Kerala High Court
Sathya Prabha .P vs State Of Kerala on 11 November, 2015
Author: Dama Seshadri Naidu
Bench: Dama Seshadri Naidu
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU
TUESDAY, THE 21ST DAY OF MARCH 2017/30TH PHALGUNA, 1938
WP(C).No. 20719 of 2016 (L)
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PETITIONER(S):
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SATHYA PRABHA .P
W/O M.M. THANKAN, MATTATHIL HOUSE,
MULAKULAM NORTH P.O., PIRAVOM, ERNAKULAM-686 664.
BY ADVS.SRI.A.JAYASANKAR
SRI.MANU GOVIND
SRI.ASHWIN SETHUMADHAVAN
SRI.S.SABARINADH
RESPONDENT(S):
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1. STATE OF KERALA
REPRESENTED BY SECRETARY TO GOVERNMENT,
HOME (C) DEPARTMENT, SECRETARIAT,
THIRUVANANTHAPURM 695 001.
2. KERALA STATE LEGAL SERVICES AUTHORITY,
HIGH COURT P.O., ERNAKULAM 682 031
REP. BY ITS MEMBER SECRETARY.
3. ERNAKULAM DISTRICT LEGAL SERVICE AUTHORITY,
DISTRICT COURT COMPOUND, ERNAKULAM, KOCHI-682 011,
REP. BY ITS SECRETARY.
4. VIJAYA BANK LTD.,
PIRAVOM BRANCH, MUVATTUPUZHA ROAD, PIRAVOM 686 664
REPRESENTED BY ITS MANAGER.
R2-R3 BY ADV. SRI.SANTHOSH MATHEW
R2-R3 BY ADV. SRI.ARUN THOMAS
R2-R3 BY ADV. SRI.JENNIS STEPHEN
R2-R3 BY ADV. SRI.ALPHIN ANTONY
R2-R3 BY ADV. SRI.VIJAY V. PAUL
R BY SMT. VIDHYA A.C., GOVERNMENT PLEADER
R BY SMT.LATHA ANAND,SC, VIJAYA BANK
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
21-03-2017, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
WP(C).No. 20719 of 2016 (L)
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: 2 :
APPENDIX
PETITIONER(S)' EXHIBITS:
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P1 A COPY OF THE LETTER DATED 11.11.2015 FROM THE ADDITIONAL
CHIEF SECRETARY, PLANNING AND ECONOMIC AFFAIRS DEPARTMENT.
P2 A COPY OF THE COMPROMISE AWARD DATED 12.12.2015.
P3 A COPY OF THE VICTIM COMPENSATION SCHEME AS NOTIFIED IN
KERALA GAZETTE DATED 25.02.2014.
P4 RETYPED COPY OF THE ORDER PASSED BY THE THIRD RESPONDENT ON
20.11.2015 ALONG THE REPORT SUBMITTED BY THE SECRETARY, DISTRICT LEGAL
SERVICE AUTHORITY ALONG WITH ITS RETYPED COPY.
P5: COPY OF REPORT OF THE STATE LEVEL APEX BODY ALONG WITH THE COVERING
LETTER DATED 20.06.2016.
P6: COPY OF THE LETTER DATED 09.09.2016 ISSUED BY THE 4TH RESPONDENT.
RESPONDENT(S)' EXHIBITS:
--------------------------------
EXT.R2(1): TRUE COPY OF THE COMMUNICATION ISSUED BY THE NATIONAL LEGAL
SERVICES AUTHORITY ON 05.07.2011 TO THE KERALA STATE LEGAL SERVICES
AUTHORITY.
True Copy/
P.A to Judge.
rv
Dama Seshadri Naidu, J.
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WPC No.20719 of 2016
--------------------------------------------
Dated this the 21st day of March 2017
JUDGMENT
Introduction:
A mother loses her son--a college-going one, at that--said to be due to medical negligence. She seeks compensation under a scheme: the Kerala Victim Compensation Scheme. She gets certain amount awarded. The disbursement delayed, she files a writ petition.
The Government takes a plea--after awarding the compensation--
that the mother is ineligible for the benefit: The Committee that awarded the compensation is not competent; the grant is ultra vires of the Committee. Thus a jurisdictional issue demands an answer.
Facts:
2. To touch upon the facts ever so briefly, I may note that the petitioner's son, then studying in the U.K., came home in 2012.
