Kerala High Court
T.K.Muhammed Shafeeq vs The Manager
Bench: V.Chitambaresh, K.Harilal
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE V.CHITAMBARESH
&
THE HONOURABLE MR.JUSTICE K.HARILAL
FRIDAY, THE 25TH DAY OF NOVEMBER 2016/4TH AGRAHAYANA, 1938
AS.No. 541 of 1998 ( G)
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AGAINST THE JUDGMENT & DECREE DATED 09-02-1998 IN OS 2/1993 of SUB
COURT, TIRUR
APPELLANT/1ST DEFENDANT IN THE TRIAL COURT:
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T.K.MUHAMMED SHAFEEQ,
S/O. T.K.KUNHUMOIDEEN,
SUB INSPECTOR OF POLICE,
TIRUR (AT THE RELEVANT TIME),
THOTTUNGAL HOUSE, P.O. THEKKUMMURI,
TIRUR-5, MALAPPURAM DISTRICT.
BY ADVS.SRI.C.RAMAN
SMT.MEERA P.MENON
RESPONDENTS/PLAINTIFFS AND 2ND DEFENDANT IN THE TRIAL COURT:
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1. THE MANAGER,
TALI DEVASWOM,
CALICUT, KOZHIKODE DISTRICT.
2. P.K. ETTANUNNI RAJA,
THE ZAMOORIN RAJA OF CALICUT,
THE TRUSTEE OF TALI DEVASWOM,
CALICUT, RESIDING AT PUTHIYAKOVILAKAM,
THIRUVANNOOR, KOZHIKODE.
3. THE STATE OF KERALA,
REPRESENTED BY THE DISTRICT COLLECTOR,
MALAPPURAM.
R3 BY GOVT. PLEADER SRI.SUNILKUMAR KURIAKOSE
R2 BY ADV. SMT.SHAHNA KARTHIKEYAN
THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 30-09-2016,
ALONG WITH AS. 550/1998, THE COURT ON 25-11-2016 DELIVERED THE
FOLLOWING:
OKB
CR
V.CHITAMBARESH & K.HARILAL, JJ.
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A.S. Nos.541 & 550 of 1998
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Dated this the 25th day of November, 2016
JUDGMENT
Harilal, J.
Preface 'Neelakantan', an elephant by name, was shot dead by the Sub Inspector of Police, while he was in discharge of his official duty. According to him, the elephant was shot dead, to save life of several human beings; but, the owner of the elephant contended that the shooting, that culminated in death of the elephant, was unwarranted and unjustifiable. The legality and liability that arise out of the said fire shot and the order of preference to be borne in mind of a public servant, in a dangerous situation, where the right to life of the human beings is under the threat caused by a dangerous animal, have come up before us for determination in these appeals. The sequence of events
2. 'Neelakantan' was a captive elephant owned A.S.Nos.541 & 550 of 1998 :2: and possessed by 'Thali Devaswom' and the plaintiffs are the trustees of the said Devaswom. According to the plaintiffs, 'Neelakantan' was a harmless elephant, loved and reared by the Hindus of that locality. On 06.01.1992, he was hired by a Mosque Committee for 'Nercha' festival. As a part of the festival, he was taken to each house in the locality for receiving offerings from the householders. While he was taking to the house of a lady by name Fathibi, somebody pelted stone at his vital part, while urinating. On receiving the hit at his sensitive part, Neelakantan became enraged and violent and the Mahouts failed to control him, though they were three in number. They also were shaken off and thrown off to a distance. He destroyed several coconut trees, arecanut trees, caused damage to other trees standing in the property and eventually he was confined to that house compound by closing the gate at 4.30 p.m. On receipt of information at 4.30 p.m. the 1st defendant, the Sub Inspector of Police, Tirur, with policemen reached there. The Chief Mahout informed the 1st defendant that he had informed the Veterinary Doctors at Trissur, A.S.Nos.541 & 550 of 1998 :3: who are capable to administer tranquilizer shot. Again, people gathered there and the elephant got afraid and ran out of the compound, after demolishing the gate. Then, the 1st defendant shot the elephant at his leg. Neelakantan entered into a small Mosque and thereafter tried to get out through a narrow passage and in that attempt, he demolished the urinal shed of the Mosque, charged one man, by name 'Mohammedkutty', who was inside the urinal shed, he sustained injuries and succumbed to the injuries. Then Neelakantan turned back, entered on the road and began to walk through the road to a distance of about 9 Kms, reached at the estuary of the River Ponnani, jumped into the river and began to swim towards opposite side. But, according to the plaintiffs, he bogged down in the slush and could not proceed further. In the meantime, the 1st defendant and his party got into a boat and chased Neelakantan. When came near him, they mercilessly shot and killed him at 11 p.m. The Veterinary Doctors from Thrissur reached there at 12 midnight, one hour after his death. This is the summary of the sequence of events averred in the A.S.Nos.541 & 550 of 1998 :4: plaint.
Pleadings
3. According to the plaintiffs, Neelakantan was not in rut and he got enraged due to the inexcusable misconduct on the part of the unruly mob gathered around him. He was shot dead unnecessarily and it was an act of sadism and cruelty towards an animal. Had the 1st defendant waited till the arrival of the Veterinary Doctors, so as to administer tranquilizer shot, death of Neelakantan could have been avoided. Thus, the shooting of Neelakantan was unjustified and unwarranted. Probably, the 1st defendant was anxious to claim the credit of being the one officer, who had shot an elephant. Thus, the act of shooting was not in discharge of his official duty. Hence, the defendants are liable to pay damages for the loss sustained by the plaintiffs. They have sustained a loss of Rs.8 lakhs, but limited their claim to Rs.5 lakhs only and prayed for granting a decree for the said amount.
