State held vicariously liable in tort to pay compensation to victim.Permissibility of examination of accused u/s 313 of the Code.

HIREMATH, J.

In the second week of September 1973, there was criminal rioting at Maddur Town in Mandya District. There were disturbances like stone throwing and violent personal assaults on 13-9-1973. We are concerned in this appeal with the rioting on 14-9-1973 in which one B. P. Nagaraj died on account of gun-shot wound that he sustained in the firing that was done by the District Armed Reserve Police (for short the DAR) whose assistance was secured to quell the riots. The Sub-Inspector of Police who was in charge of maintaining law and order and also in the command of the police force that was deployed to contain rioting, was the second defendant in the original suit filed by the parents, brothers and sister of the said Nagaraj for compensation of Rs. 1,50,000/-on account of the death of the said Nagaraj due to the rash and negligent act of reckless firing by the police. The deceased was running a hotel in Bazaar Street and was able to spare Rs. 50/-for the family expenses consisting of himself and the plaintiffs. According to the plaintiffs, when firing was resorted to, there were no serious disturbances in the locality necessitating use of force by firing. There was not even proclamation of the order under Section 144 of the Code of Criminal Procedure (for short the Cr.P.C.). It was the second defendant that ordered firing and, therefore, he was personally liable to pay compensation in addition to the State of Karnataka, the first defendant, being vicariously liable.

2. In thewritten statement filed by the first defendant it was contended that the suit is hit by the principle of act of the State i.e., the act referable to the exercise of sovereign power of the State and, therefore, the plaintiffs are not entitled to claim any relief. The averments in the plaint that there were no disturbances at the material time and that there was no necessity of resorting to firing have been denied. According to the State, the deceased was one of the members of the unlawful assembly which indulged in various crimes and which did not heed to the calls of law and order and became unruly. While controlling the unruly mob and dispersing the unruly assembly and to protect the property of State and of private persons and also to prevent injury to innocent lives, the police had to open fire and it was in that firing that the deceased received gun-shot wound and later succumbed to the injury. Having investigated into the cause of his death, the police filed B summary report before the Magistrates Court which has been accepted.

3. The second defendant, in his written statement, denied that there was an order of firing issued by him and that he was present at the spot. Only after getting information that a certain person by name B. P. Nagaraj had been injured in the firing, he rushed to the spot, shifted him to Maddur Hospital without any loss of time and on the advice of the doctor at Maddur, he was shifted to General Hospital, Mandya. He reaffirms that he was not at all responsible for the firing that was opened by the police force at the spot to control the unruly mob and to protect the property of the State and of private persons. Rest of the allegations with regard to the part played by deceased Nagaraj are the same as those in the written statement of the first defendant. He then proceeds to assert that he was patrolling in the town at Shivapura and Channegowdanadoddi which are surrounding the town to maintain law and order and, therefore, he has no personal knowledge of the incident that took place at the spot. Being a subordinate officer of the State Government, if anything is done in discharge of his official duties, he is immune from all liabilities claimed against him.

4. The defendants, in their additional written statement, also contended that no sanction was obtained to file a suit against the second defendant in compliance with Ss. 169 and 170 of the Karnataka Police Act. Therefore, the suit filed without the previous s