Victim Compensation; Upendra Paswan Vs. State of Bihar [Patna High Court, 25-11-2016]

Contents

Criminal Procedure Code, 1973 – Section 357A – Victim Compensation Scheme – Interim Compensation – Grant of – It is the duty of the courts, on taking cognizance of a criminal offence, to ascertain whether there is tangible material to show commission of crime, whether the victim is identifiable and whether the victim of crime needs immediate financial relief. On being satisfied on an application or on its own motion, the court ought to direct grant of interim compensation, subject to final compensation being determined later. Such duty continues at every stage of a criminal case where compensation ought to be given and has not been given, irrespective of the application by the victim. At the stage of final hearing it is obligatory on the part of the court to advert to the provision and record a finding whether a case for grant of compensation has been made out and, if so, who is entitled to compensation and how much. Award of such compensation can be interim. Gravity of offence and need of victim are some of the guiding factors to be kept in mind, apart from such other factors as may be found relevant in the facts and circumstances of an individual case.

IN THE HIGH COURT OF JUDICATURE AT PATNA

CORAM: HONOURABLE MR. JUSTICE SAMARENDRA PRATAP SINGH and HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI

Date: 25-11-2016

Criminal Appeal (DB) No.51 of 2005

Arising Out of PS. Case No.26 Year- 2013 Thana -Bathnaha District- SITAMARHI

UPENDRA PASWAN SON OF SUKHDEO PASWAN RESIDENT OF VILLAGE-SONBARSA POLICE STATION SONBARSA DISTRICTSITAMARHI. …. …. APPELLANT/S

VERSUS

THE STATE OF BIHAR …. …. RESPONDENT/S

Appearance: For the Appellant/s : Mr. Prasoon Sinha, Adv. For the Respondent/s : Mr. A.K. Sinha, APP

ORDER

(Per: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI)

1. Heard learned counsel for the petitioner/appellant as well as learned Additional Public Prosecutor.

2. During midst of pendency of instant appeal two interlocutory applications, one bearing I.A. No.898 of 2016 and the other I.A. No.2089 of 2016 have been filed on behalf of informant.

3. Basing its plea over principle laid down by the Hon’ble Apex Court in

# Suresh & Anr. v. State of Haryana reported in 2015(1) PLJR 104 (SC)

a prayer has been made on behalf of informant in accordance with Section 357, 357A of the Cr.P.C. by way of filing I.A. No.898 of 2016 asking for interim compensation for her rehabilitation. I.A. no.2089 of 2016 has been filed in terms of Article 141, 144, 251 of the Constitution of India to direct the subordinate courts to pass appropriate order in terms of Section 357 as well as 357A, invariably so that victim of the crime could get compensation under victim compensation scheme as well as for proper implementation thereof and for that, a general direction should be issued in the background of decision having been laid down by the Kerala High Court in

# Sabu E.K. and another v. State & Ors. reported in 2016 Cr.L.J. 3418

4. As the final adjudication of instant appeal yet to be performed on account thereof, in spite of having availability of relevant provision in terms of Section 357 as well as 357A, guiding victim compensation scheme, the same could not be decided nor any kind of order prejudicial to the interest of appellant could be passed, in his absence on account thereof, proper subjudication of I.A. No.2089 of 2016 is directed to be kept in abeyance.

5. Section 357 provides grant of compensation to the victim which comes into play during course of final adjudication and on account thereof, the same is not at all found applicable at the present moment on account of pending of instant appeal. Consequent thereupon, prayer of the petitioner/informant under I.A. No.898/2016 to that extent is found not at all entertainable.

6. Now coming to applicability of Section 357A of the Cr.P.C. which has been introduced by the Act 5 of 2009 effective from 31.12.2009 casting obligation on State, have repeatedly been considered by the Apex Court. In Ankush Shivaji Gaikwad v. State of Maharashtra reported in (2013) 6 SCC 770, it has been held:

46. The amendments to CrPC brought about in 2008 focused heavily on the rights of victims in a criminal trial, particularly in trials relating to sexual offences. Though the 2008 amendments left Section 357 unchanged, they introduced Section 357-A under which the Court is empowered to direct the State to pay compensation to the victim in such cases where

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”.

Under this provision, even if the accused is not tried but the victim needs to be rehabilitated, the victim may request the State or District Legal Services Authority to award him/her compensation. This provision was introduced due to the recommendations made by the Law Commission of India in its 152nd and 154th Reports in 1994 and 1996 respectively.

47. The 154th Law Commission Report on CrPC devoted an entire chapter to “Victimology” in which the growing emphasis on victims‘ rights in criminal trials was discussed extensively as under:

1. Increasingly the attention of criminologists, penologists and reformers of criminal justice system has been directed to victimology, control of victimisation and protection of victims of crimes. Crimes often entail substantive harm to people and not merely symbolic harm to the social order. Consequently, the needs and rights of victims of crime should receive priority attention in the total response to crime. One recognised method of protection of victims is compensation to victims of crime. The needs of victims and their family are extensive and varied.

* * *

9.1. The principles of victimology has foundations in Indian constitutional jurisprudence. The provision on Fundamental Rights (Part III) and Directive Principles of State Policy (Part IV) form the bulwark for a new social order in which social and economic justice would blossom in the national life of the country (Article 38). Article 41 mandates, inter alia, that the State shall make effective provisions for ‘securing the right to public assistance in cases of disablement and in other cases of undeserved want‘. So also Article 51-A makes it a fundamental duty of every Indian citizen, inter alia, ‘to have compassion for living creatures‘ and ‘to develop humanism‘. If emphatically interpreted and imaginatively expanded these provisions can form the constitutional underpinnings for victimology.

9.2. However, in India, the criminal law provides compensation to the victims and their dependants, only in a limited manner. Section 357 of the Code of Criminal Procedure incorporates this concept to an extent and empowers the criminal courts to grant compensation to the victims.

* * *

11. In India the principles of compensation to crime victims need to be reviewed and expanded to cover all cases. The compensation should not be limited only to fines, penalties and forfeitures realised. The State should accept the principle of providing assistance to victims out of its own funds….”

48. The question then is whether the plenitude of the power vested in the courts under Sections 357 and 357-A, notwithstanding, the courts can simply ignore the provisions or neglect the exercise of a power that is primarily meant to be exercised for the benefit of the victims of crimes that are so often committed though less frequently punished by the courts. In other words, whether courts have a duty to advert to the question of awarding compensation to the victim and record reasons while granting or refusing relief to them?

