New Revised Chapter 5

1
Chapter 5
Judicial Approaches to Restorative Justice
"It is a weakness of our jurisprudence that the victims of the crime, and the distress of the
dependents of the prisoner, do not attract the attention of the law. Indeed, victim reparation
is still the vanishing point of our criminal law. This is a deficiency in the system which must
be rectified by the Legislature. We can only draw attention to this matter."1
Justice Krishna Ayyar
5.1 U.N Mandate for Victim's Right
The U.N. Declaration 2in 1985 by the General Assembly is deemed Magna Carta for the
victims' rights and has played an indispensable part in identifying victims' rights in India.
Figure
1
declaration, it can be said
Pictorial
With the help of the UN
that the four essential

components of victim
representation of
Access to justice victim rights in U.N.

rights are
Up Till the 1970s, the
Restitution and victims did not have
Reparations any individual rights

under the criminal
justice administration
Participation system. After
committing a crime,
the state needs to
indict and penalise an
offender for
maintaining law and order. By this, the victims are left as a meagre spectator in the legal
1
Rattan Singh v. State of Punjab AIR 1980 SC 84
2
Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power
2
proceedings. The table enumerates the essentials of victim right movements and restorative
justice as per the declaration.
The declaration in context to the notions of restitution and compensation in the above
declaration stands that wrongdoers ought to make reasonable recompense to sufferers or
their families; it should form a portion of the sentencing in criminal matters. If
compensation is not fully available from the perpetrator, the government must provide
financial compensation to the victims who have sustained severe bodily or psychological
damage. For these purposes, a national fund should be put in place. One of the significant
commendations is by the European Union, Recommendations on victims' assistance and
prevention of victimisation. The commendations embrace the essentials like support, the
position and guidelines for the public services, special services for the victim's support, right
to information, rights to access to remedies, recompence, assurance, safety, mediation,
levitation of community consciousness of the paraphernalia of delinquency.
Figure 2 Pictoral Representation of Victim Rights
The declaration has also suggested the delivery of restitution and compensation to the
victims of a criminal
Appropriate
Victim offence. It proposes offering
Involvement compensation from the
government for the victims
of severe, deliberate, vicious
offences. It goes on to say
that the compensation from
the state ought to be granted
Complaint to such an extent that the
External Support
Mechanism for injury is that are not
Mechanism
Victims
contained in alternative
sources such as the perpetrator, insurance or state-funded health and welfare requirements
set out by the state.The Indian criminal justice system has been adversarial and penalising in
nature. Each prosecution rotates around the charged, and the sufferers' pursuits ignored.
Following certain social and political alterations, the necessity for defending the sufferers'
3
concerns was sensed in our nation. Following The Provisions of both national and
international law, the state must safeguard its people. Therefore, each offence committed is
regarded as a breakdown of the government for not stopping its happening in the first place.
To comply with its function as a guardian of society, the government deems any criminal
offence dedicated to being opposed to itself and not opposed to the sufferer. It recognises
justice to the crime victim and society by penalising the perpetrator and indicting the
litigation under its title. By taking over the prosecution's responsibility, the government
seeks to preserve the public's confidence and belief in its criminal justice administration
system. The figure explains various limbs of the restorative process.
Restorative justice model works in three stages
1.Pretrial stage the first stage would include access to justice.
2. Trial stage would include appropriate victim involvement
3. Post -trial stage would include external support mechanism
To ensure the restorative model's successful implementation, a criminal justice system