4. In the written statement, the 1st defendant contended that the incident did not take place in the manner as alleged in the plaint. The sequence of A.S.Nos.541 & 550 of 1998 :5: events that eventually culminated in the death of Neelakantan, by fire shot, was narrated falsely in the plaint. When he got the information that an elephant brought for 'Nercha' has run amok and the entire locality was horror stricken, he informed his superior authorities for necessary instructions and permission to shoot the elephant, if necessary, and obtained Ext.B1 order, which directed him to take immediate action to protect the life and property of the people, from the District Collector. When he reached there at 4.30 p.m., he found the elephant standing inside the compound of a house, after destroying several trees and huge crowd was seen surrounded the compound. But, he did not see the Mahouts anywhere near the elephant. After clearing the mob, he made an attempt to chain the elephant with the help of certain Mahouts of some other elephants; but, that attempt was not successful. After demolishing the gate and compound wall, Neelakantan went out and entered into the compound of a Mosque and thereafter tried to get out of that compound through a narrow passage by demolishing a urinal shed and in that attempt he A.S.Nos.541 & 550 of 1998 :6: charged a person by name Mohammedkutty, who was inside the shed and he died at the spot. By that time, the Tahsildar reached there and he contacted the District Collector and again made sure that the police can shoot the elephant, if the situation so warrants. He was not informed of the requisition made to the Veterinary Doctors to control the animal as alleged by the plaintiffs. When Neelakantan came out of the compound and entered on the road, the policemen shot him at his leg, on the apprehension of disastrous consequences that may be caused to the public. By the time, the District Collector and the Superintendent of Police reached at the spot, followed by armed reserve policemen. After entering into the River, Neelakantan swam towards Purathoor, the eastern bank of the River, where a fishermen colony is located. If the unruly violent elephant reaches that sleeping village at midnight, it may cause havoc and imperil the life of a large number of poor fishermen. Even though the police party tried to divert the direction of the elephant, he continued to go ahead towards Purathoor. So, with the bona fide intention to save the life of a A.S.Nos.541 & 550 of 1998 :7: large number of fishermen and their family members, inhabiting on the other side of the river, towards which Neelakantan swam, the armed reserve policemen fired and the elephant was shot dead. It is not true that he shot down the animal at the river while it was standing bogged in the slush. The elephant went berserk because it was over worked and unfed by the Mahouts. He has acted within the confines of law, in discharge of his duty, after obtaining necessary instructions and order from the competent authorities under law. The policemen shot the elephant, in adherence to the direction, to take immediate action, including the shooting of the elephant, to protect the life and property of the human beings. The service of armed police force was also availed, for tackling the havoc and to maintain public order. In short, he had been properly instructed, directed and accompanied by superior officers, when Neelakantan was shot dead. The suit was not maintainable and barred by limitation under the provisions of the Kerala Police Act. So, the defendants are not liable to pay any amount to the plaintiffs as damages.
A.S.Nos.541 & 550 of 1998 :8:
5. The District Collector also filed a written statement challenging the maintainability of the suit under Section 133(i) and (vi) of the Cr.P.C. and Sec. 64(1) of the Police Act. So also the suit was barred by limitation under Sec. 64(3) of the Police Act. He admitted that on the basis of the report of the Superintendent of Police, Malappuram that an elephant went berserk at B.P.Angadi and may charge the crowd causing eminent danger to the human life and property, as District Magistrate, in exercise of powers conferred under the provisions of the Cr.P.C., he had issued orders directing the police to take immediate action to protect life and property of the public and if necessary even by shooting the animal and it was in adherence to Ext.B1 order the 1st defendant and other members of the police acted against the elephant. The Tahsildar as Executive Magistrate was present at the spot, the police party gave sufficient time to the Mahouts to control the animal; but they miserably failed to control it. Though the Veterinary Doctors were called, they also could not reach till 11 O'clock. If the elephant had killed more people, the 1st A.S.Nos.541 & 550 of 1998 :9: defendant could have been personally liable for the failure to discharge his duty, despite the receipt of Ext.B2 order. The policemen shot the elephant, in discharge of their official duty, so as to prevent danger to life and property of the people in that locality. According to him, the action taken by the policemen is justified by circumstances which warranted firing. Therefore, there is no liability to give compensation to the plaintiffs. Thus, he also prayed for dismissal of the suit.
6. On the above pleadings, both parties adduced oral and documentary evidence, in abundance, consists of oral testimonies of P.Ws.1 to 9 and D.Ws.1 to 7 and Exts.A1 to A9 and B1 to B13. After considering the aforesaid evidence, the trial court decreed the suit and the lower appellate court confirmed the findings of the trial court and dismissed A.S.Nos.541/1998 and 550/1998 filed by the defendants 1 and 2 respectively. The legality and correctness of the findings of the trial court are assailed in these Appeal Suits.
Arguments A.S.Nos.541 & 550 of 1998 :10:
7. Heard the learned counsel for the appellants and the learned counsel appearing for the respondents.
8. Shri Nandagopan S. Kurup, the learned counsel for the appellant in A.S.No.541/1998 mainly contended that the suit was not maintainable under Section 64(1) and barred under Section 64(3) of the Police Act. But the court below miserably failed to consider the aforesaid provision in its correct perspective and went wrong in finding that the shooting, which resulted in death of the elephant, was not an act in discharge of official duty. It is also contended that the act done by the appellant is insulated under sovereign immunity.
9. Per contra, Shri M.P.Sreekrishnan, the learned counsel for the respondents advanced arguments to justify the impugned judgment. According to him, there is no order granting permission to shoot the elephant and the police party ought to have waited till the arrival of the Veterinary Doctors. Similarly, shooting could have been done on the failure of the tranquilizer shot only. Thus, the act done by the appellants cannot be justified under the order passed by the 2nd respondent. It is also contended that the 2nd A.S.Nos.541 & 550 of 1998 :11: respondent has no sovereign immunity as such concept was vanished under law. In short, according to him, the shooting, which resulted in the death of Neelakantan, was unwarranted and is unjustifiable.