49. The language of Section 357 CrPC at a glance may not suggest that any obligation is cast upon a court to apply its mind to the question of compensation. Sub-section (1) of Section 357 states that the Court “may” order for the whole or any part of a fine recovered to be applied towards compensation in the following cases:

(i) To any person who has suffered loss or injury by the offence, when in the opinion of the court, such compensation would be recoverable by such person in a civil court.

(ii) To a person who is entitled to recover damages under the Fatal Accidents Act, when there is a conviction for causing death or abetment thereof.

(iii) To a bona fide purchaser of property, which has become the subject of theft, criminal misappropriation, criminal breach of trust, cheating, or receiving or retaining or disposing of stolen property, and which is ordered to be restored to its rightful owner.

7. The Hon’ble Apex Court took up the issue of victim compensation in Laxmi v. Union of India in chronological way for its proper implementation in term of Section 357A of Cr.P.C. and first of all it was taken up as reported in (2014) 4 SCC 431. Subsequently, it was taken up as reported in (2014) 4 SCC 427 and for better appreciation the relevant para is quoted below:

12. Section 357-A came to be inserted in the Code of Criminal Procedure, 1973 by Act 5 of 2009 w.e.f. 31-12-2009. Inter alia, this section provides for preparation of a scheme for providing funds for the purpose of compensation to the victim or his dependants who have suffered loss or injury as a result of the crime and who require rehabilitation.

13. We are informed that pursuant to this provision, 17 States and 7 Union Territories have prepared “Victim Compensation Scheme” (for short “the Scheme”). As regards the victims of acid attacks, the compensation mentioned in the Scheme framed by these States and Union Territories is un-uniform. While the State of Bihar has provided for compensation of Rs 25,000 in such Scheme, the State of Rajasthan has provided for Rs 2 lakhs of compensation. In our view, the compensation provided in the Scheme by most of the States/Union Territories is inadequate. It cannot be overlooked that acid attack victims need to undergo a series of plastic surgeries and other corrective treatments. Having regard to this problem, the learned Solicitor General suggested to us that the compensation by the States/Union Territories for acid attack victims must be enhanced to at least Rs 3 lakhs as the aftercare and rehabilitation cost. The suggestion of the learned Solicitor General is very fair.

14. We, accordingly, direct that the acid attack victims shall be paid compensation of at least Rs 3 lakhs by the State Government/Union Territory concerned as the aftercare and rehabilitation cost. Of this amount, a sum of Rs 1 lakh shall be paid to such victim within 15 days of occurrence of such incident (or being brought to the notice of the State Government/Union Territory) to facilitate immediate medical attention and expenses in this regard. The balance sum of Rs 2 lakhs shall be paid as expeditiously as may be possible and positively within two months thereafter. The Chief Secretaries of the States and the Administrators of the Union Territories shall ensure compliance with the above direction.”

After completing home task so directed at an earlier occasion in Laxmi (Supra) case, to the centre as well as state authorities, the matter was again taken up as reported in (2016)3 SCC 669.

8. At first occasion, notices were issued to the remaining states and union territories over co-ordination of the State Government with the Central Government for preparation of schemes as provided in Section 357A for the purpose of providing compensation to the victims of crime, in particular acid attacked victim. The order dated 22.04.2014 contains under Para-14 “In pursuance of the order dated 03.12.2013, nine States and two Union Territories have filed their affidavits. It transpires therefrom that the States of Tripura, Bihar, West Bengal, Odisha and Sikkam have fully complied with the directions in the order dated 03.12.2013. The two Union Territories, namely, Andaman and Nicobar and Chandigarh have also completed with the directions.”

9. Furthermore, from para-22, 24, it is evident that as from Model Rules prepared for compensation by the respective States, the rate of compensation was not uniform. The Hon’ble Court was of the view that compensation should be enhanced to at least Rs.3,00,000/- as aftercare and rehabilitation cost flare up, whereupon the Secretary in the Ministry of Home Affairs, Government of India, Secretary in the Ministry of Health, Government of India were directed to jointly convene a meeting of the State Secretaries/their counterparts in the State and Union Territories to work out the modalities, and as is evident, the aforesaid exercise was taken up relating to acid attacked victims. Furthermore, on that very score the respective Members Secretaries of State Legal Services Authority were directed to take up the issue and for that, certain directions were given.

“41. In our opinion, this view is quite reasonable. Therefore, in case of any compensation claim made by any acid attack victim, the matter will be taken up by the District Legal Services Authority, which will include the District Judge and such other co-opted persons who the District Judge feels will be of assistance, particularly the District Magistrate, the Superintendent of Police and the Civil Surgeon or the Chief Medical Officer of that district or their nominee. This body will function as the Criminal Injuries Compensation Board for all purposes.

42. A copy of this order be sent to the learned counsel appearing for the Secretary in the Ministry of Home Affairs and the Secretary in the Ministry of Health and Family Welfare for onward transmission and compliance to the Chief Secretary or their counterparts in all the States and Union Territories.

43. The Chief Secretary will ensure that the order is sent to all the District Magistrates and due publicity is given to the order of this Court.

44. A copy of this order should also be sent to the Member- Secretary of NALSA for onward transmission and compliance to the Member-Secretary of the State Legal Services Authority in all the States and Union Territories. The Member-Secretary of the State Legal Services Authority will ensure that it is forwarded to the Member-Secretary of each District Legal Services Authority who will ensure that due publicity is given to the order of this Court.”

And lastly the aforesaid writ was disposed of.

10. It appears that in pursuance of Laxmi v. Union of India the Bihar Government has framed Bihar Victim Compensation Scheme, 2011. From perusal of the same, the definition relating to victim incorporated under Rule-2(d) speaks:-

“2(d) “Victim” means a person who himself has suffered loss or injury as a result of crime causing substantial loss to the income of the family making it difficult to meet their both ends without the financial aid or has to spend beyond his means on medical treatment of Mental/Physical injury and require rehabilitation.”

11. Dependent has been defined under 2(e):

“2(e) In this scheme “Dependent” means member of family of the victim, namely Husband/Wife, Mother/Father, Brother/Sister, Son/Daughter, Grand Mother/Grand Father, Father-in-Law/Mother-in-Law and it includes any other person who is leading life on the income of the victim.”

