The main legal point established in the judgment is that the State is liable for tortious acts committed by its employees in the discharge of their duties.

This petition under Articles 226 and 227 of the Constitution of India has been filed for issuance of a writ directing the respondent to pay compensation for the loss of life of the husband of the petitioner, who was done to death by respondent no. 2, Bishwanath Mishra and respondent no. 3, Ram Niwas Kunwar.

2. In. order to appreciate the contention raised by the parties, it may be useful to notice the broad facts of the case. The petitioner is resident of Village Kasmara within Kowakole Police Station in the District of Nawadah where her husband had a grocery shop. On account of mounting tension due to apprehension of caste riot, police force was deputed in the said village to maintain law and order in the year 1984 of which the said two respondents were party. On 6.4.1984 both of them went to the said shop and asked for cigarettes.

The husband of the petitioner was not present at the shop and she was alone, there. When she wanted to hand over the cigarettes, they caught her and attempted to commit rape. On alarm raised by the petitioner, her husband appeared and picked up a knife kept in the shop for cutting GUR. In order to save his wife, Ratan Sao inflicted knife injury to one of the Constables. Thereafter they forcibly took Ratan Sao near the village school and fired at him. Having sustained the injury he dropped down dead. In order to escape the criminal liability, respondent no. 3, Constable Ram Niwas Kunwar, instituted a case against Ratan Sao and some other persons, which was registered as Kowakole P.S. Case No. 23 of 1984.

3. The case of the petitioner further is that after the laid incident she was not allowed to go out and kept confined in her house. However, after three days she managed to escape and lodged a complaint before the Chief Judicial Magistrate, Nawadah. 'One Saket Bihari Singh of Village Nawadah sent a petition on 9.4.1984 to the Chief Justice of the Supreme Court of India disclosing the facts mentioned above and made a prayer for enquiry by the C.B.I. or the C.I.D. or any independent agency and also prayed for payment of compensation to the petitioner. The Registrar (Judicial) of the Supreme Court of India sent the said petition to this High Court on the basis of which Cr. W.J.C. No. 180 of 1984 was registered and a Bench of this Court directed an enquiry by a superior officer of the Police Department. In compliance of the said order, inquiry was conducted and the report was submitted by the Deputy Inspector General of Police (Anti-Dacoity) which fully supports the allegations made by the petitioner.

4. The case lodged by respondent no. 3 (Kowakole P.S. Case No. 23 of 1984) was investigated by the police and was found to be false. In the case instituted by the petitioner, report under section 173 of the Code of Criminal Procedure, popularly known as charge-sheet, was submitted against the accused, including respondent nos. 2 and 3, under the orders of the Inspector-General of Police (Law and Order), Bihar. Upon receipt of the charge-sheet, the case was committed to the Court of Session. The accused were put on trial in the court of the 1st Additional Sessions Judge. Nawadah and the said two respondents were convicted under section 302 read with section 34 of the Indian Penal Code and also under section 376 read with section 511 of the Indian Penal Code. A copy of the judgment is Annexure 1 to this petition.

5. In the instant case, notices were issued to the respondents at the stage of admission. A counter affidavit has been filed or behalf of respondent no. 1, the State of Bihar, admitting that the armed Constables including respondent nos. 2 and 3, were deputed for maintaining law and order at Village Kasmara. It is stated therein that whatever was done by the said two respondents, as alleged by the petitioner, was not done in discharge of their official duties. It was done in their personal capacity and so the State is not liable to pay any compensation.

6. A separate counter-affidavit has been filed