H.H. Kantharia, J.
1. While deciding First Appeal No. 181 of 1976 in case of Union of India and another v. Hardeo Dutta Tirtharam and others, : AIR1986Bom350 this Court was at pains to point out that gone are days when the State can contend that 'The King can do no wrong' in the matter of tortious acts of their servants. We are sorry that we have to hear the burden of the same song once again in this writ petition under Article 226 of the Constitution.
2. The relevant facts giving rise to this petition are as under:
One Anthony Bras Cardinho was working as a Storekeeper in the Mental Hospital, Panjim. He had put in 13 years of service with the State Government out of which 9 years as a Storekeeper. On October 6, 1979 he was arrested by the Panjim Town Police on the allegations that he had misappropriated some hospital utensils and plastic-ware worth about Rs. 1500/-. It is contended by the petitioners who are the wife and two sons of the said-Anthony Bras Cardinho that after his arrest he was handcuffed and dragged through the streets and was ruthlessly beaten by the Police and on hearing the news of his arrest petitioner No.1 rushed to Panjim Police Station when she had noticed some blood stains on the shirt of her husband. She was informed by the Police that her husband was granted police custody till October 12, 1979. On October 9, 1979 petitioner No.1 accompanied by her mother-in-law again went to the Panjim Police Station to see her husband but they were rudely chased away by the Police and were not permitted to see the said Anthony. Petitioner No.1 entertained a feeling that her husband was in a serious condition on account of atrocities, committed on him by the Police. The record shows that on October 9, 1979 the Police made an application before the learned Judicial Magistrate (F.C), Panjim that the detention of the said Anthony was no more required in the Police Lock-up and that he should be transferred to judicial custody. It further appears that on October 9, 1979 Anthony Cardinho were ordered to be transferred to judicial custody and was as such taken in judicial custody on October 10, 1979 where he died at about 10.00 a.m.
3. Thereafter an inquest was conducted on the dead body of the said Anthony at the premises of the Goa Medical College, Panjim on October 10, 1979 but since the petitioners and some members of the public raised doubts about the cause of death of the said Anthony, an inquest was again conducted on the same day, late in the evening, when it was noticed that there were 20 external injuries on the body of the deceased. Then a post mortem examination was held on the dead body of Anthony again at the Goa Medical College on October 10, 1979 itself which revealed that he had suffered 20 injuries which were ante mortem. Post mortem report showed that the death was due to shock as a result of multiple internal and external injuries.
4. The case of the petitioners is that the late Anthony Bras Cardinho who was at the relevant time 31 years old was well built and healthy and he came to meet a premature and unnatural death on account of atrocities committed on him by the Police when he was in the custody. He was the only bread winner in the family and his monthly emoluments were Rs. 650/-. The petitioners, therefore sent a notice to the respondents claiming compensation of Rupees two lakhs. However, the respondents chose not to even reply to the said notice. Therefore, the petitioners instituted Civil Suit No. 12 of 1983 in the Court of the District Judge at Panjim. The Addl. District Judge who disposed of the said suit by his judgement and decree dated February 26, 1988 held that (i) the said Anthony had been assaulted by the police authorities; (ii) the deceased was earning Rs. 593.30 per month and (iii) the deceased died due to shock as a result of the multiple injuries sustained by him. However, the learned Addl. District Judge held that the tortious acts were committed by the Police in the exercise of their sovereign powers and, therefore, the respondents were entitled to sovereign immunity and as such no compensation could be granted to the petitioners and that is how the petitioners were non-suited.
5. The petitioners filed the present petition invoking the writ jurisdiction of this Court under Article 226 of the Constitution contending that the Police Officers being the servants and agents of the State of Goa violated the provisions of Article 21 of the Constitution which lays down that no person shall be deprived of his life and liberty except in accordance with the procedure established by law and in that view of the matter a writ of mandamus be issued directing the State of Goa to pay to the petitioners compensation of Rupees two lakhs. The petition is resisted by the Government of Goa by filing affidavit of A.T. Kamat, Under Secretary (Home) to the Government of Goa. inter alia, contending that the arrest and detention of deceased Anthony Cardinho was in the exercise and discharge of the sovereign functions of the State and that the State Government had not authorised any of its officers to assault the said person and, therefore, they would not be liable to pay any compensation to the petitioners for the tortious acts if committed by their officers. According to the State Government, at the most the concerned officers could be held liable for the wrongful acts committed by them. The first respondent (Union of India) filed no return whereas returns were filed by respondents Nos. 4, 5 and 6 (the Jail Officials) raising various contentions which we shall deal with while considering the arguments advanced on their behalf of Mr. Dessai, learned Counsel appearing for them.
