation. Article 72 of the
Limitation Act, 1963 is quoted below:-

"Description of suit Period of Time from which period G
limitation begins to run

For compensation for One year When the act or
doing or for omitting omission takes
to do an act alleged place. H
650 SUPREME COURT REPORTS (2000) 3 S.C.R.
A to be in pursuance of
any enactment in force for
the time being in the territories
to which this Act extends.
'
B The above Article corresponds to Article 2 of the Limitation Act, 1908
which is quoted below:-

"For compensation for Ninety days When the act or
c doing or for omitting omission takes
to do an act alleged place.
to be in pursuance of
any enactment in force
for the time being in India."
D
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
E limitation period begins to run

Any suit for which no Three When the right
period of limitation years. to sue accrues.
is provided elsewhere
F in this Schedule."

These Articles, namely, Alticles 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
G 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
H where the public officer or public authority or, for that matter, a private person
STATE v. C.R. REDDY [S. SAGHIR AHMAD, J.] 651

~-
.-" .... does an act under power conferred or deemed to be conferred by an Act of A
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 woidd be governed
by this Article which, however, would not protect a public officer acting mala
B
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 peiod 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
enactment. c
In State of Punjab v. Mis Modem Cultivators, [1964] 8 SCR 273 =AIR
(1965) SC 17, Hidayatullah, J. (as he then was) while approving the earlier
decisions in Mohammad Sadat Ali Khan v. Administrator, Corporation of
City of Lahore, ILR (1945) Lahore 523 (FB) = AIR 1945 Lahore 324 and D
Secretary of State v. Lodna Colliery Co. Ltd., ILR 15 Patna 510 =AIR (1936)
Patna 513, observed as under:-

"(25) This subject was elaborately discussed in ILR (1945) Lah 523:
AIR (1945) Lah 324 (FB) where all ruling on the subject were
• noticed. Mahajan, J. (as he then was) pointed out that "the act or E
omission must be those which are honestly believed to be justified by
a statute." Tut: "ame opinion was expressed by Courtney Terrell C.J.
in Secretary of State v. Lodna Colliery Co. Ltd., ILR 15 Pat 510: AIR
(1936) Pat 513 in these words:-
F
-.- "The object of the article is the protection of public offi-
cials, who, while bona fide purporting to act in the exercise of a
staturory power, have exceeded that power and have committed
a tortious act; it resembles iQ. this respect the English Public Au-
thorities Protection Act. If the act compalined of is within the
terms of the statute, no protection is needed, for the plaintiff has G
suffered no legal wrong. The protection is needed when an ac-
tionable 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 H
652 SUPREME COURT REPORTS [2000] 3 S.C.R.
A 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
B pursuance of statutory authority."

In Jailal v. The Pwijab State & Am:, 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
c of law, he could not· claim the benefit of the shorter period of limitation
'·
prescribed under this Article.

In Jaques & Ors. v. Narendra Lal Das, AIR (1936) Calcutta 653, it
was held that this Article would not protect the public officer acting ma/a
D fide under the colour of his office. To the same effect is the decision of the
Punjab High Court in 11ie State of Punjab & Ors. v. Lalchand Sabharwal,
AIR (1975) Punjab 294 = 77 Punjab LR 396. In Punjab Cotton Press Co.
Ltd. v. Secretary of State, AIR (1927) PC 72, where the canal authorities cut
the bank of a canal to avoid accident to the adjoining railway track and not
to the canal and plaintiff's adjacent mills were damaged, it was held that
E Article 2 was not applicable as the act alleged was not done in pursuance
of any enactment. A Full Bench of the Allahabad High Court in Pt. Shiam
Lal v. Abdul Raof, AIR (1935) Allahabad 538 held that if a police officer
concocts and reports a false story, he is not protected by Article 2 of the
Limitation Act, which would apply only where a person honestly believing
F that he is acting under some enactment does an act in respect of which
compensation is claimed. But where the officer pretends that he is so acting
and knows that he should not act, Article 2 would not apply.

Keeping these principles in view, let us examine the facts of this case.
On being lodged in jail, the deceased Challa Chinnappa Reddy and Challa
G Ramkri.shna Reddy (P.W.l) both informed the Inspector of Police that there
was a conspiracy to kill them and their lives were in danger. They sent a
representation to that effect to the Collector and the Home Minister. On 5th
of May, 1977 they told the Circle Inspector that they had positive information
that an attack on their lives would be made on that very night. But the Circle
H Inspector did not treat the matter seriously and said that no incident would
STATE v. C.R. REDDY [S. SAGHIR Al:IMAD, J.] 653

