IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 9TH DECEMBER 2008 / 18TH AGRAHAYANA 1930 OP.No. 4721 of 2000(K) --------------------------------- PETITIONER(S): ------------------------ SOBHA JOSEPH, D/O. PULIKKAL JOSEPH, AGED 18 YEARS, PALIKKAL HOUSE, MUTHAPPANPUZHA P.O., THIRUAMPADI, KOZHIKODE. BY ADV. SRI.M.R.RAJENDRAN NAIR (SR.) SMT.REKHA VASUDEVAN RESPONDENT(S): -------------------------- 1. STATE OF KERALA , REP.BY THE CHIEF SECRETARY, TO THE GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. 2. UNION OF INDIA, REP.BY THE SECRETARY TO THE GOVERNMENT OF INDIA, MINISTRY OF HOME AFFAIRS, NEW DELHI. ADV. SRI.P.MURALEEDHARAN, ADDL.CGSC FOR R2 GOVERNMENT PLEADER SRI..T.K.MOHANAN THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 09/12/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP. NO.7821/2000 IN OP. NO.4721/2000 DISMISSED 09.12.2008 SD/- T.R.RAMACHANDRAN NAIR, JUDGE APPENDIX PETITIONERS EXHIBITS NIL. /TRUE COPY/ P.S. TO JUDGE tss T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - O.P.No. 4721 of 2000-K - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 9th day of December, 2008. JUDGMENT The main relief sought for in the original petition is for a declaration that the petitioner is entitled to be compensated by the respondents for deprivation of life of her mother on the public road. The amount claimed is Rs.5 Lakhs. 2. The petitioner's mother was murdered on 18.6.1997 at 8.15 a.m. while she was on the way for her work place, viz. Muthappanpuzha Post Office, where she was employed as an Extra Departmental Post Mistress. She was aged 41 years at that time. She was attacked by the accused known as “Minnal Kuttappan'. Crime No.116/1997 of Thiruvampady Police Station was registered pursuant to the said incident. The offence charged is under Section 307 I.P.C. and the accused was arrested on 18.6.1997. It appears that the accused died due to heart attack later. 3. The petitioner contends that she belongs to a poor family. She was studying for second year B.Sc. Nursing at that time and her younger sister was a Ist P.D.C. student. Their father remarried and apart from these two children, their large family consists of their grandmother and paternal aunt. OP 4721/2000 2 The father is a Postman. 4. The ground pleaded in the original petition is based on Article 21 of the Constitution of India. It is stated that the petitioner had to suffer loss as the State had failed in protecting the life of her mother. The State had a duty to prevent commission of cognizable offence and they failed miserably in discharge of the said duty. It is stated that even though Section 357 of the Code of Criminal Procedure empowers the court to award compensation to the victims of crime, in this case that alternative is not there, in view of the death of the accused. 5. The petitioner relies upon various decisions of the Apex Court and this court to sustain the above plea which are the following: “Rudul Shah v. State of Bihar {(1983) 4 SCC 141} Sebastian M. Hongary v. Union of India {(1984) 3 SCC 81} Bhim Singh v. State of J & K (AIR 1986 SC 494 = (1985) 4 SCC 677 Jaram Singh v. State (AIR 1988 HP 13) Challa Ramakonda Reddy v. State of A.P. (AIR 1989 AP 235) State of A.P. v. Challa Ramakonda Reddy {(2000) 5 SCC 712} SC Legal Services Authority v. State of Bihar {(1991) 3 SCC 4982} Antony Cherian v. Union of India (1992 (1) KLT 73) Nilabati Behra v. State of Orissa and Ors. {(1993) 2 SCC 746 OP 4721/2000 3 Delhi Domestic Working Women's Forum v. Union of India and Ors {(1995) 1 SCC 14} Ramulu v. State of AP (1995 (2) KLT SN No.31 p. 24 P.Gangadharan Pillai v. State (AIR 1996 Ker.71 = 1995 (2) KLJ 201 Paschim Banga Khet Mazdoor Samithy v. State of West Bengal {(1996) 4 SCC 37} Common Cause v. Union of India {(1999) 6 SCC 667} Chairman, Railway Board v. Chandrima Das and Ors {(2000) 2 SCC 465 Kodungallur Merchants' Assn. v. State of Kerala (2006 (1) KLT 636) 6. All these cases have dealt with situations where the concerned victim's fundamental right was found violated by the State or its agencies. In Rudul Shah's case {(1983) 4 SCC 141}, while referring to the claim by an accused who was acquitted of the criminal charge, but was released from jail after 14 years of the acquittal, the Apex Court held that “one of the telling ways in which the violation of that right can reasonably be prevented and due compliance with the mandate of Article 21 secured, is to mulct its violators in the payment of monetary compensation.” Thus, it was a case where the accused was denied his fundamental right by the State. The facts relating to the other cases cited above also show that in all such cases either OP 4721/2000 4 the State or its agencies have been involved and the excesses have been done by the officers of the State and many have suffered because of the negligent actions by the agencies of the State. Hence, the facts of this case is clearly distinguishable. Herein, the petitioner's mother was attacked by a criminal who was caught and was brought before the criminal judicial system. It cannot be said that the crime was committed because of any negligent act of the State or there was any violation of statutory or constitutional duty by the State to the individual concerned. Therefore, the allegation that the State has failed in its duty to protect her life cannot be supported. The provisions of Section 357 Cr.P.C. clearly empowers the court to award compensation to the victim. Of course, in this case that possibility is not there because of the death of the accused. But that will not automatically clothe liability on the State to award compensation. The petitioner had a remedy before the civil court to seek compensation from the accused, his legal representatives and from his assets. The petitioner is seeking compensation for depriving the life of her mother and not for any violation of fundamental right available to the petitioner. This is not a case where the public functionaries are involved in the matter relating to violation of fundamental rights or enforcement of public duties. The State had apparently taken steps to prosecute the offender and in such OP 4721/2000 5 circumstances, it cannot be said that there is a failure of duty on that account also. In such circumstances, going by the principles stated in the various decisions quoted above, it cannot be said that the remedy of the petitioner is under Article 226 of the Constitution of India. 7. Therefore, I am of the view that the original petition is without any merit and the same is dismissed. This will not prevent the right of the petitioner to seek compensation through other forums in accordance with law. No costs. (T.R. Ramachandran Nair, Judge.) kav/ OP 4721/2000 6 T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - O.P. No.4721 of 2000 - - - - - - - - - - - - - - - - - - - - - - JUDGMENT 9th December, 2008.