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PETITIONER: SAHELI, A WOMEN’S RESOURCES CENTRE, THROUGHMS. NALINI BHANOT

       Vs.

RESPONDENT: COMMISSIONER OF POLICE, DELHI POLICE HEAD-QUARTERS AND ORS.

DATE OF JUDGMENT14/12/1989

BENCH: RAY, B.C. (J) BENCH: RAY, B.C. (J) PANDIAN, S.R. (J)

CITATION:  1990 AIR  513            1989 SCR  488  1990 SCC  (1) 422        JT 1989 (4)   553  1989 SCALE  (2)1315

ACT:     Constitution  of India, 1950: Article 32--Tortious  acts of employees-Responsibility of State--Death of person due to beating by police official--State directed to pay  compensa- tion.

HEADNOTE:     Torts: Vicarious Liability--Death of child due to  beat- ing by Police--State directed to pay compensation to mother.     In the Writ Petitions filed on behalf of two women,  who were  severely beaten by the alleged landlord, in  collusion with  the local police, in their attempts to get  the  rooms occupied by them vacated, the petitioners prayed for  direc- tions to the respondents to pay exemplary charges to one  of the women for the death of her son but to injuries inflicted on him by the police.     It  was alleged that the landlord’s son, accompanied  by the Station House Officer and other police personnel severe- ly beat the woman, and her nine year old son, who was cling- ing  to her to protect her, as a result of which  the  child suffered severe injuries and died in the hospital.     A medico-legal case was registered. The case was  inves- tigated by the Inspector of Crime Branch, who submitted  his report according to which there was a high level  conspiracy of the police with the accused in getting the rooms occupied by  the women vacated and opposed grant of bail as it was  a clear case under Section 302/120B I.P.C.     A  counter-affidavit on behalf of Respondent No.  1  was filed  stating that the Station House Officer  himself  took part in the beatings and the minor child was also not spared and the child sustained severe injury in the left leg, which was opined as a grievous one, and that the injuries inflict- ed  on the child caused fever and pneumonitis, resulting  in the  death  of the child, and a case under  Sections  308/34 I.P.C.  which was later altered to 304/34 I.P.C. was  regis- tered and one of the accused arrested. 489 Disposing of the Writ Petitions, this Court,     HELD:  1.1  An action for damages lies for  bodily  harm which includes battery, assault, false imprisonment,  physi- cal  injuries  and death. In cases of assault,  battery  and

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false  imprisonment, the damages are large and  represent  a solatium  for the mental pain, distress, indignity, loss  of liberty and death. [494E]     1.2 It is well settled that the State is responsible for the tortious acts of its employees. [494F]     In the instant case, it is apparent, from the report  of the Inspector of the Crime Branch and the  counter-affidavit fried on behalf of the Commissioner of Police and also  from the  fact that the prosecution has been launched in  connec- tion  with  death of the child that the child  was  done  to death on account of the beating and assault by the agency of the  sovereign power acting in violation and excess  of  the power  vested  in such agency. The mother of the  child  is, therefore, entitled to get compensation from respondent  No. 2, which is liable for payment of compensation for the death of  the  child due to beating by the Police  officials  con- cerned. It is, therefore, just and proper to direct respond- ent No. 2 to pay compensation to the mother of the  deceased child, a sum of Rs.75,000. [494C-D; 495F]     [Respondent No. 2 may take appropriate steps for  recov- ery of the amount paid as compensation or part thereof  from the officers, who will be found responsible, if they are  so advised.  As the Police Officers are not parties before  the Court, any observation made by the Court in justification of this  order  shall not have any bearing in  any  proceedings specially  criminal prosecution pending against  the  police officials in connection with the death of the child. [495G]     Joginder  Kaur v. The Punjab State and Ors., [1969]  ACJ 28  at 32 and The State of Rajasthan v. Mst. Vidhyawati  and Anr., [1962] Supp 2 SCR 989 at 1007, relied on.

