By: Arryan Mohanty
Published on: March 27, 2022 at 10:00 IST
Introduction
Criminal law has always prevented acts or omissions that can harm right in rem in general, and offenders have always been punished harshly, but the crime rate is not decreasing, and the State is constantly striving to maintain Social Cohesion and Peace in Society.
Criminologist’s early concentration was solely on the issue of punishment, but this shifted when they realized that the victim of crime gets nothing out of the entire criminal justice system or gets so-called satisfaction from seeing the offender punished.
As a result, jurists, prosecutors, and others in all countries began to devote their whole attention to the cause of the victim in the form of compensation, and a dispute erupted regarding the manner, means, and extent of compensation.
Victim compensation was a unique notion devised by the Indian judiciary to achieve justice. By providing alleviating means to remunerate victims, the modern concept of justice has demonstrated terrible concern.
Since the time of the Indian Constitution’s plan, systems and regulations for victim compensation have been growing.
Sections 357, 357(1), 357 (2), 357 (3), 357A, 358, 359, and 250 of the Code of Criminal Procedure, 1973, govern the payment of restitution to victims of wrongdoing.
The Indian Constitution also includes explicit protections for victims of wrongdoing. The position is supported by Articles 14 and 21 of the Constitution.
Following the United Nations Declaration of Basic Principles of Crime and Abuse of Power in 1985, the birth of victim rights began to flourish in the last several decades.
Since then, there has been a growing recognition that victims are at the heart of the criminal justice system, and consistent attempts have been made to better their circumstances.
Since then, there has been a growing recognition that victims are at the heart of the criminal justice system, and consistent attempts have been made to better their circumstances. Compensation for the damage caused is one of the most important aspects of reassuring and assisting the victim, and it was deemed a key proponent of the ‘Right to Life’ under Article 21 of the Indian Constitution.
Later, under Section 357A of the Code of Criminal Procedure, 1973, the state was required to compensate victims and their dependents who had been damaged as a result of the damage committed.
Almost all states in the country have created Victim Compensation Schemes to ensure that victims are fairly compensated.
The discovery of reparation in Indian law dates back to the British colonization period. Section 545, sub-clause (1) (b) of the Code of Criminal Procedure of 1898 states that a Court may order an individual to pay compensation for losses incurred or injury caused by the offence, if substantial compensation is rightfully considered recoverable by such individual in the Civil Courts, in the opinion of the Court.
The relevance of compensability was initially distinguished by the word ‘substantial’ in the 41st Report of the Law Commission of India, which alienated the cases of recovery of nominal costs.
Later, under Section 357A of the Code of Criminal Procedure, 1973, the state was required to compensate victims and their dependents who had been damaged as a result of the damage committed.
Almost all states in the country have created Victim Compensation Schemes to ensure that victims are fairly compensated.
On the basis of the recommendations made in the Law Commission’s report, the Government of India drafted the Code of Criminal Procedure Bill, 1973.
Section 545 was revised and reintroduced in the same manner as Section 357, which is currently in effect and has resulted in significant changes in the framework.
The Indian legal basis for compensatory relief for crime victims can be traced back to the Code of Criminal Procedure.
The Probation of Offenders Act of 1985, the Motor Vehicles Act of 1988, the Consumer Protection Act of 1986, the Indian Railways Act, the Protection of Women from Domestic Violence Act of 2005, the Sexual Harassment (Prevention, Protection and Redresses) Act of 2013, and the Fatal Accidents Act of 1855 all have provisions for compensating victims of crime.
Also read: Recent Judgements under Criminal Law
Definition of ‘Victim’
Any individual, group, or entity who has been harmed, injured, or lost as a result of the illegal conduct of others.
The harm could be Financial, Psychological, or Physical. As a result, anyone who has been harmed as a result of a Criminal Law infringement is a Victim.
Even if the culprit is not discovered or prosecuted, a person will be deemed a victim.
