Supreme Court of IndiaState Of Andhra Pradesh vs Challa Ramkrishna Reddy & Ors on 26 April, 2000Equivalent citations: AIR 2000 SUPREME COURT 2083, 2000 (4) SUPREME 741Bench:D.P.Wadhwa,S.S.AhmadPETITIONER:
STATE OF ANDHRA PRADESH

	Vs.

RESPONDENT:
CHALLA RAMKRISHNA REDDY & ORS.

DATE OF JUDGMENT:	26/04/2000

BENCH:
D.P.Wadhwa, S.S.Ahmad




JUDGMENT:S.SAGHIR AHMAD, J.  Challa Chinnappa Reddy and his son
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.	 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.   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.	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 byArticle 72of	 theLimitation  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 byArticle	 113of theLimitation Act, 1963which prescribed  a
period	of  three years from the date on which the right  to
sue  accrued.	It  is contended thatArticle  113was	 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	 113and, therefore, the suit, as held by the	High
Court,	was within limitation.	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.	  We will first take up the question of	 limitation.Article	 72of theLimitation Act, 1963is  quoted  below:-"Description  of  suit Period of Time from which  limitation
period		 begins			   to		 run
____________________________________________________	 For
compensation  for  One	year When the act or  doing  or	 for
omitting  omission takes to do an act alleged place.  to  be
in pursuance of any enactment in force for the time being in
the    territories    to    which    this    Act    extends.
____________________________________________________"	 The
above  Article	corresponds toArticle 2of  the  Limitation
Act,	  1908	    which	 is	 quoted	     below:-"_____________________________________________________	 For
compensation  for  Ninety days When the act or doing or	 for
omitting  omission takes to do an act alleged place.  to  be
in pursuance of any enactment in force for the time being in
India."_____________________________________________________"Article 113of theLimitation Act, 1963, upon which reliance
has  been  placed  by  the respondents,	 is  quoted  below:-"Description  of  suit Period of Time from which  limitation
period		 begins			   to		 run
___________________________________________________ Any suit
for  which  no	Three When the right  period  of  limitation
years.	 to  sue  accrues.  is provided	 elsewhere  in	this
Schedule."___________________________________________________"   These
Articles,  namely,Article  72and113are  applicable  to
different situations.  In order to attractArticle 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
peiod  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.	  In  State  of	  Punjab  vs.	M/s   Modern
Cultivators,   1964   (8)  SCR	273  =	AIR  1965   SC	 17,
Hidayatullah,  J.   (as	 he then was)  while  approving	 the
earlier	  decisions   in  Mohammad   Sadat  Ali	  Khan	 vs.
Administrator,	Corporation  of City of Lahore,	 ILR  (1945)
Lahore 523 (FB) = AIR 1945 Lahore 324 and Secretary of State
vs.   Lodna Colliery Col.  Ltd., ILR 15 Patna 510 = AIR 1936
Patna  513,  observed  as  under:- "(25)  This	subject	 was
elaborately  discussed in ILR (1945) Lah 523:  (AIR 1945 Lah324)(FB)  where	 all  ruling on the  subject  were  noticed.
Mahajan,  J.  (as he then was) pointed out that "the act  or
omission  must	be those which are honestly believed  to  be
justified  by a statute." The same opinion was expressed  by
Courtney  Terrell  C.J.	  inSecretary of  State  v.   Lodna
Colliery  Co.  Ltd., ILR15 Pat 510:  (AIR 1936 Pat 513)  in
these  words:- "The object of the article is the  protection
of  public officials, who, while bona fide purporting to act
in  the	 exercise of a staturory power, have  exceeded	that
power  and  have committed a tortious act;  it resembles  in
this  respect the English Public Authorities Protection Act.
If the act compalined of is within the terms of the statute,
no  protection is needed, for the plaintiff has suffered  no
legal  wrong.	The protection is needed when an  actionable
wrong  has been committed and to secure the protection there
must  be  in  the  first place a bona  fide  belief  by	 the
official  that	the act complained of was justified  by	 the
statute,  secondly  the act must have been  performed  under
colour	of a statutory duty, and thirdly, the act must be in
itself	a tort in order to give rise to the cause of action.
