JUDGMENT
S.K. Homchaudhuri, J.
1. Plaintiff-appellant instituted Money Suit No. 6 of 1978 claiming compensation of Rs. 1,00,000/- against the respondent for the unnatural death of her eldest son, Swapan Sutradhar, in the police custody due to negligence of the State machinery, namely, police officials of the Kotwali Police Station. The admitted facts are that deceased Swapan Sutradhar was arrested in connection with Kotwali P.S. Case No. 31 (4) of 1976 under Section 379, Indian Penal Code, 1860, in the night of 25.4.1976. On the following morning, he was taken out of the lock-up for interrogation at 7.30 a.m. and after completion of interrogation he was sent back in the lockup at 7.45 a.m. and that at about 8 a.m. he was found dead in the lock-up and according to the police he committed suicide between 7.45 a.m. and 8 a.m.
2. The defendant resisted the claim by filing written statement. On the pleadings of the parties following issues are framed by the learned Additional District Judge, West Tripura, Agartala:
(1) Whether notice under Section 80, Civil Procedure Code, served upon the defendant is sufficient and proper?
(2) Whether death of Swapan Sutradhar, the son of the plaintiff, in police lock-up attributable to the negligence of the police officials of Kotwali P.S.?
(3) Whether the plaintiff is entitled to compensation for the death of her son from the defendant? If so, to what extent?
(4) To what relief, if any, the plaintiff is entitled?
Both the parties adduced evidence in support of the respective cases. Learned Additional District Judge on appreciation of the evidence on record decided issue Nos. 1 and 2 in favour of the plaintiff, but held that in view of the decision of the Hon’ble Supreme Court in the case of Kasturi Lal Ralia Ram Jain v. State of Uttar Pradesh AIR 1965 SC 1039, for the negligence of the police officials in not following the provisions of the statutory rules, namely, Police Regulation of Bengal, no action for damages would lie against the State for the tortious act committed by the public servants like police officials and consequently plaintiff could not get any compensation against the defendant, the State of Tripura and on the said decision dismissed the suit. The plaintiff has thereafter approached this court in the first appeal.
3. We have heard Mr. B. Das, learned counsel for the appellant and Mr. S.N. Banerjee, learned counsel for the respondent State. Mr. Das has submitted that the ratio of the decision of the Supreme Court in the case of Kasturi Lal Ralia Ram Jain v. State of Uttar Pradesh AIR 1965 SC 1039, is distinguishable and is not applicable on the facts of the present case. The appellant’s son has been deprived of his life in violation of fundamental right guaranteed under Article 21 of the Constitution. Article 21 of the Constitution is a fundamental right to life and personal liberty of a citizen and provides that no person shall be deprived of his life or personal liberty except according to procedure established by law. Admittedly, the appellant’s son has been deprived of his life otherwise than in accordance with the procedure prescribed by law. Learned counsel for the appellant has submitted that immunity of sovereign function under Clause (1) of Article 300 of the Constitution cannot be a defence against the claim for damages for deprivation of fundamental right to life or personal liberty of a citizen otherwise than in accordance with the procedure established by law and, as such, the instant suit against the State for compensation by the mother for the death of her son in the police custody due to gross negligence of the State machinery is maintainable.
4. In support of this contention learned counsel for the appellant has placed reliance on a decision of a Division Bench of the Andhra Pradesh High Court in the case of Challa Ramkonda Reddy v. State of Andhra Pradesh, by District Collector, Kurnool, 1990 ACJ 668 (AP). In the said case an undertrial prisoner was killed in a bomb blast hurled by the miscreants by entering into the sub-jail with the help of ladder at night and there was failure or negligence on the part of police to guard jail property and to ensure safety of prisoners. On the question of maintainability of the suit for damages against the State for the death of an under-trial prisoner, instituted by the heirs of the deceased, the Andhra Pradesh High Court placing reliance in the recent decisions of the Hon’ble Supreme Court in the cases of (1) Rudul Sah v. State of Bihar AIR 1983 SC 1086; (2) Sebastian M. Hongray v. Union of India AIR 1984 SC 1026 and (3) Bhim Singh v. State of J&K 1986 ACJ 867 (SC), held that Article 21 does not recognise any exception and no such exception can be read into it by reference to Clause (1) of Article 300 of the Constitution 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 discharge of the sovereign functions of the State.
