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Gujarat High Court
Judgename :M.C.PATEL, R.K.Abichandani
STATE OF GUJARAT - Appellant
Versus
GOVINDBHAI JAKHUBHAI and ANR - Respondent
First Appeal 272 of 1983
Decided On : 12/22/1998
The security of mans person is the most elementary of civil rights. Even a Constable would be liable in tort like any other citizen for any unlawful interference with the person or liberty of another in the same manner as a private citizen would be. Actual violence inflicted on a person results in deprivation of the basic right of life which is guaranteed as a fundamental right under Art. 21 of the Constitution. A direct application of physical force to a person of another, whether inflicted with any weapon or missile is battery, when it be done either intentionally or negligently. Battery falls in the category of tort known as trespass to the person; the other two in that category being assault and false imprisonment. In an action of trespass to the person, once the trespass is admitted or proved, it would be for the defendant to justify the trespass, if he can, on the defences available to him under the law, such as, that the defendant was acting in defence of his person or property or using reasonable force in the prevention of crime or stopping a breach of peace or in effecting lawful arrest or using permissible force under the law.
[Para 11.1]
(b) Doctrine of Sovereign immunity - Scope and availability in defence - Police actrocity - Constitutes per se a violation of fundamental right guaranteed under Art. 21 of Constitution - State cannot claim immunity from its strict liability invoking doctrine of sovereign immunity in its defence - In such case State must adequately compensate for the wrong - Constitution of India, 1950 - Art. 21.
Any police actrocity, be it custodial or otherwise, which results in death of or injury to a person is per se a violation of fundamental right guaranteed by Art. 21 of the Constitution. The defence of sovereign immunity would in such cases be alien to the concept of guarantee of the fundamental right to life and personal liberty. Assault or battery, when committed by the State-agency would be a violation of the fundamental right to life guaranteed by Art. 21. The doctrine of sovereign immunity of the State would be subject to the constitutional mandate enjoining a duty on the State not to deprive any person of his life or personal liberty without following the procedure established by law. Causing injury or death by police excesses would be a clear violation of such right and such worngful acts even if referable to the sovereign functions of the State of maintenance of law and order will not immune the State from its strict liability which arises due to the violation of the fundamental right to life and personal liberty. The State must in such cases adequately compensate for the wrong done irrespective of the fact that it was done by the employee during the course of empolyment, which is relatable to the sovereign function of the State, such as maintenance of law and order.
[Para 12]
(c) Civil Court - Jurisdiction - Tort committed by State employee resulting in violation of fundamental right would be an actionable wrong and merely because public law remedy under Arts. 32 & 226 of Constitution lies same would not exclude the jurisdiction of Civil Court to grant relief of damages - Civil Procedure Code, 1908 - Sec. 9 - Jurisdiction of Civil Court.
Tort committed by a State employee resulting in violation of fundamental right would be an actionable wrong for which a remedy lies in Civil Court for damages to compensate the victim. The fact that a public law remedy lies under Arts. 32 and 226 of the Constitution before the Superior Courts in respect of torts committed by police for which State is liable on the principle of Strict liability when there is violation of the fundamental right to life under Art. 21, would not take away the power of Civil Court to grant relief of damages for violation of fundamental rights by the State agency by committing such tort. The ordinary Civil Courts have jurisdiction in all matters of civil nature. As provided by Sec. 9 of the Code of Civil Procedure, the Courts shall, subject to the provisions contained in the Code, have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred. Violation of fundamental right to life by committing a tort would therefore constitute a valid cause of action to seek redressal in a Civil Court. Such violation by tortious act of the police being an actionable wrong can be tried in a Civil Court and large portion of the population of the rural area of this vast country would find it more convenient to approach the Civil Courts in their local area rather than to rush to the High Court or the Supreme Court for invoking their extra-oridnary writ powers. Suits for compensation against the State Government are not excluded from the jurisdiction of the Civil Courts. Therefore, in a suit for damages for a tort committed by an employee of the State, where the liability of the State arises, the Civil Court has jurisdiction to pass a decree for damages against the State.
[Para 13]
(d) Pleading - Claim for damages - Tort committed by State employee violating the fundamental right of citizen - Even in absence of non-corporation of specific words to that effect in pleading plaintiff cannot be non-suited - It shall never the less remain a violation of his fundamental right under Art. 21 and for that plaintiff entitled for damages.
When the plaintiff establishes that the police man has, during the course of his employment, caused physical harm such as battery, that by itself is sufficient proof of violation of fundamental right to life even if the expression `fundamental right is not used in respect of such harm. The fundamental rights are all-pervasive and do not depend on whether they are so described. When physical harm is wrongfully caused by the State agency, it amount to violation of the right to life and it does not require a label to become such violation. Therefore, mere non-mention of Art. 21 in the pleadings will not defeat a claim where the facts proved clearly eatablish that the fundamental right to life is in fact violated. In other words, when a person pleads and proves that he was tortured, maimed or assaulted by the police wrongfully, that established fact itself means that the fundamental right of that person to life is violated and even if he had not added the surplussage to the effect : therefore my fundamental right under Art. 21 is violated, it nonetheless remains a violation of his fundamental right under Art. 21 and he cannot be non-suited on the ground that there is no pleading or issue to that effect.