The points to be considered
10. The legality and correctness of the impugned judgment centre around the findings on four questions; (1) whether the suit was maintainable? (2) whether the suit was barred by limitation? (3) whether the act, which resulted in the death of the elephant, was an act done in good faith, in discharge of official duty? and (4) whether the appellant is entitled to get protection under the doctrine of sovereign immunity? The Findings
11. Firstly, let us examine the findings whereby the court below decreed the suit. Going by the impugned judgment, it is seen that the court below arrived at the findings that the suit is maintainable and not barred by limitation, as the act done by the appellant was not in discharge of official duty. Emergence of Ext.B2 order, is shrouded in mystery and thereby it will not fall under Sec. 64(1) of the Police A.S.Nos.541 & 550 of 1998 :12: Act. Since the act done was not in discharge of official duty, the suit was not barred by the period of limitation under Sec. 64(2) of the Police Act. There was no circumstance warranting shooting of Neelakantan. The above questions are seen discussed together and the findings are seen interlinked. So, the questions of maintainability of the suit and limitation are based on the findings on question No.3 also.
12. Let us examine question Nos.1 and 3 together. It is the case of the defendants that the suit is not maintainable under Section 64(1) of the Kerala Police Act. On the other hand, the plaintiffs' case is that the fire shot, which resulted in death of Neelakantan, was not in discharge of official duty imposed or authority conferred upon the 1st defendant by the Police Act or any law for the time being in force and the shooting of the elephant was unwarranted as the circumstance would not justify the said act. Section 64(1) & (2) of the Kerala Police Act reads as follows:
"64. Magistrate or Police Officer not liable for anything done in good faith,-
(1) No Magistrate or Police Officer shall be liable to any penalty or payment of damages on account of any act done or intended to be done in good faith in pursuance of A.S.Nos.541 & 550 of 1998 :13: any duty imposed or any authority conferred on him by any provision of this Act or of any other law for the time being in force conferring power on the Magistrate or Police Officer or of any rule, order or direction lawfully made or given thereunder.
(2) Person duly appointed or authorised not liable for anything done in good faith,- No person duly appointed or authorised shall be liable as aforesaid for giving effect in good faith to any such order or direction issued by the Government or by a person empowered in that behalf under this Act or any rule made under any provision thereof."
13. In our view, the first point is, whether the act was done in good faith. It is not disputed that the 2nd defendant is a District Magistrate and the 1st defendant is a Police Officer, who is liable to adhere and give effect to any order or direction issued by the 2nd defendant, under law. The plaintiffs have no case that the appellant has any mala fide intention or ulterior motive to kill Neelakantan. The only allegation is that "probably the 1st defendant was anxious to claim the credit of being one officer who had shot an elephant to death". Needless to say, according to the plaintiffs themselves, the said allegation is a probable one only and they are not sure that he had such a bad intention. They do not have a case that he will get any benefit or A.S.Nos.541 & 550 of 1998 :14: advantage as a person or a police officer, by killing an elephant. In the absence of any material in evidence, to substantiate the probability expressed in the plaint, this Court has no hesitation to hold that neither the 1st defendant nor the 2nd defendant had any bad faith or mala fide intention or ulterior motive, in killing the elephant Neelakantan.
14. The second point to be considered is, whether the act done was in exercise of any duty imposed or any authority conferred on him by the Police Act and what is the authority and power conferred on the defendants to act in such a way, to shoot at Neelakantan in discharge of their duty. Can the court below be justified in arriving at the findings that the act of shooting was not intended to be done in good faith in pursuance of any duty imposed or any authority conferred on the defendants?
15. The authority and the power of the 2nd defendant to issue Ext.B2 order as District Magistrate is not disputed by the plaintiffs. Moreover, the court below observed that the genuineness of Ext.B2 order cannot be doubted, though the order was not emerged A.S.Nos.541 & 550 of 1998 :15: as stated by the defendants. Thus, the procedure, under which Ext.B2 had been issued, alone is doubted by the court below. At this juncture, it is worthwhile to note the wide powers vested with the District Magistrate for maintaining the public order, in a situation where a dangerous animal causes danger to the public, envisaged under Chapter X of the Cr.P.C. According to the very wide powers granted to the District Magistrate under Chapter X of the Cr.P.C., in urgent cases of nuisance or apprehended danger, where danger to human life requires immediate prevention or speedy remedy, and the circumstances do not admit serving of notice, the District Magistrate has the power to pass order ex parte. Under Section 142 of the Cr.P.C., the Magistrate has power to order injunction to prevent or obviate immense danger where immediate measures should be taken and no suit shall lie in respect of anything done in good faith by the Magistrate under this power. On a combined reading of Secs.133, 142 and 144 of the Cr.P.C., the District Magistrate, the Sub Divisional Magistrate and the Executive Magistrate are empowered to pass and issue A.S.Nos.541 & 550 of 1998 :16: orders to the police to take urgent measures to prevent or obviate danger to the human life caused by a dangerous animal and in cases of emergency, such Magistrates have the power to make an order to destroy the animal. Needless to say, the circumstances, under which such an order has been made, must justify the order. The circumstances must be to prevent or obviate danger to the human life caused by a dangerous animal. Therefore, the issuance of Ext.B2 order was well within the authority and power vested with the 2nd defendant.
16. Coming to the Kerala Police Act, it is worthwhile to note that according to Sec.29(a) of the Police Act, it shall be the duty of every police officer to obey and execute all orders and warrants lawfully issued to him by any competent authority and endeavour by all means to give effect to the lawful commands of his superior officers. Whether the order has been issued in compliance with the formality or procedure is not a question to be adjudged by a police officer to whom the order has been issued for execution. Whatever be the irregularities, according A.S.Nos.541 & 550 of 1998 :17: to him, in the issuance of the order, if it was passed by the competent authority and lawfully issued in exercise of power conferred to him under law, the police officer is liable to obey and execute such orders and he must use his best endeavour to avert danger to the public caused by the dangerous animal.
