COMPENSATION TO VICTIM: A CRITICAL APPRAISAL: NEHA BHARTI & CHANDRASHEKHAR

ISSN: 2581-8465

COMPENSATION TO VICTIM: A CRITICAL APPRAISAL

Author: Neha Bharti & Chandrasekhar

‘Every man is guilty of all the good he did not do’ – Voltaire

Abstract

Compensation to the victims of crime is a matter of concern, throughout the world. The law of Manu requires the offender to pay compensation and medical expenses in case of injuries to the sufferer and also pay to the satisfaction of the owner where goods were damaged. In all cases of cutting off a limb, wounding or bleeding, the assailant shall pay the full medical expenses.[1]  The position of the victims of crime in India is worse and to a certain extent the victims were not the concern for traditional criminology. The condition of the victim of the crime was the least concerned issue for decades. The purpose of compensation is straight forward; compensation serves to right what would otherwise count as wrongful injuries to a person or their property. The criminal justice system in India would ensure efficient and efficacious justice only when the law recognizes the right of victims & to provide them adequate compensation. Reform towards a restorative criminal justice system hinged on the amendments made to the Criminal Procedure Code of 1973 in 2009.[2] These amendments were undertaken by the government to reform India’s old criminal laws. The major propel of this amendment is on defining ‘victim’ and provisions related to victim compensation which is dependent on the discretion of the judge. Compensation to the victim awarded by the court to meet the ends of justice in a better way. The prime focus of this article is victim compensation law pre and post amendment and its interface with criminal justice. Further the article focus on various Apex court judgments in comparison with pre and post amendment.K

I. Position Prior to the Amendment

A careful glance at the Cr.P.C.,1973 reveals a highly fragmented legislative scheme for compensating victims. In pursuance of the recommendation of the law commission in its 41st    report (1969), a provision was made for the victims of crime that have been provided in sec 357[3].

Section 357[4]: Order to Pay Compensation.

(1) When a Court imposes a sentence of fine or a sentence (including a sentence of death) of which fine forms a part, the Court may, when passing judgment, order the whole or any part of fine recovered to be applied-

(a) in defraying the expenses properly incurred in the prosecution;

(b) in the payment to any person of compensation for any loss or injury caused by the offence, when compensation is, in the opinion of the Court, recoverable by such person in a Civil Court;

(c) when any person is convicted of any offence for having caused the death of another person or of having abetted the commission of such an offence, in paying compensation to the persons who are, under the Fatal Accidents Act, 1855 (13 of 1855), entitled to recover damages from the person sentenced for the loss resulting to them from such death;

(d) when any person is convicted of any offence which includes theft, criminal misappropriation, criminal breach of trust, or cheating, or of having dishonestly received or retained, or of having voluntarily assisted in disposing of, stolen property knowing or having reason to believe the same to be stolen, in compensating any bona fide purchaser of such property for the loss of the same if such property is restored to the possession of the person entitled thereto.

(2) If the fine is imposed in a case which is subject to appeal, no such payment shall be made before the period allowed for presenting the appeal has elapsed, or, if an appeal is presented, before the decision of the appeal.

(3) When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment, order the accused person to pay, by way of compensation, such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced.

(4) An order under this section may also be made by an Appellate Court or by the High Court or Court of Session when exercising its powers of revision.

(5) At the time of awarding compensation in any subsequent civil suit relating to the same matter, the Court shall take into account any sum paid or recovered as compensation under this section.

So, this was the only provision in the Cr.P.C to compensate the victims of offences. The compensation was to be payable by the accused only on his conviction. The capacity of the offender plays a very important role while awarding the compensation. This well-established fact that the majority of the people who are accused of and are convicted of a crime are poor and henceforth this provision of compensation was accused dependent and that was never a reasonable answer to the misery for the victims of crime.

It is crystal clear from these cases:

 In Sarwan Singh and others v. State of Punjab,[5] Balraj v. State of U.P.[6], Baldev Singh and Anr. v. State of Punjab[7], Dilip S. Dahanukar v. Kotak Mahindra Co. Ltd. and Anr.[8], the Supreme Court held that the power of the Court to award compensation to victims under Section 357[9] is not ancillary to other sentences but in addition thereto and that imposition of fine and/or grant of compensation to a great extent must depend upon the relevant factors apart from such fine or compensation being just and reasonable.  