[Para 13.2]
(e) Compensation - Violation of fundamental right to life by employee of the State - Amount of compensation awarded by Court in its public law jurisdiction may be adjusted against any amount by way of damages awarded in Civil Suit - Nature of liability which arises in the circumstances remain the same irrespective of the forum from which remedy is sought.
Court gain strength in stating that an action in respect of a tort committed by a public servant, which violates fundamental right to life, would lie in the Civil Court and when the infringement of fundamental right to life is established, it will not be open for the State to claim sovereign immunity as a defence and the State would be vicariously liable for the tortious act committed by its functionaries which has resulted in such violation of fundamental right of life. The nature of liability that arises because of the violation of fundamental rights would, in our opinion, remain the same, irrespective of the forum from which the remedy is sought by the victim or the heirs of the deceased-victim. It cannot be said that though for violation of the fundamental right to life by tortious acts of a State employee the superior Court may in its extra-ordinary powers award compensation, notwithstanding the availability of the alternative forum, that liability changes its colour when the remedy is sought in the Civil Court. The remedy of compensation under Arts. 32 and 226 of the Constitution is evolved as an additional and speedy remedy and would be over and above the remedy available, to claim damages for tortious act of a State servant violating fundamental right to life in a Court of ordinary civil jurisdiction.
[Para 15]
( 1 ) THE Appellant-State of Gujarat challenges in this appeal the judgment and order dated 3-9-1982 passed by the learned Civil judge (S. D.), Himatnagar, in Special Civil Suit No. 33 of 1979, holding it to be vicariously liable for the tortious act of its police constable and decreeing compensation of Rs. 1,98,000/- with 6 percent interest from the date of the suit till payment and costs, in favour of the present respondent No. 1, govindbhai, who was the original plaintiff.
( 2 ) THE plaintiffs case was that at the relevant time when he had undertaken the work as a contractor for construction of Rajendranagar Dam, the present respondent No. 2, Keshabhai, who is the original defendant No. 2, was working as a Police Constable at Raigadh Outpost and was in the service of the appellant- state of Gujarat, who was the original defendant No. 1. On 22-4-1976, after the close of the work for the day, the plaintiff was proceeding to Himatnagar for purchasing a kingpin for his damaged truck and when he was passing by the Raigadh Police Outpost, which is on the highway, he came to know that the truck-driver, Devdan Duda, who was carrying some of his labourers in his truk, was detained in the Outpost and was being manhandled. The plaintiff, threfore, went inside the Police Outpost and requested the Constable, defendant no. 2 desist from beating the driver, asking him that he may take legal action as may be warranted, but should not take law into his own hands. Thereupon, the defendant No. 2-Constable became excited and started abusing the plaintiff and gave him threats. He asked another policeman to bring his rifle from the adjoining room, and on getting the rifle, he confirmed his hostility towards the plaintiff and before the plaintiff could run away, he fired a shot at him, which hit the plaintiff on his right thigh above the knee-cap. The plaintiff fell down and had to be carried by his son Hirjibhai in the jeep-car to the hospital at Himatnagar where he was admitted as an indoor patient. According to the plaintiff, he was transferred to the Civil Hospital, Ahmedabad for further treatment and thereafter was operated upon by an eminent Orthopaedic Surgeon. The bullet-injury, however, did not heal and the plaintiff had to get his right leg amputated above the knee-cap. The plaintiff thus lost his limb because of illegal and unauthorised firing by the defendant No. 2. According to the plaintiff, the defendant No. 2 had acted wrongfully, illegally and unauthorisedly in assaulting and injuring the plaintiff. It was contended that since the defendant no. 2 was in the service of the defendant No. 1 at the relevant time and since the defendant No. 2 acted illegally and wrongfully and fired the shot from his rifle at the plaintiff with a view to cause injury, the act of the defendant no. 2 was a tortious act for which the defendant No. 1 was vicariously liable. According to the plaintiff, because of his confinement to the hospital for a period of more than six months and loss of his leg, he was not able to attend to his work as a contractor for 12 months. He was having a monthly income of Rs. 3,500/- at the relevant time, which was loss to him for a period of 12 months. Moreover, he had to employ two persons for getting the work done, which he would have done himself and had, therefore, to spend Rs. 1500/- per month. He had lost his earning capacity by 50% as a result of this tortious act of defendant No. 2 and his yearly economic loss would come to Rs. 18,000/-, and that, at the multiplier of 7, he was entitled to claim Rs. 1,26,000/- by way of compensation. For loss of enjoyment of life and diminution in full pleasures of living, he claimed Rs. 25,000/ -. For the personal expenses, he claimed a further sum of Rs. 25,000/-; for mental shock, he claimed Rs. 25. 000/-, and, for diminished capacity to work, a further sum of Rs. 25,000/- he also claimed Rs. 25,000/- for future expenses on medical treatment. The total claim w
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