Before he could go back, he fell ill and got admitted into a hospital. He died on 27.5.2012: The doctors declared that he died of liver failure. Distraught, the mother filed a criminal case in Crime No.432 of 2013 in Ernakulam North Police Station. The FIR is said to have been registered on 5.4.2015.
WPC No.20719 of 2016 2
3. Soon after her son's death, the mother approached the District Legal Services Authority and filed PLP No.824 of 2014 claiming compensation because of her son's death. The Committee called for a report from the Secretary, District Legal Services Authority, Ernakulam, who submitted it on 16.6.2015. The Committee, then, passed Ext.P4 award on 20th November 2015. When the award was pending before the Chairman, State Legal Services Authority, the mother felt that the disbursement was unduly delayed. She has filed this Writ Petition.
Submissions:
Petitioner's:
4. Sri S. Sabarinath, the learned counsel for the petitioner, has passionately pleaded and contended that the petitioner and her husband are destitute. They have no source of income other than the meager pension the petitioner's husband receives. To send her son abroad for higher studies, the couple mortgaged its house and obtained an educational loan from Vijaya Bank, the fourth respondent.
WPC No.20719 of 2016 3
5. Sri Sabarinath further submits that because of the calamity that struck the petitioner's family, the couple could not repay the loan. As a result the bank initiated recovery proceedings, which ended in the Ext.P2 award passed by the National Lok Adalat. To elaborate, Sri Sabarinath submits that the couple consented to the Lok Adalat's award in Bank's favour; as it had hoped, bona fide, that the compensation the mother was bound to receive would square up the loan.
6. Now, with no justification the Committee that passed the award, argues Sri Sabarinath, has taken a U-turn and refused to honour the award--to discharge the amount.
7. Sri Sabarinath has taken me through Section 357A of the Criminal Procedure Code ("the Code") and Ext.P3 Kerala Victim Compensation Scheme, 2014 ("the Scheme"). In elaboration, he has submitted that the third respondent is estopped from negating the award on a specious premise that the petitioner is not entitled to the benefit. According to him, the third respondent cannot review its own order. Sri Sabarinath has also contended that the petitioner WPC No.20719 of 2016 4 fulfils all the eligibility criteria and answers the description of `victim', too.
Respondent's:
8. Sri Santhosh Mathew, the learned counsel for the second and third respondents, has submitted that the petitioner does not answer the description `victim'. He has also submitted that Ext.P3 mandates only the procedure. In the first place, the petitioner ought to have established before the Committee that under section 357A of Cr.P.C., she is entitled to compensation.
9. In elaboration, Sri Mathew would submit that clauses (iv) and (vi) provide the contingencies under which a victim could approach the Committee directly. In that context, he submits that the petitioner fulfils neither of those contingencies. Since Ext.P3 scheme came into effect from 24.2.2014, the petitioner's application, contends Sri Santhosh Mathew, was only under the scheme, rather than Ext.R2(1), which was an ad hoc mechanism holding the field before Ext.P3. In the alternative, he has submitted that even under Ext.R2(1), the petitioner could not be entitled to any compensation. WPC No.20719 of 2016 5 Eventually, Sri Mathew has submitted that the question of estoppel does not arise since the second and third respondents have strictly complied with the statutory provisions. According to him, the petitioner is not remediless for she could approach, for example, a Consumer Forum, seeking compensation. Therefore, he urges this Court to dismiss the writ petition.
10. Heard Sri Sabarinath, the learned counsel for the petitioner; Sri Santhosh Mathew, the learned counsel for the respondents 2 & 3; the learned Government Pleader; and Smt. Latha Anand, the learned Standing Counsel for the Bank, besides perusing the record.
Issues:
11. A student dies of illness--allegedly neglected by the treating hospital; his mother claims compensation under Section 357A Cr.P.C., read with the Kerala Victim Compensation Scheme. The Committee awards compensation. Later, it refuses to implement the award. Section 357A prescribes eligibility criteria.
The issues are these: (1) Has the mother met the eligibility WPC No.20719 of 2016 6 criteria? (2) Can the Committee refuse to compensate the victim after its passing the award?