II. Position Post Amendment

Victim Compensation Scheme was originally not in the Code of Criminal Procedure, 1973. This provision of a victim compensation scheme has been introduced by the way of amendment in 2009 recommended by Malimath Committee. The Malimath Committee under the chairmanship of Justice V S Malimath Chief Justice of Karnataka & Kerala High Court was formed by the NDA government in 2000. The committee analyzed that the system must focus on justice to victims, made recommendations, which include the rights of victims and adequate compensation to the victim. The Malimath Committee submitted its report in 2003 suggesting 158 recommendations but here we will put light on recommendation related to “justice to the victim of crimes”.  The recommendations related to it are as follows:

  1. Legal services to victims in selected crimes may be extended to include psychiatric and medical help, interim compensation and protection against secondary victimization.
  2.  Victim compensation is a State obligation in all serious crimes, whether the offender is apprehended or not, convicted or acquitted. This is to be organized in separate legislation by Parliament. The draft bill on the subject submitted to Government in 1995 by the Indian Society of Victimology provides a tentative framework for consideration.
  3.  The Victim Compensation law will provide for the creation of a Victim Compensation Fund to be administered possibility by the Legal Services Authority. The law should provide for the scale of compensation in different offences for the guidance of the Court. It may specify offences in which compensation may not be granted and conditions under which it may be awarded or withdrawn.[10]

The concluding view of the committee that the criminal justice administration will give a new direction to ensure the right of the victim by compensating for the loss of life, limb, and property to the victim.  The quantum of fine recovered or diversion of funds generated by the justice system, the proposed victim compensation can be mobilized at least to meet the cost of compensating victims of violent crime.

After the recommendation of the Malimath Committee Report in 2003 Sec 357A[11], has been added in CrPC by way of The Criminal Law (Amendment) Act 2009, which specifically deals with the victim compensation scheme and related provisions.  To address the definition of victim, section 2(wa)[12] of the amended Cr.P.C (via Criminal Amendment Act, 2009) as below:- 

‘Victim’ means a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged and the expression ‘victim’ includes his or her guardian or legal heir”[13]

III.Section 357A[14]Victim Compensation Scheme

(1) Every State Government in coordination 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 a 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 the 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 inquiry award adequate compensation by completing the inquiry within two months. 

(6) The State or the District Legal Services 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.

Under this Section, every state government in coordination with the central government has to prepare a scheme for providing funds for the purpose of compensation to the victims or to the dependents who have suffered loss or injury as a result of the crime. It means that the new provision has substantially widened the scope of compensating the victims of crimes. The term “dependent” of the victim as defined in the victim compensation scheme include wife, husband, father, mother, brother, sister, son, daughter, grandmother, grandfather, father-in-law, mother-in-law and it includes any other person who is leading life on the income of the victim.[15] For an outlay of compensation to the victim, there shall be a fund called “The Victim Compensation Fund” from which the amount of compensation to be paid as decided by District Legal Service Authority to the victim or to her dependents. All states have their own victim compensation Scheme which is in consonance of Sec 357A[16] Cr.P.C. With special reference to State of Bihar the victim compensation fund made under Sec 3 of the scheme.[17] Whenever a recommendation is made by the court for compensation under Sec 357-A(4)[18] of Cr.P.C, the DLSA shall examine the case & verify the contents of claim with regard to the loss or injury caused to victim and arising out the reported criminal activity and may call for any other relevant information necessary in order to determine genuineness. After verifying the claim, the DLSA shall after due inquiry award compensation within two months, in accordance with the provision of the scheme.[19] The DLSA decide shall decide the quantum of compensation to be awarded to the victim or his dependant on the basis of loss caused to the victim, medical expenses to be incurred for rehabilitation including such incidental charge as funeral expenses, etc. [20]

IV. Purpose of sec 357A[21]

The main purpose of the provision is to reassure the victim that he or she is not forgotten in the criminal justice system. It provides that District Legal Service Authority or State Legal Service Authority in every state shall ensure that the victim or victim’s family should get compensation especially a person belonging from the weaker section of society. DLSA’s work is not only to ensure compensation to the victims but also to develop a mechanism for rehabilitation of victims & their dependent or family. DLSA is set up to ensure that individually does not suffer due to a lack of knowledge of their rights and responsibilities or of the service available to them or due to an inability to express their legal needs effectively. [22]

V. Interpretation of Judiciary

Judiciary from different pronouncements secure the right of the victim to get compensation under sec 357[23]& sec 357 A[24] of CrPC. All court should exercise the grant or refusal of compensation in a particular case depending upon the case and there exists a mandatory duty on the court to apply its mind to the question in every criminal case. Recently, the Supreme Court in Ankush Shivaji Gaikwad v. State of Maharashtra[25], while considering the amended provision of the code, reiterated its view and further observed that henceforth the courts have to give reasons for not compensating the victim while deciding the case. The court also observed that the amended Cr.P.C brought about in 2009 focus heavily on the rights of victims in a criminal trial, particularly in trials relating to sexual offences. The court summed up its judgment as under[26] in favor of victims.