5. In the case of Rudul Sah AIR 1983 SC 1086, the petitioner was kept in jail for a period of 14 years, after he was acquitted, on the ground that he was insane. He was directed to be released by the Supreme Court in a petition for writ of habeas corpus. In addition to release, the detenu also claimed compensation on account of the deprivation of his fundamental right guaranteed under Article 21. On the question whether the Supreme Court had power to award compensation on account of such deprivation in a petition under Article 32 of the Constitution, the Hon’ble Supreme Court held:
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 Article 21 secured, is to mulct its violators in the payment of monetary compensation. Administrative sclerosis 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 ourselves into accepting that respect for the rights 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 against those officers…
In the case of Sebastian AIR 1984 SC 1026, in a petition for habeas corpus the Hon’ble Supreme Court on the basis of the material placed before it concluded that the said two persons after arrest by the respondent must have met unnatural death and that prima facie it would be an offence of murder. The Hon’ble Supreme Court directed that as a measure of exemplary costs as is permissible in such cases, respondent Nos. 1 and 2 should pay Rs. 1,00,000/- to the wives of each of the missing persons within a period of four weeks from the date of passing the order. In the case of Bhim Singh, 1986 ACJ 867 (SC), the petitioner Bhim Singh, who was an M.L.A. of the Kashmir Legislative Assembly, was arrested by the police officer while he was on the way to Srinagar to attend the session of the Legislative Assembly. He was arrested in the morning of 10th September, 1985, at 3 a.m. He was produced before the Magistrate on 14th September and ultimately he was released on bail on 16th September, 1985, by the learned Additional Sessions Judge, Jammu. On an application under Article 32 of the Constitution for a writ of habeas corpus filed prior to 16.9.1985, the Hon’ble Supreme Court on perusal of the contentions of the respondents came to the finding that there was a gross violation of Bhim Singh’s fundamental rights guaranteed under Articles 21 and 22(2) of the Constitution and that right was violated with impunity. Since during the pendency of the writ petition, he was enlarged on bail there was no need to make any order to set Bhim Singh at liberty. But for wrongful detention, Hon’ble Supreme Court held that Bhim Singh should be adequately compensated and accordingly directed the State of Jammu & Kashmir to pay a sum of Rs. 50,000/- as compensation to him within two months from the date of passing the order for violation of his fundamental rights under Article 21 as well as Article 22(2) of the Constitution.
6. Mr. Das has also referred to the recent decision of the Hon’ble Supreme Court in the case of SAHELI, a Women’s Resource Centre v. Commissioner of Police, Delhi 1990 ACJ 345 (SC). In the said case a nine years old child died because of beating and assault by police officer. Hon’ble Supreme Court held that the death of the child was due to police atrocities and directed the State Government to pay Rs. 75,000/- as compensation to the mother of the victim.
7. In the case of Kasturi Lal AIR 1965 SC 1039, the plaintiff was arrested by the police officer in Uttar Pradesh on suspicion of possessing stolen property and on search of his person, a large quantity of gold was found and was seized under the provisions of Criminal Procedure Code. Ultimately, the plaintiff was released but the gold seized from him was not returned as the Head Constbale who was in-charge of the Mal Khana had absconded with the valuable property including the gold seized from the plaintiff. The plaintiff brought the suit against the State of Uttar Pradesh for return of the gold seized from him, or, in the alternative, the claim for damage for the loss caused to him. The evidence disclosed that the police officers had not followed the provisions of U.P. Police Regulation in taking care of gold seized from the plaintiff and it was established that the loss suffered by the plaintiff was due to the negligence of the police officers of the State. On the facts of the case, the Hon’ble Supreme Court held that the power to arrest a person, to search him and to seize property found with him were the powers conferred on the specified officers by statute and these powers could be properly characterised as sovereign powers and so the act which gave rise to the claim of the plaintiff for damages had been committed by the employee of the State during the course of its employment; but the employment in question being the category which could claim the special characteristic of sovereign power, the claim for damages could not be sustained.
8. After taking into consideration the above-mentioned recent decisions of the Hon’ble Supreme Court, we are of the opinion that the ratio of the decision in the case of Kasturi Lal AIR 1965 SC 1039, is distinguishable and is not applicable in the facts of the present case. In the instant case the claim for damages has arisen due to deprivation of life of the son of the plaintiff in the police custody due to gross negligence of the State machinery and the deceased has been deprived of his life in flagrant violation of fundamental right guaranteed under Article 21 of the Constitution. In respectful agreement with the decision of the Andhra Pradesh High Court in the case of Challa Ramkonda Reddy, 1990 ACJ 668 (AP), we hold that when a citizen has been deprived of his life or liberty otherwise than in accordance with the procedure established by law, Clause (1) of Article 300 of the Constitution cannot be pressed into service to insulate the State against the claim for damages with the defence that deprivation was brought about while the officials of the State were acting in discharge of the sovereign function. As such, the instant suit for damages against the State for the unnatural death of the son of the plaintiff in the police custody is maintainable and the State is liable to pay damages for the gross negligence of its officials.
9. Having held that the suit for compensation against the State for the unnatural death of the plaintiff’s son in the police custody is maintainable, we are to decide what should be the adequate amount of compensation. The plaintiff has claimed Rs. 1,00,000/- as compensation. Mr. S.N. Banerjee, the learned counsel for the respondent, has submitted that the claim is too high. From the evidence on record, it is established that the deceased was 18 years old and was working as carpenter or was in the making of a carpenter. Service of carpenter is in constant demand in the society and regular earning of a carpenter is more or less assured. Taking into consideration the entire facts and circumstances of the case, we hold that an amount of Rs. 1,00,000/- as compensation for the unnatural death of the appellant’s son is not high but is adequate and just.
10. For the reasons stated above, appeal is allowed. The impugned judgment and decree is set aside. Plaintiff’s suit is decreed for a sum of Rs. 1,00,000/- as compensation with costs throughout. The respondent is given 2 (two) months’ time to make payment of the decretal amount, failing which the amount of compensation will carry interest at the rate of 15 per cent per annum from today till payment of the amount.
No doubt, the public exchequer has been subjected to pay this amount for the negligence of its own officials. It is for the State Government to decide to take appropriate step against the officials and/or to consider whether the amount so paid to be realised from the officer or officers for whose negligence unnatural death of the son of the appellant was caused in the police lock-up.