Discussion:
12. Pitiable the petitioner's plight might be, still in a nation governed by the rule of law, sympathies cannot sway the course of justice: argumentum ad imsericordium remains, judicially speaking, a logical fallacy. A suitor must establish that she is entitled to relief, as of a right, under a statute, or under the common law, or under equity jurisprudence--strictly in that order. The Statutory Scheme:
(a) Horizontal Application of Criminal Jurisprudence:
13. Victimology, an emerging branch of criminal jurisprudence, still remains rudimentary. Ignored by the common-law or Anglo- Saxon legal system, it had its beginning only in the 1960s. Victims have no rights under the traditional criminal justice system, for the State takes the full responsibility to prosecute and to punish the offenders; the victims are mere witnesses. It is, in fact, a vertical line of justice system--chiefly retributive.
WPC No.20719 of 2016 7
14. In the 1960s there was a paradigm shift in the dispensation of criminal justice. The system has begun its shift from being retributive to being restorative. In 1963 New Zealand enacted the first Criminal Compensation Act; and in 1965, California, among the American States, took the lead and legislated on Victim Compensation. In 1966 Japan enacted Criminal Indemnity Law. In 1967, Canada brought out Criminal Compensation Injuries Act as did Cuba and Switzerland. In 1982, the USA enacted a federal legislation: the Victims and Witnesses Protection Act; the European Convention on Compensation of Victims of Violent Crime was held in 1983; the UK brought out Criminal Injuries Compensation Act in 1995; and Australia and South Africa followed with similar legislations in 1996 and 1998, respectively.
15. As to India, in 1970s researchers studied the impact of crime by dacoit gangs on their victims. Later, the victims of homicides, accidents, were studied. In course of time, the Law Commission of India in its 152nd and 154th Reports recommended, for example, insertion of Section 357A in Cr.P.C.
WPC No.20719 of 2016 8
16. Indian Parliament, acknowledging the pressing need of providing succour to the suffering victim and his family, has come up with a slew of statutory measures--mostly amendments to the existing statutes--to compel the criminal to pay to the victim. Short of a full-fledged enactment, the legislature has introduced many statutory changes to ameliorate the victim's plight Section 357A Cr.P.C., being one such instance. The Legislature has ensured victim compensation even when the perpetrator is at large or unknown. Pithily put, the legislative impact is that crime does not pay, but it compels the criminal to pay.
(b) Section 357A of Cr.P.C:
17. The fulcrum of our discussion is Section 357A Cr.P.C. It reads as follows:
357A. Victim Compensation Scheme:--(1) Every State Government in co-ordination with the Central Government shall prepare a scheme for providing funds for the purpose of compensation to the victim or his dependents who have suffered loss or injury as a result of the crime and who require rehabilitation.
(2) Whenever a recommendation is made by the Court for compensation, the District Legal Service Authority or the State Legal Service Authority, as the case may be, shall decide the quantum of compensation to be awarded under the scheme referred to in sub-
section (1).
WPC No.20719 of 2016 9 (3) If the trial Court, at the conclusion of the trial, is satisfied that the compensation awarded under section 357 is not adequate for such rehabilitation, or where the cases end in acquittal or discharge and the Victim has to be rehabilitated, it may make recommendation for compensation.
(4) Where the offender is not traced or identified, but the victim is identified, and where no trial takes place, the victim or his dependents may make an application to the State or the District Legal Services Authority for award of compensation. (5) On receipt of such recommendations or on the application under sub-section (4), the State or the District Legal Services Authority shall, after due enquiry award adequate compensation by completing the enquiry within two months.
(6) The State or the District Legal Service Authority, as the case may be, to alleviate the suffering of the victim, may order for immediate first-aid facility or medical benefits to be made available free of cost on the certificate of the police officer not below the rank of the officer in charge of the police station or a Magistrate of the area concerned, or any other interim relief as the appropriate authority deems fit. (b1) An Analysis:
18. The provision mandates that a State Government must prepare a scheme and establish a fund to compensate those who suffered, as victims of crime, loss or injury. It aims at rehabilitating the victim or his dependents. The Government compensates the victims, but there needs to be a forum to determine the compensation and a mechanism to quantify that compensation: WPC No.20719 of 2016 10
District Legal Service Authority (DLSA) or State Legal Service Authority (SLSA) is the authority (called "the Committee") that recommends the compensation. The Kerala Victim Compensation Scheme provides the mechanism for quantifying the compensation.