6. At the hearing, Mr. Bhobe, learned Government Advocate, made three submissions for our consideration. Thus, he urged that (1) the arrest and detention of the deceased Anthony were in exercise of the sovereign functions of the State and, therefore, the State of Goa is immunised from any liability to pay any compensation to the petitioners; (2) for the acts of the officers which were in excess of their duties, they may be personally held liable and not the State of Goa and (3) in the alternative. If deceased Anthony died at the hands of the officers who committed the alleged acts during the course of their duties, the State of Goa is immunised from any liability whatsoever. In support of his contentions, Mr. Bhobe heavily relied upon a decision of the Supreme Court in case of M/s. Kasturi Lal Ralia Ram Jam v. The State of Uttar Pradesh, : (1966)IILLJ583SC
7. In order to appreciate the specious plea of the State of Goa claiming sovereign immunity, we may usefully quote Article 300(1) of the Constitution of India. It reads as under :
'300. Suits and Proceedings :---(1) The Government of India may sue or be sued by the name of the Union of India and the Government of a State may sue or be sued by the name of the State and may, subject to any provisions which may be made by Act of Parliament or of the Legislature of such state enacted by virtue of powers conferred by this Constitution, sue or be sued in relations to the respective affairs in the like cases as the Dominion of India and the corresponding Provinces or the corresponding Indian States might have sued or been sued if this Constitution had not been enacted.'
Here we are reminded of the Government of India Act, 1935 where under a similar provision, the Dominion of India or the provinces could be sued in the like cases as the Secretary of the State might have been sued if the 1935 Act had not been enacted. That takes us back to the Government of India Act, 1915, by which same remedies were provided against the Secretary of State in Council as the East India Company could be sued if the Government of India Act, 1915 and its predecessor the Government of India Act, 1858 had not been passed. In other words, Article 300 of the Constitution , in the year 1950 was a flashback of the Government of India Acts, 1858, 1915 and 1935. This doctrine of 'Sovereign Immunity' was based on the common law of England according to which the immunity of the Crown from liability for a tort was based on the maxim: 'The King can do no wrong'. This common law of England has long ceased to be so, having been altered by a statute. Thus, Crown immunity in the United Kingdom was brought to an end in part by the Crown Proceedings Act, 1947 and the British Government is now vicariously liable to third parties for the torts committed by its officers and servants in the course of their employment. In other advanced countries like the United States and Australia also the trend and tendency is to whittle down the rigours of sovereign immunity. And even then specious pleas of sovereign immunity in the matter of torts committed by their servants and agents depriving the citizens of their life and liberty are taken on behalf of the State Governments in our sovereign socialist democratic republic whose Constitution under Article 21 protects the life and liberty of the citizens. What a pity.
8. And as if to add salt into the bleeding wounds of the petitioners, it is urged on behalf of the respondents that in a case like this, the only remedy of the petitioners is to take recourse to filling a civil suit against the erring officers of the State. We think that the better and more efficacious remedy for the aggrieved persons in such cases is to invoke writ jurisdiction of the High Court under Article 226 of the Constitution. But that is not to say that civil suit cannot and may not be filed.
9. Article 226(1) of the Constitution reads as under:
'226. Power of High Courts to issue certain writs.---(1) Notwithstanding anything in Article 32, every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus prohibition, quo warranto and criteria, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose.'
Thus the writ jurisdiction is conferred on the High Court for enforcement of all fundamental rights, including the right to 'life' and 'liberty' guaranteed by Article 21. It is well settled law now that the jurisdiction of the High Court under Article 226 is much wider because the High Court is required to exercise this jurisdiction not only for the enforcement of fundamental rights but also for enforcement of legal and statutory rights which are enforced by the High Court as urgently and vigorously as fundamental rights in discharging its duty of promoting justice and preventing injustice.
