IMPORTANT POINTS
1. The Maxim that King can do no wrong or that the Crown is not answerable in tort has no place in Indian jurisprudence where the power vests, not in the Crown, but in the people who elect their representatives to run the Government, which has to act in accordance with the provisions of the Constitution and would be answerable to the people for any violation thereof.
2. In order to attract Article 72 of the Limitation Act, 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.

Headnote:(i) Limitation Act, 1963-Article 72-Suits relating to torts-Condition precedent to attract Article 72-Suit must be for compensation for doing or omitting to do an act in pursuance of any enactment-Deceased was put in judicial custody on remand-Bomb hurled in cell of deceased causing his death-Deceased earlier expressing his apprehension about plot to kill him in jail-Adequate protection not provided-Sub-Inspector of police party to plot-Suit for damages filed after expiry of one year of incident-Not barred by limitation-Article 72 not attracted.
       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 enactment. (Para 6)
       In the instant case, on being lodged in jail, the deceased Challa Chinnappa Reddy and Challa Ramkrishna Reddy (P.W.1) 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 Inspector did not treat the matter seriously and said that no incident would happen inside the jail and that they need not worry. In spite of the representation made by the deceased and Challa Ramkrishna Reddy, adequate protection it was not provided to them and extra guards were not put on duty. The 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 and Challa Ramkrishna Reddy (P.W. 1) 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. 1 in the trial Court) was a party to that conspiracy. The 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 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 (P.W.1). In this 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 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 adequate security at the jail cannot be treated to be an act or omission in pursuance of a statutory duty, namely. Rule 48 of the Madras Prison Rules, referred to by the High Court. Moreover the action was wholly mala fide and, therefore, there was no question of the provisions of Article 72 being invoked to defeat the claim of the respondents as the protection of shorter period of limitation, contemplated by that Article, is available only in respect of bona fide acts. 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. (Paras 10, 12 and 13)
       (ii) Torts-Tortious act of State functionaries-Sovereign immunity-Maxim King can do no wrong or Crown is not answerable in tort-Has no place in Indian jurisprudence-Death of jail inmate who was remanded to judicial custody-Death due to bomb hurled on cell when deceased was lodged-Negligence of officials-Fundamental rights which includes basic human rights continued to be available to a prisoner -Such right cannot be defeated by pleading old and archaic defence of immunity in respect of sovereign acts.
       The Maxim that King can do no wrong or that the Crown is not answerable in tort has no place in Indian jurisprudence where the power vests, not in the Crown, but in the people who elect their representatives to run the Government, which has to act in accordance with the provisions of the Constitution and would be answerable to the people for any violation thereof. (Para 17)
       Right to Life is one of the basic human rights. It is guaranteed to every person by Article 21 of the Constitution and not even the State has the authority to violate that Right. A prisoner, be he a convict or under-trial or a detenu, does not cease to be a human being. Even when lodged in the jail, he continues to enjoy all his Fundamental Rights including the Right to Life guaranteed to him under the Constitution. On being convicted of crime and deprived of their liberty in accordance with the procedure established by law, prisoners still retain the residue of constitutional rights. (Para 18)
       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 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. (Para 20)
       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. So far as Fundamental Rights and human rights or human dignity are concerned, the law has marched ahead like a Pegasus but the Government attitude continues to be conservative and it tries to defend its action or the tortious action of its officers by raising the plea of immunity for sovereign acts or acts of State, which must fail. (Paras 24 and 28)
       (iii) Constitution of India-Article 21-Fundamental rights-Right to life-Fundamental rights which include basic human rights continue to be available to a prisoner-Those rights cannot be defeated by pleading old and archaic defence of immunity in respect of sovereign acts. (Paras 18 to 23)
       (iv) Torts-Death in judicial custody-Suit for damages-Suit filed after one year of incident-Defence that Article 72 of Evidence Act applicable and suit barred by limitation-Further defence of sovereign immunity-Defence untenable-Deceased complained of plot to kill him-Sub-Inspector of police party to plot-Adequate security not provided in jail-Bomb hurled in cell of deceased causing his death-Negligence on part of jail officials-Act complained of is not for doing or omitting to do on act in pursuance of any enactment-Article 72 not attracted-Prisoner not deprived of her basic fundamental right-Fundamental rights of prisoner cannot be deprived of by pleading old and archaic defence of sovereign immunity-High Court justified in awarding compensation.
        (Paras 6, 10, 12, 13, 17, 18,
        19, 23 and 27)

JUDGMENT

S. Saghir Ahmad, J.-Challa Chinnappa Reddy and his own Challa Ramkrishna Reddy were involved in Criminal Case No. 18/1997 of Owk Police Station in Baganapalle Taluk of Kurnool District. They were arrested 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 A.M., some persons entered the premises of 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 Ramakrishna Reddy who was also lodged in Cell No. 7, however, escaped with some injuries.

2. 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 Rs. 10 lacs as damages on account of the negligence of the defendant which had resulted in the death of Challa Chinnappa Reddy.

3. The suit was contested by the State of Andhra Pradesh on two principal grounds, namely, that the suit was barred by limitation and that no damages could be awarded in respect of sovereign functions as the establishment and maintenance of jail was part of the sovereign functions of the State and, therefore, even if there was any negligence on the part of the Officers of the State, the State would not be liable in damages as it was immune from any legal action in respect of its sovereign acts. Both the contentions were accepted by the trial court and the suit was dismissed. On appeal, the suit was decreed by the High Court for a sum of 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 appeal.

4. 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 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 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.

5. The 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.

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

"Description of suit

For compensation for doing or for omitting to do an act alleged to be in pursuance of any enactment in force for the time being in the territories to which this Act extends.

Period of limitation One year

Time

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2000 Supreme(SC) 875

Cases Referred (15)