[Tortious Liability Of State] Kerala HC Upholds Compensation To Man Injured In Blast Outside Jail, Emphasises Constitutional Duty Of Care, Foreseeability & Neighbourship

The State had preferred an appeal against the decree of the Trial Court granting five lakh rupees as compensation to the plaintiff who suffered fifty per cent disability in an explosion at the Attakulangara Sub Jail.

Justice Sathish Ninan stated that the state has a constitutional duty of care and foreseeability and found that they have made an omission in not taking necessary precautions, especially at the site of ingress and egress to the jail.

“The defendants had a duty to take reasonable care when such criminals were being brought into or taken out of the jail. As pointed by the trial court, it could not be said that it is an incident which is beyond foreseeability. It is not in dispute that, but for deputing two police constables to accompany the accused, no other precautions were taken especially at the site of ingress and egress to the jail. On the facts of this case, when notorious criminals alleged with murder and involved in gang rivalry are being taken into the jail, there was every reason for the defendants to take adequate precautions. It could only be held that there was a duty of care and an omission regarding the same.”

The plaintiff was walking along the footpath in front of the Attakulangara Sub Jail when some persons threw explosives at certain accused who were under judicial custody and were being brought to the jail.

The Trial Court in a suit for damages granted a decree for five lakhs as compensation since the plaintiff suffered a fifty percent disability. The state filed an appeal before the High Court stating that there was no negligence on its part in maintaining law and order.

The Government Pleader submitted that two police officers were deputed with the accused in judicial custody. It was submitted that there were no intelligence reports regarding apprehension of violence. Relying upon Hill (Administratrix of the Estate of Jacqueline Hill deceased) (A.P.) v  Chief Constable of West Yorkshire (1990), and Robinson v. Chief Constable of West Yorkshire Police (2018) it was submitted that damages should be a direct consequence of a breach of duty and they should satisfy the test of foreseeability of harm.

The plaintiff argued relying upon the Apex Court decision in Veeran v. T.V.Krishnamoorthy (1965) which referred to the classic case of Donoghue v. Stevenson (1932) to state that there was negligence on the part of the police officials in performing their legal duty. Relying upon the Delhi High Court judgment in Ashwani Gupta v. Government of India & others (2005), it was argued that the State had a duty to protect its citizens.

Considering common law principles and decisions on negligence and damages, the Court relied upon the decision in State of Kerala and another v. K.Cheru Babu (1978) in which the Apex Court decision in State of Rajasthan v. Mst.Vidhyawati (1962) held, “The Court held that in an independent India, governed by a Constitution, there was no justification for upholding the principle of immunity which was based on an outmoded common law theory that no longer operated as such in the country of its birth”.

In the facts of the case, the Court found that the alleged incident occurred before the Sub Jail and the under-trial prisoners against whom the attack had taken place were notorious criminals and gang leaders. It thus stated that the State could not say that there was no reasonable foreseeability of an attack and it found that the plaintiff was within the areas of a foreseeable injury thus coming under the ambit of test of neighbourship. 

“While considering the same, the place of occurrence of the incident, the fact that the alleged under trial prisoners were notorious criminals and gang leaders; that they were under trial for offence charged under Sections 302, 307 and 324 IPC are all relevant factors. The possibility of attack by rival gang cannot be said to be beyond reasonable foreseeability”, stated the Court.

Accordingly, the Court dismissed the appeal.

Counsel for Defendants: Government Pleader K B Sony

Counsel for Plaintiff: Advocates M.R.Anandakuttan, M.A.Zohra R.S.Madhu, Mahesh Anandakuttan

Citation: 2024 LiveLaw (Ker) 134

Case title: State of Kerala v Sudheer Kumar

Case number: RFA NO. 3 OF 2010

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