Duty Of Court To Restore Litigant For Loss Suffered Due To Negligence Of Court: Kerala HC

Justice A. Badharudeen held that this principle is applicable not only when the Court had acted erroneously but also to the actions of the Court which was made because it was not correctly apprised of the facts or law.

If a loss is caused to a party due to such an order of the court and the loss can be assessed in monetary terms, the disadvantaged party is entitled to be compensated for the same.

“The factor attracting applicability of the restitution is not the act of the Court being wrongful or a mistake or error committed by the Court; the test is whether on account of an act of the party persuading the Court to pass an order held at the end as not sustainable, has resulted in a party gaining an advantage which it would not have otherwise corned, or other party has suffered an impoverishment which it would not have suffered but for the order of the Court and the act of such party.”

Background of the Case

The petitioner is accused of committing offences under S. 376 of Indian Penal Code (rape) and Section 3, 4 (penetrative sexual assault) 7 and 8 (sexual assault) of Protection of Children from Sexual Offences Act (POCSO). The matter was before the Special Fast Track Court and the prosecution evidence was completed. At this stage, the Special Court noticed a petition filed by the prosecution as early as in 2017 to conduct the DNA profiling of the accused. The Court ordered the petitioner to appear before the police station on 9^th August 2024 from where he will be taken to the Forensic Department of Medical College for taking blood samples to conduct DNA profiling. The petitioner approached the High Court against this order and argued that such a belated consideration of the petition would go against his interest.

The petitioner pleaded that the High Court decision in Thankappan V. E. and another v State of Kerala (2022) where it was held that a court can order blood test of the accused even in a case where final report was filed does not take away the right to fair trial of the petitioner in a case where the evidence was already recorded.

After forensic examination and postmortem of the child victim, human spermatozoa and sperm was detected in the pants, top and bedsheet used by her. The prosecution urged that the order passed by the special court was to collect a very material piece of evidence and it does not cause any prejudice to the accused.

Findings of the Court

The Court after discussing on the principle of the restitution, held that the delay in considering the application by the Court would not cause any prejudice. The Court held that the delay is the fault of the Court and thus held that there is no legal bar in collecting crucial evidence when serious offences are alleged against the accused.

The case was accordingly dismissed.

Counsel for the Petitioner: Adv. G. Priyadarsan Thampi

Counsel for the Respondent: Senior Public Prosecutor Adv. Renjit George

Case No: Crl.MC 6648 of 2024

Case Title: Sreejith Mon v State of Kerala and Another

Citation: 2024 LiveLaw (Ker) 568