It  is against such actions for tort that the statute  gives
protection."  (26)  These  cases have rightly  decided	thatArt.2cannot  apply  to  cases where the  act	or  omission
complained of is not alleged to be in pursuance of statutory
authority."In Jailal vs.  The Punjab State & Anr., AIR 1967
Delhi  118,  it	 was  held  by the  Delhi  High	 Court	that
protection  underArticle 72could be claimed only when	 the
act  was done under the colour of statutory duty but if	 the
person	acted  with the full knowledge that it was not	done
under  the authority of law, he could not claim the  benefit
of  the	 shorter period of limitation prescribed under	this
Article.InJaques & Ors.  vs.  Narendra Lal Das, AIR 1936
Calcutta  653,	it  was	 held that this	 Article  would	 not
protect the public officer acting mala fide under the colour
of  his	 office.To the same effect is the decision of	 the
Punjab	High  Court  inThe State of  Punjab  &  Ors.	 vs.
Lalchand  Sabharwal, AIR 1975 Punjab 294 = 77 Punjab LR 396.In  Punjab  Cotton Press Co.  Ltd.  vs.	 Secretary of  State
AIR  1927 PC 72, where the canal authorities cut the bank of
a canal to avoid accident to the adjoining railway track and
not  to	 the  canal  and  plaintiff's  adjacent	 mills	were
damaged,  it  was held thatArticle 2was not applicable  as
the  act alleged was not done in pursuance of any enactment.A  Full Bench of the Allahabad High Court inPt.  Shiam	 Lal
vs.  Abdul RaofAIR 1935 Allahabad 538 held that if a police
officer	 concocts  and	reports	 a false story,	 he  is	 not
protected  byArticle 2of theLimitation Act, which  would
apply  only  where  a person honestly believing that  he  is
acting	under some enactment does an act in respect of which
compensation  is  claimed.  But where the  officer  pretends
that  he  is  so acting and knows that he  should  not	act,Article	 2would  not apply.  Keeping these  principles  in
view,  let  us	examine the facts of this  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 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 High	Court  while
examining  the	evidence  on record came  to  the  following
conclusion:-  "It is thus clear that though 9 members of the
police	party must stay in the sub-jail premises during	 the
night,	only two were there on that night.  The witness	 did
not  produce  his  General Diary maintained  in	 the  Police
Station	 to  establish that 9 members of the guardian  party
were  staying  in the Sub-jail on that night.	The  learned
Magistrate  who visited the jail immediately after receiving
the  information and on learning of the incident, stated  in
his  report,  Ex.A-9,  submitted to the	 Addl.	 District  &
Sessions  Judge,  Kurnool,  that only  two  Constables	were
guarding  the jail that night.	He opined "I am inclined  to
think  that  the  alleged explosion in Cell No.7 is  on	 the
first-floor,  and  that the culprits put up a  ladder,	tied
with  a	 rope  to  the	wooden	 parapet,  went	 up  to	 the
first-floor  and  threw	 the bomb into Cell No.7.   He	also
reported that while going away, when they were challenged by
three  persons sleeping outside the jail (kept there by	 the
deceased  and P.W.1 as an additional precaution) they  threw
bombs  at  them, killing one of them and injuring the  other
two.   It  is also evident from Ex.A-14 that both  the	said
Constables  were suspended on 23.5.1977.  The report of	 the
learned Magistrate and his notes inspection (Ex.A-9) clearly
show  that the Police Constables guarding the jail were	 not
vigilant,  and	the P.C.483, whose duty it was to guard	 the
cell,  was  probably  sleeping at that	time.	The  learned
Magistrate has observed in his report "if P.C.	483 was more
vigilant,  perhaps  the	 untoward incident  would  not	have
occurred..."  The  very manner in which the culprits  gained
entry  into  the jail shows that it could not have  happened
but  for  the negligence on the part of the police to  guard
the  jail property and to ensure the safety of prisoners, as
required  by Rule 48 of the Madras Rules aforesaid.  It	 may
be  noted  that Kurnool District is one of the districts  in
Rayalaseema  area  of the State, notorious for factions	 and
blood-feuds.   Use of bombs is not a rare occurrence in that
