Oct 16, 201911 min

Compensation & Victim Compensation.

PROVISIONS:

General laws:

  1. compensation to victims of crime – sections 357,
         357(1), 357 (2), 357 (3), 357A, 358, 359 and 250 of the Code of Criminal
         Procedure, 1973

  2. Constitution of India – Articles 14 and 21.

  3. Rudal Shah vs. State of Bihar
         – AIR 1983 SC 1086 – Article 21 which guarantees the right to life and
         liberty will be denuded of its significant content if the power of this Court
         were limited to passing orders to release from illegal detention. One of the
         telling ways in which the violation of that right can reasonably be prevented
         and due compliance with the mandate of Article 21 secured, is to mulct its
         violaters in the payment of monetary compensation.

  4. D.K.Basu vs. state of W.B
         – (1997) SCC(Cri) 92 – Investigation – Arrest – Custodial death – Right to constitutional
         remedies – Power of Court – Torture during interrogation and investigation
         punishable under Section 330 IPC – Citizen is also entitled to compensation
         from State.

Special laws:

  1. Probation of Offenders Act, 1958.

  2. Motor Vehicles Act, 1988,

  3. The Scheduled Castes & The Scheduled Tribes
         (Prevention of Atrocities Act, 1989),

  4. Protection of Human Rights Act, 1993,

  5. Workmen Compensation Act, 1923,

  6. Domestic Violence Act, 2005,

  7. Railways Act, 1989,

  8. Tamil Nadu Victim Compensation Scheme, 2013 – by
         G.O M.S no: 1055 (30.11.2013) based on the judgment S. Sathia Chandran Versus State of Tamil Nadu, Rep. by the Secretary to
         Government, Home Department & Another – W.P. NO. 17598 OF 2012 – This
         writ petition as Public Interest Litigation has been filed seeking a direction
         upon the respondents to take steps and prepare a Victim Compensation Scheme as
         mandated by Section 357-A of the Code of Criminal Procedure.

  9. Victim Compensation scheme, 2018: for
         Protection of Children from Sexual Offences Act, 2012 (for short ‘POCSO’) – NIPUN SAXENA AND ANOTHER vs. UNION OF INDIA AND OTHERS – (2018)
         15 Scale 769=(2019) 2 SCC 703 – by G.O.
         Ms. No. 1591, Home (Pol.12) (24th September 2018) – published in Government
         Gazette dated: 3.10.2018

OBJECT & SCOPE OF COMPENSATION – EXPLAINED: after
 explained section 357 Cr.P.C in detail the Hon’ble Apex Court has held that in
 awarding compensation as cautioned by this Court in a decision reported
 in Palaniappa Gounder Vs. State of Tamil Nadu and Others,
 Others, , the Court should not first consider what compensation ought
 to be awarded to the heirs of the deceased and then impose a fine which is
 higher than the compensation. It is the duty of the Court to take into
 account the nature of the crime, the injury suffered, the justness of the claim
 for compensation, the capacity of the accused to pay and order relevant
 circumstances in fixing the amount of fine or compensation [SARWAN SINGH AND OTHERSvs. State of Punjab – AIR
 1978 SC 1525].

Section 357 Cr.P.C: Under S. 357 Cr.P.C only accused person can be
 directed to pay compensation to victim/injured and not state. Also, accused has
 to pay compensation to victim and not to state [Section
 357(3) Cr. P.C. provides for ordering of payment by way of compensation to the
 victim by the accused- Balraj vs. State of H.P – (1994) 4 SCC 29].

According
 to s. 357 subs. (1) and sub-s. (3) of Cr.P.C, the court may award compensation
 to the victim of crime at the time of passing judgment. These provisions make
 the trial courts and the appellate courts competent to award compensation to
 the victims of crime only after conviction of the accused.

For
 payment of compensation under Section 357 (1) of Cr.P.C. imposition of fine is
 must as compensation can be ordered to be paid out of the fine imposed. Section
 357(3) Cr.P.C empowers the Court to award compensation for loss or injury
 suffered by a person, in cases where fine does not form a part of the sentence.

The
 basic difference between sections 357 (1) & (3) is that in the former case,
 the imposition of the fine is the basic and essential requirement, while in the
 latter even in the absence (of fine) thereof court can direct payment of
 compensation.