19. True, Ext.R2 (a), too, is a scheme, but it was in force, as an ad hoc measure, until the Ext.P3 Scheme was introduced. By the time the mother applied, the new scheme had come into force.
20. Under Section 357A(2), a court, presumably before which the criminal proceedings are pending, can recommend a victim's case to the Committee. Section 357 Cr.P.C., too, entails a victim to compensation. Sometimes the compensation granted under Section 357 may be inadequate. Or the accused may get acquitted or discharged; still, the victim must be rehabilitated. As seen from Section 357A(3), then, the trial court can recommend, as it can under Sub-Section (2) to the Committee.
21. In some crimes the offender remains untraced or unidentified, though the victim is identified. In such a situation, no trial takes place, and the victim or his dependents stand no chance WPC No.20719 of 2016 11 of getting compensated. Sub-Section (4) takes care of this eventuality. Absent trial, for the reasons mentioned in that sub- section, the victim or his dependents can apply to the Committee. The application received under Sub-Section (4), the Committee will enquire into the claim and compensate the victim or his dependents in two months.
22. To alleviate the victim's suffering, the Committee may order immediate first-aid facility or other medical benefits to the victim. The services are free of cost but must be based on a certificate given by the police.
(c) The Scheme:
23. Ext.P3 Scheme--Kerala Victim Compensation Scheme, 2014
--prepared under Section 357A of the Code, contains the procedural prescription. Clause 2, a lexical provision, in sub-clause (i) defines "victim". The definition covers even the guardian or legal heir of a victim, but it includes no person who contributed to the victim's injury. Sub-clause (j) defines "dependent" inclusively. The term includes wife, husband, father, mother, unmarried daughter, and WPC No.20719 of 2016 12 minor children of the victim, as determined by the authority empowered to issue dependency certificate or any other authority authorised by Government in that regard.
24. Clause (4) of the Scheme prescribes the eligibility of the victims to be compensated: (a) if a court recommends to the Committee under sub-section (2) or (3) of Section 357A Cr.P.C; (b) if the trial court recommends on its satisfying that the compensation granted under Section 357 Cr.P.C is inadequate; and (c) where the offender is not traced or identified and, as a result, no trial takes place. The crime, as a precondition, must have occurred in the State asked to compensate or rehabilitate. The State and the Central Government servants whose family income exceeds "the creamy- layer limit fixed by the respective Governments from time to time,"
will not be eligible.
25. Clause (5) of the Scheme prescribes the procedure for the Committee to compensate the victim. On its receiving application under sub-section (4) of the Code, the Committee will have the claim enquired into through an "appropriate authority as deemed fit" by it, WPC No.20719 of 2016 13 and compensate the victim within sixty days. The Committee may call for any information necessary to determine the genuineness of the claim.
26. Sub-clause (10) of Clause (5) mandates that if a victim receives any other compensation--insurance, ex-gratia, or payment received under any other Act or any other State scheme--in relation to the crime in question, it "shall be considered as part of the compensation amount under this scheme." Further, "if the eligible compensation amount exceeds the payments received by the victim from collateral sources mentioned above, the balance amount shall be paid out of the fund."
27. Sub-clause (13) of Clause (5) provides for the refund of the compensation under certain circumstances. Most important is Clause (7) of the Scheme. It deals with the Committee's rejecting, withholding, or reducing the compensation. Any of these can happen if the applicant--say, the victim--(a) fails to report the crime to the police; (b) fails to cooperate with the police or other authority to bring the accused to justice; (c) fails to give all reasonable assistance WPC No.20719 of 2016 14 to the District Legal Services Authority or other related authorities after claiming the compensation. And no less important is the Committee's power to negate the claim after its satisfying that the victim's eligibility "as shown by the facts and circumstances of the case" does not justify an award of compensation. Applying Law to the Facts:
Is the Petitioner a Victim?
28. First, we may turn to Ext.P3 notification--the Kerala Victim Compensation Scheme, 2014. Clause 2(i) of the Scheme defines "victim" which reads as follows:
"Victim" means a person who has suffered any loss or injury caused by reason of the act or omission on the part of the accused and who requires rehabilitation under this scheme and includes the guardian or legal heir of such person, but does not include a person who is responsible for injury to such person."
