COMPENSATION JURISPRUDENCE

INTRODUCTION:

The compensation to victims of a crime is a matter of concern, throughout

the world. The condition of the victims of crime is no better and for a quite

long time, the victim was not the concern for traditional criminology.

Krishna Iyer, J. highlighted the continued apathy of the Criminal Justice

System: “It is the weakness of our jurisprudence that victims of crime and

the distress of the dependents of the victim do not attract the attention of

law. In fact, victim reparation is still the vanishing point of our criminal

law”. Amendments made to the Code of Criminal Procedure (CrPC), 1973 in

2008 as well as through the Criminal Law (Amendment) Act of 2013, made a

breakthrough in acknowledging the rights of the victim. 

VICTIM AND VICTIMOLOGY:

The term "victimology" arose from the terms Victima (Latin)

and Logos (Greek) which means the study of offenders. Section 2(wa) of the

CRPC Amendment Act, 2008 defines victim as “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”. This is in consonance with UN Declaration of

Basic Principles of Justice for victims of crime, including those laws

proscribing criminal abuse of power, 1985.

LAW COMMISSION REPORT:

1. 41st Law Commission Report, 1969:

According to the Statement of Object and Reasons, Section 357

was "intended to provide relief to the poorer sections of the community". The

modified CrPC, on the other hand, gave the court the authority to require

the accused to pay compensation to victims of crimes "to a larger

extent" than was previously allowed under the Code.

2. 154th Law Commission Report,1996:

Compensation was proposed as a recognized method of protection that

offered immediate support to the victim. The report stated that

compensation could also be extended to the family of the victim in certain

instances.

3. Malimath Committee Report,2003:

 Recommended for the establishment of Victim Compensation Fund.

 Victim compensation is a State obligation, whether the offender is

apprehended or not, convicted or acquitted. This is to be organised in

a separate legislation

 A Victim Compensation Fund can be created under the victim

compensation law and the assets confiscated in organised crimes can

be made part of the fund.

LAW GOVERNING VICTIM COMPENSATION:

In India there is no comprehensive legislation or statutory scheme providing

for compensation to victims of crime. We have few statutes, under which

compensation may be awarded to the victims of crime.

 1. The Criminal Procedure Code, 1973:

i. Section 357 of CRPC:

Though one generally assumes compensation to be a remedy granted by civil

courts and sentencing a function of criminal courts, Section 357 clubbed

the two remedies together, thereby ensuring that the victim would not have

to approach two different courts, hence expediting the compensation

process.

Who may pass the order of compensation?

(1) By trial court at the time of passing judgment,

(2) By an appellate court or High Court or Court of Sessions, in revision.

What for, fine can be imposed?

(1) To mete out the expenses of prosecution.

(2) For any loss or injury caused to a person, when such compensation is

recoverable by such person in Civil Court.

(3) In cases where person has caused death or has abetted the commission

of such an offence and where victim is also entitled to recover damages

under the fatal Accident Act

(4) 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.

(5) The court in its discretion can impose fine in cases where fine does not

form a part of sentence [Section 357(3)]

Quantum of Compensation: It is to be determined by taking consideration

the nature of crime, injury suffered and the capacity of the convict to pay

compensation. But the amount of compensation has to be reasonable which

the person concerned is able to pay. [Manish Jalan v. State of Karnataka]

ii. Section 357-A of CRPC:

The Crpc Amendment Act, 2008 inserts this new Section 357A in order to

provide for the State Government to prepare in co-ordination with the

Central Government, a scheme called “Victim Compensation Scheme”. It

establishes the function of the District Legal Services Authority (DLSA) in

determining the amount to be given whether the court makes a

recommendation for compensation or the victim files a claim under the state

scheme. It also allows for compensation and rehabilitative measures in the

event that a court-ordered compensatory order is unsatisfactory. Even if the

criminal has not been found or recognised, or if there has been no trial, a

claim for compensation under Section 357A can be brought.

iii. Section 357B of Crpc:

The Compensation payable by the State Government under Section 357A

shall be in addition to the payment of fine to the victim under Section 326A

or 376D of IPC.

iv. Section 357C of the Crpc:

All hospitals (public or private) shall immediately provide the first-aid or

medical treatment, free of cost, to the victims of any offence covered Section

326A, 376, 376A, 376B, 376C, 376D, or 376E of the IPC and shall

immediately inform the police of such incident.

v. Section 358 of crpc:

The Magistrate may award compensation not exceeding Rs.1000 to be paid

by the person who causes groundless arrest to be made to the person who is

so arrested.

vi. Section 359 of Crpc:

When the accused is convicted in case of non-cognizable cases, he may be

liable to pay the costs incurred in prosecution in addition to fine imposed.

vii. Section 250 of Crpc:

In cases of false accusation made by the complainant, he may be liable to

pay the compensation to the victim on his discharge or acquittal.

2. COMPENSATION IN VIOLATION OF FUNDAMENTAL RIGHTS:

A question regarding the awarding of monetary compensation was first

raised in Khatri (II) v. State of Bihar. However, in Rudal Shah v. State of

Bihar for the first time laid down the principle that compensation can be

given in case of violation of fundamental rights.

In Sebastian v. Union of India, held, on account of failure of Government

to produce in habeas corpus petition filed by wives, apex court awarded cost

of Rs.1 lakhs to be given to wife of each of the detenue.

In Bhim Singh v. State of J & K, the Supreme Court has awarded

Rs.50,000 for two days’ illegal detention.

In DK Basu v. State of West Bengal, held, a victim of custodial right has

every right to be compensated as her right to life has been breached by the

officer of the state.

In Nilabati Behra v. Union of India, held, the apex court awarded

compensation of Rs.1,50,000/- to the mother of deceased who died in police

custody due to torture.

In Suresh v. State of Haryana, held, 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.

In Nipun Saxena v. Union of India, held, the Supreme Court directions

NALSA drafted the Grant of Compensation to Women Victims/ Survivor of

Sexual Assault/Other Crimes.

In Re Alarming Rise in the Number of Reported Child Rape Incidents,

2019 held that the Supreme Court awarded as an interim measure

compensation of Rs 25,00,000 (Rupees twenty five lakhs only) to the rape

victim and called for reports from States and UT as regard payment of

compensation including interim compensation to victims of crime.

3. The motor Vehicles 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.

4. The 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. It 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.

5. Protection of Women from Domestic Violence Act, 2005:

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.

6. The Scheduled Castes and Scheduled Tribes (Prevention of

Atrocities) Act of 1989:

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.

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.

CONCLUSION:

India's current legal system needs to be updated and modified to meet global

norms. It must also engage and include victims, not only for the purpose of

making recommendations, but also as participants in order to transform the

compensation scheme into a more inclusive and victim empowering process.