Section 357A Cr.P.C: This is because the object of Section 357- A
 Cr.P.C. is to pay compensation to victims, where compensation paid under
 Section 357 of Cr.P.C. is not adequate or where the case ended in acquittal or discharge
 and where the victim is required to be rehabilitated [E.AthiyasaKumar vs. The State of Tamil Nadu,
 through the Secretary to Government, Home (Prison) Department, Secretariat,
 Fort St. George, Chennai – W.P.(MD)No.16822 of 2016 and W.M.P.(MD) No.12198 of
 2016 – 21.02.2018].

[When
 a person convicted for life sentence and directed to pay compensation and has
 no property to recover and also he determined to stay inside. Now, what would
 be the fate of the compensation directed by the court to the victim].

Who is entitled? Every victim (irrespective of getting compensation under special laws) is entitled to get compensation.

  1. ACCIDENT
         CASE – INSURANCE COMPANY PAID ALREADY: In our view, the sentence of mere fine of Rs. 40,000/- imposed by the
         High Court is not adequate and proportionate to the offence. We have been
         informed that a sum of Rs. 3,60,000/- has been awarded as compensation by the
         insurance company to the heirs of the deceased. We are also of the view that
         where the accused is unable to pay adequate compensation to the victim or his
         heir, the Court ought to have awarded compensation Under Section 357A against
         the State from the funds available under the Victim Compensation Scheme framed
         under the said section [State of Himachal Pradesh vs. Ram Pal – (2015) 3 SCALE 111 : (2015) 11 SCC
         584]

  2. ACCUSED PAID
         ALREADY – Regard being had to the aforesaid decisions we
         direct the accused-respondent No. 2 to pay a compensation of Rs. 50,000/- and
         the State to pay a compensation of Rs. 3 lakhs. If the accused does not pay the
         compensation amount within six months, he shall suffer further rigorous
         imprisonment of six months, in addition to what has been imposed by the trial
         court. The State shall deposit the amount before the trial court within three
         months and the learned trial Judge on proper identification of the victim,
         shall disburse it in her favour [Ravada Sasikala Versus State of Andhra Pradesh & Another – Criminal
         Appeal Nos. 406-407 of 2017 (@ S.L.P. (Criminal) Nos. 9389-90 of 2016) – dt:
         27-02-2017].

COMPENSATION – MUST BE REASONABLE: The payment by way of
 compensation must, however, be reasonable. What is reasonable, may depend
 upon the facts and circumstances of each case. The quantum of compensation may
 be determined by taking into account the nature of crime, the justness of claim
 by the victim and the ability of accused to pay. If there are more than one accused,
 they may be asked to pay in equal terms unless their capacity to pay varies
 considerably. The payment may also vary depending upon the acts of each
 accused. Reasonable period for payment of compensation, if necessary by
 instalments, may also be given. The Court may enforce the order by imposing
 sentence in default [HARI KISHAN
 vs. SUKHBIR SINGH AND OTHERS – (1988) 2 SCALE 426=(1988) 4 SCC 551=(1988)
 SCC(Cri) 984].

CAPACITY OF OFFENDER/CONVICT:

  1. In awarding compensation, the court has to decide
         whether the case is fit one in which compensation has to be awarded. If it is
         found that compensation should be paid, then the capacity of the accused to pay
         compensation has to be determined [Baldev singh @ anr vs. State of Punjab – (1995)6
         SCC 593].

  2. Before issuing a direction to pay compensation,
         the capacity of accused to pay the same must be judged. A fortiori, an enquiry
         in this behalf even in a summary way may be necessary [Dilip S. Dahnukar vs. Kotak Mahindra Co Ltd &
         anr – (2007) 6 SCC 528].

  3. Capacity of the accused to pay which constitutes
         an important aspect of any order u/s 357 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 [Ankish Shivaji Gaikwad vs. State of Maharashtra –
         (2013) 6 SCALE 778 : (2013) 6 SCC 770 : (2014) 1 SCC(Cri) 285 ].

LIMIT OF COMPENSATION: No limit is mentioned in the sub-section and therefore, a Magistrate can award any sum as compensation. Of course while fixing the quantum of such compensation the Magistrate has to consider what would be the reasonable amount of compensation payable to the complainant [Pankajbhai Nagjibhai Patel vs. State of Gujarat – AIR 2001 SC 567=(2001) 1 SCALE 102=(2001) 2 SCC 595=(2001) SCC(Cri) 369]. 

