Madras High Court
T.Kaliammal vs The State Of Tamilnadu on 26 June, 2023
W.P.(MD) No.3252 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 26.06.2023
CORAM:
THE HONOURABLE MS.JUSTICE P.T.ASHA
W.P.(MD) No.3252 of 2020
and
W.M.P.(MD) No.2758 of 2020
T.Kaliammal .. Petitioner
Vs.
1.The State of Tamilnadu,
Rep., by The Principal Secretary,
The Home Department,
Fort St. George, Chennai.
2.The State of Tamilnadu,
Rep., by The Secretary,
The Tamil Nadu Legal Service Authority,
North Road, Chennai.
3.The State of Tamilnadu,
Rep., by The Principal Secretary,
Department of Health and Family Welfare,
Fort St. George, Chennai.
4.The Director General of Police,
Dr.Radhakrishnan Salai,
Chennai.
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5.The Chairman,
District Legal Service Authority,
District Court Building,
Thoothukudi.
6.The District Collector,
Office of the District Collector,
Thoothukudi District.
7.The Superintendent of Police,
Office of the Superintendent of Police,
Thoothukudi District.
8.The Inspector of Police,
All Women Police Station,
Kadambur, Thoothukudi District.
9.The Dean,
Government Hospital and Medical College,
Thoothukudi District.
10.The District Legal Services Authority,
Thoothukudi. .. Respondents
[R10 – suo motu impleaded vide Court order
dated 14.06.2023 in W.P.(MD) No.3252 of 2020]
Prayer: Petition filed under Article 226 of the Constitution of India,
praying for issuance of Writ of Mandamus, directing the respondents to
provide fair and reasonable compensation for the petitioner's daughter, in
accordance with law.
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For Petitioner : Mr.R.Alagumani
For RR1 to 4 : Mr.T.Amjadkhan
Government Advocate
For R5 : Mr.A.Hajamohideen
ORDER
The petitioner, who is the mother of a mentally challenged
daughter, who has been ravaged and impregnated by a “wolf in sheep's
clothing”, old enough to be her father, has knocked at the doors of this
Court seeking compensation for this wrong inflicted on her daughter.
2. The family comes from indigent circumstances. The mother is
an agricultural coolie and the father works as a Watchman in a private
company. They are blessed with two children, a son aged about 18 years,
who is undergoing his B.Com course at Mano Arts College in
Thoothukudi District and a daughter, who is the victim. The victim is
mentally as well as physically challenged. Since the husband is
employed at Chennai, the mother and children are living alone. Being an
agricultural coolie, the petitioner is forced to leave the daughter alone
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W.P.(MD) No.3252 of 2020
and go for her work. The accused, who is about 55 years of age and a
neighbour, had taken advantage of the victim's physical and mental
disability and has committed aggravated penetrative sexual assault on her
not once, but on several occasions. The condition of the victim is such
that she was not even in a position to narrate the ordeal to her mother. It
was only when she had become pregnant, that the mother came to know
about the same and immediately, a complaint was lodged at All Women
Police Station, Kadambur, Tuticorin, and an FIR too was registered under
the Protection of Children from Sexual Offences Act, 2012 (hereinafter
referred to as “the POCSO Act”). The petitioner has moved this Court
for a mandamus to terminate the pregnancy, provide police protection to
the petitioner and her family members and to provide reasonable fair and
compensation to the victim.
3. By orders of this Court dated 18.02.2020, the Dean, Government
Hospital Medical College, Thoothukudi District, who is the 9th
respondent, was directed to examine the petitioner's daughter and submit
a detailed report about her status and age of the foetus and also her
medical fitness for the termination of pregnancy. It is seen that this Court
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W.P.(MD) No.3252 of 2020
had directed the 9th respondent to terminate the pregnancy of the victim
and the same has also been complied with. Thereafter, an interim
compensation of a sum of Rs.1,00,000/- had been sanctioned to the
victim.
4. Meanwhile the accused had died and it is stated that the criminal
proceedings have been closed as abated. This Court had attempted to
examine as to whether there is any chance to rehabilitate the mentally
challenged victim for which purpose, the Dean, Government Hospital
Medical College, Thoothukudi, was asked to appear and submit a report
regarding the rehabilitation scheme and the rehabilitation centres that
have been set up particularly with reference to the mentally challenged
female children by the Government of Tamil Nadu. The Dean had listed
the name of St.Joseph Charitable Trust at Adaikalapuram, Tiruchendur,
as one such institute.