12. Procedure has been prescribed for grant of compensation and for better appreciation, the same is quoted below:-

“Rule-5. Procedure for grant of compensation. – (1) Whenever a recommendation is made by the Court or an application is made by any victim or his dependent under subsection (4) of Section 357-A of the Act to the District Legal Service Authority, the District Legal Service Authority shall examine the case and verify the contents of the claim with regard to the loss or injury caused to victim and arising out of the reported criminal activity and may call for any other relevant information necessary in order to determine genuineness. After verifying the claim, the District Legal Service Authority shall after due enquiry award compensation within two months, in accordance with provision of the Scheme.

(2) Compensation under this Scheme shall be paid subject to the condition that if the trial court while passing judgment at later date, orders the accused persons to pay any amount by way of compensation under sub-section (3) of Section 357 of the Act, victim/claimant shall remit an amount ordered equal to the amount of compensation, or the amount ordered to be paid under the said sub-section (3) of Section 357 of the Act, whichever is less. An undertaking to this effect shall be given by the victim/claimant before the disbursal of the compensation amount.

(3) The District Legal Service Authority shall decide the quantum of compensation to be awarded to the victim or his dependents on the basis of loss caused to the victim, medical expenses to be incurred on treatment, minimum sustenance amount required for rehabilitation including such incidental charges as funeral expenses etc. The compensation may vary from case to case depending on facts of each case.

(4) According to the schedule of this scheme the quantum of compensation to be awarded under the Scheme shall be disbursed to the victim or his dependents, as the case may be, from the Fund.

(5) Compensation received by the victim from the Central/State Govt., Insurance company or any other institution in relation to the crime in question, namely, insurance. exgratia and/or payment received under any other Act or Staterun Scheme, shall be considered as part of the compensation amount under these scheme and 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.

(6) In fixing the quantum of compensation, regard must be had to the minimum wages and the schedule to the Motor Vehicle Act, 1988.

(7) The District Legal Service Authority, 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 magistrate of the area concerned, or any other interim relief as it may deem fit.”

13. Limitation has also been prescribed therefore under Rule- 7 which speaks as under:-

“7. Limitation. – No claim made by the victim or his dependents under sub-section (4) of Section 357-A of the Act shall be entertained after a period of six months of the crime: Provided that the District Legal Service Authority, if satisfied, for the reasons to be recorded in writing, may condone the delay in filing the claim.”

14. In Indian Woman Says Gang-Raped on Orders of Village Court Published on Business and Financial News Dated 23-1-2014 in reference Suo Motu Writ Petition (Crl.) No. 24 of 2014 initiated as reported in 2014) 4 SCC 786 in terms of Article 32 of the Constitution of India, whereunder the matter has been investiturely decided. The relevant para is quoted below.

19. No compensation can be adequate nor can it be of any respite for the victim but as the State has failed in protecting such serious violation of a victim‘s fundamental right, the State is dutybound to provide compensation, which may help in the victim‘s rehabilitation. The humiliation or the reputation that is snuffed out cannot be recompensed but then monetary compensation will at least provide some solace.

20. In 2009, a new Section 357-A was introduced in the Code which casts a responsibility on the State Governments to formulate schemes for compensation to the victims of crime in coordination with the Central Government whereas, previously, Section 357 ruled the field which was not mandatory in nature and only the offender can be directed to pay compensation to the victim under this section. Under the new Section 357-A, the onus is put on the District Legal Services Authority or the State Legal Services Authority to determine the quantum of compensation in each case. However, no rigid formula can be evolved as to have a uniform amount, it should vary in facts and circumstances of each case. In

# State of Rajasthan v. Sanyam Lodha, (2011) 13 SCC 262

this Court held that the failure to grant uniform ex gratia relief is not arbitrary or unconstitutional. It was held that the quantum may depend on facts of each case.

21. The learned amicus also advocated for awarding interim compensation to the victim by relying upon judicial precedents. The concept of the payment of interim compensation has been recognised by this Court in

# Bodhisattwa Gautam v. Subhra Chakraborty (1996) 1 SCC 490

It referred to

# Delhi Domestic Working Women’s Forum v. Union of India, (1995) 1 SCC 14

to reiterate the centrality of compensation as a remedial measure in case of rape victims. It was observed as under: (Bodhisattwa Gautam case (1996) 1 SCC 490, SCC p. 503, para 18)

18. … If the court trying an offence of rape has jurisdiction to award the compensation at the final stage, there is no reason to deny to the court the right to award interim compensation which should also be provided in the Scheme.”

22. This Court in

# P. Rathinam v. State of Gujarat, 1994 SCC (Cri) 1163

which pertained to rape of a tribal woman in police custody awarded an interim compensation of Rs 50,000 to be paid by the State Government. Likewise, this Court, in

# Railway Board v. Chandrima Das, (2000) 2 SCC 465

upheld the High Court‘s direction to pay Rs 10 lakhs as compensation to the victim, who was a Bangladeshi national. Further, this Court in

# Satya Pal Anand v. State of M.P., (2014) 4 SCC 800

vide order dated 5-8-2013, enhanced the interim relief granted by the State Government from Rs 2 lakhs to 10 lakhs each to two girl victims.

23. The Supreme Court of Bangladesh in

# State v. Mohd. Moinul Haque (2001) 21 BLD 465

has interestingly observed that “victims of rape should be compensated by giving them half of the property of the rapist(s) as compensation in order to rehabilitate them in the society”. If not adopting this liberal reasoning, we should at least be in a position to provide substantial compensation to the victims.

24. Nevertheless, the obligation of the State does not extinguish on payment of compensation, rehabilitation of victim is also of paramount importance. The mental trauma that the victim suffers due to the commission of such heinous crime, rehabilitation becomes a must in each and every case.”

15. In

# Suresh & Anr. v. State of Haryana reported in (2015) 2 SCC 227

while deciding the criminal appeal, the Hon’ble Apex Court also took notice with regard to applicability of Section 357A of the Cr.P.C., wherein it has been observed:

13. It would now be appropriate to deal with the issue. The provision has been incorporated in Cr. PC vide Act 5 of 2009 and the amendment duly came into force in view of the Notification dated 31- 12-2009. The object and purpose of the provision is to enable the Court to direct the State to pay compensation to the victim where the compensation under Section 357 was not adequate or where the case ended in acquittal or discharge and the victim was required to be rehabilitated. The provision was incorporated on the recommendation of 154th Report of the Law Commission. It recognizes compensation as one of the methods of protection of victims. The provision has received the attention of this Court in several decisions including