should guarantee a few indispensable characteristics like Suitable Victim Participation. In
every criminality, it remains the crime victim that is the principal witness and remains the
sharpest source of credible knowledge regarding the criminal offence. Unless the victim is
not implicated in the legal proceedings on a routine, it might not merely affect the
prosecution's virtues while at the same time the trust the sufferer has by the criminal justice
administration system. Victim's must, at not no point, feel isolated from the advancement of
their lawsuit. The significance of responsibility is very important, and as a supplement to the
efficient internal responsibility structure, there is also a requirement for an exterior
responsibility structure, which a good grievance system for the victims can accomplish.
Comprehensive knowledge regarding the grievance process should be accessible at a public
forum and must be approachable.
Appropriate time redressal of the grievances is important for it to have the anticipated effect.
This will hold the prosecutors responsible and watchful, information on their effectiveness,
and preserve the victims' participation and legal representation throughout the criminal
4
justice system. Nevertheless, there are some provisions under the Indian Constitution and
the Code of Criminal Procedure, 1973 to defend the sufferers' rights. The criminal courts in
India have overlooked those requirements for offering recompense without utilising them
throughout penalising process.
However, it is reassuring to witness that the High Court and the Supreme Court's numerous
decisions have played a significant role in rescuing criminality victims. In addition to the
current provisions in compliance with India's criminal regulations, considerable importance
was given in the Report of the Committee on Reforms of Criminal Justice System, headed
by Justice V. S. Malimath, about the necessity to offer "justice to victims of crime".
However, there are no particular regulations in India to participate in the victim and
compensations. The only possible way by which their interests is being safeguarded by the
affirmative verdict made by the High Court and supreme court.
Legal Services Authorities provide legal services to accused/convicts in custody or

otherwise coming within the eligibility criteria spelt out in Section 12 of the Legal Services
Authorities Act, 1987. In 2016, about 48 lakh crime incidents were reported, out of which
4.29 lakh were violent crimes. During the same period, about 37 lac persons were arrested in
IPC crimes and 23 lac persons under Special laws. Usually, variation in crime incidents is
around 3% from year to year.
About two crore criminal cases are pending in the courts at the District level across the
country. Legal Services are being provided at remand, trial and appellate stages in criminal
matters. At the trial stage, the Legal Services Authorities' legal representation is being
provided in around 960004 criminal cases at the district level. In the year 2018, around
99,223 arrestees were provided legal aid at the remand stage.3
5.2 Right to Participation

3
National crime records Bureou,2019
5
Figure 3
VICTIMS RIGHT TO PARTICIPATE IN

THE PROCEEDINGS
Fair trial-Right Victim

Plea
to Equal Offender Compounding
Bargaining
participation Mediation
5.2.1 Fair trial - Right to Representation
In the case of Rattiram v. the State of M.P. 4 court opined that fairtrial is not limited to
accused, it is also conferred on victim.it lies at the very centre of criminal justice
administration system is fair trial. The development of criminal jurisprudence has given a
indiapensible place to the study of victims hat is victimology. It was held by supreme court
in Mangal Singh v. Kishan Singh 5 , that the advantages should not go to accused and the
disadvantages and injustice should not go to the victim.
On a closer look into our current system thereis limited space provided for the victims.the
only space that they have is of a prosecution witness.
In the current Indian legal system, the space for victims is quite limited, and they have the
status of a mere prosecution witness. In Anil Kumar Tiwary v. the State of Jharkhand 6, the
victim voiced his disappointment with the prosecutor because he did not produce all the
appropriate evidence in the court, that were necessary for the verdict. It was held that there
was no scope of biasness towards eitherof the party and has to serve as an honest
4
(2012) 4 SCC 516
5
(2009) 17 SCC 303
6
(2012) 4 SCC 722
6
representative. His duty is to not cause deliberate damage and injustice to either of the
parties.
In Laxman Rupchand Meghwani v. State of Gujarat, 7 the court emphasised that it looked as
though the prosecutor acted like a defense attorney;although his obligation is to be honest
and unbiased. There should not be any desire to conviction or acquital and the he should be
faithful to the court as an agent. The Malimath Committee report envisaged the varous
rights of the victim.some of the major ones are
1. Right to be Represented by a lawyer of choice.