Sections 357(1) & 357 (3)
 Cr.P.C – difference of opinion in default of payment of compensation [Chapter
 32 – Execution]:

  1. Compensation
         can be directed to be paid both in terms of sub-section (1) of Section 357 of
         the Code of Criminal Procedure as also sub-section (3) thereof. However, while
         exercising jurisdiction under sub-section (3) of Section 357, no direction can
         be issued that in default to pay the amount of compensation, the accused shall
         suffer simple imprisonment. Such an order could have been passed only in terms
         of sub-section (1) of Section 357. If the compensation directed to be paid by
         the Court in exercise of its jurisdiction under sub- section (3) of Section
         357, Criminal Procedure Code is not deposited, the same can be realised as fine
         in terms of Section 421 of the Code [Ahmed Kutty vs. Abdullakoya – (2009) 6SCC 660=(2009) 3 SCC(Cri)
         302].

  2. It is true
         that the said provision does not include the power to impose a default
         sentence, but read with Section 431 Cr.P.C. the said difficulty can be overcome
         by the Magistrate imposing the sentence. Supreme Court further concludes that
         the provisions of Sections 357(3) and 431 Cr.P.C., when read with Section 64
         IPC, empower the Court, while making an order for payment of compensation, to also
         include a default sentence in case of non-payment of the same [Vijayan vs. Sadanandan – 2009 (6) SCC 652].

  3. LATEST
         PROPOSITION:
         All the circumstances in sub­section (1) of Section 357
         refer to direction to pay compensation out of the fine
         imposed. Thus, all the circumstances are circumstances where
         fine imposed and recovered is to be applied
          in the above circumstances [Satyendra Kumar Mehra @ Satendera Kumar Mehra vs.
         The State of Jharkhand – CRIMINAL APPEAL NO.406 OF 2018
         (ARISING OUT OF SLP(CRL.)NO.1994 OF 2018)].
         As far as section 357 (3) Vijayan vs. Sadanandan (supra) case has been approved
         in Kumaran vs. State of Kerala @
         anr – (2017) 6 Scale 62=(2017) 7 SCC 471=(2017) 3 SCC(Cri) 431.

INTERIM COMPENSATION: It is the duty of the court, on taking cognizance
 of a criminal offence, to ascertain whether there is tangible material which
 showed the commission of the crime, whether the victim was identifiable and
 whether the victim of crime require immediate financial relief. On being
 satisfied either on application or suo moto, the court ought to direct the
 grant of interim compensation, subject to the final determination of
 compensation at a later stage. This duty continues at every stage of criminal
 case, where compensation ought to be given but not 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 as to
 whether a case for grant of compensation had been made, if so who is entitled
 to compensation and how much. Award of the compensation can be interim. 5.
 Gravity of the offence and need of victim are to be the guiding factors, apart
 from other factors which are relevant to the facts and circumstances of the
 case [Suresh v. State of Haryana – criminal
 appeal No.420 of 2012 decided on 28 November, 2014] [Also there is a direction to National Judicial
 Academy to circulate this judgment to all the courts in INDIA].

DEPOSIT OF COMPENSATION AMOUNT: On perusal of the S.
 357(2) indicates that even if the compensation amount is deposited, the payment
 cannot be made to the victim before the decision of the appeal. It is not
 always necessary to insist for the payment of compensation amount as condition
 precedent for passing an order of suspension of sentence. The order of directing payment of compensation amount by the Trial Court
 is also a subject matter of appeal being right of the accused. The position may
 be different it is a case of remission. [2011
 – 1 – LW (Crl) 646 – C.Murugesan vs. Prabakaran & ors].

VICTIM
 COMPENSATION – DEPOSIT:

Victim Compensation Scheme
 has been considered by this Court in State of H.P. Vs. Rampal (2015(11) SCC
 584) and this Court opined that compensation of Rs. 40,000/- was inadequate
 taking note of the fact that the life of young child aged 20 years was lost and
 taking note of the precedents observed that in the interest of justice, the
 accused is required to pay a sum of Rs. 1 lakh and the State to pay a sum of
 Rs. 3 lakhs as compensation. Taking note of the precedents of which reference
 has been made, we consider it appropriate to observe that both the accused
 shall pay the additional compensation of Rs. 1,50,000/-(Rupees One Lakh and
 Fifty Thousand) each and the State of Himachal Pradesh shall pay the
 compensation as admissible under the Victim Compensation Scheme as in vogue to
 the acid victim (Ishita Sandhu, D/o Late Shri Rikhi Ram Sandhu) (Appellant No.
 2). If the accused does not pay the additional compensation amount of Rs.
 1,50,000/- (Rupees One Lakh and Fifty Thousand) each within six months, the
 defaulting accused shall suffer rigorous imprisonment of six months. The State
 shall deposit the compensation before the trial Court within three months from
 today and the learned trial Court, after proper identification of the victim,
 disburse at the earliest [State of Himachal Pradesh & Another Versus Vijay
 Kumar Alias Pappu & Another – Criminal Appeal No. 753 of 2010 – 15-03-2019].

