Delhi HC’s judgment on victims’ right to

restitution is a landmark in jurisprudence

In a landmark verdict in Karan v. State N.C.T. of Delhi, the Delhi High Court has
secured the right to restitution for victims of crime. The progressive impact of the judgment
on victim jurisprudence will certainly be unparalleled.

Even though Section 357 of the CrPC empowered courts to order the accused to pay
“compensation” to the victim, this was rarely followed. This led the apex court to observe on
multiple occasions that Section 357 must be used liberally. Ultimately, in Ankush Shivaji
Gaikwad v. State of Maharashtra (2013), the SC held that lower courts must apply judicial
mind and record reasons for passing, or not passing, orders pertaining to the use of Section
357 — effectively making its application mandatory.

However, the lower courts found practical constraints while applying Section 357. First, these
courts were limited by the language of Section 357, which allowed them to issue orders for
only such compensation as may otherwise be recoverable in a civil court. Second, the courts
were restricted by the absence of a uniform head under which compensation could be
granted. Third, the absence of a uniform mechanism to calculate the paying capacity of the
accused as well as ascertaining the impact of the crime on the victim prevented courts from
granting compensation under the section without risking arbitrariness. Fourth, the absence of
sentencing guidelines impeded the application of the section. Neither Section 357 nor the SC
judgment in Ankush Shivaji Gaikwad came to the aid of the courts with respect to these
limitations.

The significance of the Karan verdict lies in the Delhi High Court’s use of the Victim Impact
Report (VIR) to determine the quantum of compensation. The Court’s version of VIR is
loosely based on the concept of Victim Impact Statements (VIS), but with some significant
differences. VIS is an instrument of victim participation, which effectively allows victims to
inform the court in their own words as to how the crime impacted them. Barring minor
variations, the VIS’s format comprises the description of physical injury, emotional harm, or
the damage or loss to property as a result of the offence.

VIS provides victims with the opportunity to directly address the court and, therefore, works
towards providing them assurance about their concerns being heard and addressed by the
court. It allows the victim to come to terms with the offence and makes the offender perceive
and realise the impact of the crime on the victim. It also works to aid the court in determining
the quantum of the sentence and fine.

It is in this sense that the Delhi HCs conception of VIR differs from a traditional VIS. The
primary purpose of the VIR in the Court’s conception is to act as an aid to determine the
quantum of compensation to the victim in conjunction with the paying capacity of the
accused. The VIR will not be directly made by the victim before the court but will be filed by
the Delhi State Legal Services Authority (DLSA), which shall conduct a summary inquiry to
ascertain the impact of the crime upon the victim.

The DLSA shall submit a report that reckons the paying capacity of the accused as well as the
impact on the victim, after a conviction. The courts will have to pass an order of
compensation based on this report, and in the manner laid down by the judgment. The
scheme is binding on all lower courts in Delhi that deal with criminal cases.

While the verdict generates hope for victims, there are certain concerns. For instance, the
language of Section 357 does not differentiate between restitution and compensation.
Restitution includes reparation made by the offender while compensation is paid by the state.
Unless this difference is statutorily recognised, ambiguity is bound to persist. Moreover,
VIR/VIS should not remain merely limited to calculating restitution; it must be effectively
used in the sentencing process — especially because the victim is not a party when the court
hears the offender on the question of the sentence. The need of the hour is that the courts
come forward to adopt VIR/VIS as one of the best practices in the interest of justice to
victims of crime.
 Mst X (Through Mother And Natural ... vs State And Ors
13 May, 2021

3. VICTIMS COMPENSATION FUND -- (1) There shall be a Fund, namely,

the Victims Compensation Fund, from which the amount of compensation, as decided by the
Delhi State Legal Services Authority or District Legal Services Authority, shall be paid to
the victims or their dependent(s) who have suffered loss or injury as a result of an offence
and who require rehabilitation.

(g) 'Women Victim Compensation Fund' -- means a fund segregated for disbursement for

women victim, out of State Victim Compensation Fund and Central Fund. Within the
State Victim Compensation Fund, a separate Bank Account shall be maintained as a portion
of that larger fund which shall contain the funds contributed under CVCF Scheme by MHA,
GOI contributed from Nirbhaya Fund apart from funds received from the
State Victim Compensation Fund which shall be utilised only for victims covered under this
Chapter

3. WOMEN VICTIMS COMPENSATION FUND--

(1) There shall be a Fund, namely, the Women Victims Compensation Fund from which the
amount of compensation, as decided by the Delhi State Legal Services Authority or District
Legal Services Authority, shall be paid to the women victim or her dependent (s) who have
suffered loss or injury as a result of an offence and who require rehabilitation.

Signing Date:13.05.2021 Juvenile Justice Board under section 357A of the Cr.P.C. from Rs.
50,000/- to Rs. 3,00,000 with the following reasoning:

"11. Ms. Kapur, points out that initially, when the writ petition was filed, a direction was
sought to the respondent to declare the schedule of Delhi Victims Compensation Scheme
2011 as far as it related to victims of child abuse and assault as unconstitutional. A direction
was also sought to reformulate the scheme with an enhanced and more rational scheme
of compensation. During the pendency of this writ petition, the
Delhi Victims Compensation Scheme 2011 was replaced with the
Delhi Victims Compensation Scheme 2015. "12. Be that as it may at this stage counsel for
the petitioner and counsel for the State are in agreement that the scheme would not be
applicable with respect to cases under The Protection of Children from Sexual Offences Act,
2012 (POCSO Act - hereinafter referred to as 'Act'). However, Ms. Kapur, learned counsel
for the petitioner submits that necessity of approaching this court has arisen for the reason
that the Special Court while deciding the question of compensation, has relied upon terms of
the Delhi Victims Compensation Scheme 2011 and granted Rs.50,000/- as compensation as
according to the Special Court, this was the maximum amount which could have been
awarded as per Delhi Victims Compensation Scheme 2011.
 Kavita Nityanand Shetty vs State Of Maharashtra
Through ... on 4 October, 2021
7. Elaborate submissions were made by Ms. Saxena, learned counsel for the petitioner as well
as by Smt. Purav, learned AGP which we have duly considered.