area.	In  such  a situation, and more so when	 a  specific
request was made for additional precautions, the failure not
only  to provide additional precautions, but the failure  to
provide	 even the normal guard duty cannot but be termed  as
gross  negligence.   It	 is  an	  omission  to	perform	 the
statutory  responsibility placed upon them by Rule 48 of the
Madras	Prisons	 Rules.	 It is a failure to take  reasonable
care.	On the issue two we disagree with the learned  trial
Judge."	 It  would  thus  be seen from the  above  that	 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 ofArticle 72being 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.   In	 our
opinion,  the High Court in the circumstances of this  case,
was  justified in not applying the provisions ofArticle  72and  invoking  the provisions ofArticle 113 (the  residuary
Article)to  hold that the suit was within limitation.	  We
may  now consider the next question relating to the immunity
of  the	 State Government in respect of its sovereign  acts.The  trial court relying upon the decision of this Court  in
Kasturi	 Lal Ralia Ram Jain vs.	 State of U.P..	 AIR 1965 SC
1039  =	 1965 (1) SCR 375, dismissed the suit on the  ground
that  establishment and maintenance of jail being a part  of
the sovereign activity of the Government, a suit for damages
would  not lie as the State was immune from being  proceeded
against	 in a court of law on that account.  The High  Court
also  relied upon the decision in Kasturi Lal's case (supra)
but it did not dismiss the appeal on that ground.  It went a
step  further  and  considered the provisions  contained  inArticle	 21of the Constitution and came to the  conclusion
that  since  the Right to Life was part of  the	 Fundamental
Rights of a person and that person cannot be deprived of his
life  and  liberty except in accordance with  the  procedure
established by law, the suit was liable to be decreed as the
officers  of the State in not providing adequate security to
the  deceased, who was lodged with his son in the jail,	 had
acted negligently.  Immunity of State for its sovereign acts
is  claimed  on the basis of the old English Maxim that	 the
King can do no wrong.  But even in England, the law relating
to  immunity  has undergone a change with the  enactment  of
Crown Proceedings Act, 1947.  Considering the effect of this
Act,  it  is  stated in Rattan Lal's "Law  of  Torts"  (23rd
Edition)  as under:- "The Actprovides that the Crown  shall
be  subject to all those liabilities in tort to which, if it
were  a person of full age and capacity, it would be subject
(1) in respect of torts committed by its servants or agents,
provided  that	the act or omission of the servant or  agent
would,	apart  from the Act, have given rise to a  cause  of
action	in tort against that servant or agent or against his
estate;	  (2) in respect of any breach of those duties which
a  person  owes to his servants or agents at common  law  by
reason	of  being  their employer;  (3) in  respect  of	 any
breach	of  the	 duties	 attaching  at	common	law  to	 the
ownership,  occupation,	 possession or control of  property.
Liability  in tort also extends to breach by the Crown of  a
statutory  duty.   It is also no defence for the Crown	that
the  tort  was	committed by its servants in the  course  of
performing  or purporting to perform functions entrusted  to
them  by any rule of the common law or by statute.  The	 law
as   to	  indemnity  and   contribution	 as  between   joint
tort-feasors  shall  be enforceable by or against the  Crown
and the Law Reform (Contributory Negligence) Act, 1945 binds
the Crown.  Although the Crown Proceedings Act preserves the
immunity  of the Sovereign in person and contains savings in
respect of the Crown's prerogative and statutory powers, the
effect	of the Act in other respects, speaking generally, is
to  abolish the immunity of the Crown in tort and to  equate
the  Crown  with  a private citizen in matters	of  tortious
liability."  Thus,  the Crown in England does not now  enjoy
absolute immunity and may be held vicariously liable for the
tortious  acts of its officers and servants.  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.