2. Right to take part in the legal procedures.
3. Right to know about the advancement of the investigation.
4. Right to move to the court to ask for further investigation.
The Supreme Court defined the role of the public prosecutor in Sheonandan Paswan v. the
State of Bihar8. In a broad manner,it is his duty to see that the prosecution ends in a guilty
verdict, but he does not have to be overenthusiastic about it. He is the officer of the court
and it is his obligation to help them and guarantee that the accused is not treated in an unfair
manner. in the 197th Law Commission Report, Supreme Court's perspective in R. Sarala v.
T.S. Velu9 was mentioned to emphasise on the position of the public prosecutor , it should
be restricted to the post-investigation phase because they are court officer while at the same
time their service is inside the court.
5.2.2 Victim-Offender Mediation
The main reason behind this "delayed justice" has been the magistrate-populace percentage
in India. In accordance with the Law Commission Report, there exist only seventeen
Judiciary members per capita, a million people in contrast to the 107 per million persons in
U.S. In the words of Justice V.V. Rao stated, "It would take 320 years for the Indian
judiciary to clear millions of pending cases." when glanced at the present condition of the
7
(2016) 2 GLR 1671
8
(1983) 2 SCR 61
9
AIR 2000 SC 1731
7
courts in india , it might not be wrong to suppose that alternative dispute resolution forums
such as the mediation could be a more feasible alternative for parties to seek assistance. 10
Mediation and its utilisation in relation to domestic violence maters attracts contradictory
thoughts. A set of People that are advocates of mediation contemplate that it is acceptable to
utilise it in cases of violence in household too, but theres another wave of ideology
considering no place of mediation in cases relating to domestic violence. The appropriate
use of mediation in any disagreement does have its benefits such as privacy, relaxed
procedures, to be flexible, as well as the capacity to rescue and nurture relations. Hence,
mediation must be used to resolve instances concerning domestic violence. Altogether, it
could save the household relationships and safeguard the kids from the psychological
ramifications caused by lengthy litigation. Volantry nature of mediation maintain the right
of self-determination. consequently, factions have complete independence to approve or
reject the ultimate result. that is one way of coping with domestic violence situations in
which to fulfill a household interest.
The protracted indecision by both bench and bar lead to the delay in institutionalisation and
promoting mediation. After Salem Advocate Bar Association v. Union of India, 11 mediation
began to increase its grip and presented a regulatory framework for guidelines, policies and
the institution of mediation centers.
General Statistical Report
Tis Hazari Courts, Delhi.12
Report between the referring date 22/8/2005 to 31.03.2021
Total no. of cases referred for mediation: - 109490
No. of cases that were not fit for mediation: 14026
10
Rashmi Goel, "Sita’s Trousseau" (2005) 11 Violence Against Women 639-665
11
Writ Petition (civil) 496 of 2002
12
'Delhi Mediation Center - Delhi High Court Bar Association' (Delhi High Court Bar Association, 2021)
<https://www.dhcba.org/delhi-mediation-center/> accessed 6 April 2021.
8
No. of Balance Cases: 95464
No. of cases pending for mediation: 530
No. of Disposed Cases: 94934
No. of cases settled : 56916
No. of cases not settled 38018
No. of connected cases settled: 14691
karkardooma Courts, Delhi.13
Total no. of cases referred for mediation: 61784
No. of cases which were not fit for 12889