JUDGMENT:     ORIGINAL  JURSIDICTION:  Writ Petition  (Criminal)  Nos. 250-53 of 1988. (Under Article 32 of the Constitution of India). Govind Mukhoty and S.K. Bhattacharya for the Petitioners. 490     V.C. Mahajan, Ms. A. Subhashini and R.B. Mishra for  the Respondents. The Judgment of the Court was delivered by     RAY,  J.  These writ petitions have been  filed  by  the Women’s  and  Civil Rights Organization known as  SAHELI,  a Women’s  Resources Centre on behalf of two women  Maya  Devi and Kamlesh Kumari who have been residing in one room  tena- ment  each on the ground floor of house No. 408/5/A  L  Gali No.  29  Anand  Parbat and were severely beaten  up  by  the alleged  landlord  in collusion with the  S.H.O.,  Shri  Lal Singh  and  the police of Anand Parbat Police  Station.  The facts of the case giving rise to these writ petitions are as follows:-     Kamlesh  Kumari and her husband Inder Singh  moved  into the house No. 408/5/A L, Gali No. 29, Anand Parbat in  1974. They  had three children, Saroj 13 years old girl, Naresh  9 years  old  boy (now deceased) and Suresh 7 years  old  boy. They were living in one room on the ground floor of the said house  which is a double storey. The other lady,  Maya  Devi has  also been living in another room of the said  house  on the ground floor with her husband and children. The  husband of  both Kamlesh Kumari and Maya Devi are truck drivers  and they  often remain away from their home. There is a  dispute over  the ownership of the house. In or about 1984, the  old landlord, one Tajinder Singh left the house and one  Manohar Lal  claims  to be the new landlord. At present,  one  Puran

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Chand and his two sons Shambu Dayal and Prakash Chand  claim to  have bought the said property from Manohar Lal and  they have  been illegally evicting all the tenants from the  said premises.In their attempt they succeeded in evicting all the tenants except the two tenants named Kamlesh Kumari and Maya Devi.  It is because of these illegal threats  of  eviction, Kamlesh  Kumari  obtained an order of stay  from  the  Court against  her  forceful eviction and that said  order  is  in force.  Some time in October, 1987 the  so-called  landlords cut off the water and electricity supply to Kamlesh Kumari’s room  and the same has not been restored till this  day.  On November,  2,  1987 the then S.H.O. of Anand  Parbat  Police Station, Lal Singh called for Kamlesh Kumari and told her to vacate the room. On November 4, 1987, the said S.H.O.  again called for Kamlesh Kumari and when she arrived at the police station she found that the so-called landlords were  already present  there. In the presence of Shambu Dayal and  others, Lal  Singh told Kamlesh Kumari to take some money and  leave the  room  whereon Kamlesh Kumari said that  she  should  be given some time especially because her children are studying in schools. On November 491 12,  1987, the said S.H.O. once again called Kamlesh  Kumari and this time he threatened to lock her up if she refused to vacate  the room. November 13, 1987, Kamlesh Kumari went  to Tis  Hazari Court to consult her lawyer. On coming back  she found  her children missing and Maya Devi was standing  out- side, all her belongings thrown out. Maya Devi told  Kamlesh Kumari that the Sub-Inspector of Police K.L. Nanda of  Anand Parbat Police Station had come and had taken away her  chil- dren  and had thrown away Maya Devi from her  room.  Kamlesh Kumari  immediately went to the Police Station and  met  the S.H.O.,  Lal  Singh and asked him about  her  children.  The S.H.O.  said that her children had been kept locked  up  and she  would  not be allowed to see her  children  unless  she vacated  the  room. Kamlesh Kumari then went to  Tis  Hazari Court  to see her lawyer. The lawyer phoned the Police  con- trol  room and rushed back to Anand Parbat  Police  Station. With  great  difficulty the lawyer got  the  three  children released from the police station.     On  the same day, i.e. November 13, 1987, after  Kamlesh Kumari and her children had just taken their dinner,  Shambu Dayal trespassed into her room and hit Kamlesh Kumari on the forehead with a brick. She rushed to the police station  and reported the matter to the police. The police had her  medi- cally  examined but refused to take any action  against  the assailants.     On  November  14, 1987, Kamlesh Kumari was  attacked  by Shambu  Dayal, his brother Prakash Chand accompanied by  Lal Singh  in  civilian clothes and Sham Lal,  Sub-Inspector  in uniform accompanied by two others. They beat Kamlesh Kumari, tore  her  clothes and molested her. Her nine year  old  son clung  to his mother to protect her when Lal Singh took  him away  and  forcibly threw him on the floor. Lal  Singh  also asked  Shambu  Dayal  to beat  Naresh.  Kamlesh  Kumari  was dragged  away to the police station and a criminal case  was imposed upon her of trespass. She was sent to Tihar Jail and her  lawyer got her released on November 16,  1987.  Kamlesh Kumari  on her release came back and found that  her  child, Naresh was in a very bad condition. The children took  shel- ter at a neighbour’s house and the neighbours had got  local doctors to look after Naresh. On the advice of the  doctors, Naresh was admitted to Ram Manohar Lohia Hospital on  Novem- ber 18, 1987. However, no medical legal case was registered. Kamlesh  Kumari’s lawyer tried to get a medical  legal  case