EVALUATION OF VICTIM
 COMPENSATION SCHEME: The 154th Law
 Commission Report on the CrPC devoted an entire chapter to ‘Victimology’ in
 which the growing emphasis on victim’s rights in criminal trials was discussed
 extensively as under:

SECTION 357 – A CR.P.C – NO
 TRIAL: Sub-section (4) of Section
 357A states that even where no trial takes place and the offender is not
 traced or identified; but the victim is known, the victim or his dependents
 can apply to the State or the District Legal Services Authority for award of
 compensation.

VICTIM COMPENSATION SCHEME – NOT ENOUGH: The Courts
 have provided solace to the victim with monetary compensation, but that is not
 enough. There are victim compensation schemes in force due to the mandate of
 Section 357A of the Code of Criminal Procedure, 1973 (the Cr.P.C.) but even
 that is not enough, though they are being implemented in several parts of the
 country. We are of the view that the judiciary is obliged to go and has gone
 beyond merely awarding compensation and has taken into consideration the larger
 picture from the perspective of the victim of an offence, relating to
 infrastructure in court buildings and has recommended and implemented some
 recommendations such as the construction of child friendly courts and courts
 that address the concerns of vulnerable witnesses. The Courts have done and are
 continuing to do their best for the victims of crime [MALLIKARJUN KODAGALI (DEAD) REPRESENTED
 THROUGH LEGAL REPRESENTATIVES vs STATE OF KARNATAKA AND ORS – (2018) 14 Scale
 32 : (2019) 2 SCC 752 : (2019) 1 SCC(Cri) 801].

VICTIM COMPENSATION FUND UTILISATION – Tamilnadu: While
 dealing a Writ Petition, Madras (Madurai) High Court has directed that the
 first respondent shall thereafter issue appropriate directions for disbursement
 of the victim compensation fund deducted from the wages of the prisoners under
 rule 486(6) of Tamil Nadu Prison Rules, 1983. Such direction shall be issued
 within 8 weeks thereafter [E.AthiyasaKumar
 vs. The State of Tamil Nadu, through the Secretary to Government, Home (Prison)
 Department, Secretariat, Fort St. George, Chennai – W.P.(MD)No.16822 of 2016
 and W.M.P.(MD) No.12198 of 2016 – 21.02.2018].

DIFFERENCE
 BETWEEN COMPENSATION SCHEME UNDER SECTION 357-A AND SECTION 357,CRPC:

  1. Under
         Section 357 A, compensation is payable out of funds created by the State
         Government and under Section 357, it is payable out of fine recovered from
         convict.

  2. Under Section
         357 A, compensation is payable even if offender is not traced or
         identified but under Section 357, it is payable only upon conviction of
         offender.

  3. Under
         Section 357 A, compensation is payable in addition to compensation awarded
         under Section 357 and under Section 357, there is no such provision.

  4. Section 357
         A is a mandatory provision for compensation whereas Section 357 is
         discretionary for the courts but mandatory for State government.

  5. Under
         Section 357 A, order for compensation is made by District Legal Service
         Authority or State Legal Service Authority and under Section 357 by the Court.

  6. Section 357
         A empowers District Legal Service Authority or State Legal Service
         Authority to make Order for interim relief and under Section 357, there is no
         such provision.

  7. Under
         Section 357 A, no condition is specified for dependents of victim entitled to
         compensation. Under Section 357 only dependents or heirs of victim who are
         entitled under Fatal Accidents Act can claim compensation.

PROBATION OF OFFENDERS ACT,1958 – Power of court to require released offenders to
 pay compensation – The Court directing the release of an offender under section
 3 or section 4 may make at the same time a further order directing him to
 pay such compensation as the court thinks reasonable for loss or injury caused
 to any person by the commission of the offence; and such costs of the
 proceedings as the court thinks reasonable.

#victimcompensation #victimscheme #victimcompensationscheme #scheme #compensation