Individuals who have been harmed as a result of supporting victims in distress or preventing victimization are also considered victims.
Victims include not only those who have suffered a loss or harm, but also those who are close to the victims (family members).
If a victim is deceased or unable to act on his or her own behalf, the following parties can exercise the victim’s rights:
- Victim’s Spouse
- Common Legal Partner who has lived with the victim for at least one year prior to the victim’s death
- A Relative or Dependent of the Victim
- Anyone who has Custody of the Victim or of the Victim’s dependent
A person who has been charged, convicted, or found not legally accountable for the offence that resulted in victimization due to a mental disorder is not considered a victim.
For example, if a parent has been charged with child abuse, that parent will not be able to exercise the rights of the child victim or their own parental rights.
The term ‘Victim’ is defined in Indian law under Section 2(wa) of the CrPC, 1973 as ‘Any individual who has incurred any loss or injury as a result of the act or omission for which the accused person has been charged, and victim includes the accused Person’s Guardian or Legal Successor.’
The Indian legislature has made no attempt to define ‘Victim of Crime’ under any statute, and the Indian judiciary is likely to follow suit.
Anyone suffering bodily, emotional, or financial injury as a direct result of a crime.
Spouses and children of the victim.
Parents, foster parents, siblings, guardians or other custodians of minor victims, mentally or physically incompetent victims, or victims of homicide.
In this regard, the United Nations General Assembly Declaration of Basic Principles of Justice for Victims and Abuse of Power, adopted in November 1985, provides an exhaustive definition of ‘Victims’:
- Victims means persons who have suffered harm, including physical or mental injury, emotional suffering, economic loss, or substantial impairment of their fundamental rights, as a result of acts or omissions.
- Regardless of whether the perpetrator is identified, apprehended, prosecuted, or convicted, and regardless of the perpetrator’s familial relationship with the victim, a person may be considered a victim under this Declaration. The term ‘victim’ also includes, where applicable, the direct victim’s immediate family or dependents, as well as those who have been harmed while intervening to help victims in distress or prevent victimization.
Hence, the combined effect of these Articles likely contains everything under the sun that should have been included in the phrase’s meaning.
A thing that compensates or is supplied to compensate (for); a counterbalancing characteristic or factor; amends, recompense; e.g., money paid to compensate for loss or injury, or for requisitioned property in its literal sense.
When we talk about compensation for victims, we are referring to something that is offered as a form of remuneration, i.e., an equivalent rendered.
It should be highlighted that the entire goal of compensation is to compensate the victim or legal representative of the deceased for their loss.
Generally, when we talk about compensation in the present context it only restricts itself to monetary compensation which is computed on the basis of two head i.e., pecuniary loss and non-pecuniary loss.
History of Victim Compensation in India
The ancient Indian history attests to the notion that victims of crimes are entitled to adequate restitution in the form of recompense for their injuries.
Dr. Priyanath Sen, author of the book General Principles of Hindu Jurisprudence, says,
“It is, however, remarkable that in so far as it was concerned to be the duty of the King to protect the property of his people, it was remarkable that in so far as it was concerned to be the duty of the King to protect the property of his people, it was remarkable that in so far as it was concerned to be the duty of the King to protect the property of his people.”
If the King could not restore the stolen things or reclaim the price for the owner by apprehending the thief, it was deemed his obligation to pay the price from his personal treasury, which he might then recover from the village officers who were responsible for the thief’s escape due to their carelessness.
Reparation or compensation as a form of punishment has been documented in India since ancient times. Compensation was recognized as a royal right in ancient Hindu law throughout the Sutra period.
The law of Manu mandates the offender to compensate the victim and pay for medical expenses if the victim is injured, as well as satisfaction to the owner if assets are harmed.
The assailant must pay the costs of a perfect cure or, if he fails, both full damages and a fine in all situations of cutting a limb, injuring, or obtaining blood.