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registered.  At  last medical legal case was  registered  on November  23, 1987 by the ACP, Patel Nagar at 11.30 p.m.  In the  FIR  No. 143/87 the said ACP had written that  she  had said that no policeman had beaten 492 her  son although she had specifically named Lal  Singh  and others. On November 26, 1987, Naresh died in hospital and an inquest  was  carried out. This news was  published  in  the Hindi newspapers.     On  December 10, 1987, S.D.M., Vipul Mittra called  Kam- lesh Kumari to his office stating that he was conducting  an enquiry into the facts and circumstances leading to Naresh’s death.  On  December  6, 1987, the Crime  Branch  filed  its report  in the court opposing bail for Shambu Dayal. In  the said report, it has been stated that the details of the D.D. entries  mentioned in the bail application itself show  con- spiracy or connivance of the local police with the  accused. This report was annexed as annexure ’C’ to these  petitions. Kamlesh  Kumari and her neighbours and lawyer on the day  of Naresh’s  death sat on dharna outside the residence  of  the Lt. Governor and demanded that a judicial enquiry be ordered into the death of Kamlesh’s son, Naresh. The report given by the  fact-finding-team of the Peoples’ Union for  Democratic Rights,  into  the death of Naresh was also  published.  The said report states that the representatives of the  Peoples’ Union for Democratic Rights met the S.D.M., Vipul Mittra who told  them  that he would intimate them  his  findings;  but subsequently when they contacted him it was told that it was a sensitive report and it can be made public only by the Lt. Governor.  As  such the instant writ  petitions  were  moved before  this Court praying amongst others the issuance of  a writ for directions directing the respondents to pay Kamlesh Kumari exemplary damages for the death of her son, Naresh.     On  June  13, 1988, this Court directed to  implead  the Medical  Superintendent,  Ram Manohar  Lohia  Hospital,  New Delhi  as  respondent No. 4 and also  directed  the  Medical Superintendent to keep the record relating to Naresh, son of Kamlesh  Kumari in a sealed cover and deposit the same  with the  Registrar of this Court within two weeks from the  date of the order. By order dated August 22, 1988 the respondents were given two weeks time to file counter-affidavit and  one week’s time thereafter was given to the petitioners to  file rejoinder.     Kanwaljit Deol, Deputy Commissioner of Police, Headquar- ters  (II), Delhi, on behalf of Commissioner of  Police  af- firmed  an affidavit in counter wherein it has  been  stated that:               "On  the  basis  of  the  aforesaid  complaint               ACP/Patel  Nagar got registered case  FIR  No.               143 dated 24.11.1987 under section 308/34 IPC,               P.S.  Anand  Parbat, New Delhi  and  entrusted               investigation to Inspector, Vigilance, Central               493               Distt., who arrested accused Shambu Dayal, son               of  Puran Chand on 24.11.1987. On 26.11.  1987               Naresh  expired in Ram Manohar Lohia  Hospital               and post-mortem was got conducted. The autopsy               doctor  opined that injuries were  ante-mortem               caused by blunt force impact/possible injuries               were not sufficient to cause death. Death  was               due  to pneumonitis as  diagnosed  clinically.               Offence was changed to Section 304/34 IPC."     It  has  also  been stated therein that  Maya  Devi  was residing in one room adjacent to room of Kamlesh Kumari  for 6-7 months, the landlords did not issue any rent receipt. It

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was also stated that:               "  .....  On 13.11.1987 the landlord  forcibly               got  vacated  the room in possession  of  Maya               Devi with the connivance of local police which               is  evident from the DD entry made  by  Asstt.               Sub-Inspector, Kishan Lal who visited the spot               on  the  information of quarrel  between  Maya               Devi and landlord’s men." It has further  been               stated  that on 14.11.1987, Shambu  Dayal  got               registered a false case under section 4448 IPC               to  get  the  above objective  and  the  local               police  arrested Smt. Kamlesh Kumari the  same               day.  She  was not admitted  to  bail  despite               approach by her relatives. The S.H.O.  himself               took part in the beatings and the minor  child               (Naresh) of Smt. Kamlesh was also not  spared,               and was thrown away while he clung to feet  of               his mother, while she was being beaten  merci-               lessly. Naresh sustained severe injury in  his               left  leg  and could not be  attended  by  the               doctors   in  absence  of  his   parents.   On               16.11.1987  only  Naresh was attended  by  his               mother after release from jail and by then the               child had suffered from old ailments. She took               him  to R.M.L. Hospital on the advice  of  the               local  doctors.  The  injuries  inflicted   to               Naresh on 14.11.1987 caused fever and pneumoi-               tis  and finally resulted in his death.  Later               on  the  nature of injury on left leg  of  the               child was opined to be grievous one."     The  relevant  portion  of the  report  dated  5.12.1987 submitted by Puran Singh, Inspector, Crime Branch, Delhi  is quoted hereunder:               "So  far it seems that there is a  high  level               conspiracy in getting the rooms of tenants got               vacated  by  the landlord if  the  accused  is               bailed  out, it will be difficult to find  out               the               494               truth. Smt. Shobha and the doctor are  already               under  pressure.  As the local police  is  in-               volved in all this episode so bailing out  the               accused will definitely affect the fate of the               case. The accused should not be bailed out  as               it  is  clear case u/s 304/120  B  I.P.C.  The               details  of DD entries mentioned in  the  bail               application  itself  show  the  conspiracy  or               connivance  of the local police with  the  ac-               cused.   Therefore   the   bail   is   opposed               strongly."     The  landlord,  Shambu Dayal and Puran Prakash  and  Lal Singh,  S.H.O.  and Shyam Lal, Sub-Inspector have  been  im- pleaded as respondents by order dated September 20, 1988  in these writ petitions. They also filed counter-affidavits.     It  is now apparent from the report dated  5.12.1987  of the  Inspector  of the Crime Branch, Delhi as  well  as  the counter-affidavit  of  the Deputy  Commissioner  of  Police, Delhi  on  behalf of the Commissioner of Police,  Delhi  and also from the fact that the prosecution has been launched in connection  with the death of Naresh, son of Kamlesh  Kumari showing  that  Naresh was done to death on  account  of  the beating  and  assault by the agency of the  sovereign  power acting  in violation and excess of the power vested in  such agency.  The  mother of the child, Kamlesh  Kumari,  in  our considered  opinion, is so entitled to get compensation  for