17. Let us have a look at the statutory duty imposed on a police officer, where the public order is disturbed. Chapter V of the Kerala Police Act prescribes the duties of the police officers. As per Section 29(d), (h) and (l), it shall be the duty of the every police officer, to prevent to the best of his ability, the commission of public nuisance, use his best endeavours to prevent any injury attempted to be committed, in his view, to any public property or the removal of or injury to any public landmark or mark used for navigation and use his best endeavours to avert any accident or danger to the public.
18. Coming to the Police Manual, Vol.II, Clauses 228 to 238 deal with maintenance of law and order, duties and responsibilities of the police officers. As per Clause 194(2), it is the duty of a police officer to A.S.Nos.541 & 550 of 1998 :18: obey and execute every process or other order lawfully issued to him by a competent authority and by all lawful means to give effect to the commands of his superior. As per Clause 196, every police officer is under an obligation to make his best efforts to prevent the commission of such nuisances. According to Clause 232, a police officer is empowered to open fire arms under the specific direction of the Magistrate, except under extreme situation in self defence. According to Clause 233(1), prevention of riots and disturbance are the important duties of the police officers.
19. The third point to be considered is, whether the District Magistrate/2nd defendant had granted permission to shoot the elephant. The learned counsel for the respondents vehemently contended that the 2nd defendant has not granted permission to shoot Neelakantan and such a permission can never be inferred from Ext.B2, at any stretch of imagination. In short, Ext.B2 is shrouded in mystery, according to him. The 1st defendant should not have opened the firearm unless and until the veterinary doctors from Thrissur A.S.Nos.541 & 550 of 1998 :19: reached the spot and administered tranquilliser shot and failed to control the elephant by that method.
20. Going by Ext.B2 order, it is discernible that the District Superintendent of Police, Malappuram, had made a request to the 2nd respondent seeking permission to shoot the rogue elephant, if it is likely to turn violent and the 2nd respondent, in turn, passed the order on the request itself as: "Yes, take immediate action to protect the life and property of the public. The owner and the Kerala Agricultural University may also be notified". On a combined reading of the request and the order granted thereunder in the same paper, it can be clearly and reasonably presumed that the permission was granted for shooting the elephant to protect the life and property of the public, if necessary. But the plaintiffs have lost sight over the request made and the endorsement of 'yes' thereon and they construed the order isolatedly. The request and order passed thereunder must be read together, not in isolation. On a combined reading in juxta position, we have no doubt in our mind that the permission was A.S.Nos.541 & 550 of 1998 :20: granted to shoot the elephant, if necessary, and neither further order or instruction from the 2nd respondent nor his presence was required to shoot the elephant.
21. The learned counsel appearing for the plaintiffs further contended that from the direction to inform the owner and the Agricultural University, it could be presumed that the 1st respondent should not have opened the firearm, unless and until P.Ws.7 and 8, the Veterinary Doctors reach and administer tranquilliser shot and found it ineffective. The argument advanced by the learned counsel for the plaintiffs is far fetched and stretched, in view of Ext.B2 order and it is indigestible in the mind of an ordinary prudent man also. To sum up, obviously, the 2nd defendant granted permission to shoot the elephant, if necessary, to protect the life and property of the public. Thus, the shooting was well within the permission granted by the 2nd defendant to the 1st defendant. In the light of the aforesaid provisions under the Police Act and the Police Manual, we further find that the 1st defendant was bound to obey the A.S.Nos.541 & 550 of 1998 :21: directions in Ext.B2 order. So also, it was obligatory on his part to prevent the public nuisance and public disorder thereunder that may be caused by the elephant and use his best endeavors for the same.
22. As we have held above, the plaintiffs have not challenged the power and authority of the 2nd defendant to pass Ext.B2 order and the court below also found that the genuineness of Ext.B2 order cannot be doubted. We do not find any reason for arriving at a finding that Ext.B2 is shrouded in mystery and the emergence of Ext.B2 was not as stated by the defendants. In view of the reasons stated in the foregoing paragraphs, we reject the aforesaid findings of the court below, as unfounded. The sequence of events, which led to passing of Ext.B2 order, were well narrated by P.W.5, the Special Branch Sub Inspector and there is no reason to doubt his evidence. We have no hesitation to add that the issuance of Ext.B2 order was just and proper in the given situation.
23. The fourth point to be considered is, whether the circumstances would justify the shooting of the elephant. It stands admitted that the entire episode A.S.Nos.541 & 550 of 1998 :22: started in the compound of the residential house of Fathibi at 4.30 p.m. and ended in the river at 11 p.m. and either the mahouts or the policemen could not control the elephant, despite the long lapse of 6= hours. It has come out in the evidence of the plaintiffs themselves that P.Ws.7 and 8, who are Veterinary Doctors as well as experts in controlling amok elephants arrived at the river bank at 12 midnight, one hour after the death of the elephant Neelakantan by fire shot and they returned back knowing the death of Neelakantan. In the plaint itself, the plaintiffs have averred that the elephant destroyed certain coconut trees and arecanut trees which stood in the compound of Fathibi's house and caused damages to some other trees and thereafter entered into the compound of Mosque and tried to get out of the Mosque and in that attempt pulled down a urinal shed and caused the death of Mohammedkutty. Thus, the fact, that Neelakantan went amok and destroyed several trees and structures, stands admitted and the cause of death of Mohammedkutty alone is disputed by the plaintiffs.
24. The learned counsel for the respondents A.S.Nos.541 & 550 of 1998 :23: advanced arguments to make it believe that the death of Mohammedkutty was not caused by the elephant. According to the plaintiffs, the deceased Mohammedkutty was trapped inside the urinal shed and he sustained injuries when the urinal shed was demolished by the elephant by pulling it down. On the other hand, the learned counsel for the appellant advanced argument contending that Exts.B4 to B7 photographs with negatives and Ext.B8 postmortem certificate of the deceased would unambiguously prove that the injuries to which he succumbed were sustained when the elephant charged him.