29. Despite stout opposition from the learned counsel for respondents 2 and 3, I reckon that the petitioner is a victim. But the question is whether that victim is entitled to invoke Section 357A Cr.P.C., and claim compensation. Clause-iv of the Scheme speaks of a claimant's eligibility for compensation. Sub-clause (c) simply re- WPC No.20719 of 2016 15 iterates the statutory position as reflected in sub-section 4 of Section 357A Cr.P.C.
30. As has been rightly contended by Sri Santhosh Mathew; under sub-section (2) of Section 357A, a competent court may recommend the victim's claim to the Committee for compensation. Here, that situation does not arise; no court has recommended the petitioner's case. But under two circumstances a victim can directly approach the Committee: (a) under sub-section (4) of Section 357A, when the offender is not traced or identified and no trial takes place;
(b) under sub-section (6), when an offender can seek first-aid or other medical facilities. The latter may not be an aspect of pecuniary compensation, however.
31. Here, the petitioner maintains that the doctors of a hospital were negligent, and their negligence had led to her son's death. She launched prosecution against them. So it cannot be said that the offender is not traced or identified. The second limb of sub-section (4) is that no trial must have taken place. Here, the crime is being investigated and it is premature to hold that trial will not take place. WPC No.20719 of 2016 16 Thus, on both counts the petitioner fails to qualify herself. In essence, the petitioner, a victim's dependent, cannot invoke sub- section (6), either. She has no occasion to claim medical aid. OFFENDER & ACCUSED:
32. The alleged offenders' identity stands established; they are facing prosecution. But I may, as well, address the definitional distinction between offender and accused. For Sri Sabarinath has labored on this issue at length. True, the Act and the Scheme, too, employed both the expressions 'offender' and `accused' without, I reckon, any distinction. As a matter of semantics, however, every accused need not be an offender, but every offender is an accused, to begin with. It is apparent, to my mind, that an accused faces allegation with no finality on his alleged guilt, whereas an offender is the one who has been declared so by a competent court after trial.
33. Section 357A Cr.PC., trite to observe, is a beneficial provision requiring liberal interpretation--in the victim's favour--if any statutory or, even, semantic ambiguity prevails. That said, I must acknowledge that neither the substantive provision (Section 375A WPC No.20719 of 2016 17 Cr.P.C) nor the Scheme admits of any ambiguity. So, any definitional difficulty in employing the terms accused and offender does not enure to the petitioner's benefit.
If Ineligible, Who Should Make Good the Compensation:
34. Sub-clause (13) of Clause (5) provides for the refund of the compensation under certain circumstances. The Committee shall institute proceedings before a competent court of law to recover the compensation, "granted to the victim or his dependent, from the accused if found ineligible later." (emphasis mine)
35. In other words, after the Committee compensates the victim, if it finds that the victim is ineligible to have received the compensation, it can recover the amount. From whom? Sub-clause (13), however, is ambiguous on that aspect. The last portion of the provision, italicized above, is unintelligible. I pointed this out to the learned Government Pleader. On instructions, he admitted that there is what he would term "a typographical error," and the Government is "taking steps to correct it."
36. The Committee, I reckon, "will institute proceedings before WPC No.20719 of 2016 18 a court of law [its competency presupposed] to recover the compensation granted to the victim or his dependent [if the victim is later found ineligible]. The recovery seems to be from the "ineligible victim" and none else. "From the accused" found in the last portion of sub-clause (13), the learned Government Pleader submits, is a surplusage or a typographical error.