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the death of her son from the respondent No. 2, Delhi Admin- istration.     An  action  for damages lies for bodily harm  which  in- cludes  battery, assault, false imprisonment,  physical  in- juries  and  death. In cases of assault, battery  and  false imprisonment the damages are at large and represent a  sola- tium  for  the  mental pain, distress,  indignity,  loss  of liberty and death. As we have held hereinbefore that the son of  Kamlesh  Kumari  aged 9 years died due  to  beating  and assault by the S.H.O., Lal Singh and as such she is entitled to  get  the damages for the death of her son.  It  is  well settled  now that the State is responsible for the  tortious acts of its employees. The respondent No. 2, Delhi  Adminis- tration  is liable for payment of compensation to Smt.  Kam- lesh  Kumari for the death of her son due to beating by  the S.H.O. of Anand Parbat Police Station, Shri Lal Singh.     It  is convenient to refer in this connection the  deci- sion  in Joginder Kaur v. The Punjab State and Ors.,  [1969] ACJ 28 at 32 wherein it has been observed that:               "In  the matter of liability of the State  for               the  torts committed by its employees,  it  is               now the settled law that the State               495               is  liable for tortious acts committed by  its               employees in the course of their employment."     In  The State of Rajasthan v. Mst. Vidhyawati and  Anr., [1962] Supp 2 SCR 989 at 1007 has been held that:               "Viewing  the case from the point of  view  of               first principles, there should be no difficul-               ty in holding that the State should be as much               liable  for tort in respect of a tortious  act               committed  by its servant within the scope  of               his employment and functioning as such as  any               other  employer. The immunity of the Crown  in               the  United  Kingdom,  was based  on  the  old               feudalistic  notions of Justice, namely,  that               the King was incapable of doing a wrong,  and,               therefore, of authorising or instigating  one,               and  that  he  could not be sued  in  his  own               courts.  In India, ever since the time of  the               East  India  Company, the sovereign  has  been               held liable to be sued in tort or in contract,               and the Common Law immunity never operated  in               India  ......  "     In  Peoples  Union  for Democratic  Rights  through  its Secretary  and  Anr. v. Police  Commissioner,  Delhi  Police Headquarters  and Anr., (Writ Petition Crl. Nos. 401-402  of 1988 orders in which were pronounced by this Court on  Janu- ary  13,  1989) one of the labourers who was  taken  to  the police  station for doing some work and on demand for  wages was  severely  beaten and ultimately succumbed  to  the  in- juries. It was held that the State was liable to pay compen- sation  and  accordingly  directed that the  family  of  the deceased labourer will be paid Rs. 75,000 as compensation.     On  a conspectus of these decisions we deem it just  and proper to direct the Delhi Administration, respondent No.  2 to  pay  compensation to Kamlesh Kumari, mother of  the  de- ceased,  Naresh a sum of Rs.75,000 within a period  of  four weeks from the date of this judgment. The Delhi  Administra- tion may take appropriate steps for recovery of the  amounts paid  as compensation or part thereof from the officers  who will  be found responsible, if they are so advised.  As  the Police officers are not parties before us, we state that any observation made by us in justification of this order  shall not  have any beating in any proceedings specially  criminal

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prosecution pending against the police officials in  connec- tion  with the death of Naresh. The writ petitions are  dis- posed of accordingly. N.P.V.                                       Petitions  dis- posed of. 496