5. Learned counsel for the petitioner was asked to obtain the
consent of the mother of the victim for sending the victim to this
rehabilitation centre, where she would have to remain inhouse. The
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Dean had made it clear that it was open for the mother to come and see
the victim every week end. However, the mother has not accepted the
suggestion and it is natural considering the fact that her daughter had
suffered. The records would further show that at the time of terminating
the pregnancy, the victim was under the care of the State in a
rehabilitation centre and has been later taken back by her parents.
6. A counter has been filed by the fifth respondent, who is none
else than the Chairman of the District Legal Service Authority, a reading
of which would show the lack of a humane approach in filing the very
response. The counter is matter of fact and the legal jargon totally
lacking in sensitivity. The very object of the Legal Services Authority
Act is to “provide free and competent legal services to the weaker
sections of the society to ensure that opportunities for securing justice
are not denied to any citizen by reason of economic or other disability”.
The very object of this Act is lost from a reading of the counter filed by
the fifth respondent. Instead of assisting the Court in trying to
rehabilitate and compensate the victim, who is a mentally and physically
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W.P.(MD) No.3252 of 2020
challenged girl, the fifth respondent has washed its hands off the case
and prays that the writ petition be dismissed. The least said about the
counter the better.
7. Here is a pathetic case of the victim, a minor and mentally
challenged, who had undergone aggravated penetrative sexual assault at
the hands of the accused, not once but on several occasions.
Unfortunately, before he could be visited with any punishment at the
hands of law, he had passed away. The Special Court, without adhering
to the provisions of Section 33(8) of the POCSO Act and Rule 7(1) and
Rule 7(2) of the Rules, which are hereinbelow extracted, closed the case
as charge abated:
“Section 33(8) In appropriate cases, the Special Court
may, in addition to the punishment, direct payment of such
compensation as may be prescribed to the child for any
physical or mental trauma caused to him or for immediate
rehabilitation of such child.
Rule 7. Legal aid and assistance. - (1) The CWC shall
make a recommendation to District Legal Services
Authority (hereafter referred to as "DLSA") for legal aid
and assistance.
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(2) The legal aid and assistance shall be provided to
the child in accordance with the provisions of the Legal
Services Authorities Act, 1987 (39 of 1987).”
8. This closure is yet another action which has caused grave
injustice to the victim and to some extent, shows the apathy displayed to
a person of the victim's condition. By closing the case, the bar under
Section 362 of the Code of Criminal Procedure would kick in and the
victim cannot turn to the Court for further compensation. The petitioner
has therefore, rightly approached this Court. This Court has the power to
remedy this wrong. In its unreported judgment in Criminal Appeal No.
1890 of 2014, the Hon'ble Supreme Court has discussed in detail the
power of this Court exercising jurisdiction under Article 226 of the
Constitution of India by referring to the earlier judgments and has held as
follows:
“50. Article 226 of the Constitution is a succour
to remedy injustice, and any limit on exercise of such
power, is only self-imposed. Gainful reference can be
made to, amongst others, A V Venkateswaran v
Ramchand Sobhraj Wadhwani, (1962) 1 SCR 573 and
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W.P.(MD) No.3252 of 2020
U P State Sugar Corporation Ltd. v Kamal Swaroop
Tandon, (2008) 2 SCC 41. The High Courts, under the
Constitutional scheme, are endowed with the ability to
issue prerogative writs to safeguard rights of citizens.
For exactly this reason, this Court has never laid down
any strait-jacket principles that can be said to have
“cribbed, cabined and confined” [to borrow the term
employed by the Hon. Bhagwati, J. (as he then was) in
E P Royappa v State of Tamil Nadu, AIR 1974 SC 555]
the extraordinary powers vested under Articles 226 or
227 of the Constitution. Adjudged on the anvil of
Nawab Shaqafath Ali Khan (supra), this was a fit case
for the High Court to have examined the matter
threadbare, more so, when it did not involve navigating
a factual minefield.”