25. We are of the opinion that even if the version put forward by the plaintiffs is admitted, it can be concluded that the death was caused by the elephant whether it was by pulling down the urinal shed or by goring or stamping him to death. Relying on various judicial precedents, in Veeramani Chettiyar v. Davis and others [2012 (4) KLJ 375], this Court held that since the elephant is a dangerous animal the owner/keeper of an elephant is strictly liable, independently of negligence, for the damage caused by the elephant and A.S.Nos.541 & 550 of 1998 :24: the doctrine of strict liability, propounded in Reylands v. Fletcher [1908 (2) KB 825], would apply against the owner/keeper. The owner/keeper of a dangerous animal would be liable whether the damage or death was the direct result of the violent behaviour of the elephant or not. The test, which has universal acceptance, for the determination of the question whether the wrongful conduct is a cause, in fact, of the damage or death, is the "but for" test. So, it is sufficient to prove that but for the elephant's violent behaviour, the injury or death would not have occurred. The death need not be by direct attack, particularly in the case of a dangerous animal. Even if the death occurred when the elephant pulled down the urinal shed, it cannot be said that the death was not caused by the elephant. However, we find that the death of Mohammedkutty was caused by the violent act of the elephant, whatever be the manner in which the injuries were sustained. In short, the death was caused by the elephant, Neelakantan. However, we find that the death of Mohammedkutty caused an impression in the mind of the people and the policemen that death was caused by the violent attack of the elephant and that made the A.S.Nos.541 & 550 of 1998 :25: policemen apprehensive of further more consequences.
26. D.W.7 is the doctor who had examined five persons who were charged by Neelakantan and he had issued Exts.B9 to B13 wound certificates. These wound certificates unfolded by the testimony of P.W.9 doctor proved that Neelakantan caused injury to the persons mentioned in Exts.B9 to B13, in the course of his violent behaviour. We do not find any reason to disbelieve these certificates. But, the trial court went wrong by making an unfounded observation that these certificates may be manipulated. In short, damages caused to the trees and structures and the injury caused to several people, after Neelakantan went amok, stand proved beyond doubt, and these made the police apprehensive of more danger to the life and property of the people.
27. It is not disputed that the elephant jumped into the river and swam towards the opposite side of the river, where a fishermen colony is located. It is the case of the appellants that from 4.30 p.m. onwards they were trying to chain and control the elephant; but they miserably failed in that attempt and in the A.S.Nos.541 & 550 of 1998 :26: meantime the elephant caused the death of one man. Even though the Veterinary Doctors were informed, they could not arrive till 11 p.m. When the elephant swam towards the opposite side, the 1st defendant and other policemen apprehend that if the elephant reaches at the opposite side and enters, at the midnight, into the fishermen colony, while the fishermen and their families were sleeping, in view of the mischief and destructions made earlier, including the death of Mohammedkutty, the consequences would be disastrous and on that apprehension, they have no way other than shooting down the elephant while swimming towards the opposite side. It is the case of the plaintiffs that even if that be so, as apprehended by the defendants, they could have waited till the arrival of Veterinary Doctors to administer tranquilliser shot and they would have opened the firearm, on the failure of tranquilliser shot only. We are unable to countenance the said argument, in view of the permission granted to the 1st defendant under Ext.B2 to take preventive action to protect the life and property of the people. That apart, to us, the said A.S.Nos.541 & 550 of 1998 :27: argument is not sensible also, in the given circumstances.
28. Let us examine the evidence of P.Ws.1 to 8. Admittedly, P.W.1 is not an eye witness to depose that the sequence of events culminated in the death of the elephant. He has hearsay information only. Therefore, his evidence cannot be taken to assess the circumstances under which the policemen shot the elephant. P.W.2 is the mahout and he deposed as to the cause of violence of the elephant. He also admitted that the elephant has become violent and committed mischief to both men and property. It is pertinent to note that though they were three in number, they had no courage to chain the violent elephant as it may kill them. When the elephants become violent, at first they will turn against mahouts, according to P.W.2. The courts below itself found that the evidence of P.Ws.2, 5 and 6 contain many discrepancies, but can be ignored it as natural. The said observation itself shows that their evidence cannot be taken, as such, without further corroboration and it has come out in evidence that P.Ws.3 and 4 had been nurturing vengeance against A.S.Nos.541 & 550 of 1998 :28: the defendants. The learned counsel for the plaintiffs drew our attention to the testimonies of P.Ws.7 and 8, the Veterinary Doctors who are experts in elephant science and treatment and contended that they have made an opinion that Neelakantan was a harmless elephant and there was no circumstance warranting shooting. But, we do not find any value on their evidence. Because, admittedly they are not eye witnesses to the sequence of events which culminated in the death of Neelakantan and they have arrived at the spot one hour after the death of the elephant.
29. We are of the view that in an enquiry as to the circumstance which led to the shooting, their knowledge about the earlier behaviour of Neelakantan is neither significant nor relevant, because it is a matter of common knowledge that the behaviour of elephant is unpredictable. Even the mahouts who are always accompanying, feeding and nursing the elephants cannot predict their behaviour in certain circumstance and that is the reason why they are being attacked at first. P.W.7 admitted that he never examined Neelakantan. He also admitted that A.S.Nos.541 & 550 of 1998 :29: Neelakantan killed one person after became violent on that day. He deposed further that even after the tranquiliser shot, elephant may run away and kill people. When asked a specific question, do you have an opinion that elephant can never be shot, he replied that it depends upon so many factors. Therefore, P.W.8 was examined to prove that he had examined Neelakantan earlier and at that time there was no indication or symptom of musth. If he does not know the physical condition of Neelakantan on the date of occurrence, his evidence on the basis of earlier examinations cannot be taken at its face value. That apart, in this case, we are not concerned with the cause of violence, particularly when the elephant is dangerous animal under law and it stands admitted that Neelakantan has become violent and caused death of one person and charged several persons and committed mischief to the property.