# Ankush Shivaji Gaikwad v. State of Maharashtra, (2013) 6 SCC 770

# Gang-Rape Ordered by Village Kangaroo Court in W.B., In re (2014) 4 SCC 786

# Mohd. Haroon v. Union of India(2014) 5 SCC 252

and

# Laxmi v. Union of India, (2014) 4 SCC 427

14. In

# Abdul Rashid v. State of Odisha, 2013 SCC OnLine Ori 493

to which one of us (Goel, J.) was party, it was observed: (SCC OnLine Ori paras 6-10)

6. Question for consideration is whether the responsibility of the State ends merely by registering a case, conducting investigation and initiating prosecution and whether apart from taking these steps, the State has further responsibility to the victim. Further question is whether the Court has legal duty to award compensation irrespective of conviction or acquittal. When the State fails to identify the accused or fails to collect and present acceptable evidence to punish the guilty, the duty to give compensation remains. Victim of a crime or his kith and kin have legitimate expectation that the State will punish the guilty and compensate the victim. There are systemic or other failures responsible for crime remaining unpunished which need to be addressed by improvement in quality and integrity of those who deal with investigation and prosecution, apart from improvement of infrastructure but punishment of guilty is not the only step in providing justice to the victim. Victim expects a mechanism for rehabilitative measures, including monetary compensation. Such compensation has been directed to be paid in public law remedy with reference to Article 21. In numerous cases, to do justice to the victims, the Hon‘ble Supreme Court has directed payment of monetary compensation as well as rehabilitative settlement where State or other authorities failed to protect the life and liberty of victims. For example,

# Kewal Pati v. State of U.P., (1995) 3 SCC 600

(death of prisoner by co-prisoner),

# Supreme Court Legal Aid Committee v. State of Bihar, (1991) 3 SCC 482

(failure to provide timely medical aid by jail authorities,

# Railway Board v. Chandrima Das, (2000) 2 SCC 465

(rape of Bangladeshi national by Railway staff),

# Nilabati Behera v. State of Orissa, (1993) 2 SCC 746

(custodial death),

# Khatri (1) v. State of Bihar, (1981) 1 SCC 623

(prisoners‘ blinding by jail staff),

# Union Carbide Corpn. v. Union of India, (1989) 1 SCC 674

(gas leak victims).

7. Expanding scope of Article 21 is not limited to providing compensation when the State or its functionaries are guilty of an act of commission but also to rehabilitate the victim or his family where crime is committed by an individual without any role of the State or its functionary. Apart from the concept of compensating the victim by way of public law remedy in writ jurisdiction, need was felt for incorporation of a specific provision for compensation by courts irrespective of the result of criminal prosecution. Accordingly, Section 357-A has been introduced in the CrPC and a Scheme has been framed by the State of Odisha called ‘The Odisha Victim Compensation Scheme, 2012‘. Compensation under the said section is payable to victim of a crime in all cases irrespective of conviction or acquittal. The amount of compensation may be worked out at an appropriate forum in accordance with the said Scheme, but pending such steps being taken, interim compensation ought to be given at the earliest in any proceedings.

8. In

# Ankush Shivaji Gaikwad v. State of Maharashtra, (2013) 6 SCC 770

the matter was reviewed by the Hon‘ble Supreme Court with reference to development in law and it was observed: (SCC pp. 785-91 & 797, paras 33-48 & 66-67)

33. The long line of judicial pronouncements of this Court recognised in no uncertain terms a paradigm shift in the approach towards victims of crimes who were held entitled to reparation, restitution or compensation for loss or injury suffered by them. This shift from retribution to restitution began in the mid-1960s and gained momentum in the decades that followed. Interestingly the clock appears to have come full circle by the lawmakers and courts going back in a great measure to what was in ancient times common place. Harvard Law Review (1984) in an article on “Victim Restitution in Criminal Law Process: A Procedural Analysis” sums up the historical perspective of the concept of restitution in the following words:

“Far from being a novel approach to sentencing, restitution has been employed as a punitive sanction throughout history. In ancient societies, before the conceptual separation of civil and criminal law, it was standard practice to require an offender to reimburse the victim or his family for any loss caused by the offense. The primary purpose of such restitution was not to compensate the victim, but to protect the offender from violent retaliation by the victim or the community. It was a means by which the offender could buy back the peace he had broken. As the State gradually established a monopoly over the institution of punishment, and a division between civil and criminal law emerged, the victim‘s right to compensation was incorporated into civil law.”

34. With modern concepts creating a distinction between civil and criminal law in which civil law provides for remedies to award compensation for private wrongs and the criminal law takes care of punishing the wrongdoer, the legal position that emerged till recent times was that criminal law need not concern itself with compensation to the victims since compensation was a civil remedy that fell within the domain of the civil courts. This conventional position has in recent times undergone a notable sea change, as societies world over have increasingly felt that victims of the crimes were being neglected by the legislatures and the courts alike. Legislations have, therefore, been introduced in many countries including Canada, Australia, England, New Zealand, Northern Ireland and in certain States in the USA providing for restitution/reparation by the courts administering criminal justice.

35. England was perhaps the first to adopt a separate statutory scheme for victim compensation by the State under the Criminal Injuries Compensation Scheme, 1964. Under the Criminal Justice Act, 1972 the idea of payment of compensation by the offender was introduced. The following extract from Oxford Handbook of Criminology (1994 Edn., pp. 1237-38), which has been quoted with approval in

# Delhi Domestic Working Women’s Forum v. Union of India, (1995) 1 SCC 14

is apposite: (SCC pp. 20-21, para 16)

16. … ‘Compensation payable by the offender was introduced in the Criminal Justice Act, 1972 which gave the courts powers to make an ancillary order for compensation in addition to the main penalty in cases where ‘injury, loss, or damage‘ had resulted. The Criminal Justice Act, 1982 made it possible for the first time to make a compensation order as the sole penalty. It also required that in cases where fines and compensation orders were given together, the payment of compensation should take priority over the fine. These developments signified a major shift in penological thinking, reflecting the growing importance attached to restitution and reparation over the more narrowly retributive aims of conventional punishment. The Criminal Justice Act, 1982 furthered this shift. It required courts to consider the making of a compensation order in every case of death, injury, loss or damage and, where such an order was not given, imposed a duty on the court to give reasons for not doing so. It also extended the range of injuries eligible for compensation. These new requirements mean that if the court fails to make a compensation order it must furnish reasons. Where reasons are given, the victim may apply for these to be subject to judicial review….

The 1991 Criminal Justice Act contains a number of provisions which directly or indirectly encourage an even greater role for compensation.”