It demonstrates that victim compensation was never an alien concept in the country’s justice delivery institutions.
The Articles of the Criminal Procedure Code, 1973, and different judgements of the Hon’ble Supreme Court provide the foundation of the legislation in our modern legal systems dealing to victim compensation.
How can cases be transferred to Supreme Court?
The topic that needs to be considered is whether, despite having rules for victim compensation, these laws are being used satisfactorily by those who are responsible for enforcing these laws and ensuring that they have beneficial results.
The answer is very rarely. There are numerous explanations for this.
Some are more evident, such as the 12th century division of English law of wrongs into Civil and Criminal wrongs, which leads to the assumption that compensation is solely the purview of Civil law, while others are less visible, such as the ignorance of people who can carry out these benefactions.
The current criminal justice system is built on the notion that the conviction of the culprit is sufficient to satisfy the rights of a victim of crime.
The victim is not only overlooked, but also lost in silence in our current adversarial court system between the state and the accused.
The Victim’s role is limited to reporting the crime and testifying in court on behalf of the prosecuting party, which is the State.
Legal Provisions
Under the Code of Criminal Procedure, 1973
Section 357: Order to Pay Compensation
Section 357’s scope and application extend to any compensation order made by the Trial Court, a Court of Session, or any appellant or High Court while exercising their revision jurisdiction.
This clause also gives the Supreme Court the power to order compensation.
The implementation of this Section is restricted in the application under four specific instances.
These compensations might be requested by the complainant in order to satisfy and cover the costs of the prosecution.
A person who has been harmed or injured as a result of the crime might seek redress in these competent Courts.
Where there has been a conviction in regard to causing death or abatement, these Courts are competent to grant such compensations to the individual who is entitled to seek damages under the Fatal Accidents Act.
Section 357 also applies to circumstances in which a property has been damaged.
In such cases, courts have the authority to award compensation to the genuine purchaser of property that has been the victim of theft, criminal breach of trust, cheating, misappropriation, or acquiring, retaining, or disposing of stolen property, and which has been ordered to be returned to the genuine owner.
Even if the punishment specified in Section 357, Subsection does not include the payment of a fine, the court has the authority to require payment of compensation.
Section 357A: Victim Compensation Scheme
The Law Commission noted in the 154th amendment that the previous recommendations had not been considered or implemented by the government.
An additional provision of Section 357A was added to achieve the practical application of the previous provision of Section 357.
Previously, there was no duty to the victim in the absence of 357A, and compensation could only be obtained after the accused was convicted.
In 2009, the Central Government gave directives to every state to develop a programme which has to be in conformity with the Center’s Strategy for Victim Compensation.
The principal goal of the plan is to give cash for the purpose of compensation to the victim or his dependents who have incurred loss or injury as a result of the crime and who require rehabilitation.
Compensation amount under the system
The court is the one who orders that the victim who has suffered a loss be paid.
When the Court makes a recommendation for compensation, the District Legal Service Authority or the State Legal Service Authority, as the case may be, determines the amount of compensation to be paid.
In the event that the accused is not found guilty or the perpetrators are not identified, compensation may be awarded.
The court may issue a proposal for compensation if the proceedings conclude in acquittal or discharge, and the victim must be rehabilitated.
The victim or his dependents may apply to the State or the District Legal Services Authority for an award of compensation if the offender is not discovered or identified but the victim is, and if there is no trial.
Who is responsible for providing compensation?
After a thorough investigation, the State or the District Legal Services Authority must provide adequate compensation by finishing the investigation within two months.
On the police certificate, it is also the responsibility of the State or the district legal service authority to provide an immediate first-aid facility or medical benefits to the victim at no cost.