Right  to  Life	 is one of the basic human  rights.   It  is
guaranteed to every person byArticle 21of 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.	"Prison" has been defined inSection
3(1)of  the  Prisons Act, 1894 as any jail or	 place	used
permanently  or	 temporarily  under the general	 or  special
orders	of State Government for the detention of  prisoners.Section	 3contemplates  three kinds  of  prisoners.	Sub-
clause	(2)  ofSection 3defines "criminal prisoner"  as  a
prisoner  duly committed to custody under the writ,  warrant
or  order  of  any court or  authority	exercising  criminal
jurisdiction  or  by order of a court  martial.	  "Convicted
criminal  prisoner"  has been defined inSection 3(3)as  a
prisoner  under	 sentence  of a court or court	martial	 and
includes a person detained in prison under the provisions of
Chapter	 VIII  of  theCode of Criminal Procedure,  1882  or
under  the Prisoners Act, 1871.	 The corresponding provision
in the newCode of Criminal Procedureis not being indicated
as  it	is not necessary for pruposes of this case.   "Civil
prisoner" has been defined inSection 3(4)as a prisoner who
is  not	 a  "criminal  prisoner".  Thus,  according  to	 the
definition  under  thePrisoners 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 inManeka  Gandhi
vs.   Union of India, (1978) 1 SCC 248 = 1978 (2) SCR 621  =
AIR  1978  SC 597, must be reasonable, fair and	 just.	 The
rights of prisoners, including their Fundamental Rights have
been  culled  out  by  this  Court  in	a  large  number  of
decisions,  all	 of which may not be referred to  here.InState  of Maharashtra vs.  Prabhakar Pandurang Sanzgiri, AIR
1966  SC 424 = 1966 (1) SCR 702, it was held that conditions
of  detention  cannot  be extended to deprivation  of  other
Fundamental Rights and the detenu, who had written a book in
`Marathi',  could  not be prohibited from sending  the	book
outside	 the  jail for its publication.InD.Bhuvan  Mohan
Patnaik	 vs.   State of Andhra Pradesh, AIR 1974 SC  2092  =
(1975)	3  SCC 185 = 1975 (2) SCR 24, it was laid down	that
convicts  are not denuded of all the Fundamental Rights they
possess.   Chandrachud,	 J.  (as he then was) held  :	"The
security  of one's person against an arbitrary	encroachment
by  the	 police	 is basic to a free  society  and  prisoners
cannot	be thrown at the mercy of policemen as if it were  a
part  of  an unwritten law of crimes.  Such  intrusions	 are
against	 the  very essence of a scheme of ordered  liberty."[See:	(1975) 3 SCC Page 188 Para 9] InCharles Shobraj vs.
Superintendent,	 Central  Jail,	 TiharAIR  1978  SC  1514,
Krishna	 Iyer,	J.  observed as under :	  "True,  confronted
with  cruel  conditions	 of confinement, the  court  has  an
expanded  role.	  True, the right to life is more than	mere
animal existence, or vegetable subsistence.  True, the worth
of  the	 human	person	and dignity and	 divinity  of  every
individual  informarticles  19and21even  in  a  prison
setting.   True constitutional provisions and municipal laws
must  be  interpreted in the light of the normative laws  of
nations,  wherever possible and a prisoner does not  forfeit
his  part III rights."(See:  AIR 1978 Page 1517 Para 14) InFrancis	 Coralie  Mullin  vs.	 The  Administrator,   Union
Territory  of  Delhi, (1981) 1 SCC 608 = AIR 1981 SC  746  =
1981  (2)  SCR 516, the Court held that Right to Life  means
the  right to live with basic human dignity.  In this  case,
the  petitioner, who was a British national and was detained
in  the	 Central  Jail,	 Tihar, had  approached	 this  Court
through	 a petition of habeas corpus in which it was  stated
that  she  experienced	considerable  difficulty  in  having
interview  with	 her lawyer and the members of	her  family.
She  stated  that her daughter, who was 5 years of age,	 and
her  sister  who  was  looking	 after	the  daughter,	were
permitted  to have interview with her only once in a  month.
Considering  the  petition, Bhagwati, J.  (as he  then	was)
observed  at  Page  753	 in Para 8 as  under  :	  "The	same
consequence  would follow even if this problem is considered
from  the  point  of view of the right to  personal  liberty
enshrined  inArticle 21, for the right to have  interviews
with  members  of the family and friends is clearly part  of
personal  liberty  guaranteed  under   that  Article.The
expression  `personal  liberty' occurring inArticle 21has
been  given  a	broad and liberal interpretation  inManeka
Gandhi's case (AIR 1978 SC 597) (supra) and it has been held
in  that case that the expression `personal liberty' used in
that  Article  is  of the widest amplitude and it  covers  a
variety	 of  rights  which  go to  constitute  the  personal
liberty	 of  a man and it also includes rights	which  "have
been raised to the status of distinct Fundamental Rights and
given  additional  protection underArticle 19".There	 can
therefore  be no doubt that `personal liberty' would include
the  right  to	socialise  with members of  the	 family	 and
friends	 subject, of course, to any valid prison regulations
and  under Arts.  14 and 21, such prison regulations must be