(emphasis supplied)

36. In the United States of America, the Victim and Witness Protection Act, 1982 authorises a federal court to award restitution by means of monetary compensation as a part of a convict‘s sentence. Section 3553(a)(7) of Title 18 of the Act requires courts to consider in every case “the need to provide restitution to any victims of the offense”. Though it is not mandatory for the court to award restitution in every case, the Act demands that the Court provide its reasons for denying the same. Section 3553(c) of Title 18 of the Act states as follows:

“If the court does not order restitution or orders only partial restitution, the court shall include in the statement the reason thereof.”

37. In order to be better equipped to decide the quantum of money to be paid in a restitution order, the United States federal law requires that details such as the financial history of the offender, the monetary loss caused to the victim by the offence, etc. be obtained during a presentence investigation, which is carried out over a period of 5 weeks after an offender is convicted.

38. Domestic/Municipal legislation apart even the UN General Assembly recognised the right of victims of crimes to receive compensation by passing a resolution titled “Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, 1985”. The Resolution contained the following provisions on restitution and compensation:

RESTITUTION

8. Offenders or third parties responsible for their behaviour should, where appropriate, make fair restitution to victims, their families or dependants. Such restitution should include the return of property or payment for the harm or loss suffered, reimbursement of expenses incurred as a result of the victimisation, the provision of services and the restoration of rights.

9. Governments should review their practices, regulations and laws to consider restitution as an available sentencing option in criminal cases, in addition to other criminal sanctions.

10. In cases of substantial harm to the environment, restitution, if ordered, should include, as far as possible, restoration of the environment, reconstruction of the infrastructure, replacement of community facilities and reimbursement of the expenses of relocation, whenever such harm results in the dislocation of a community.

11. Where public officials or other agents acting in an official or quasi-official capacity have violated national criminal laws, the victims should receive restitution from the State whose officials or agents were responsible for the harm inflicted. In cases where the Government under whose authority the victimising act or omission occurred is no longer in existence, the State or Government successor-in-title should provide restitution to the victims.

COMPENSATION

12. When compensation is not fully available from the offender or other sources, States should endeavour to provide financial compensation to: (a) victims who have sustained significant bodily injury or impairment of physical or mental health as a result of serious crimes; (b) the family, in particular dependants of persons who have died or become physically or mentally incapacitated as a result of such victimisation.

13. The establishment, strengthening and expansion of national funds for compensation to victims should be encouraged. Where appropriate, other funds may also be established for this purpose, including in those cases where the State of which the victim is a national is not in a position to compensate the victim for the harm.”

39. The UN General Assembly passed a resolution titled “Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, 2005” which deals with the rights of victims of international crimes and human rights violations. These principles (while in their draft form) were quoted with approval by this Court in

# State of Gujarat v. High Court of Gujarat, (1998) 7 SCC 392

in the following words: (SCC pp. 432-33, para 94)

94. In recent years the right to reparation for victims of violation of human rights is gaining ground. The United Nations Commission of Human Rights has circulated draft Basic Principles and Guidelines on the Right to Reparation for Victims of Violation of Human Rights. (See annexure.)”

40. Amongst others the following provisions on restitution and compensation have been made:

“12. Restitution shall be provided to re-establish the situation that existed prior to the violations of human rights or international humanitarian law. Restitution requires inter alia, restoration of liberty, family life citizenship, return to one‘s place of residence, and restoration of employment or property.

13. Compensation shall be provided for any economically assessable damage resulting from violations of human rights or international humanitarian law, such as:

(a) Physical or mental harm, including pain, suffering and emotional distress;

(b) Lost opportunities including education;

(c) Material damages and loss of earnings, including loss of earning potential;

(d) Harm to reputation or dignity;

(e) Costs required for legal or expert assistance, medicines and medical services.”

41. Back home the Code of Criminal Procedure of 1898 contained a provision for restitution in the form of Section 545, which stated in subclause (1)(b) that the Court may direct “payment to any person of compensation for any loss or injury caused by the offence, when substantial compensation is, in the opinion of the court, recoverable by such person in a civil court”.

42. The Law Commission of India in its 41st Report submitted in 1969 discussed Section 545 of the Code of Criminal Procedure of 1898 extensively and stated as follows:

“46.12. Section 545.—Under clause (b) of sub-section (1) of Section 545, the court may direct ‘in the payment to any person of compensation for any loss or injury caused by the offence, when substantial compensation is, in the opinion of the court, recoverable by such person in a civil court‘.

The significance of the requirement that compensation should be recoverable in a civil court is that the act which constitutes the offence in question should also be a tort. The word ‘substantial’ appears to have been used to exclude cases where only nominal damages would be recoverable. We think it is hardly necessary to emphasise this aspect, since in any event it is purely within the discretion of the criminal courts to order or not to order payment of compensation, and in practice, they are not particularly liberal in utilising this provision. We propose to omit the word ‘substantial’ from the clause.”

43. On the basis of the recommendations made by the Law Commission in the above report, the Government of India introduced the Code of Criminal Procedure Bill, 1970, which aimed at revising Section 545 and introducing it in the form of Section 357 as it reads today. The Statement of Objects and Reasons underlying the Bill was as follows:

“Clause 365 (now Section 357) which corresponds to Section 545 makes provision for payment of compensation to victims of crimes. At present such compensation can be ordered only when the court imposes a fine; the amount is limited to the amount of fine. Under the new provision, compensation can be awarded irrespective of whether the offence is punishable with fine and fine is actually imposed, but such compensation can be ordered only if the accused is convicted. The compensation should be payable for any loss or injury whether physical or pecuniary and the court shall have due regard to the nature of injury, the manner of inflicting the same, the capacity of the accused to pay and other relevant factors.”

44. As regards the need for courts to obtain comprehensive details regarding the background of the offender for the purpose of sentencing, the Law Commission in its 48th Report on “Some Questions Under the Code of Criminal Procedure Bill, 1970” submitted in 1972 discussed the matter in some detail, stating as follows:

“45. Sentencing.—It is now being increasingly recognised that a rational and consistent sentencing policy requires the removal of several deficiencies in the present system. One such deficiency is a lack of comprehensive information as to the characteristics and background of the offender.

The aims of sentencing—themselves obscure—become all the more so in the absence of comprehensive information on which the correctional process is to operate. The public as well as the courts themselves are in the dark about judicial approach in this regard.

We are of the view that the taking of evidence as to the circumstances relevant to sentencing should be encouraged, and both the prosecution and the accused should be allowed to cooperate in the process.”