Treatment of Victims
All Public and Private Hospitals, whether run by the Central Government, the State Government, local governments, or any other person, must give free first-aid or medical treatment to victims of any offence specified by the following sections of the Indian Penal Code:
- 376 (Rape)
- 376A (intercourse by a man with his wife during separation)
- 376 B (intercourse by a public servant with a woman in his custody), 376 C (Intercourse by superintendent of jail or a remand home), 376 D (intercourse by any member of the staff of a hospital with any woman in that hospital) of the Indian Penal Code.
- 376 C (Intercourse by superintendent of jail or a remand home),
- 376 D (intercourse by any member of the staff of a hospital with any woman in that hospital) of the Indian Penal Code
What should be done if the compensation is insufficient?
If the trial court concludes that the compensation awarded under section 357 is insufficient for such rehabilitation, or if the cases terminate in acquittal or discharge and the victim must be rehabilitated, it may make a recommendation for compensation.
When will the compensation be made available?
It is the state’s responsibility, as well as the offender’s, to recompense the victim.
At the completion of the trial, compensation can be given to the victim of crime. This is in accordance with the court’s directions.
When the victim of a crime receives insufficient compensation from the Lower Court, the Appellate Court may increase the compensation. When an accused person cannot be found, it is the state’s responsibility to compensate the victim of the crime.
Section 358: Compensation to persons groundlessly arrested
This section provides recompense to anyone who has been the victim of an arrest for no apparent reason. There must be a direct link between the complainant and the arrest in order to apply this section.
In the absence of any acceptable grounds, the arrest must be triggered by a specific piece of information. It has been mentioned that in such a case, the Magistrate may award compensation to the sufferer in the amount of Rs 1,000.
Section 359: Order to pay costs in non-cognizable cases
This section deals with situations in which a court receives a complaint for a Non-cognizable offence and the accused is found guilty.
The section states that while exercising their revision jurisdiction, the Court of Session, an Appellant Court, or the High Court can order the payment of costs.
In addition to the penalty imposed, the court has the power to order the accused to pay the complaint the costs incurred during the prosecution, in whole or in part.
In circumstances when the accused fails to make the payment, the court has the authority to condemn him to incarceration for a period of not more than 30 days.
The first case in the line that caught the Court’s attention was in 1952, when the Court connected a general principle of sentencing, namely, that when passing a sentence, the Court must consider the proportionality between the offence and the penalty with the granting of compensation, and observed that when imposing the fine, the Court must consider the gravity of the offence and the offender’s financial situation.
Under Indian Constitution
The Supreme Court developed the principle of payment of compensation to the victim of crime on the grounds that it is the duty of the welfare state to protect Citizen’s Fundamental Rights not only against the actions of its agencies, but also on the grounds of humanitarianism and social welfare, duty to protect its subjects, equitable justice, and so on.
It should be mentioned that the Hon’ble Court developed indemnification by the State for the action of its official against the English legal idea of ‘King can do no wrong,’ as stated in the case of Nilabati Behera v State of Orissa[1] that the doctrine of sovereign immunity applies only in the case of a Tortious act by a Government Agent, not when basic rights are violated, and thus, in a sense, this doctrine is not applicable in criminal cases (unless fundamental rights are violated).
The most famous case is Rudal Sah v State of Bihar[2], in which the Hon’ble Supreme Court ordered the state to pay Rs 35,000 in compensation to Rudal Sah, who was imprisoned for 14 years despite his acquittal on the grounds of insanity, and concluded that the State of Bihar had violated Article 21.
Another noteworthy case is Bhim Singh v State of J&K[3], in which Bhim Singh, an MLA, was arrested by the police in order to prevent him from attending the Legislative Assembly. The Hon’ble Court not only heard his wife’s writ suit, but also granted the state compensation of Rs 50,000.
The case of Meja Singh v SHO Police Station Zira[4] is another terrible case in which the High Court of Punjab and Haryana took up the cause of the victim and awarded Rs 25,000 in compensation for the petitioner’s son’s wrongful incarceration.