While the award or refusal of compensation in a particular case may be within the court’s discretion, there exists a mandatory duty on the court to apply its mind to the question in every criminal case. Application of mind to the question is best disclosed by recording reasons for awarding/refusing compensation. It is axiomatic that for any exercise involving application of mind, the Court ought to have the necessary material which it would evaluate to arrive at a fair and reasonable conclusion.[27]

The prominent feature of this judgment is that now the courts are obliged to give reasons for not recommending compensation to the victims of the crime.

The Supreme Court in Laxmi v. Union of India[28], direct that the acid attack victims shall be paid compensation of at least Rs 3 lakh by State Government / Union Territory concerned as the aftercare & rehabilitation cost. On this amount, a sum of Rs 1 lakh shall be paid to such a victim within 15 days of the occurrence of such an incident to facilitate immediate medical attention and expenses in this regard. The balance sum of Rs 2 Lakhs shall be paid expeditiously as may be possible positively within 2 months thereafter. The chief secretaries of the states & the administrator of UTs shall ensure compliance with the above direction.[29] The Supreme Court has held that in cases where the accused is unable to pay compensation to the victim or his/her heirs, that same amount of compensation, which is awarded by the Court, must be paid by the State in accordance with the provision of S.357-A Criminal Procedure Code. [30]

In a landmark case, Supreme Court has held that under Section 357-A[31] of the Cr.P.C -victim compensation scheme, it is the duty of the court to direct the grant of interim compensation subject to final compensation being determined later. Interim compensation is granted in case of abduction and murder of the deceased businessman and his son by appellants-no reason as to why the victim’s family should not be compensated under s. 357-A – State Govt. directed to pay an interim compensation of Rs. 10 Lakhs to the family of the victim.[32]

The Delhi HC while hearing an appeal in case of Gaya Prasad Pal v. State[33], held that “A child born out of rape, either a minor or a women who is an adult, is clearly a victim of the act by the offender and entitled to compensation independent of the amount of compensation paid to his / her mother”. Furthermore, Delhi HC cited sec 357 of Cr.P.C and POCSO Act which deals with provisions of compensation for victims of sexual offences, stating that a child born out of rape would be “covered under the definition of both victim as well as dependant on the victim”.[34]

Section 357-A[35] provides Rs 10, 00,000/- as interim compensation was given to the mother of the deceased, a victim. It was the case of custodial death. Court has held that the victim compensation scheme should be implemented properly, it would reduce the crime rate in the future.[36] Gauhati High Court has awarded compensation to children of Victim -accused husband murdered wife-wife leaving behind 4 minor children. State Government directed to deposit sum of Rs 1, 00,000 /- towards compensation payable to children of deceased, in fixed deposit which they shall be able to withdraw on attainment of age of majority. [37]

VI.             Various scheme of NALSA in assuring compensation and rehabilitation to victims

  1. NALSA (Victims of Trafficking & Commercial Sexual Exploitation) Scheme, 2015

The primary objective of this scheme is to provide legal assistance against trafficking and sexual exploitation. The scheme seeks to provide action to prevent sexual exploitation of the individuals and ensure their rescue and rehabilitation of the victims of trafficking and voluntary sex work.

2. NALSA (Legal Service to Victims of Acid Attacks) Scheme, 2016

Acid attack has its steep rise in past few years and as usual the most of the victim are women and only women. The main objective of the scheme to create and spread awareness about the entitlements of a victim of acid attack and also facilitate the victims so that they can have access to medical facilities, rehabilitation services, adequate compensation & other benefits under various legal provisions and government schemes. Legal services clinics shall set up at hospital having facilities for treatment of burn. 

3. NALSA (Legal Service to the Victims of Drug Abuse & Eradication of Drug Menace) Scheme, 2015

The main objectives of this scheme are to spread awareness amongst all stakeholders regarding the ill effect of drug abuse and to prevent trafficking and for putting in place. The States Legal Services Authorities have established special units in each district who shall create a database of all existing schemes etc for the prevention of drug abuse & rehabilitation of victims and shall disseminate the same to all stakeholders. 

VII. Flaws in the law for victim compensation

The policy of our criminal justice system toward victim is inclined to a certain extent. But the main problem arises in the implementation of the policy made by the legislature. The provision of victim compensation being discretionary, it neither purports a legal obligation on judges to order for compensation in all suitable cases to the victims nor it requires them to give the reason for the same.