(emphasis supplied)

45. The Criminal Procedure Code of 1973 which incorporated the changes proposed in the said Bill of 1970 states in its Statement of Objects and Reasons that Section 357 was “intended to provide relief to the poorer sections of the community” and that the amended CrPC empowered the Court to order payment of compensation by the accused to the victims of crimes “to a larger extent” than was previously permissible under the Code. The changes brought about by the introduction of Section 357 were as follows:

(i) The word “substantial” was excluded.

(ii) A new sub-section (3) was added which provides for payment of compensation even in cases where the fine does not form part of the sentence imposed.

(iii) Sub-section (4) was introduced which states that an order awarding compensation may be made by an appellate court or by the High Court or Court of Session when exercising its powers of revision.

46. The amendments to the Code of Criminal Procedure brought about in 2008 focused heavily on the rights of victims in a criminal trial, particularly in trials relating to sexual offences. Though the 2008 amendments left Section 357 unchanged, they introduced Section 357- A under which the Court is empowered to direct the State to pay compensation to the victim in such cases where “

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”.

Under this provision, even if the accused is not tried but the victim needs to be rehabilitated, the victim may request the State or District Legal Services Authority to award him/her compensation. This provision was introduced due to the recommendations made by the Law Commission of India in its 152nd and 154th Reports in 1994 and 1996 respectively.

47. The 154th Law Commission Report on the Code of Criminal Procedure devoted an entire chapter to “Victimology” in which the growing emphasis on victim‘s rights in criminal trials was discussed extensively as under:

“1. Increasingly the attention of criminologists, penologists and reformers of criminal justice system has been directed to victimology, control of victimisation and protection of victims of crimes. Crimes often entail substantive harm to people and not merely symbolic harm to the social order. Consequently, the needs and rights of victims of crime should receive priority attention in the total response to crime. One recognised method of protection of victims is compensation to victims of crime. The needs of victims and their family are extensive and varied.

* * *

9.1. The principles of victimology has foundations in Indian constitutional jurisprudence. The provision on fundamental rights (Part III) and directive principles of State policy (Part IV) form the bulwark for a new social order in which social and economic justice would blossom in the national life of the country (Article 38). Article 41 mandates, inter alia, that the State shall make effective provisions for ‘securing the right to public assistance in cases of disablement and in other cases of undeserved want‘. So also Article 51-A makes it a fundamental duty of every Indian citizen, inter alia ‘to have compassion for living creatures‘ and to ‘develop humanism‘. If emphatically interpreted and imaginatively expanded these provisions can form the constitutional underpinnings for victimology.

9.2. However, in India the criminal law provides compensation to the victims and their dependants, only in a limited manner. Section 357 of the Code of Criminal Procedure incorporates this concept to an extent and empowers the criminal courts to grant compensation to the victims.

* * *

11. In India the principles of compensation to crime victims need to be reviewed and expanded to cover all cases. The compensation should not be limited only to fines, penalties and forfeitures realised. The State should accept the principle of providing assistance to victims out of its own funds….”

48. The question then is whether the plenitude of the power vested in the courts under Sections 357 and 357-A, notwithstanding, the courts can simply ignore the provisions or neglect the exercise of a power that is primarily meant to be exercised for the benefit of the victims of crimes that are so often committed though less frequently punished by the courts. In other words, whether courts have a duty to advert to the question of awarding compensation to the victim and record reasons while granting or refusing relief to them?

* * *

66. To sum up: 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. It is also beyond dispute that the occasion to consider the question of award of compensation would logically arise only after the court records a conviction of the accused. Capacity of the accused to pay which constitutes an important aspect of any order under Section 357 of the Code of Criminal Procedure would involve a certain enquiry albeit summary unless of course the facts as emerging in the course of the trial are so clear that the court considers it unnecessary to do so. Such an enquiry can precede an order on sentence to enable the court to take a view, both on the question of sentence and compensation that it may in its wisdom decide to award to the victim or his/her family.

67. Coming then to the case at hand, we regret to say that the trial court and the High Court appear to have remained oblivious to the provisions of Section 357 CrPC. The judgments under appeal betray ignorance of the courts below about the statutory provisions and the duty cast upon the courts. Remand at this distant point of time does not appear to be a good option either. This may not be a happy situation but having regard to the facts and the circumstances of the case and the time lag since the offence was committed, we conclude this chapter in the hope that the courts remain careful in future.‘

9. In

# Rohtash v. State of Haryana [Criminal Appeal No.250 of 1999, decided on 1-4-2008(P&H)]

a Division Bench of the Punjab & Haryana High Court observed:

18. May be, in spite of best efforts, the State fails in apprehending and punishing the guilty but that does not prevent the State from taking such steps as may reassure and protect the victims of crime. Should justice to the victims depend only on the punishment of the guilty? Should the victims have to wait to get justice till such time that the handicaps in the system which result in large scale acquittals of guilty, are removed? It can be a long and seemingly endless wait. The need to address cry of victims of crime, for whom the Constitution in its Preamble holds out a guarantee for “justice” is paramount. How can the tears of the victim be wiped off when the system itself is helpless to punish the guilty for want of collection of evidence or for want of creating an environment in which witnesses can fearlessly present the truth before the Court? Justice to the victim has to be ensured irrespective of whether or not the criminal is punished.

19. The victims have right to get justice, to remedy the harm suffered as a result of crime. This right is different from and independent of the right to retribution, responsibility of which has been assumed by the State in a society governed by the rule of law. But if the State fails in discharging this responsibility, the State must still provide a mechanism to ensure that the victim‘s right to be compensated for his injury is not ignored or defeated.

20. Right of access to justice under Article 39-A and principle of fair trial mandate right to legal aid to the victim of the crime. It also mandates protection to witnesses, counselling and medical aid to the victims of the bereaved family and in appropriate cases, rehabilitation measures including monetary compensation. It is a paradox that victim of a road accident gets compensation under no fault theory, but the victim of crime does not get any compensation, except in some cases where the accused is held guilty, which does not happen in a large percentage of cases.

21. Though a provision has been made for compensation to victims under Section 357 CrPC, there are several inherent limitations. The said provision can be invoked only upon conviction, that too at the discretion of the Judge and subject to financial capacity to pay by the accused. The long time taken in disposal of the criminal case is another handicap for bringing justice to the victims who need immediate relief, and cannot wait for conviction, which could take decades. The grant of compensation under the said provision depends upon financial capacity of the accused to compensate, for which, the evidence is rarely collected. Further, victims are often unable to make a representation before the court for want of legal aid or otherwise. This is perhaps why even on conviction this provision is rarely pressed into service by the courts. Rate of conviction being quite low, inter alia, for competence of investigation, apathy of witnesses or strict standard of proof required to ensure that innocent is not punished, the said provision is hardly adequate to address to the need of victims.