37. "From the accused if found ineligible later" may be a typographical error or, even, surplusage. But the Surplusage Canon commands thus: If possible, every word and every provision is to be given effect. None should needlessly be given an interpretation that causes it to duplicate another provision or to have no consequence. For what holds the field is the maxim verba cum effectu sunt accipiendu (These words cannot be meaningless, else they would not have been used.)1
38. Antonin Scalia, et al., in Reading the Law have examined the nuances of the Surplusage Canon. Put to a choice, however, a Court may well prefer, according to the learned authors, ordinary meaning to an unusual meaning that will avoid surplusage. So like 1 United States v. Butler (297) U.S.1,65 (1936) as quoted in Reading the Law by Antonin Scalia et al. WPC No.20719 of 2016 19 all other canons, this one must be applied with judgment and discretion, and with careful regard to context. It cannot always be dispositive because (as with most canons) the underlying proposition is not invariably true. Sometimes drafters do repeat themselves and do include words, according to the authors, that add nothing of substance, either out of the flawed sense of style or to engage in the ill-conceived but lamentably common belt-and-suspenders approach. 2
39. The interpretational niceties apart, it is inadvisable, I reckon, for the Courts to hold any part of the legislation surplusage unless the provision does not yield to any rational meaning without that excisional exercise. It is all the more important to not indulge in such excise as declaring a portion of a provision surplusage when the court can decide the issue without recourse to the provision in peril. So I steer clear of the provision or its ambiguity. Estoppel:
40. Sri Sabarinath, the petitioner's counsel, has also spiritedly argued that the Committee having passed the award is estopped 2 Reading the Law, Antonin Scalia, et al., Pg.118 WPC No.20719 of 2016 20 from negating it. Such negation, according to him, amounts to reviewing, a power unavailable to the Committee. Inventive as the submission is, it fails to impress or to pass judicial muster. Once the statute is loud and clear, and the award passed comes out clearly as one with no jurisdiction, the award renders itself void. It is trite to observe that there can be no estoppel against a statute. Therefore, I am afraid the plea of estoppel remains unavailable to the petitioner.
41. Even when we examine the Scheme, Clause (7) clearly establishes that if the victim's eligibility "as shown by the facts and circumstances of the case does not justify award of compensation", the Committee can reject, withhold, or reduce the claim. The question of reducing or withholding arises only after the compensation is awarded, not before. Even on that count, too, the petitioner cannot avail herself of the plea of estoppel.
42. The learned counsel has elaborated on the pathetic position of the conditions faced by the petitioner and her husband, who have lost the family's potential breadwinner. Though this Court commiserates, it cannot stray from the path of fair adjudication, with WPC No.20719 of 2016 21 its sworn allegiance only to the Rule of Law, the spirit of which is always presumed to be reflected by the very letter.
43. Section 357A Cr.P.C., is a laudable legislative effort by the State to apply criminal jurisprudence horizontally. Instead of entirely focusing on punishing the perpetrators, the legislature wanted to recompense the victim as well. Section 357A being an emerging facet of victimology, if the petitioner had no other remedy, the position would have been distressful. But the petitioner admits before the Court that she has already launched prosecution against the doctors said to be negligent in treating her son. She has also, it is said, filed a petition for compensation before a Consumer Forum.
In these facts and circumstances, this Court cannot issue a mandamus compelling the second and third respondents to accept the petitioner's claim and compensate her, because the claim falls beyond Section 357 and the Scheme. The writ petition is dismissed. No order on costs.
Dama Seshadri Naidu, Judge.
css/ WPC No.20719 of 2016 22 Dama Seshadri Naidu, J.
------------------------------------------- WPC No.20719 of 2016
-------------------------------------------- Dated this the 22nd day of March, 2017 JUDGMENT A mother lost her son--a college going son have dead -- said to be due to medical negligence, she sought compensation under a scheme:Kerala Victim Compensation Scheme. She gets certain amount awarded. The disbursement delayed, she filed a writ WPC No.20719 of 2016 23 petition.
2. The very committee that awarded compensation now opposes the petitioner's prayer. It contends that the petitioner is ineligible to any compensation. The award, it asserts, is ultravires of the committee.
3. To touch upon the facts in a little more elaboration, the petitioner's son who was studying in U.K. came home in 2012. Before he could go back, he fell ill and got admitted into hospital. He died on 27.5.2012. The doctors declared that he died of liver failure. Distraught the mother filed a criminal case in Crime No.432 of 2013 in Ernakulam North Police Station. The FIR is said to have been registered on 5.4.2015.
4. Soon after her son's death, the petitioner approached the District Legal Services Authority and filed PLP No.824 of 2014 claiming compensation on account of her son's death. The committee called for a report from the Secretary, District Legal Services Authority, Ernakulam. On 16.6.2015, it obtained a report and thereafter passed Ext.P4 award dated 20th November 2015. When the award was pending before the Chairman, State Legal Services Authority, the second respondent, the petitioner felt that the disbursement was unduly delayed and therefore she WPC No.20719 of 2016 24 filed this writ petition.
