ORDER R.C. Lahoti, J. -- Notice has been issued to the Superintendent, Central Jail, Gwalior requiring him to show cause why he be not punished in contempt for his failure in securing production of the accused before the trial Court on the dates of hearing and thereby causing obstruction in the Administration of Justice. 2. Contemnor has filed a reply explaining the circumstances under which the non-production took place. We are satisfied that the contemnor had not done anything deliberately or wilfully. His failure in compliance with his statutory obligation, to produce the accused in his custody before the Court so as to facilitate unhampered progress of the trial, was on account of non- availability of police guard. We, therefore, discharge the rule and hold that the contemnor is not liable to be proceeded against. 3. We propose to seize this opportunity for making certain observations and placing on record what we feel an acknowledgement of duty to our conscience and a reminder to the State of its constitutional obligations. 4. Cases after cases are coming' to our notice where the trials before the criminal Courts have been held up not because the Judges were not available, not because the Judges were not prepared to work, but because the agencies of the State responsible for conducting investigation, filing challan, conducting the prosecution, serving the witnesses, producing the under trial prisoners before the Court did not faithfully discharge their duties. 5. The present one is a case where the accused, an under trial prisoner, has several serious and sensational highway robberies, to his credit. Accused came up to this Court on several occasions forcefully pressing for the bail but the Court always declined his prayer because of an apprehension that once let out, he was likely to flee from justice looking to the gravity of the crime. To quote from the order dated 15.3.1989 passed in Cr. Misc. Case No. 103/89 :- "A shocking and painful state of affairs has come to the notice of the Court. The case reached the Sessions Court on 7.3.88 consequent to an order of committal passed by J.M.F.C, Shivpuri. During a span of about a year, the case was taken up for hearing on about 20 dates. Not on a single date four of the accused persons imprisoned at Central Jail, Gwalior, were produced before the Court. The case reached the Sessions Court on 7.3.88 consequent to an order of committal passed by J.M.F.C, Shivpuri. During a span of about a year, the case was taken up for hearing on about 20 dates. Not on a single date four of the accused persons imprisoned at Central Jail, Gwalior, were produced before the Court. On a few dates not even warrants were produced for securing a remand. For a few dates there is no explanation for non-production of the accused and the warrants. On most of the dates, it has been communicated to the Court that the accused could not be produced because Police Force was not available to provide an escort to the accused persons." It is difficult to believe that on 20 occasions the State had the same lame excuse to advance. The State is the trustee of law and order exercising police powers but at the same time is governed by Rule of law. Gross and persistent violation of the legal provisions has come to the notice of the Court and cannot be just overlooked. Virtually, the applicant is in preventive detention without there being a detention order. The minimum relief that can be given to the applicant in these proceedings is to grant him temporary bail unless and until the State is in a position to arrange for production of the applicant before the Court on all the dates of hearing." 6. There was again a default which had led to initiation of these proceedings under the Contempt of Courts Act. In Salim alias Sallo v. State 1990 JLJ 600 = 1989 MPJR MC 882), this Court noticed that in a serious case of dowry death, committed in the heart of a big city like Gwalior, promptly reported to the police, duly investigated, the agencies of the State were not at all bothered about speeding-up the progress of the trial. This Court in its order noted details of the proceedings to point out that persistently the accused was not being produced in the Court, also the witnesses were not being produced in the Court and even the T.I. was avoiding appearance in the Court. The deplorable state of affairs, the facts speaking aloud for themselves, was sought to be brought to the notice of all concerned by forwarding the copies of the order to the Chief Secretary. Home Secretary, Govt. The deplorable state of affairs, the facts speaking aloud for themselves, was sought to be brought to the notice of all concerned by forwarding the copies of the order to the Chief Secretary. Home Secretary, Govt. of M.P. , Director General of Police, Director General of Prisons, Director General of Prosecution, with the pious hope that they would pay a serious attention towards solving the problem of non-production of the accused in judicial custody before the Court on one pretext or the other and would also take care to device means to see that those responsible for serving summons and warrants on the witnesses did so without fail and paid a serious attention towards their obligation in assisting the Court in Administration of Justice. Copy was provided to the Dy. G.A. Gwalior with the hope that he would take up the matter with local officers post- haste. More than one-and-a-half year has passed. None has responded. None has moved. 7. In Cr. Misc. case No. 698/90 (Ratansingh v. State) decided on 24.5.1990, this Court was shocked to see that a prisoner was seriously suffering from hernea, needed to be operated upon urgently, but the State had the cheeks to say that police guard was not available to enable the suffering prisoner being sent up to the local hospital. Would one believe that we are living in a welfare state where the right to life, right to liberty and right to live with human dignity are Constitutionally guaranteed but l1agrantly violated? 