IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC MONDAY, THE 10TH SEPTEMBER 2007 / 19TH BHADRA 1929 OP.No. 26056 of 1999(B) ---------------------------------- PETITIONER: ------------------ R.CHITHAMBARAN PILLAI, SMRITHI, PANACHIKKAVU P.O., CHANGANACHERRY, KOTTAYAM DISTRICT. BY ADV. SRI.R.ANILKUMAR RESPONDENTS: ----------------------- 1. STATE OF KERALA, REPRESENTED BY HOME SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. SUPERINTENDENT OF POLICE, OFFICE OF THE SUPERINTENDENT OF POLICE, KOTTAYAM. 3. DEPUTY SUPERINTENDENT OF POLICE, KOTTAYAM. 4. CIRCLE INSPECTOR OF POLICE, CHANGANACHERRY. 5. SUB INSPECTOR OF POLICE, CHANGANACHERRY. BY GOVERNMENT PLEADER SRI. BENJAMIN PAUL BY ADV. SRI. KRISHNAMOORTHY THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 10/09/2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss ..2/- ....2..... O.P.NO.26056/1999 B J U D G M E N T It is submitted that the O.P has become infructuous. Accordingly, it is dismissed as infructuous. 10/09/2007 Sd/- Antony Dominic, Judge Order on C.M.P.No.44011/1999 in O.P.No.26056/1999 B Dismissed 10/09/2007 Sd/-Antony Dominic, Judge /True Copy/ P.A.to Judge Kss S. SIRI JAGAN, J. ------------------------------------ O.P.No. 26056 OF 1999 ---------------------------------------- Dated this the 20th day of March, 2009 JUDGMENT The petitioner's son, who was a B.Sc (Computer Science) student in IHRD College of Applied Science at Puthuppally, was murdered by a group of students allegedly owing allegiance to the Students Federation of India and their goondas on 17th October, 1995 at about 3 p.m., when after getting down at Changanacherry, he was proceeding to the KSRTC bus stand for boarding another bus. Alleging that the murder was on account of failure on the part of the State machinery to protect the life of the petitioner's son, the petitioner has filed this original petition seeking the following reliefs: “(i) to issue a writ of mandamus of other appropriate writ, direction or order declaring that that petitioner is enttield to compensation of Rs.25,00, 000/- (twenty five lakhs) and realise the amount from the respondents jointly and severally with interest at the rate of 18% from 21.10.1996 till date with the costs of this proceedings. (ii) to issue such other writ, direction or order declaring that a heavy loss has caused to the O.P.No.26056/99 2 petitioner and petitioner is entitled to Rs.25,00,000/- as compensation and realise the same with interest and costs”. 2. The contention of the petitioner is that on account of a students' strike in a nearby College, tension was prevailing in the area where the murder occurred and therefore, the police was aware of the possibilities of untoward incidents in the area at the hands of the students and people acting under their behest. In that condition, the police had a duty to see that the citizens, who are using the roads, are adequately protected from attack of such students. Having failed to perform their bounden duty of protecting the citizens, the State is bound to pay compensation to the petitioner for the loss of his son, is the contention raised by the petitioner. In support of his contention, the petitioner relies on the decision of People's Union for Civil Liberty V. Union of India and another [1997(3) SCC 433]. 3. I have heard the learned Government Pleader also. 4. Admittedly, the petitioner's son was murdered by a group of students and others. There is not even an allegation that the police or other people associated with the State O.P.No.26056/99 3 machinery have anything to do with the murder. In our country, damages are payable only if there is statutory liability or a tortious liability. There is no statutory liability in this case. The question as to whether there is a tortious liability can be decided only if there is evidence to show that the State machinery was guilty of exercising proper care and caution in discharging their duties. That is a matter for evidence. Further, the question of compensation has to be decided based on various factors for which also evidence is necessary. Such evidence can be taken only in an appropriate civil suit filed for the purpose. Therefore the petitioner has to be necessarily relegated to a suit. Of course, going by the Supreme Court decisions, in extraordinary circumstances, this Court would be justified in directing the State to pay compensation for certain acts or omissions of the State machinery. But if claims like the present one are entertained, then compensation would be payable to relatives of any person, who is murdered in the State of Kerala. I am not inclined to countenance such contention. The reliance by the petitioner on the decision of People's Union for Civil Liberty's case (Supra) is, according to me, inappropriate. In that case, the deceased O.P.No.26056/99 4 died at the hands of the police for which only the Supreme Court directed payment of compensation by the State. That decision cannot have any application whatsoever to the facts of this case. In the above circumstances, I am not inclined to entertain the claims of the petitioner and accordingly the original petition is dismissed. S. SIRI JAGAN, JUDGE Acd O.P.No.26056/99 5