5. Sri S.Sabarinath, the learned counsel for the petitioner has passionately pleaded and contended that the petitioner and her husband are destitute. They have no source of income other than the pension the petitioner's husband receives. To send her son abroad for higher education, the petitioner mortgaging that dwelling house obtained educational loan from Vijaya Bank, the fourth respondent. The learned counsel further submits that given the calamity that struck the petitioner's family, she could not repay the loan. As a result the bank initiated recovery proceedings which ended in Ext.P2 award passed by the National Lok Adalath. The learned counsel emphasises a point that the petitioner consensus to the Lok Adalath's award bona fide because by then, she had the award of compensation from the District Legal Services Authority. Now, without any justification the committee, that passed the award, has taken a U-turn, contends the learned counsel, and refused to honour the award, but disbursing the amount under it.
6. The learned counsel has taken me through Section 357A of the Code of Criminal Procedure and also Ext.P3 Kerala Victim Compensation Scheme, 2014. In elaboration of his submissions, WPC No.20719 of 2016 25 the learned counsel has submitted that the third respondent is estopped from negating the award on a specious premise that the petitioner is not entitled to. According to the learned counsel, the third respondent cannot review its own order. As regards the definition of victim and also the accused unidentified, the learned counsel would urge this Court to hold that the petitioner fulfils the definition of obligation of being a victim and further since the proceedings against the doctors in the hospital have not concluded, the accused remains unidentified. Trying to draw a distinction between an offender and accused, the learned counsel would have us to conclude that the expression 'offender' could be employed to an 'accused' only the crime ends in conviction and the accused thus established 'identified'. According to him, the legislature and the executive have adversely used the expression 'accused' instead of an 'offender' in Section 357A of the Act.
7. Sri Santhosh Mathew, the learned counsel for the second and third respondents, has submitted that the petitioner does not come under the definition of obligation of a victim. He has also submitted that Ext.P3 only mandates the procedure. In the first place, the petitioner ought to have established before the WPC No.20719 of 2016 26 committee that under section 357A that the petitioner is entitled to compensation. In elaboration, Mr.Santhosh Mathew would further submit that clause-iv and vi provide the contingencies under which a victim would approach the committee directly. In that context, he submits that the petitioner fulfils neither of those contingencies. Since Ext.P3 scheme came into effect from 24.2.2014, the petitioner's application, contends Mr.Santhosh Mathew, deemed to have been considered only under the scheme rather than Ext.R2(1) which was an ad hoc mechanism holding the field before Ext.P3. In the alternative, he has submitted that even under Ext.R2(1), the petitioner could not be entitled to any compensation. Eventually, the learned counsel has submitted that the question of estoppel does not arise since the second and third respondents have acted in strict compliance with the statutory provisions. He has further submitted that the petitioner is not remediless for she could approach, for example a Consumer Commission seeking compensation if at all she could establish the need for medical assistance. Therefore, he urges this Court to dismiss the writ petition.
8. Heard the learned counsel for the petitioner, the learned Government Pleader, Smt.Latha Anand the learned standing WPC No.20719 of 2016 27 counsel for the Bank and learned counsel for respondents 2 and 3 besides perusing the record. Pitiable that the petitioner's condition might be, still in the nation governed by rule of law, the Court cannot spade by sympathies. The petitioner has to establish that the award is legally sustainable and that she is entitled to benefit. The fulcrum of the litigous oedipus is Section 357A. It reads as follows:
357A. Victim Compensation Scheme:--(1) Every State Government in co-ordination with the Central Government shall prepare a scheme for providing funds for the purpose of compensation to the victim or his dependents who have suffered loss or injury as a result of the crime and who require rehabilitation.
(2) Whenever a recommendation is made by the Court for compensation, the District Legal Service Authority or the State Legal Service Authority, as the case may be, shall decide the quantum of compensation to be awarded under the scheme referred to in sub-section (1).
(3) If the trial Court, at the conclusion of the trial, is satisfied that the compensation awarded under section 357 is not adequate for such rehabilitation, or where the cases end in acquittal or discharge and the Victim has to be rehabilitated, it may make recommendation for compensation.
(4) Where the offender is not traced or identified, but the victim is identified, and where no trial takes place, the victim or his dependents may make an application to the State or the District Legal Services Authority for award of compensation.
(5) On receipt of such recommendations or on the application under sub-section (4), the State or the District Legal Services Authority shall, after due enquiry award adequate compensation by completing WPC No.20719 of 2016 28 the enquiry within two months.