In

# Hari Singh v. Sukhbir Singh, (1988) 4 SCC 551

referring to provisions for compensation, the Hon‘ble Supreme Court observed: (SCC p. 558, para 10)

10. … This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes. It is indeed a step forward in our criminal justice system. We, therefore, recommend to all courts to exercise this power liberally so as to meet the ends of justice in a better way.”

22. It is imperative to educate the investigating agency as well as the trial Judges about the need to provide access to justice to victims of crime, to collect evidence about financial status of the accused. It is also imperative to create mechanisms for rehabilitation measures by way of medical and financial aid to the victims. The remedy in civil law of torts against the injury caused by the accused is grossly inadequate and illusory.

23. This unsatisfactory situation is in contrast to global developments and suggestions of Indian experts as well. Some of the significant developments in this regard may be noticed as under—

(1) UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, 1985, highlighting the following areas—

(i) Access to justice and fair treatment;

(ii) Restitution;

(iii) Compensation;

(iv) Assistance.

(2) Council of Europe Recommendation on the Position of the Victim in the Framework of Criminal Law and Procedure, 1985.

(3) Statement of the Victims‘ Rights in the Process of Criminal Justice, issued by the European Forum for Victims‘ Services in 1996.

(4) European Union Framework Decision on the Standing of Victims in Criminal Proceedings.

(5) Council of Europe Recommendations on Assistance to Crime Victims adopted on 14-6-2006.

(6) 152nd and 154th Reports of the Law Commission of India, 1994 and 1996 respectively, recommending introduction of Section 357-A in the Criminal Procedure Code, prescribing, inter alia, compensation to the victims of crime.

(7) Recommendations of the Malimath Committee, 2003.

24. The subject-matter has been dealt with by experts from over 40 countries in series of meetings and a document has been developed in cooperation with United Nations Office at Vienna, Centre for International Crime Prevention and the compilation under the heading “Handbook on Justice for Victims” which deals with various aspects of impact of victimisation, victims assistance programmes and role and responsibility of frontline professionals and others to victims. The South African Law Commission, in its “Issue Paper 7” (1997) under the heading “Sentencing Restorative Justice: Compensation for Victims of Crime and Victim Empowerment” has deliberated on various relevant aspects of this issue.

* * *

27. In Malimath Committee Report (March 2003), it was observed:

“6.7.1. Historically speaking, Criminal Justice System seems to exist to protect the power, the privilege and the values of the elite sections in society. The way crimes are defined and the system is administered demonstrate that there is an element of truth in the above perception even in modern times. However, over the years the dominant function of criminal justice is projected to be protecting all citizens from harm to either their person or property, the assumption being that it is the primary duty of a State under rule of law. The State does this by depriving individuals of the power to take law into their own hands and using its power to satisfy the sense of revenge through appropriate sanctions. The State (and society), it was argued, is itself the victim when a citizen commits a crime and thereby questions its norms and authority. In the process of this transformation of torts to crimes, the focus of attention of the system shifted from the real victim who suffered the injury (as a result of the failure of the State) to the offender and how he is dealt with by the State. Criminal Justice came to comprehend all about crime, the criminal, the way he is dealt with, the process of proving his guilt and the ultimate punishment given to him. The civil law was supposed to take care of the monetary and other losses suffered by the victim. Victims were marginalized and the State stood forth as the victim to prosecute and punish the accused.

6.7.2. What happens to the right of victim to get justice to the harm suffered? Well, he can be satisfied if the State successfully gets the criminal punished to death, a prison sentence or fine. How does he get justice if the State does not succeed in so doing? Can he ask the State to compensate him for the injury? In principle, that should be the logical consequence in such a situation; but the State which makes the law absolves itself.

* * *

6.8.1. The principle of compensating victims of crime has for long been recognized by the law though it is recognized more as a token relief rather than part of a punishment or substantial remedy. When the sentence of fine is imposed as the sole punishment or an additional punishment, the whole or part of it may be directed to be paid to the person having suffered loss or injury as per the discretion of the Court (Section 357 Cr.PC). Compensation can be awarded only if the offender has been convicted of the offence with which he is charged.

* * *

6.8.7. Sympathising with the plight of victims under criminal justice administration and taking advantage of the obligation to do complete justice under the Indian Constitution in defence of human rights, the Supreme Court and High Courts in India have of late evolved the practice of awarding compensatory remedies not only in terms of money but also in terms of other appropriate reliefs and remedies. Medical justice for the Bhagalpur blinded victims, rehabilitative justice to the communal violence victims and compensatory justice to the Union Carbide victims are examples of this liberal package of reliefs and remedies forged by the Apex Court. The recent decisions in

# Nilabati Behera v. State of Orissa, (1993) 2 SCC 746

and in

# Railway Board v. Chandrima Das, (2000) 2 SCC 465

are illustrative of this new trend of using constitutional jurisdiction to do justice to victims of crime. Substantial monetary compensations have been awarded against the instrumentalities of the State for failure to protect the rights of the victim.

6.8.8. These decisions have clearly acknowledged the need for compensating victims of violent crimes irrespective of the fact whether offenders are apprehended or punished. The principle invoked is the obligation of the State to protect basic rights and to deliver justice to victims of crimes fairly and quickly. It is time that the Criminal Justice System takes note of these principles of Indian Constitution and legislate on the subject suitably.”

10.

# State of Assam, In re PIL No.26 of 2013, decided on 24-4-2013 (Gau)

vide judgment dated 24-4-2013, a Division Bench of the Gauhati High Court observed:

“We have heard the learned counsel for the parties on the issue whether in absence of any prohibition under the scheme, interim compensation ought to be paid at the earliest to the victim irrespective of stage of enquiry or trial, either on application of the victim or suo motu by the Court. In

# Savitri v. Govind Singh Rawat, (1985) 4 SCC 337

question of interim maintenance under Section 125 CrPC was considered and it was observed: (SCC pp. 339-42, paras 3 & 6)

3. It is true that there is no express provision in the Code which authorises a Magistrate to make an interim order directing payment of maintenance pending disposal of an application for maintenance. The Code does not also expressly prohibit the making of such an order. The question is whether such a power can be implied to be vested in a Magistrate having regard to the nature of the proceedings under Section 125 and other cognate provisions found in Chapter IX of the Code which is entitled ‘Order for Maintenance of Wives, Children and Parents‘. Section 125 of the Code confers power on a Magistrate of the First Class to direct a person having sufficient means but who neglects or refuses to maintain (i) his wife, unable to maintain herself, or (ii) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or (iii) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or (iv) his father or mother, unable to maintain himself or herself, upon proof of such neglect or refusal, to pay a monthly allowance for the maintenance of his wife or such child, father or mother, as the case may be, at such monthly rate not exceeding five hundred rupees in the whole as such Magistrate thinks fit. Such allowance shall be payable from the date of the order, or, if so ordered from the date of the application for maintenance. Section 126 of the Code prescribes the procedure for the disposal of an application made under Section 125. Section 127 of the Code provides for alteration of the rate of maintenance in the light of the changed circumstances or an order or decree of a competent civil court. Section 128 of the Code deals with the enforcement of the order of maintenance. It is not necessary to refer to the other details contained in the above said provisions.