9. The Hon'ble Supreme Court in its judgment in Tekan Alias
Tekram Vs. State of Madhya Pradesh (Now Chhattisgarh) reported in
(2016) 4 SCC 461, where the Court was dealing with the case of a blind
and illiterate girl being subjected to sexual intercourse on the promise of
marriage under the Victim Compensation Scheme to provide
rehabilitation to the victims, has issued direction to all the States and
Union Territories to formulate a uniformed scheme for providing victim
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W.P.(MD) No.3252 of 2020
compensation in respect of rape/sexual exploitation with the physically
handicapped women taking into consideration the frame framed by the
State of Goa for rape victim compensation.
10. The Government of Tamil Nadu issued G.O.(Ms) No.33, Social
Welfare and Nutritious Meal Programme [SW.5(2)] Department, dated
03.10.2020, wherein the Commissioner of Social Defence had requested
to issue orders to establish a separate fund called “Tamil Nadu Child
Victim Compensation Fund” under the POCSO Act, 2012, wherein an
initial allocation of Rs.14.96 Crores as recurring expenditure was made.
This request was considered by the Government and a fund called the
“Tamil Nadu Child Victim Compensation Fund” under the POCSO Act
for awarding interim compensation of Rs.20,000/- and a quantum of
compensation of a minimum amount of Rs.50,000/- to a maximum
amount of Rs.10,00,000/- as detailed in the annexure to the Government
Order was passed. The Government had set aside a sum of Rs.2 Crores
as an initial compensation to this fund. The annexure to this Government
Order provide quantum of compensation, which is produced herein
below:
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Sl.No. Particulars of offence Minimum Limit of Maximum Limit of
(1) Compensation Compensation (4)
1. Penetrative Sexual ?4 Lakh ?7 Lakh
Assault
2. Aggravated Penetrative ?5 Lakh ?10 Lakh
Sexual Assault
3. Sexual Assault ?1 Lakh ?2 Lakh
4. Aggravated Sexual ?2 Lakh ?4 Lakh
Assault
5. Grievous Physical ?1 Lakh ?2 Lakh
Injury or any mental
Injury requiring
rehabilitation
6. Pornography ?50,000 ?1 Lakh
7. Loss of life ?5 Lakh ?10 Lakh
8. Loss of any Limb or ?2 Lakh ?5 Lakh
part of body resulting in
80% permanent
disability
9. Loss of any Limb or ?2 Lakh ?4 Lakh
part of body resulting in
40% and below 80%
permanent disability
10. Loss of any Limb or ?1 Lakh ?3 Lakh
part of body resulting in
above 20% and below
40% permanent
disability
11. Loss of any limb or part ?1 Lakh ?2 Lakh
of body resulting in
below 20% permanent
disability
12. In case of pregnancy on ?3 Lakh ?4 Lakh
account of Sexual
Assault
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13. Loss of Foetus i.e. ?2 Lakh ?3 Lakh
Miscarriage as a result
of Assault or loss of
fertility
11. Thereafter, under G.O.Ms.No.32, Social Welfare and Women
Empowerment [SW.5(2)] Department, dated 10.07.2021, guidelines for
the compensation and administration of the Tamil Nadu Child Victim
Compensation Fund under the POCSO Act was approved by the
Government. The guidelines provide the compensation and
administration, eligibility for compensation, procedure for grant of
compensation, sanction of funeral expenses in the case of death of a child
victim etc. This guidelines sets out the eligibility criteria as follows:
“2. Eligibility for compensation A child or his/her
family shall be eligible for the grant of compensation
under the Fund where:-
(i) An order is made by the special court on its
own or an application filed by or on behalf of the child
for an interim compensation or final compensation.
(ii) The interim compensate paid to the child
shall be adjusted against the final compensation if any.
3. Procedure for grant of compensation
(i) Whenever an order for interim compensation
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is made by the special court under section 33(8) of the
said Act to meet immediate needs of the child for relief
or rehabilitation at any stage, the District Child
Protection Officer shall send a proposal by enclosing
the copy of such order of the special court, copy of the
First Information Report from the concerned Police
Station to the Commissioner / Director of Social
Defence within two working days from the date of order
by the Special Court. The Commissioner / Director of
Social Defence shall disburse an interim compensation
within ten working days from the date of receipt of
proposal from the District Child Protection Officer.
