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PETITIONER:

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 by Article 72 of the

Limitation 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 by

Article 113 of the Limitation Act, 1963 which prescribed a

period of three years from the date on which the right to

sue accrued. It is contended that Article 113 was 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,

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Article 113 and, 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 72 of the Limitation Act, 1963 is 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 to Article 2 of 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 113 of the Limitation 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 72 and 113 are applicable to

different situations. In order to attract Article 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

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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 Lah

324)(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. in Secretary of State v. Lodna

Colliery Co. Ltd., ILR 15 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 that

Art.2 cannot 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 under Article 72 could 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. In Jaques & 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 in The 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 that Article 2 was not applicable as

the act alleged was not done in pursuance of any enactment.

A Full Bench of the Allahabad High Court in Pt. Shiam Lal

vs. Abdul Raof AIR 1935 Allahabad 538 held that if a police

officer concocts and reports a false story, he is not

protected by Article 2 of the Limitation 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 2 would not apply. Keeping these principles in

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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

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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 of Article 72 being 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 of Article 72

and invoking the provisions of Article 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 in

Article 21 of 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 Act provides 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

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(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 by Article 21 of 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 in Section

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 3 contemplates three kinds of prisoners. Sub-

clause (2) of Section 3 defines "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 in Section 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 the Code of Criminal Procedure, 1882 or

under the Prisoners Act, 1871. The corresponding provision

in the new Code of Criminal Procedure is not being indicated

as it is not necessary for pruposes of this case. "Civil

prisoner" has been defined in Section 3(4) as a prisoner who

is not a "criminal prisoner". Thus, according to the

definition under the Prisoners 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

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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 in Maneka 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. In

State 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. In D.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] In Charles Shobraj vs.

Superintendent, Central Jail, Tihar AIR 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 inform articles 19 and 21 even 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) In

Francis 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 in Article 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 in Article 21 has

been given a broad and liberal interpretation in Maneka

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 under Article 19". There can

therefore be no doubt that `personal liberty' would include

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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 of Articles 14 and 21."

(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. In N. 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

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State cannot claim any immunity." The whole question was

again examined by this Court in Common 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; and

D.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.