* * *

6. In view of the foregoing it is the duty of the court to interpret the provisions in Chapter IX of the Code in such a way that the construction placed on them would not defeat the very object of the legislation. In the absence of any express prohibition, it is appropriate to construe the provisions in Chapter IX as conferring an implied power on the Magistrate to direct the person against whom an application is made under Section 125 of the Code to pay some reasonable sum by way of maintenance to the applicant pending final disposal of the application. It is quite common that applications made under Section 125 of the Code also take several months for being disposed of finally. In order to enjoy the fruits of the proceedings under Section 125, the applicant should be alive till the date of the final order and that the applicant can do in a large number of cases only if an order for payment of interim maintenance is passed by the court. Every court must be deemed to possess by necessary intendment all such powers as are necessary to make its orders effective. This principle is embodied in the maxim ‘ubi aliquid conceditur, conceditur et id sine quo res ipsa esse non potest‘ (where anything is conceded, there is conceded also anything without which the thing itself cannot exist).

(Vide Earl Jowitt’s Dictionary of English Law, 1959 Edn., p. 1797.) Whenever anything is required to be done by law and it is found impossible to do that thing unless something not authorised in express terms be also done then that something else will be supplied by necessary intendment. Such a construction though it may not always be admissible in the present case however would advance the object of the legislation under consideration. A contrary view is likely to result in grave hardship to the applicant, who may have no means to subsist until the final order is passed. There is no room for the apprehension that the recognition of such implied power would lead to the passing of interim orders in a large number of cases where the liability to pay maintenance may not exist. It is quite possible that such contingency may arise in a few cases but the prejudice caused thereby to the person against whom it is made is minimal as it can be set right quickly after hearing both the parties. The Magistrate may, however, insist upon an affidavit being filed by or on behalf of the applicant concerned stating the grounds in support of the claim for interim maintenance to satisfy himself that there is a prima facie case for making such an order. Such an order may also be made in an appropriate case ex parte pending service of notice of the application subject to any modification or even an order of cancellation that may be passed after the respondent is heard. If a civil court can pass such interim orders on affidavits, there is no reason why a Magistrate should not rely on them for the purpose of issuing directions regarding payment of interim maintenance. The affidavit may be treated as supplying prima facie proof of the case of the applicant. If the allegations in the application or the affidavit are not true, it is always open to the person against whom such an order is made to show that the order is unsustainable. Having regard to the nature of the jurisdiction exercised by a Magistrate under Section 125 of the Code, we feel that the said provision should be interpreted as conferring power by necessary implication on the Magistrate to pass an order directing a person against whom an application is made under it to pay a reasonable sum by way of interim maintenance subject to the other conditions referred to therein pending final disposal of the application. In taking this view we have also taken note of the provisions of Section 7(2)(a) of the Family Courts Act, 1984 (Act 66 of 1984) passed recently by Parliament proposing to transfer the jurisdiction exercisable by Magistrates under Section 125 of the Code to the Family Courts constituted under the said Act.”

Above view has been reiterated, inter alia, in

# Shail Kumari Devi v. Krishan Bhagwan Pathak, (2008) 9 SCC 632

We are of the view that above observations support the submission that interim compensation 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 regard to the facts and circumstances of individual cases including the nature of offence, loss suffered and the requirement of the victim. On an interim order being passed by the Court, the funds available with the District/State Legal Services Authorities may be disbursed to the victims in the manner directed by the Court, to be adjusted later in appropriate proceedings. If the funds already allotted get exhausted, the State may place further funds at the disposal of the Legal Services Authorities.” (emphasis in original)

15. We are informed that 25 out of 29 State Governments have notified victim compensation schemes. The schemes specify maximum limit of compensation and subject to maximum limit, the discretion to decide the quantum has been left with the State/District Legal Authorities. It has been brought to our notice that even though almost a period of five years has expired since the enactment of Section 357-A CrPC, the award of compensation has not become a rule and interim compensation, which is very important, is not being granted by the courts. It has also been pointed out that the upper limit of compensation fixed by some of the States is arbitrarily low and is not in keeping with the object of the legislation.

16. We are of the view that it is the duty of the courts, on taking cognizance of a criminal offence, to ascertain whether there is tangible material to show commission of crime, whether the victim is identifiable and whether the victim of crime needs immediate financial relief. On being satisfied on an application or on its own motion, the court ought to direct grant of interim compensation, subject to final compensation being determined later. Such duty continues at every stage of a criminal case where compensation ought to be given and has not been given, irrespective of the application by the victim. At the stage of final hearing it is obligatory on the part of the court to advert to the provision and record a finding whether a case for grant of compensation has been made out and, if so, who is entitled to compensation and how much. Award of such compensation can be interim. Gravity of offence and need of victim are some of the guiding factors to be kept in mind, apart from such other factors as may be found relevant in the facts and circumstances of an individual case.

16. In the present case, the Hon’ble Apex Court had granted interim compensation of Rs.10 lacs after dismissing the appeal directing the State Legal Services Authority Haryana to pay the same.

17. It is relevant to state here that the rules framed by the State of Bihar wherein Rule-5 prescribes grant of interim compensation to be determined by the District Legal Services Authority was not under consideration while the Apex Court was considering the scope of 357A Cr.P.C. in the case of Suresh (Supra). As such, we consider it expedient to refer the matter to the District Legal Services Authority, Sitamarhi for the proper consideration and during course thereof, the District Legal Services Authority, Sitamarhi will condone the delay as empowered under rule 7 thereof. I.A. No.898 of 2016 is disposed of in above mentioned terms.

Comments