This time, the victim’s cause was taken up by the High Court of Bombay in the case of Ravikant Patil v DG Police, State of Maharashtra[5], where the petitioner was taken to court handcuffed in clear violation of the Hon’ble Supreme Court’s decision in the case of Prem Shanker Shukla v Delhi Administration[6].
The most notable case under this area is Mrs. Cardino v Union of India[7], in which the accuse was arrested on the allegation of misappropriation of some plastic ware and hospital utensils worth Rs1500 but tormented like a hard-core criminal and thus died as a result of the abuse.
When the petition was filed before the Hon’ble High Court of Bombay, the state was ordered to pay Rs 2,00,000 in compensation. The landmark case of SAHELI v Commissioner of Police[8], in which the son of Kamlesh Kumari died as a result of improper treatment by a S.I. of Delhi Police, the Hon’ble Supreme Court ordered the Delhi Adm. to pay Rs 75,000 in compensation.
The next significant case is Gudalure Cherian v Union of India[9], in which the Hon’ble Supreme Court took an innovative approach by ordering that the entire matter be reinvestigated by the CBI, and upon completion of the investigation, the state of Uttar Pradesh be ordered to suspend the police officers and medical officers who attempted to save the accuse, as well as pay compensation of Rs 2,50,000 to the rape victim and Rs 1,00,000 to the victim of other crime.
The case of Bodhi Satta Gautam v Subhra Chakraborty[10] is the next in line, in which the Hon’ble Supreme Court invented the concept of interim compensation and enforced the part third right against an individual by saying: This decision recognises the victim’s right to compensation by providing that it shall be awarded by the Court on conviction of the offender subject to the Central Government’s finalization of the Scheme.
If a Court trying a rape case has authority to pay compensation at the end of the case, there’s no reason to deny the Court the Right to award Interim compensation, which should be included in the Scheme as well.
The jurisdiction to pay interim compensation shall be treated as part of the overall jurisdiction of the Courts trying the offences of rape, which is an offence against basic human rights as well as the Fundamental Right to Personal Liberty and Life, as stated in the aforementioned decision in Delhi Domestic Working Women’s Forum.
According to the Court, ‘having regard to the facts and circumstances of the present case in which there is a serious allegation that Bodhisattva Gautam married Subhra Chakraborty before the God he worshipped by putting Vermilion on her forehead and accepting her as his wife, and also having impregnated her twice resulting in abortion on both occasions,’ We, on being prima facie satisfied, dispose of this matter by providing that Bodhisattva Gautam shall pay in Subhra Chakraborty a sum of Rs. 1,000/-every month as interim compensation during the pendency of Criminal Case.
He will also be responsible to pay compensation arrears at the same rate from the period the case was filed until now. As a result, when it comes to the award of compensation under the Cr.P.C., the Hon’ble Courts have taken a gentler stance (in terms of monetary element) than when it comes under the Constitution.
The Protection of Women from Domestic Violence Act, 2005
After 16 years of struggle, the Protection of Women from Domestic Violence Act of 2005 was a huge success in terms of the revolution of women’s rights, especially for victims of domestic violence.
Physical, sexual, verbal, and emotional abuse are all included in the definition of domestic violence. In the case of Smt. Haimanti Mal v. The State of West Bengal[11], the aspect of trauma deriving from physical abuse in the lack of any medical reports was addressed and compensated for (2019).
On the basis of Section 22 of the Protection of Women from Domestic Violence Act, 2005, the Calcutta High Court ordered a compensation of Rs. 1,00,000 for mental torture and emotional pain.
This Act is unique in that it allows the victim to maintain access to the facilities or resources that they are entitled to use or enjoy as a result of the existence of a domestic partnership, including access to the shared householder.
The police officer or magistrate who receives the complaint owes it to the victim to tell her of her right to seek a protection order, monetary relief order, custody order, residency order, compensation order, or a combination of these orders. This Act is concerned with the protection of women’s rights as granted by the constitution.