30. It is the case of the plaintiffs that Neelakantan was a harmless elephant reared and loved by Hindus in that locality and there was no circumstance warranting interference of police. We A.S.Nos.541 & 550 of 1998 :30: are unable to countenance the said arguments, in view of the judicial precedents on this point. It is to be remembered that this Court in Veeramani Chettiyar v. Davis and others [2012 (4) KLJ 375], relying on various judicial precedents, held that elephant is a dangerous wild animal (ferae nature). In our view, since the elephants are dangerous wild animals, it made no difference that a particular elephant is highly trained or harmless and the harmfulness of an offending animal has to be adjudged not by the particular training or habit, but by reference to general habit of the species to which it belonged. The above view is supported by the decision reported in Filburn v. Peoples Palace and Aquarium Company [(1890) 25 QBD 2581]. Thus, the police is justified in acting in adherence to Ext.B2 order, irrespective of the fact that the elephant is one owned by Devaswom and reared and loved by Hindus in that locality. Coming to the instant case, it is needless to say, threat to life of human beings, caused by a dangerous animal like elephant is a nuisance as well as public disorder, warranting discharge of duty imposed on the police officer under the aforesaid A.S.Nos.541 & 550 of 1998 :31: provisions of the Kerala Police Act and the Police Manual.
31. In our view, there cannot be a hard and fast rule to obviate a dangerous situation wherein the life of human beings is under the threat of a violent dangerous animal. It is not just and proper to sit on an arm chair, after two decades, to think about the right measures which could have been taken by the police, to obviate such a dangerous situation. In a dangerous situation where the right to life of human beings is under the threat of a dangerous animal, there may have several methods. One may suggest one way and the other would suggest a different way, after the incident. After 20 years, neither the court nor anybody else could suggest the right way in which the threat could have been obviated, in the circumstance prevailed then. In a crucial situation where the entire people in a locality is apprehensive of danger caused by a dangerous animal, it is obligatory on the part of the public servant who is entrusted with duty to protect the life and property of the human beings to think about the way in which the life of the people can A.S.Nos.541 & 550 of 1998 :32: be protected. Even if the act done was found not proper, it is only an error in judgment, if the act was done with good faith under the permission granted by the competent authority and he cannot be held liable for the same.
32. Here arises the question, what is the order of priority to be given by a public servant in a dangerous situation wherein the right to life of the human beings is under the threat caused by a dangerous animal.
33. We are mindful of various laws governing protection of animals, which are in abundance. We have enacted various laws to preserve and protect animals, including the Wild Life (Protection) Act, 1972 and the Prevention of Cruelty to Animals Act, etc. But, we find that the Constitution of India is the prime enactment which governs life of human beings of this country and the fundamental right guaranteed under the Constitution stands above the various provisions under different laws, enacted for the protection of animals, in the order of priority, in case of conflict. All other laws are made subservient to accomplish the right to the life guaranteed under the Constitution. If A.S.Nos.541 & 550 of 1998 :33: that be so, the public servant, who is on duty, to prevent or obviate danger to human life caused by a dangerous animal, must give preference to protect life of human beings, which stands guaranteed under the Constitution, rather than the life of an animal. He can shoot the animal to save a human life, if he is empowered and authorised to use the firearm, under law; but, the circumstance must justify the shooting of the animal. In other words, if he has no other way to save the life of human beings, nothing wrong in shooting the animal so as to kill the animal in order to save a human life, whatever be the nature of animal, even if it is a lion. In such situations, we have no hesitation to hold that preference must be given to human beings rather than animals. A public servant shall never be a coward or a doubting Thomas, in such dangerous circumstance where human life is in peril.
34. How the circumstances then prevailed could be assessed judicially? We are of the opinion that the circumstances must be assessed with the mind of an ordinary prudent man. The act of shooting in a given circumstance must be tested with the mind of an A.S.Nos.541 & 550 of 1998 :34: ordinary prudent man and in that test if the ordinary prudent man would believe that in the given circumstance there was no way other than killing the animal to save the human life, the public servant must be justified in shooting the animal, if he is empowered and authorised to use the firearm, under law or orders passed thereunder. We are unable to weigh human beings and animals equally, in a life and death situation. The right to life of human beings is the paramount right that enshrined in the Constitution of India, and all other laws are made subservient to it, according to us.
35. We find force in the defendants' contention that if the amok elephant crossed the river, entered into the fishermen colony and killed more people or caused danger to the property, in that midnight, the 1st defendant would have been personally responsible for the failure to discharge duty assigned on him, particularly under Ext.B2, which was on his hand from 4.30 p.m. onwards.
36. In the instant case, we find that the shooting was done with good faith on the apprehension that, if A.S.Nos.541 & 550 of 1998 :35: the violent elephant reaches at the opposite side of the river and enters into the fishermen colony, at the midnight, the consequences would be disastrous, and they would be held liable for such an event, particularly, when Ext.B2 order granted permission to them to shoot the elephant, to protect life and property of people.
37. In the above analysis, we find that the act of shooting done by the defendants is an act done in good faith, in pursuance of the duty imposed and authority conferred on them by the provisions of the Police Act and Chapter X of the Cr.P.C. So, they are not liable for the aforesaid act done in good faith and they will get protection under Section 64(1) and (2) of the Police Act and Section 142(3) of the Cr.P.C. and the third question is answered accordingly. It follows that the suit itself was not maintainable under Section 64(1) of the Police Act and Section 142(3) of the Cr.P.C. and the first question is also answered accordingly.