The award of compensation has not become a rule even after 9 years expire from the implementation of sec 357A[38].  & interim compensation which is very important is ignored by the courts. Interim compensation is very important in some cases to meet immediate medical facility & it ought to be paid at the earliest so that immediate need of victim can be met for determining the amount of interim compensation. The court may have to take note of facts and circumstances of each case including the nature of offence, the loss suffered and the requirement of the victim.

 The upper limit of the compensation fixed by some States is apparently low & it is not fulfilling the intention with which the sec was inserted in the code.

VIII. Conclusion

Our criminal justice system provides more rights to accused and less right to victims. But justice phenomena demands that balance between the claims of two parties, who are in front of the court. Right available to the victim of crime is just for the sake of showcase, these rights are not properly given to the victim. Compensation to the victim of crime plays a major role in rehabilitation and to cope up with the offence against them. The liability to pay compensation to the victim was only on the accused before the 2009 Criminal Law Amendment Act.  After the 2009 amendment the liability to pay compensation is on the state government by the way of the fund created especially for victim compensation. With the introduction of 357A[39]compensation granted to the victim by the order of court through district legal service, authority is now mandatory which leaves no discretion to the court. As in sec 357[40], the order of compensation by the court is discretionary leaving a loophole in the criminal justice system in awarding compensation to the victim. The amounts of a maximum limit of compensation granted to the victims in different states are very low.

DLSA has to keep a check that no victims & their dependent are deprived of the compensation which is given under Cr.P.C. As there are reasons due to which many people in a remote area does not have access to justice due to economic reasons, lack of information & judicial encumbrance. Judiciary has also paved a way for the grant of compensation to the victims by way of different judicial pronouncements but to effectuate any progressive victim compensation reforms; there is a need for a sensitized judiciary that recognizes the importance of victim compensation. The need of the hour is to appoint those persons who are well acquainted with the legal provision of the justice delivery system so that they can guide the ignorant victims about their rights.

 


[1] M.J. Sethna, Society and the Criminal 218 ( M.N. Tripathi, Bombay 1952); M.J. Sethna, Jurisprudence 340 (1969) .

[2] Victim Compensation Scheme- Shortcomings & Recommendations, Bharti Manglani, Ujala, vol. 4 , issue 2, page no.87.

[3] Criminal Procedure Code, 1973, Section 357.

[4]Ibid.

[5]Sarwan Singh and others v. State of Punjab,[5] Balraj v. State of U.P (1978) 4 SCC 11.

[6]Balraj v. State of U.P. , (1994) 4 SCC 29.

[7]Baldev Singh and Anr. v. State of Punjab(1995) 6 SCC 593.

[8]Dilip S. Dahanukar v. Kotak Mahindra Co. Ltd. and Anr(2007) 6 SCC 528.

[9]Id. note. 3.

[10] Malimath Committee Report , 2003, http://www.pucl.org/Topics/Law/2003/malimath-recommendations.htm  May 25, 2018,  3.50 PM .

[11]Criminal Procedure Code, 1973, Section 357A.

[12]Criminal Procedure Code, 1973, Section 2(wa).

[13]Id. note 12.

[14] Supra, 11.

[15]The Bihar Victim Compensation Scheme, 2011.  Section 2(e).

[16] Supra, 11.

[17]The Bihar Victim Compensation Scheme, 2011.  Section 3.

[18]Criminal Procedure Code, 1973, Section 357A(4).

[19] The Bihar Victim Compensation Scheme, 2011.  Section  5 (1). 

[20]The Bihar Victim Compensation Scheme, 2011.Section5(3).

[21]Id. note 18.

[22]‘ The role and challenges of legal services authorities in providing legal services to the poor & marginalized’, Justice S.K. Mittal , Nyaya Deep, Vol XV, Issue 3 &4 ,July  2015 at page no.55.

[23] Supra 3.

[24]Supra 18.

[25]Ankush Shivaji Gaikwad v. State of Maharashtra(2013) 6 SCC 770.

[26] Id. at 797.

[27] Ibid.

[28]Laxmi v. Union of India, (2014) 4 SCC 427 at para no 14. (2014) 4 SCC 427.

[29]Ibid.

[30] State of Himachal Pradesh v. Ram Pal, (2015) 2 SCC 227.

[31]Supra, 18.

[32] Suresh & another V. State of Haryana, (2015) 2 SCC 227.

[33]Gaya Prasad Pal v. State CRL.A. 538/2016, Delhi H.C decided on 9th Dec 2016.

[34]  Ibid.

[35]Supra 18.

[36] Sabu E. K. and another v. State & others, 2016 CRI.L.J. 3418

[37] Md. Abdul Motleb V. State of Assam , 2016 CRI.L.J. 1701 ( Gau)

[38]Supra 18.

[39]Ibid.

[40] Supra 3.

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