10. As said earlier, Mr. Bhobe, learned Government Advocate, very strenuously and vehemently relied upon the Supreme Court decision in the case of M/s. Kasturi Lal Ralia Jam Ram, : (1966)IILLJ583SC in support of his contention that the State is immunised for the tortious acts committed by their servants and agents In the discharge of the sovereign powers. The Supreme Court in that case held that :
'(There is) a material distinction between acts committed by the servants employed by the State where such acts are referable to the exercise of sovereign powers delegated to public servants, and acts committed by public servants which are not referable to the delegation of any sovereign powers. If a tortious act is committed by a public servant and it gives rise to a claim for damages, the question to ask is; was the tortious act committed by the public servant in discharge of statutory functions which are referable to, and ultimately based on, the delegation of the sovereign powers of the State to such public servant? If the answer is in the affirmative the action for damages for loss caused by such tortious act will not lie. On the other hand, if the tortious act has been committed by a public servant in discharge of duties assigned to him not by virtue of the delegation of any sovereign power, an action for damages would lie. The act of the public servant by him during the course of his employment is, in this category of cases, an act of a servant who might have been employed by a private individual for the same purpose .............'
Their Lordships of the Supreme Court further held :
'It will be recalled that this doctrine of immunity is based on the common law principle that the King commits no wrong and that he cannot be guilty of personal negligence or misconduct and as such cannot be responsible for the negligence or misconduct of his servants. Another aspect of this doctrine was that it was an attribute of sovereignty that a State cannot be sued in its own courts without its consent. This legal position has been substantially altered by the Crown Proceedings Act, 1947 (10 and 11 Gee 6 C 44).'
Thereafter their Lordships observed:
'Our only point in mentioning this Act is to indicate that the doctrine of immunity which has been borrowed in India in dealing with the question of the immunity of the State in regard to claims made against it for tortious acts committed by its servants, was really based on the common law principle which prevailed in-England; and that principle has now been substantially modified by the Crown Proceedings Act.'
Further dealing with the matter their Lordships were at pains to point out that:
'In dealing with the present appeal, we have ourselves been disturbed by the through that a citizen whose property was seized by process of law, has to be told when he seeks a remedy in a Court of law on the ground that his property has not been returned to him, that he can make no claim against the State. That, we think, is not a very satisfactory position in law.'
Their Lordships of the Supreme Court, however, found in the case before them that the Police Officers were negligent, but the State was not liable inasmuch as the power to arrest a person, to search him and to seize the property found with him is a power conferred upon the officers by statute, and that the said power can be appropriately characterised as a sovereign power. We find that even in Kasturi Lal's case, the Supreme Court while distinguishing 'sovereign functions' and 'non sovereign functions' held that in cases where thee tort or damages suffered was in discharge of the sovereign functions the citizens should not be precluded from making a claim therefore against the State. However, in the facts and circumstances of that case, the Supreme Court though found the Police Officers to be negligent held that the State was not liable inasmuch as the power to arrest a person, to search him and to seize the property found with him is one conferred-sovereign power upon the Officers by the statute. Thus the said case was decided by the Supreme Court in the facts and circumstances obtaining therein and, therefore, we are of the opinion that the observation made by their Lordships of the Supreme Court in the said case would not go to the rescue of Mr. Bhobe.
11. The moot question in this petition is whether the immunity of this State overriden the right to life and liberty enshrined in and guaranteed by Article 21 of the Constitution. In other words, when a person is arrested by the Police and in the course of the investigation of an offence alleged against him and when in their custody, can be subjected to third degree treatment resulting in his death? Can the State in such a case legitimately claim that the person was arrested and detained in exercise of the statutory and sovereign powers of the police and, therefore, the State is not liable for the acts of the Police Officers much beyond law in subjecting him to third degree treatment and thus depriving him of his life? Is that the law under our Constitution which we the people of India gave to ourselves? This is the new aspect of the matter discussed and debated before us in this particular writ petition. In our judgement, the acts of the Police Officers in giving third degree treatment to an accused person while in their custody and thus killing him are not referable to and based on the delegation of the sovereign powers of the State to such Police Officers. Therefore, the State would be liable for the acts committed by their servants during the course of their employment with the State.
12. Article 21 of the Constitution envisages that no person shall be deprived of his life or personal liberty except according to procedure established by law. Article 21 has been the subject matter of debates and discussion in the Supreme Court and various High Courts. Thus, the established position in law as to Article 21 is as under :
13. In D. Bhuvan Mohan Patnaik v. State of A.P., : 1975CriLJ556 , it was observed by the Supreme Court:
'Convicts are not, by mere reason of the conviction, denuded of all the fundamental rights which they otherwise possess. A compulsion under the authority of law, following upon a conviction, to live in a prison-house entails by its own force the deprivation of fundamental freedoms like the right to move freely throughout the territory of India or the right to 'practice' a profession.... But the Constitution guarantees other freedoms like the right to acquire, held and dispose of property........ Likewise even a convict is entitled to the precious right guaranteed by Art. 21 of the Constitution that he shall not be deprived of his life or personal liberty except according to procedure established by law.'