(ii) The special court shall determine the
quantum of compensation and forward the directions to
the Commissioner / Director of Social Defence with a
copy marked to District Child Protection Officer
concerned. On receipt of such directions the
Commissioner / Director of Social Defence shall
disburse the compensation within thirty days, in
accordance with the provisions of the Fund.
(iii) The compensation awarded by the special
court shall be disbursed to the child or his family, as the
case may be, from the Fund. While marking payment of
the amount of compensation, the Commissioner /
Director of Social Defence shall ensure that all the
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provisions of the Fund are strictly complied with.
(iv) Any other compensation paid to the child or
his family by the State Government in relation to the
offence, such as insurance, ex-gratia, Hon'ble Chilef
Minister's Public Relief Fun, Hon'ble Chief Minister's
Accident Relief Fund, Child Assistant Fund or interim
relief under the Fund or any payment under any other
Act or any other State-run Scheme / Fund, shall be
considered as part of the compensation amount decided
under the Fund. The child or his family who have
already received compensation amount from the other
sources mentioned above shall be deemed to have been
compensated under the Fund and shall not be entitled
to separate compensation under the Fund. If the
quantum of compensation ordered by the special court
under the Fund is higher than the payments made to the
child or his family from the other sources mentioned
above, the balance amount shall be paid from the
Fund.”
12. In the aforesaid circumstances, the victim is definitely entitled
to compensation and compensation of the maximum limit. She would
fall within the conditions stipulated in Serial Nos.2 and 12 of the
Annexure to G.O.(Ms) No.33, thereby being entitled to a sum of Rs.
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14,00,000/-.
13. In fine, this Court exercising jurisdiction under Article 226 of
the Constitution of India directs that a compensation of a sum of
Rs.14,00,000/- (Rupees Fourteen Lakhs only) be paid to the victim. This
sum shall be deposited in an interest bearing account with the mother as
the guardian. The mother shall be permitted to withdraw interest every
month. The said sum shall be utilised only for the up keep and the
rehabilitation of the victim. The District Child Protection Officer shall
visit the home of the Victim once in three months and submit a report to
the District Legal Services Authority, Thoothukudi. The District Legal
Services Authority shall ensure compliance of the above. In case, the
report would state that the amounts are not being used for the welfare of
the victim, then an application shall be made to this Court for modifying
the orders by the District Child Protection Officer. In case, the mother
requires substantial amount for the benefit of the victim, she can make an
application to this Court for appropriate order. The amount of Rs.
14,00,000/- shall be paid from and out of the Tamil Nadu Child Victim
Compensation Fund by the fifth respondent within a period of four weeks
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from the date of receipt of a copy of this order and report compliance to
this Court.
14. With the above observations and directions, this Writ Petition
is disposed of. No costs. Consequently, connected miscellaneous
petition is closed.
26.06.2023
NCC : Yes/No
Index : Yes/No
Internet : Yes
abr
To
1.The Principal Secretary to Government,
The State of Tamilnadu,
The Home Department,
Fort St. George, Chennai.
2.The Secretary to Government,
The State of Tamilnadu,
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W.P.(MD) No.3252 of 2020
The Tamil Nadu Legal Service Authority,
North Road, Chennai.
3.The Principal Secretary to Government,
The State of Tamilnadu,
Department of Health and Family Welfare,
Fort St. George, Chennai.
4.The Director General of Police,
Dr.Radhakrishnan Salai,
Chennai.
5.The Chairman,
District Legal Service Authority,
District Court Building,
Thoothukudi.
6.The District Collector,
Office of the District Collector,
Thoothukudi District.
7.The Superintendent of Police,
Office of the Superintendent of Police,
Thoothukudi District.
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P.T.ASHA, J.
abr
8.The Inspector of Police,
All Women Police Station,
Kadambur, Thoothukudi District.
9.The Dean,
Government Hospital and Medical College,
Thoothukudi District.
10.The District Legal Services Authority,
Thoothukudi.
W.P.(MD) No.3252 of 2020
Dated: 26.06.2023
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