8. With the assistance of learned counsel for the parties, we may refer to some of the relevant
statutory provisions and judicial pronouncements having a bearing on the subject matter of
the writ petition.

9. Section 357A was inserted in the Code of Criminal Procedure, 1973 (Cr.P.C.)

by Amendment Act 5 of 2009 with effect from 31.12.2009. As per sub-section (1) of section
357A Cr.P.C., every state government in co-ordination with the central government shall
prepare a scheme for providing funds for the purpose of compensation to the victim or his
dependents who had suffered loss or injury as a result of the crime and who require
rehabilitation. The procedural aspects relating WPST_6115_21.doc
to victim compensation are laid down in sub-section (2) to sub-section (6). At this stage, we
may mention that by the said amendment act 'victim' also came to be defined under section
2(wa) Cr.P.C. to mean a person who has suffered any loss or injury caused by reason of the
act or omission for which the accused person has been charged and the expression 'victim'
includes his or her guardian or legal heir.

10.1. In the said case, Supreme Court was informed that most of the state governments had
notified victim compensation scheme. However, it was noted that even though five years had
expired since the enactment of section 357A Cr.P.C., award of compensation had not become
the rule and interim compensation, which is very important, was not being granted by the
courts. It was also pointed out that the upper limit of compensation fixed by some of the
states was arbitrarily low and was not in keeping with the object of the legislation.
Proceeding further Supreme Court held 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 either on an application or on its own motion, the court
ought to direct grant of interim compensation which would be subject to
final compensation that may be determined later. Such a duty continues at every stage of a
criminal case where compensation ought to be given WPST_6115_21.doc 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 of section 357A Cr.P.C. 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 other factors while determining compensation.
20. However, nothing has been placed on record as to whether any such policy decision has
been taken by the state government or whether any such separate order has been passed by
the state government.

21. Be that as it may, National Legal Services Authority (NALSA) WPST_6115_21.doc has

framed a scheme called Compensation Scheme for Women Victims / Survivors of Sexual
Assault / Other Crimes, 2018. The said scheme has been framed following the decision of the
Supreme Court in Nipun Saxena Vs. Union of India, Writ Petition (C) No.565 of 2012. The
scheme deals in detail the factors to be considered while awarding compensation and also
lays down the procedure for grant of compensation. Below paragraph 9 of the said scheme, it
is mentioned that victims of acid attack are entitled to additional compensation of
Rs.1,00,000.00 under the Prime Minister's National Relief Fund vide memorandum dated
09.11.2016. It is further mentioned that victims of acid attack are also entitled to additional
special financial assistance upto Rs.5,00,000.00 who need treatment expenses over and above
the compensation paid by the respective states / union territories in terms of the
Central Victim Compensation Fund Guidelines, 2016. Schedule applicable to
women victim of crimes includes victims of burning at Sr. No.12 and victims of acid attack at
Sr. No.13. In case of disfigurement of face in both cases, the minimum limit
of compensation is Rs.7,00,000.00 with upper limit of compensation at Rs.8,00,000.00. In
case of injury of more than 50%, minimum compensation is Rs.5,00,000.00 and upper limit
of compensation is Rs.8,00,000.00. In case of injury less than 50%, it is Rs.3,00,000.00 and
7,00,000.00 respectively in case of victims of burning and Rs.3,00,000.00 and Rs.5,00,000.00
respectively in case of victims of acid attack. However, the important thing is that it has been
clarified by NALSA that if the woman victim of sexual assault or acid attack is covered under
one or more category of the schedule, she shall be entitled to be considered for the combined
value of the compensation.

26. We may sum up our above deliberations in the following manner. Supreme Court in
Suresh (supra) while explaining the rationale behind insertion of section 357A in Cr.P.C. held
that payment of adequate compensation to the victim of crime is one of the methods of
protection and rehabilitation of victims. Supreme Court highlighted that it is the duty of every
court taking cognizance of a criminal offence to consider payment of just and
reasonable compensation to the victim of crime including payment of
interim compensation to meet immediate financial needs, stating that such a duty continues at
every stage of a criminal case irrespective of any claim made by the victim. At the stage of
final hearing it is obligatory on the part of the court to consider grant
of compensation under section 357A Cr.P.C. Again, in the case of Manohar Singh (supra)
Supreme Court observed that while punishment of the accused is one aspect, determination
and payment of just compensation to the victim is another aspect. In the absence of evidence,
some guess-work becomes inevitable to determine just compensation. While determining
just compensation factors such as medical and other expenses, pain and suffering, loss of
earning and other relevant factors should be borne in mind. In the case of Mehtaab (supra),
Supreme Court emphasized that it is the duty of the court to duly consider the aspect of
rehabilitating the victim.