14. In case of (Sunil Batra v. Delhi Administration : 1978CriLJ1741 ,, the Supreme Court was pleased to make the following observations:
'It is no more open to debate that convicts are not wholly denuded of their fundamental rights. No iron curtain can be drawn between the prisoner and the Constitution. Prisoners are entitled to all constitutional rights unless their liberty has been constitutionally curtailed ...... However, a prisoner's liberty is in the very nature of things circumscribed by the very fact of his confinement. His interest in the limited liberty left to him in then all the more substantial.'
It was further held:
'Prisons are built with stones of law and so it be-hoves the Court to insist that, in the eye of law, prisoners are persons, not animals, and punish the deviant 'guardians' of the prison system where they go barserk and defile the dignity of the human inmate. Prison houses are part of Indian earth and the Indian Constitution cannot be held at bay by jail official's dressed in a little brief authority', when part III is invoked by a convict. For when a prisoner is traumatized , the Constitution suffers a shock. And when the Court takes cognizance of such violence and violation, it does like the hound of Heaven. But with unhurrying chase, And Unperturbed pace. Deliberate spread and Majestic instancy followed the official offender and frown down the out law adventure.'
15. In Rudul Sah v. State of Bihar A.I.R. 1988 S.C. 1086, the Supreme Court said:
'Article 21 which guarantees the right to life and liberty will be denuded of its significant content if the power of this Court were limited to passing orders of release from illegal detention. One of the telling ways in which the violation of that right can reasonably be prevented and due compliance with the mandate of Art. 21 secured, is to mulct its violaters in the payment of monetary compensation. Administrative sclaresis leading to flagrant infringements of Fundamental rights cannot be corrected by any other method open to the judiciary to adopt. The right to compensation is some palliative for the unlawful acts of instrumentalities which act in the name of public interest and which present for their protection the powers of the State as a shield if civilisation is not to perish in this country as it has perished in some others too well known to suffer mention, it is necessary to educate ourselver into accepting that respect for the right of individuals is the true bastion of democracy. Therefore, the State must repair the damage done by its officers to the petitioner's rights. It may have recourse those officers.......'
16. In Bhim Singh v. State of J. & K., : 1986CriLJ192 , this is what the Supreme Court observed:
'The Police Officers........acted deliberately and mala fide and the magistrate and the Sub-Judge aided them either by colluding with them or by their casual attitude. We do not have any doubt that Shri Bhim Singh was not produced either before the Magistrate on 11th or before the Sub-Judge on 13th, though he was arrested in the early hours of the morning of 10th. There certainly was a gross violation of Shri Bhim Singh's constitutional rights under Arts. 21 and 22(2) ..... We have no doubt that the constitutional rights of Shri Bhim Singh were violated with impunity. Since he is now not in detention, there is no need to make any order to set him at liberty, but suitably and adequately compensated, he must be.'
17. In case of Chella Ramkonda Reddy and others v. State of A.P. A.I.R. 1988 A.P. 235, a Division Bench of the Andhra Pradesh High Court had occasion to deal with a similar matter when they said:
'In our opinion, the right to life and liberty guaranteed by Art. 21 is so fundamental and basic that no compromise is possible with this right. It is 'non-negotiable'. This is the minimum requirement which must be guaranteed to enable a citizen to live with human dignity. The State has no right to take any action which will deprive a citizen of the enjoyment of this basic right except in accordance with a law which in reasonable, fair and just.'
'Can the fundamental right to life guaranteed by Art. 21 be defeated by pleading the archaic defence of sovereign functions Does it mean that the said theory the State with the right to violate the fundamental right to life and liberty, guaranteed an exception to Art. 21? We think not. Article 21 does not recognize any exception and no such exception can be read into it by reference to Cl. (1) of Art. 300. Where a citizen has been deprived of his life, or liberty, otherwise than in accordance with the procedure prescribed by law, it is no answer to say that the said deprivation was brought about while the officials of the State were acting in the discharge of the sovereign functions of the State.'