- ..... happen inside the jail and that they need not wony. In spite of the represen-
tation made by the deceased and Challa Ramkrishna Reddy, adequate pro-
tection was not provided to them and extra guards were not put on duty. The
A

deceased, therefore, asked his followers to sleep that night near the jail itself.
As pointed out earlier, that night, which incidentally was the night between
5th and 6th of May, 1977, a bomb was hurled in Cell No.7 where the deceased
B
and Challa Ramkrishna Reddy (P.W.l) were lodged and as a result of the
bomb explosion, Challa Chinnappa Reddy died but before his death, his dying
declaration was recorded by the Judicial Magistrate in which it was stated
by the deceased that they had received information that a conspiracy was
hatched to kill them in the jail itself and that the Sub-Inspector of Police (who
was examined as D.W.l in the trial court) was a party to that conspiracy. The c
Magistrate also recorded the statement of Challa Ramkrishna Reddy who
stated that 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 D
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
E
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
Addi. District & Sessions Judge, Kurnool, that only two Constables
were guarding the jail that night. He opined F
......
"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 out-
G
side the jail (kept there by the deceased and P.W. l as an addi-
tional precaution) they threw bombs at them, killing one of them
and injuring the other two. It is also evident from Ex.A-14 that
both the said Constables were suspended on 23.5.1977. The re-
port of the learned Magistrate and his notes inspection (Ex.A-9) H
654 SUPREME COURT REPORTS [2000] 3 S.C.R.
clearly show that the Police Constables guarding the jail· were not ....._
A ~
\
vigilant, and the P.C.483, whose duty it was to guard the cell, was
probably sleeping at that time. The learned Magistrate has ob-
served in his report "if P.C. 483 was more vigilant, perhaps the
untoward incident would not have occurred... "

B
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 prope1ty 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
c Rayalaseema area of the State, notorious for factions and blood-feuds.
Use of bombs is not a rare occurrenc</in that area. In such a situation,
and more so when a specific request was made for additional
I
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
D
responsibility placed upon them by Rule 48 of the Madras Prisons
Rules. It is a failure to take reasonable care. On the issue too we
disagree with the learned trial Judge."

E
It would thus be seen from the above that the deceased as also Challa
Rarnkrishna 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 Rarnkrishna Reddy (P.W. l). In this process, one of the three
F persons, who was sleeping near the jail, was also killed. The Police Sub-
Inspector was also in 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 the Sub-
Inspector of Police himself was in conspiracy, the act in not providing
G adequate security at the jail cannot be treated to be an act or omission in
pursuance of a statutory duty, name! y, 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
H period of limitation, contemplated by that Article, is available only in respect
~
STATE v. C.R. REDDY [S. SAGIIlR AHMAD, J.) 655

~ ... of bona .fide acts. A

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.
B
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 v. State of U.P., AIR (1965) SC 1039 = [1965] 1 SCR 375,
c
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's case (supra) but it did not dismiss the appeal on that ground.
It went a step further and considered the provisions contained in Article 21 D
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 negligently.
E

Immunity of 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

.' . Crown Proceedings Act, 1947. 'Considering the effect of this Act, it is stated
in Rattan Lal's "Law of Torts" (23rd Edition) as flhder:-

"The Act provides that the Crown shall be subject to all those
F

liabilities in tort to which, if it were a person of full age and capacity,
it would be subject (1) in respect of torts committed by its servants
or agents, provided that the act or omission of the servant or agent
G
would, apart from the Act, have given rise to a cause of action in tort
against that servant or agent or against his estate; (2) in respect of any
breach of those duties which a person owes to his servants or agents
at common law by reason of being their employer; (3) in respect of
any breach of the duties attaching at common law to the ownership, H
~
I'

656 SUPREME COURT REPORTS [2000] 3 S.C.R.
A occupation, possession or control of property. Liability in tort also
...... I-
extends to breach by the Crown of a statutory duty. It is also no
defence for the Crown that the tort. was committed by its servants in
---- the course of performing or purporting to perform functions entrusted
to them by any rule of the common law or by statute. The law as to
indemnity and contribution as between joint tort-feasors shall be
B enforceable by or against the Crown and the Law Reform (Contribu-
tory Negligence) Act, 1945 binds the Crown. Although the Crown
Proceedings Act preserves the immunity of the Sovereign in person
and contains savings in respect of the Crown's prerogative and
statutory powers, the effect of the Act in other respects, speaking
c 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.
D
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

E
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,
F he continues to enjoy all his Fundamental Rights including the Right to Life
guaranteed to him undar 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 rights.
¢
"Prison" has been defined in Section 3(1) of the Prisons Act, 1894 as
G any jail or place used permanently or temporarily under the general or special
orders of State Government for the detention of prisoners. Section 3 contem-
plates three kinds of prisoners. Sub- clause (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
H of a court martial. "Convicted criminal prisoner'' has been defined in Section
STATE v. C.R. REDDY [S. SAGHIR AHMAD, J.] 657