(6) The State or the District Legal Service Authority, as the case may be, to alleviate the suffering of the victim, may order for immediate first-
aid facility or medical benefits to be made available free of cost on the certificate of the police officer not below the rank of the officer in charge of the police station or a Magistrate of the area concerned, or any other interim relief as the appropriate authority deems fit.
9. As has been rightly contended by Sri Santhosh Mathew under clause-2 of Section 357A, a competent court may recommend the claim of a victim of the committee for compensation. There are two instances stipulated in the statute under which a victim can directly approach a committee constituted under the Act that is the State or District Legal Services Authority. Sub Section 4 of Section 357A mandates that where the offender is not traced or identified, but the victim is identified, and where no trial takes place, the victim or his dependents can make an application before the State or District Legal Services Authority for award of compensation.
10. Here, the petitioner maintains that the doctors of a particular hospital were negligent and accordingly, she lodged prosecution against them. So, it cannot be said that the offender is not traced or identified. The second rim of section 4 is that no WPC No.20719 of 2016 29 trial must have taken place. Here, the crime is being investigated and it is pre-mature to hold that trial will not take place. Thus, on both counts the petitioner fails to qualify herself.
11. When we look at sub section 6 of section 357A, it held to the effect that to alleviate the suffering of the victim, the authority may order immediate first-aid facility or medical benefits to be made available free of cost. It is not specified in the certificate of the Police Officer that the victim needs help.
12. Now, we may turn to Ext.P3 notification that is the Kerala Victim Compensation Scheme, 2014. Clause 2(i) defines "victim" which reads as follows:
"victim" means a person who has suffered any loss or injury caused by reason of the act or omission on the part of the accused and who requires rehabilitation under this scheme and includes the guardian or legal heir of such person, but does not include a person who is responsible for injury to such person."
13. Despite severe opposition by the learned counsel for respondents 2 and 3, I reckon that the petitioner is a victim, but the question is whether that victim is entitled to invoke the provisions and claim compensation. Clause-iv speaks for eligibility of compensation. Sub clause -c simply re-iterates the statutory provision as reflected in sub section 4 of section 357A. WPC No.20719 of 2016 30 I have already answered the plea as to the identity of the accused or the offender. I may, as well, address the definition of distinction. Sri Sabarinath has tried to make distinction between an offender and an accused. True; the Act and the Scheme in its entirety employed the expression 'offender'. Every accused need not be an offender, but every offender is an accused to begin with. To my mind, it is apparent that an accused faces allegation without any finality to the guilty where is an offender is the one who had been declared by a competent court after trial. In the extent of Section 357A and the entire scheme of compensation spring into action only once it is held and determined that a particular person has committed a crime and that offender, confining to this case, could not be identified or traced. Regrettably, even this plea cannot rescue the petitioner from the chasm of ineligibility.
14. The learned counsel Sri Sabarinath has also spiritedly argued that the committee which passed the award is estopped from negating its own award which according to him, amounts to reviewing a power unavailable to the committee. Inventive the submission made, but it fails to impress. Once the statute is loud and clear and the award passed comes out clearly as one without WPC No.20719 of 2016 31 any jurisdiction, it is void ab initio ad litem. It is trite to observe that there can be no estoppel against the statute. Therefore, I am afraid the plea of estoppel remains unavailable to the petitioner.
15. The learned counsel has spoken in elaboration about the pathetic position and the conditions faced by the petitioner and her husband who have lost the family's potential bread winner. Though this Court commensurate still, it cannot stir from the path of fair adjudication bound by rule of law. Section 357A is a loudable legislative effort by the State to apply criminal jurisprudence horizontally. Instead of entirely focusing on punishing the perpetrators, the legislature wanted to recuperate the victim as well. That being a merging facet on victimology, had the petitioner been without any remedy, the position would have been much more distressful. The petitioner admits before the Court that she has already launched prosecution against the doctors said to be negligent in treating her son. She has also, it is said, filed a petition for compensation before a Consumer Forum.
16. In these facts and circumstances, this Court cannot issue a mandamus to compel second and third respondent to WPC No.20719 of 2016 32 compensate the petitioner for her claim falls beyond Section 357 and also the scheme formulated, under it, i.e. Ext.P3 scheme.
No order on costs.
Dama Seshadri Naidu, Judge css/