'We are equally of the view that the concept of immunity in respect of sovereign functions, implicit in Cl. (1) of Art. 300, cannot be recognized as an exception to Art. 21. The fundamental rights are sacrosanct. They have been variously described as basic, unbelievable, and indefeasible. The founding-fathers incorporated the exceptions in the Articles themselves wherever they were found advisable, or appropriate. No such exception has been incorporated in Art 21, and we are not prepared to read the archaic concept of immunity of sovereign functions, incorporated in Art. 300(1), as an exception to Art 21. True it is that the Constitution must be read as an integrated whole; but, since the right guaranteed by Art. 21 is too fundamental and basic to admit of any compromise, we are not prepared to read any exception in to it by a process of interpretation. We must presume that, if the founding father intended to provide any exception, they would have said so specifically in part III itself.'
'The officials of the Government act in the name of, and for and on behalf of the State, it is but just that State is made liable for their acts and defaults. It is no answer to say that the aggrieved person can proceed against the official concerned; that is neither a practicable nor efficacious remedy. Firstly, the official does not act in his individual capacity, but as an agent or representative of the State. A civil remedy against an official may very often be case of chasing a mirage. And a criminal action is no solace. Just as it is necessary to check evasion and violation of law on the part of citizens, it is equally necessary to ensure that the State Officials do not act with gross negligence and do not abuse their powers, to the detriment of life and liberty of the citizens. Both are equally important. State power does not confer a licence upon its officials to act contrary to law or to be grossly negligent in their duties, to the detriment of life and liberty of the citizens. So long as the officials act fairly and with reasonable care, no action can lie. Only where they abuse powers, act with gross negligence, resulting in deprivation of life an liberty of the citizens, does the State become liable for compensation.'
We say with utmost respect to the learned Judges of Andhra Pradesh High Court that we totally concur with the views expressed by them as above.
18. Now we may deal with the submissions made by Mr. Dessai, learned Counsel appearing on behalf of respondents Nos. 4, 5 and 6. He submitted that (1) the petitioners here have come with unclean hands; (2) the petition suffers from laches as it is filed after 10 years; (3) writ against respondents Nos. 4 to 6 cannot lie; (4) the petitioners cannot take recourse to findings which can be enforced in three years and the same remedy now cannot be granted; (6) the petitioners came here for compensation for the life already lost which cannot be done by implied of Article 21(7)ONSTITUTION OF INDIA~^ the petitioners had filed a civil suit and after losing it cannot come to this Court invoking writ jurisdiction under Article 226(8) there was no evidence before the District Judge to find respondent No. 4, 5 and 6 guilty and (9) the suit against respondent No. 4, 5 and 6 was dismissed under Order 9, Rule 5 of Civil Procedure Code. In view of the statement now made by Mr. D'Costa, learned Counsel on behalf of the petitioners, that respondent Nos. 4, 5 and 6 were made formal parties and no relief has been claimed against them, we do not feel obliged to answer any of the points by Mr. Dessai as above.
19. We may make it amply clear here that in allowing this writ petitioner we may not be understood as if we are executing a decree passed by the petitioners. Let it be noted here that we are exercising writ jurisdiction vested in the High Court under Article 226 in our opinion the provisions of Article 21 of the Constitution are grossly violated by the officials of the State of Goa. But as a basis to grant compensation of Rupees two lakhs to the petitioners for the loss of precious life of the petitioner No. 1's husband and the father of petitioners No. 2 and 3, we may advert to the admitted facts that the deceased was earning Rs. 593.30 per month at the relevant time. He was 31 years old. Thus, he had 27 years to go in the service. If we round up the figure of his salary at Rs. 600/- per month his yearly income would have been Rs. 7200/- which if multiplied by 27 will mean that he would have earned Rs. 1,x94,400/- A life that is lost cannot be measured in terms of money. However, the petitioners have claimed Rupees two lakhs as compensation and we see no reason why that amount of compensation should not be granted.
20. We accordingly allow this petition and direct the State of Goa to pay a sum of Rupees two lakhs to the petitioners jointly severally as compensation for loss of life of Anthony Bras Cardinho. We further direct that out of this amount, a sum of Rupees one lakh shall be paid to the first petitioner, Mr. Severino Rabeiro a Cardinho, by cheque and Rs. 50,000/- each shall be deposited in a Nationalised Bank in the names of petitioner No. 2 Cosme Cardinho and petitioner No. 2 Francisco Cardinho in the joint name with their mother (petitioner No. 1). Petitioners Nos.2 and 3 shall not withdraw any amount from the principal sum of Rs. 50,000/- till they attain the age of 21 years but they shall be at liberty to withdraw the interest.
21. Rule is made absolute in the above terms with no order as to costs.