38. Here arises another question: whether the court below is justified in finding that the suit is not barred by limitation under Section 64(3) of the Police A.S.Nos.541 & 550 of 1998 :36: Act. Let us examine the relevant provision of sub- section (3) of Section 64 , which reads as follows:
"No court shall take cognizance of any suit or complaint, in respect of any offence or wrong alleged to be committed or done by a Magistrate, police officer or other person on account of any act done in pursuance of any duty imposed or authority conferred on him by this Act or any other law for the time being in force or of any rule, order or direction lawfully made or given thereunder unless the suit or complaint is filed within six months of the date on which the offence or wrong is alleged to have been committed or done."
39. Admittedly, the suit was filed after six months from the date on which the elephant was shot dead. But, the court below rejected the plea of limitation on a finding that even though the suit was filed after six months, since the act of shooting was not in pursuance of any duty imposed or authority conferred to the defendants under the Police Act, the suit was not barred by limitation. After considering the entire sequences of events and circumstances thereunder, we have already found that the act of shooting was done in pursuance of duty imposed and authority conferred on the appellant under the Kerala Police Act and the Criminal Procedure Code; more particularly, under Ext.B2 order passed under Chapter X of the Cr.P.C. In A.S.Nos.541 & 550 of 1998 :37: that view of the matter, the court below is not justified in rejecting the plea of limitation. We find that the suit is barred by limitation under Sec. 64(3) of the Police Act as the suit was filed after six months from the date of shooting and consequential death of the elephant.
40. The learned counsel for the defendants further submits that the act of shooting was done in exercise of authority and power granted to the public servants for maintaining public order and thereby the said act is immune from suit for damages. In other words, the said act and the consequence thereof will get the protection of sovereign immunity. In support of the argument, the learned counsel for the appellant cited State of Rajasthan v. Mst. Vidhyawati and another [AIR 1962 SC 933] , Kasturi Lal v. State of U.P. [AIR 1965 SC 1039] and Renadevan v. Ezhupunna Grama Panchayat [2010 (1) KLT 644].
41. Per contra, the learned counsel for the respondents submits that the concept of sovereign immunity has been vanished from the legal arena and now no public servant can claim the protection of A.S.Nos.541 & 550 of 1998 :38: sovereign immunity for the act done by him, while in discharge of duty. The learned counsel cited the decision of this Court in Renadevan v. Ezhupunna Grama Panchayat [2013 (1) KLT 103], to fortify his arguments.
42. Let us have a survey of judicial precedents and the law settled by the Apex Court, in this respect. In 1965 SC 1039, the Apex Court held as follows:
"(21) Thus, it is clear that this case recognises a material distinction between acts committed by the servants employed by the State where such acts are referable to the exercise of sovereign powers delegated to public servants, and acts committed by public servants which are not referable to the delegation of any sovereign powers. If a tortious act is committed by a public servant and it gives rise to a claim for damages, the question to ask is: was the tortious act committed by the public servant in discharge of statutory functions which are reference to and ultimately based on, the delegation of the sovereign powers of the State to such public servant? If the answer is in the affirmative, the action for damages for loss caused by such tortuous act will not lie, on the other hand, if the tortuous act has been committed by a public servant in discharge of duties assigned to him not by virtue of the delegation of any sovereign power, an action for damages would lie. The act of the public servant committed by him during the course of his employment is, in this category of cases, an act of a servant who might have been employed by a private individual for the same purpose. This distinction which is clear and precise in law, is sometimes not borne in mind in discussing questions of the State's liability rising from tortious acts committed by public servants. That is why the A.S.Nos.541 & 550 of 1998 :39: clarity and precision with which this distinction was emphasised by Chief Justice Peacock as early as 1861 has been recognized as a classic statement on this subject."
43. Further, in N. Nagendra Rao & Co. v. State of A.P. [(1994) 6 SCC 205], the Apex Court held as given below:
"No civilized 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 sovereign. 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 a 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 on a par with any other juristic legal entity. Any watertight compartmentalization of the functions of the State as "sovereign and non-sovereign" or "Governmental and nonGovernmental" 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 negligent. 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 the "financial instability of the infant A.S.Nos.541 & 550 of 1998 :40: American States rather than to the stability of the doctrine's 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 regulating and controlling the activities of people in almost every sphere, educational, commercial, social, economic, political and even marital. The demarcating line between sovereign and non-sovereign 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 determination of vicarious liability of the State being linked with negligence of its officers, if they can be sued personally for which there is no dearth of authority and the law of misfeasance in discharge of public duty having marched ahead, there is no rationale for the proposition that even if the officer is liable the State cannot be sued. The liability of the officer personally was not doubted even in Viscount Canterbury. But the Crown was held immune on doctrine of sovereign immunity. Since the doctrine has become outdated and sovereignty now vests in the people, the State cannot claim any immunity and if a suit is maintainable against the officer personally, then there is no reason to hold that it would not be maintainable against the State." (emphasis supplied)
44. The proposition that can be culled out from the above decision is that the public servant will get protection under sovereign immunity provided that the A.S.Nos.541 & 550 of 1998 :41: act was done with good faith, in discharge of official duty, delegated to him by the sovereign, pertaining to maintenance of law.
45. The learned counsel for the respondents drew our attention to the decision of this Court in Renadevan 's case (supra) and contended that in view of the aforesaid decision of this Court the appellants herein will not be entitled to get protection under the doctrine of sovereign immunity.
46. We have meticulously gone through the above decision wherein the facts are entirely different. There, a young lawyer while riding his motorcycle in the midnight was intercepted by Home Guards by stretching and waving their 'lathi' in front of his head. When he fell down, they cane-charged him brutally and in that assault the lawyer had lost his five teeth. Thus, apparently, the act done by the Home Guards can never be treated as an officially authorised act delegated by the sovereign. The case of the victim was that the illegal action of police is an infringement of his right to life guaranteed under Article 21 of the Constitution of India.