Official Act here: Protection of Women from Domestic Violence Act of 2005
Prevention of Caste-Based Victimization and Protection for Victims
The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act of 1989 is a law that prohibits atrocities against scheduled castes and tribes.
The purpose of this Act is to eliminate atrocities against people of the Scheduled Castes and Tribes.
Under this Act, compensation of victim is mandatory, apart from numerous additional reliefs which depend upon the circumstances and sort of atrocity perpetrated. Monetary compensation varying from Rs. 25,000 to 2,00,000 is decided according to the seriousness of the offence.
The Maintenance and Welfare of Parents and Senior Citizens Act, 2007
This one-of-a-kind regulation is aimed at safeguarding elders and preventing elder abuse and victimization, which is a developing concern in many nations, including India.
Under this Act, children or adult legal heirs are obligated to support their parents, or senior citizens over the age of 60, who are unable to support themselves from their own work, in order to allow them to live a normal life.
In circumstances when the senior citizen’s children or legal heirs refuse to care for him or her, the Tribunal has the authority to issue an order requiring the children or legal heirs to provide a monthly stipend.
Probation of Offenders Act, 1958
Section 5(1) of the Probation of Offender Act, 1958, also includes a provision for compensatory redress to victims of crime.
The section states that if a Court orders an offender’s release under Section 3 or Section 4 of the Act, the court may also order the accused to pay the victim such compensation as the court deems appropriate for the loss or injury caused to the latter, as well as the expense of the proceedings.
Motor Vehicle Act, 1988
Under section 5 of the Motor Vehicle Act of 1988, the victim of a vascular accident, or their legal representative in the event of the victim’s death, is entitled to compensation from the criminal. However, the court has sole authority in this matter and no one else.
Central Victim Compensation Scheme
In addition to the current Victim Compensation Scheme, the Ministry of Home Affairs launched the Central Victim Compensation Scheme (effective August 2015), which doubled the amount of compensation in cases of rape and sexual assaults.
Women from across the border who are partially or permanently disabled were also addressed.
‘Uniform compensation was set for all states, including Rs. 3 lakh for victims of acid attacks and rape, Rs. 1 lakh for human trafficking victims’ rehabilitation, and so on.
Compensation had to be enhanced by 50% over the sum indicated in cases where the victim was under the age of 14.
Except for Arunachal Pradesh, Assam, Chhattisgarh, Himachal Pradesh, Karnataka, Tamil Nadu, and Uttar Pradesh, all states have altered the programme in accordance with the centre’s directives.
Conclusion
It is unnecessary to point out that the complete regulative worldview, combined with the lack of legal certainty, has revealed different defects in the current general set of compensation laws, necessitating the necessity to rework the entire overall set of laws once.
The following are the mandatory adjustments that must be made:
- The suggestion put up by the Indian Law Commission in its 42nd report on the Indian Penal Code should be considered, and it would be preferable if the assembly also took into account Justice R.L. Narsimha, a member of the commission.
- As we have for capital penalty in Cr.P.C., the law should also provide for the recording of motivation for not giving or offering the compensation.
- The law should also take into account institutional structures similar to those seen in Western countries.
- If this is the case, it would be smarter to grant the victim compensation as a right.
Edited By: Advocate Komal Sharma, Publishing Editor at Law Insider.
References
Compensation of victim of crime in India, Anubhav Kumar Pandey, iPleaders
Revisiting Victim Compensation in India, Vibha Mohan, Manupatra
- 1993 AIR 1960 ↑
- (1983) 4 SCC 141 ↑
- AIR 1986 SC 494 ↑
- 1991 ACJ 439 ↑
- 1990 ACJ 1060 ↑
- 1980 AIR 1535 ↑
- 1990 ACJ 804 ↑
- 1990 AIR 513 ↑
- 1992 (1) Crimes 2 SC ↑
- 1996 AIR 922 ↑
- C.R.R. No. 3907 of 2016 ↑