_...' ~·
3(3) as a prisoner under sentence of a court or court martial and includes a 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 corre-
sponding provision in the new Code of Criminal Procedure is not being
indicated as it is not necessary for proposes of this case. "Civil prisoner" has
been defined in Section 3(4) as a prisoner who is not a "criminal prisoner''.
B
Thus, according to the definition under the Prisoners Act, there is a
convict, there is an under- trial 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 c
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] 1 SCC 248 = [1978] 2 SCR
621 = AIR (1978) SC 597, must be reasonable, fair and just.
>
The rights of prisoners, including their Fundamental Rights have been D
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, AIR (1966) SC 424 =[1966] 1 SCR 702, 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 E
from sending the book outside the jail for its publication. In D. Bhuvan
Mohan Patnaik v. State of Andhra Pradesh, AIR (1974) SC 2092 = [1975]
3 SCC 185 =[1975] 2 SCR 24, it was laid down that convicts are not denuded
of all the Fundamental Rights they possess. Chandrachud, J. (as he then was)
held:
F
...., ..,- "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: [1975J 3 SCC Page 188 Para :J] G
In Charles Shobraj v. 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 H
658 SUPREME COURT REPORTS [2000] 3 S.C.R.
A 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 pait
III rights." (See: AIR 1978 Page 1517 Para 14)
B
In Francis Coralie Mullin v. The Administrator, Union Territory of
Delhi, [1981] 1 sec 608 = AIR (1981) SC 746 = [1981] 2 SCR 516, the
Court held that Right to Life means the right to live with basic human dignity.
In this case, the petitioner, who was a British national and was detained in
C the Central Jail, Tihar, had approached this Court through a petition of habeas
corpus in which it was stated that she experienced considerable difficulty in
having interview with her lawyer and the members Of her family. She stated
that her daughter, who was 5 years of age, and her sister who was looking
after the daught.er, were permitted to have interview with her only once in ~
D a month. Considering the petition, Bhagwati, J. (as he then was) observed at
Page 753 in Para 8 as under :

"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
E 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 inManeka
Gandhi's case (AIR 1978 SC 597) (supra) and it has been held in that
case that the expression 'personal liberty' used in that Article is of
F 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
G
valid prison regulations and under Arts. 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 :f
I

interviews with members of the family and friends is arbitrary or
unreasonable, it would be liable to be struck down as invalid as being
H violative of Articles 14 and 21."
STATE v. C.R. RpDDY [S. SAGHIR AHMAD, J.] 659
(See also: Sunil Batra(/) v. Delhi Administration, AIR (1978) SC 1675 A
= (1978) 4 SCC 494 = 1979 (1) SCR 392 ; Sunil Batra (I/) v. Delhi
= =
Administration, AIR (1980) SC 1579 [1980] 3 SCC 488 [1980] 2 SCR
557)

Thus, the Fundamental Rights, which also include basic human rights,
continue to be available to a prisoner and those rights cannot be defeated by B
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. v. State of A.P., AIR (1994) SC 2663 =
(1994) 6 sec 205, it was observed:-
c
"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 conc ..pt 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 D
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, pro-
pounded 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 modem social thinking
E
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 watertight compartmentalisation
of the functions of the State as "soverign and non-sovereign" or
"governmental or non-governmental" is not sound. It is contrary to F
modem 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 G
though it was against law and negligently. 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 soverignty found it place either
because of the 'financial instability of the infant American States
rather than to the stability of the doctrine theoretical foundation', or H
660 SUPREME COURT REPORTS [2000] 3 S.C.R.
A because of 'logical and practical ground', or that 'ther~ could be no
legal right' as against the State which made the law gradually gave
way to the movement from, 'State irresponsibility to State responsi-
bility.' 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 regulaing and controlling the activities of
B
people in almost every sphere, educational, commercial, social,
economic, political and even marital. The demarcating line betweeti.
soverign and non-soverign powers for which no rational basis sur-
vives, has lar;ely disappeared. Therefore, barring functions such as
administration of justice, maintenance of law and order and repression
c of crime etc. which are among the primary and inalienable functions
of a constitutional Government, the State cannot claim any immu-
nity."

The whole question was again examined by this Court in Common
Cause, A Registered Society v. Union of India & Ors., (1999] 6 SCC 667 =
D
AIR (1999) SC 2979, in which the entire history relating to the institution
of suits by or against the State or, to be precise, against Government of India,
beginning from the time of East India Company right up to the stage of
Constitution, was considered and the theory of immunity was rejected. In this
process of judicial advancement, Kasturi La.l's case (supra) has paled into
E insignificance and is no longer of any binding value. ~·

This Court, through a stream of cases, has already awarded compen-
sation to the persons who suffered personal injuries at the hands of the
officers of the Government including Police Officers & personnel for their
F tortious act. Though most of these cases were decided under Public law
domain, it would not make any dif~erence as in the instant case, two vital
factors, namely, police negligence as also the Sub-Inspector being in con-
spiracy are established as a fact.

Moreover, these decisions, as for example, Nilabti Behera v. State of
G 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 =IT (1992)
6 SC 271=1992 (3) Scale 34; and D:K. Basu v. State of West Bengal, (1997]
1SCC416 =AIR (1997) SC 610, would indicate that so far as Fundamental
Rights and human rights or human dignity are concerned, the law has
H marched ahead like a Pegasus but the Government attitude continues to be
STATE v. C.R. REDDY [S. SAGHIR AHMAD, J.] 66l
conservative and it tries to defend its action or the tortious action of its A
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 appeal
which is dismissed.
B
RC.K. Appeal dismissed.

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