mediation:
No. of cases settled: 37485
No. of cases not settled: 10873
13
Ibid
9
Rohini Courts, Delhi.14
No. of cases which were not fit for mediation: 10352
No. of cases not settled : 15819
Dwarka Courts, Delhi.15
14
ibid
15
Ibid.
10
Saket Courts, Delhi16.
Patiala House Courts, Delhi.17
16
ibid
17
ibid
11
At Present, it is obvious that mediation has evolved into an indispensable conflict settlement
instrument. At the delhi Mediation Centre, between 2015 and 2018, 79.85% of the cases
referred to mediation were matrimonial disputes. 18 the Supreme Court laid out in Afcons
Infrastructure v. Cherian Varkey Construction19 that there are certain cases of criminal
nature it was not suitsble to mediate them. However,There might be cases of civil nature
with a element of criminality like matrimonial cases with can be reffered to mediation .
Tthe 129th Law Commission Report focused on the premise of amicable dispute resolution
outside the courtroom, and the recommendations given were manifested into section 89 of
the CPC. The provision lays down the power of the court to refer a dispute comprising
elements of an "amicable settlement" to four ADR methods – one of them being
mediation. Thus, in civil disputes , mediation ,is recognised statutorily, with the Apex Court
recommending mediation as a course of action being viable after the pleadings conclude.
However, the method is expressly dissuaded in offences of criminal nature with the
justification being that its nature is such that it is an immoral act against the society, rather
than a private individual. This viewpoint on crime is a central aspect of the adversarial
system in common law followed in India. Concepts such as forgiveness or reconciliation are
not stressed in such a model, with the outcome that the needs of some of the stakeholders
remain overlooked. As A result, the system essentialy fails on two fronts – first and
foremost, it does not recognise that certain crimes, such as criminal defamation, are
basically private. Furthermore, it ignores the victim from the process and undermines the
role of pardons and apologies.
18
Ibid.
19
(2010) 8 SCR 1053
12
The law has made an attempt to remedy this with the help of section 320 of the Criminal
Procedure Code ('CrPc') that recommends the "compounding" of certain crimes of non –
serious nature like hurting of religious sentiments or instigating deliberate hurt. The
41st Law Commission Report suggested the compounding of any crime that "is essentially
private and relatively not serious." In compounding there is an harmonious settlement of
disputes among the parties thus in simple terms it can be 'Forbearance from prosecution'.
Compounding can never be at par with acqiital it simply means forgiveness on the part of
victim. Such forgiveness can be by as an alternative of proceedings a proper solatium. 20The
courts have assumed a victim-centric posture to some degree, especially in matrimonial
disputes with criminal elements.21
Mediation has established itself as the universally recognised settlement structure for
determining marital disagreements. The issue occurs when among these are the instances of
abuse in the family. Whilst utilising the same in order to resolve disputes of such kind, there
are just two contradictory opinions. The proponents of mediation take mediation to be a
beneficial method as it is like precautionary measures for household relations. Several
benefits are connected to the mediation of marital issues, such as privacy, cost-efficiency,
relaxed procedures, the authority of management, total independence of parties to dismiss
the result, reciprocity, etc. The most appealing and essential characteristic is the fact that it
pursues the basic principle of fairness.
The ADR22mechanism In India is governed by the Arbitration and Conciliation Act of 1996.
This Piece of Legislation enables the arbitral tribunal to use mediation, conciliation or other
procedures to resolve the dispute23. Section 89 of the Civil Procedure Code, As a supplement
to this statute24, also makes provision for ADR systems to resolve disputes between the
20
Ward Berenschot, 'Everyday Mediation: The Politics Of Public Service Delivery In Gujarat, India' (2010) 41
Development and Change.
21
Dr. Seema Yadav, 'Commercial Mediation: With Special Reference To India' (2020) 12 Journal of Advanced
Research in Dynamical and Control Systems.
22
Alternative Dispute Resolution
23
subsequently referred to as ‘CPC’
24
Section 30(1) of the Arbitration and Conciliation Act, 1996, India
13
parties. In employing the instrument of mediation to help and resolve the family conflicts,
Indian courts have demonstrated no reluctance.
Karnataka High Court passed an order that permitted quashing of criminal proceedings 25
against the husband who was the accused in the case. The disagreement surfaced among the
husband and wife following the childbirth, and subsequently, there turned out to be an
application for divorce. There was also a criminal case against the husband filed by his
wife26.
The court referred the matter for mediation27 , and the two parties decided jointly to an