A.S.Nos.541 & 550 of 1998 :42:
47. All acts done by the public servant in discharge of duty pertaining to law and order delegated to him by the sovereign will not get protection under sovereign immunity, and that protection is also neither unfettered nor unbridled. The Apex Court has made a distinction in this respect in N. Nagendra Rao's case (supra) as given below:
"A law may be made to carry out the primary or inalienable functions of the State. Criminal Procedure Code is one such law. A search or seizure effected under such law could be taken to be an exercise of power which may be in domain of inalienable function. Whether the authority to whom this power is delegated is liable for negligence in discharge of duties while performing such functions is a different matter. But when similar powers are conferred under other statute as incidental or ancillary power to carry out the purpose and objective of the Act, then it being an exercise of such State function which is not primary or inalienable, an officer acting negligently is liable personally and the State vicariously. Maintenance of law and order or repression of crime may be inalienable function, for proper exercise of which the State may enact a law and may delegate its functions, the violation of which may not be sueable in torts, unless it trenches into and encroaches on the fundamental rights of life and liberty guaranteed by the Constitution. But that principle would not be attracted where similar powers are conferred on officers who exercise statutory powers which are otherwise than sovereign powers as understood in the modern sense. The Act deals with persons indulging in hoarding and black marketing. Any power for regulating and controlling the essential commodities and the delegation of A.S.Nos.541 & 550 of 1998 :43: power to authorised officers to inspect, search and seize the property for carrying out the object of the State cannot be a power for negligent exercise of which the State can claim immunity. No constitutional system can, either on State necessity or public policy, condone negligent functioning of the State or its officers."
(emphasis supplied) "No action will lie for doing that which the Legislature has authorised, if it be done without negligence, although it does occasion damage to anyone; but an action does lie for doing that which the Legislature has authorised if it be done negligently."
48. The distinction made by the Apex Court is that where the act was done negligently and stretched into and encroached the fundamental right to life and liberty guaranteed under the Constitution, the public servant will not get privilege of sovereign immunity, even if the act was done on official duty for the maintenance of law and order. In the aforesaid decision cited by the counsel in Renadevan's case (supra), the act done by the public servant was an illegal, unauthorised and negligent act that infringed the fundamental right to life of a citizen. The said act was not delegated to him by the sovereign. So the said case will come under the distinction made by the Apex Court in Nagendra Rao's case (supra). But, in the A.S.Nos.541 & 550 of 1998 :44: instant case, there is no case of the breach of fundamental right. Here the allegation is that the decision taken by the respondent was an error in judgment resulted in monetary loss only. The respondents have no case that the appellants have acted negligently or without power or authority delegated to him by the sovereign. The only allegation is that the decision taken by the appellant was not proper in the given situation. Therefore, we find that the decision in Renadevan 's case cannot be applied to the instant case.
Resolution
49. In the light of the aforesaid discussions, we have no hesitation to hold that the act of shooting was an act done with good faith, while in discharge of official duty, pertaining to maintenance of law and public order, delegated to him. So, even if the decision taken by the appellants was an erroneous decision, they will get the protection and privilege under the doctrine of sovereign immunity.
50. We conclude as follows: Where a public A.S.Nos.541 & 550 of 1998 :45: servant acting in discharge of duty commits an error in judgment and causes death of a dangerous animal, which, he, in good faith, believes to be lawful and necessary for the due discharge of his duty, as public servant, to save a human life, he cannot be held liable under the Law of Torts for the death of that animal.
51. To sum up, in the instant case, (1) the suit was not maintainable under Sec.64(1) and (2) of the Police Act. (2) The suit was barred by limitation under Sec. 64 (3) of the Police Act. (3) The act of shooting of the elephant which culminated in death of the elephant will get the privilege and protection under the doctrine of sovereign immunity. (4). The appellants were not liable to compensate the respondents. The court below ought to have dismissed the suit.
52. Consequently, the impugned judgment and decree will stand set aside and both the Appeal Suits will stand allowed.
Observation
53. Before parting with this judgment, we express our deep concern and anguish about the sad plight of the captive elephants and the recurring A.S.Nos.541 & 550 of 1998 :46: sad demise of several persons and mahouts, caused by the captive elephants, in connection with the festival of the temples/ Mosques. Years back, elephant was used for carrying, dragging and pulling heavy loads like timber etc. But, now, the usage of elephant for that purpose is seen almost extinguished by the introduction of modern equipment and electronic devices. Now, the elephants are being mainly used for processions or exhibitions in the festival of the temples/Mosques or rallies and such usage is rampant. It is not disputed that the elephant is a dangerous wild animal and they are always unfriendly and unfamiliar with environment and ecology outside the A.S.Nos.541 & 550 of 1998 :47: jungle and captive elephants are subjected to fear and pain in the process of taming to make them to obey the will and wish of human beings and subsequent usage thereafter. We are of the opinion that processions and exhibitions exposing captive elephants for a long time in a hostile atmosphere tantamount to cruelty to the elephants. We notice that the Kerala Captive Elephants (Management and Maintenance) Rules, 2003 is not sufficient to prevent cruelty to the captive elephants in the absence of penal provisions therein, in case of violation. Therefore, it is high time for the legislature to act for liberating this poor wild animal from the processions and exhibitions in connection with the festival of the temples/Mosques and allow them to live freely in jungles.
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V.CHITAMBARESH, Judge.
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K.HARILAL, Judge.
okb/Nan (Continued at page No.48) A.S.Nos.541 & 550 of 1998 :48: Page 9, paragraph 6, lines 6 to 8 which starts from the word "and..." and ends at the word "....respectively" are deleted and the words "these Regular Second Appeals" occurring in the last line of the same paragraph are corrected as "these Appeal Suits", vide order dated 08/02/2017 in A.S.No.541/1998 and A.S.No.550/1998.
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Registrar (Judicial) okb