8. In Raju and Ors. v. State of M.P. & Ors. - 1990 JLJ 666 = 1990 (2) Crimes 344, serious complaint was made before the Division Bench that the accused were not being produced physically before the Court while securing remand u/s. 161 Cr. P.C. The non-production was sought to be justified by the State on the ground of non-availability of the police guard. v. State of M.P. & Ors. - 1990 JLJ 666 = 1990 (2) Crimes 344, serious complaint was made before the Division Bench that the accused were not being produced physically before the Court while securing remand u/s. 161 Cr. P.C. The non-production was sought to be justified by the State on the ground of non-availability of the police guard. This Court depricated the practice and the defence of the State and observed :-- "If the State through it" agency of police has the authority to arrest a person in connection with certain offences and the law Courts have power to order for their police or judicial custody impairing their personal liberty, in order to enable the Police to complete-the investigation, the State and the prosecution as well as the law Courts have the corresponding duty to strictly observe the mandate and rule of law, and the law Courts have a further duty to scrupulously see that the statutory obligations are truely followed and fulfilled. " * * * * * "In the absence of such reasons as may be said to be beyond the control to produce the accused, the conduct of the authorities concerned has to be viewed with great seriousness and has to be deprecated in strict terms." * * * * * "the non-availability of the escort or police guard is no excuse for non-production of the accused before the Magistrate or Court concerned except in very exceptional circumstances pointed out above and not otherwise. It is not the first case where such lapses have occurred on the part of the State in not producing the accused physically before the Magistrate or Court concerned, but the experience shows that it has become a frequent feature which besides hampering the progress of the case violate the statutory obligations which has to be viewed with great concern and seriousness before it assumes an alarming situation. It is, therefore, expected that the State Government shall make adequate arrangements in the State by providing escort and police guard to escort the prisoners from jail custody to Court concerned, to safe-guard the interests of the accused persons and under trial prisoners and to avoid infraction of law." 9. The abovesaid illustrations, only a few out of hundreds (possibly thousands) demonstrate that the State of M.P. and/or its officials are least bothered about their constitutional obligation enshrined in and emanating from Arts. The abovesaid illustrations, only a few out of hundreds (possibly thousands) demonstrate that the State of M.P. and/or its officials are least bothered about their constitutional obligation enshrined in and emanating from Arts. 21, 22 and 14 of the Constitution. To say the least, the State and its officials are persistently indulging in tortuous acts. 10. It is high time and a deserving occasion when the attention of the State and its officers should be invited to the meanings of the terms malfeasance, misfeasance and non-feasance well known to the law of Torts. "The term "malfeasance" applies to the commission of an unlawful act. It is generally applicable to those unlawful act", such as trespass, which are actionable per se and do not require proof of intention or motive. The term "misfeasance" is applicable to improper performance of some lawful act for example when there is negligence. The terms "non-feasance" applies to the omission to perform some act when there is an obligation to perform it. Non-feasance of a gratuitous undertaking does not impose liability; but misfeasance does. Where there is a duty towards the individual injured, to do the act by the omission whereof the injury is caused, the non-feasance of such an act gives rise to a cause of action to the same extent as a misfeasance of an act of which there is a duty to perform in a particular manner." (The Law of Torts -- Ratanlal & Dhirajlal- 21st Edition 1987 - at page 26). 11. The concept of State liability in tort has undergone a drastic change in recent times. It should have undergone such a change. Far from protecting bona fide actions/inactions, the immunity called' Act of State' is boomaranging its purpose. It is encouraging lethargy, disregard to law and criminal disregard to the constitutional and legal safeguards on the part of those who claim to be protected. 12. In B.K. Mohapatra v. State of Orissa ( AIR 1988 SC 24 ), their Lordships have noticed and stated as well settled law that the doctrine of an act of State cannot be pleaded by a State as a defence against its own citizens. 13. 12. In B.K. Mohapatra v. State of Orissa ( AIR 1988 SC 24 ), their Lordships have noticed and stated as well settled law that the doctrine of an act of State cannot be pleaded by a State as a defence against its own citizens. 13. In Challa Ramkonda Reddy and others v. State of A.P. ( AIR 1989 AP 235 ), a landmark decision noticing the conflict between the concepts of sovereign power or function and personal liberty, the Division Bench held that the precious rights guaranteed by Art. 21 of the Constitution are available to a prisoner taken in custody by the State and in the event of failure or regligence on the part of the Police in guarding a prisoner properly, State would be liable in damages and the invocation of the doctrine of sovereign immunity by the State would not be permissible. That was a case where a prisoner lodged in a sub-jail was deprived of his life by miscreants trespassing into the jail and it was found that the authorities were not sufficiently mindful of their duties. 14. In SAHELI a Women's Resources Centre v. Commr. of Police, Delhi ( AIR 1990 SC 513 ), their Lordships have held (vide para 11), that the State is responsible for the tortuous acts of its employees. 15. The above-noted authorites, only illustrations out of several taking a long march in the concept of human life and liberty must act as eye-openers and warn the State that it should be watchful in seeing that its agencies and instrumentalities seriously, faithfully and promptly discharge their statutory and constitutional obligations in assisting the Court in due Administration of Justice by producing the prisoners before the Court on the appointed date at the appointed• time, by serving the witnesses with process and by doing everything expected of them in securing unhampered, expeditious trial of the cases. 16. We make it clear that any deliberate contribution on the part of the State and its instrumentalities, towards thwarting the administration and progress of justice cannot and would not be tolerated for long. 16. We make it clear that any deliberate contribution on the part of the State and its instrumentalities, towards thwarting the administration and progress of justice cannot and would not be tolerated for long. If such acts of malfeasance, Misfeasance and Nonfeasance come to the notice of this Court it shall be inclined, rather obliged, to summarily assess and award compensation to be paid by the State to the accused and under trial prisoners suffering harassment, misery and denial of fundamental rights; the compensation being made payable by the erring officials or by the State, who cannot disown the responsibility for the acts, deeds or misdeeds of its officials and leaving the liberty, open to State to fix and pass on the liability to pay compensation on such officials as may be found at fault by it. 17. We can only hope, while directing copies of this order to be sent to the Chief Secretary, the Home Secretary and the Law Secretary of the Govt. of M.P. that the order would be read not by closed eyes and heard not by ears which do not hear. This much for the present and until this Court comes across a suitable case, obliging it to act.