reasonable  and non-arbitrary.	If any prison regulation  or
procedure  laid	 down  by it regulating the  right  to	have
interviews  with  members  of  the  family  and	 friends  is
arbitrary  or unreasonable, it would be liable to be  struck
down  as invalid as being violative ofArticles 14and21."(See  also  :Sunil Batra (I) vs.  Delhi Administration,	 AIR
1978  SC 1675 = (1978) 4 SCC 494 = 1979 (1) SCR 392 ;Sunil
Batra  (II)  vs.  Delhi Administration, AIR 1980 SC  1579  =
(1980) 3 SCC 488 = 1980 (2) SCR 557).  Thus, 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 which has been rejected several
times  by this Court.InN.  Nagendra Rao & Co.  vs.  State
of  A.P.,  AIR	1994  SC 2663 = (1994) 6  SCC  205,  it	 was
observed:-  "But  there	 the immunity  ends.   No  civilised
system	can  permit an executive to play with the people  of
its  country  and  claim that it is entitled to act  in	 any
manner	as  it is soverign.  The concept of public  interest
has changed with structural change in the society.  No legal
or  political system today can place the State above law  as
it  is unjust and unfair for a citizen to be deprived of his
property illegally by negligent act of officers of the State
without	 any remedy.  From sincerity, efficiency and dignity
of  State  as  a juristic person, propounded  in  Nineteenth
Century	 as sound sociological basis for State immunity	 the
circle	has  gone  round  and the emphasis now	is  more  on
liberty,  equality  and the rule of law.  The modern  social
thinking  of progressive societies and the judicial approach
is  to	do away with archaic State protection and place	 the
State or the Government at par with any other juristic legal
entity.	   Any	 watertight   compartmentalisation  of	 the
functions  of  the State as "soverign and non-sovereign"  or
"governmental  or  non-governmental"  is not sound.   It  is
contrary  to  modern jurisprudential thinking.	The need  of
the  State  to have extraordinary powers cannot be  doubted.
But  with  the	conceptual change of statutory	power  being
statutory  duty for sake of society and the people the claim
of  a  common man or ordinary citizen cannot be	 thrown	 out
merely	because it was done by an officer of the State	even
though	it  was against law and negligently.  Needs  of	 the
State,	duty of its officials and right of the citizens	 are
required  to  be  reconciled so that the rule of  law  in  a
welfare	 State	is not shaken.	Even in America	 where	this
doctrine  of soverignty found it place either because of the
`financial  instability of the infant American States rather
than   to   the	 stability  of	the   doctrine	 theoretical
foundation',  or because of `logical and practical  ground',
or  that `there could be no legal right as against the State
which  made the law gradually gave way to the movement from,
`State irresponsibility to State responsibility.' In welfare
State,	functions  of the State are not only defence of	 the
country	 or administration of justice or maintaining law and
order  but  it	extends	 to regulaing  and  controlling	 the
activities  of	people in almost every sphere,	educational,
commercial,  social,  economic, political and even  marital.
The  demarcating  line	between	 soverign  and	non-soverign
powers	for  which no rational basis survives,	has  largely
disappeared.	Therefore,   barring   functions   such	  as
administration	of justice, maintenance of law and order and
repression  of	crime etc.  which are among the primary	 and
inalienable  functions	of a constitutional Government,	 the
State  cannot  claim any immunity."The whole  question	 was
again  examined by this Court inCommon Cause, A  Registered
Society	 vs.  Union of India & Ors., (1999) 6 SCC 667 =	 AIR
1999  SC  2979, in which the entire history relating to	 the
institution  of	 suits	by or against the State	 or,  to  be
precise,  against  Government of India, beginning  from	 the
time  of  East	India  Company	right up  to  the  stage  of
Constitution,  was considered and the theory of immunity was
rejected.   In this process of judicial advancement, Kasturi
Lal`s  case (supra) has paled into insignificance and is  no
longer	of any binding value.  This Court, through a  stream
of  cases,  has already awarded compensation to the  persons
who  suffered personal injuries at the hands of the officers
of  the Government including Police Officers & personnel for
their  to  tortious  act.  Though most of these	 cases	were
decided	 under	Public	law domain, it would  not  make	 any
difference  as	in  the	 instant case,	two  vital  factors,
namely, police negligence as also the Sub-Inspector being in
conspiracy  are	 established  as a  fact.Moreover,  these
decisions,  as	for  example,Nilabti Behera vs.   State  of
Orissa,	 (1993)	 2 SCC 746 = 1993 (2) SCR 581 = AIR 1993  SC
1960;	In Re:	Death of Sawinder Singh Grower, (1995) Supp.(4)  SCC 450 = JT 1992 (6) SC 271 = 1992 (3) Scale 34;	 andD.K.  Basu vs.	State of West Bengal, (1997) 1 SCC 416 = AIR
1997  SC  610,	would indicate that 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.  For the reasons stated above, we do	 not
find any merit in this appeal which is dismissed.