agreement. Following this, the wife's quashing application for quashing the criminal
proceedings was filed by the wife, which the court allowed, expressing no need to go along
with the criminal complaint because there is amicable dispute resolution amongst the
parties. There was also a compounding of offences that was allowed due to the Karnataka
high court's same reason in 2014.
The orders as mentioned above have relied upon precedent-as determined by the Supreme
Court where it was held that "even if the offences are non-compoundable if they relate to
matrimonial disputes and the court is satisfied that the parties have settled the same
amicably and without any pressure, that to secure ends of justice, Section 320 Cr.P.C. would
not be a bar to the exercise of the power of quashing of FIR, complaint or the subsequent
criminal proceedings in respect of such offences can be quashed in exercise of power under
Section 482 Cr. P.C.".28
The Delhi High Court in Manas Acharya vs State & Anr Case, 29 whilst examining a petition
meant for quashing of an FIR which was received u/ Sec 498A of IPC, took the view that
the agreement for settlement implemented before the Mediation Centre amongst the
interested parties is a detailed legitimate, legally binding and binding document.
25
Mohammed Mushtaq Ahmad and Ors. Vs. State by Kengeri Police Station and Ors. 2015(3) AKR 363
26
under Section 498A of IPC, 1860 and Sections 3 and 4 of the Dowry Prohibition Act, 1961
27
under Section 89 of the CPC
28
(2013) 4 SCC 5
29
Manas Acharya vs State & Anr CRL.M.C. 2090/2012 & CRL.M.A. 7236/2012, 14412/2012
14
30
Lately, in Dr Jaya Sagade v The State of Maharashtra, the Bombay High Court , whilst
hearing a petition opposing the circular which provided that mediation for cases under DV
Act can only be carried after the case is filed and the court gives direction for mediation was
approved by the Government of Maharashtra. The court believed that there is nothing wrong
with mediating domestic violence cases without the court's order. The considerable
emphasis, the court emphasised that no women should be counselled to settle or reside with
a violent husband.
Such an approach of the Supreme Court in cases mentioned above clearly demonstrates their
intention to let the subject matter resolve harmoniously among the parties, thus pleasing the
initial attention as recognised above, i.e., safeguarding the family ties and families the
consequences of a household wrangle.
All the judgements mentioned above share one thing in general, every one of them come up
with a pro-mediation attitude taken in the domestic violence case, but at the same time, they
have also found a specific measure to build the mediation procedure advantageous
productive and reasonable.
Something which should not be forgotten when we talk about meditation is that it is a
quality which, if overlooked entirely in marital disagreements, then the family as an
institution could lose its significance. On the other hand, if it is not controlled and regulated,
it would repress the softer faction and produce unreasonable outcomes.31
In K. Srinivas Rao v. DA Deepa32, the court held:
"though offence punishable under Section 498-A IPC is not compoundable, in appropriate
cases if the parties are willing and if it appears to the criminal court that there exist elements
of the settlement, it should direct the parties to explore the possibility of settlement through
mediation…. The Judges, with their expertise, must ensure that this exercise does not lead to
the erring spouse using the mediation process to get out of the clutches of the law. If there is
30
Dr. Jaya Sagade v The State of Maharashtra SOM.PIL.104/2015-DB
31
Michael Allen and S. N Mukherjee, Women In India And Nepal (1st edn, Sterling Publishers 1990).
32
(2013) 5 SCC 226
15
a settlement, the parties will be saved from the trials and tribulations of a criminal case, and
that will reduce the burden on the courts which will be in the larger public interest."
Matters relating to domestic violence will be dealt with in (section 498-A of the Penal Code,
1860 (IPC). Section 320 of the Code of Criminal Procedure (CrPC) discusses this, like
committing a crime that could not be compounded. Offences of this type are of such serious
nature that even courts cannot compound them. However, in India, courts have time and
again referred parties to mediation in resolving matrimonial disputes regardless of the
offence's nature. The Supreme Court in 2013 sanctioned all criminal courts to adopt
mediation, with specific regard to cases under Section 498 A IPC.
The judiciary has shown no reluctance in adopting mediation to settle matrimonial disputes,
even in criminal cases.In Mohd. Mushtaq Ahmad v. State33, the spouse, presented a petition
for divorce along with an FIR alongside the spouse following Section 498 A IPC following
the disputes that surfaced between the spouses following the birth of a daughter. The parties
were instructed for mediation following Section 89 CPC by the High Court of Karnataka.
The matter in question was resolved harmoniously by mediation, following which the wife
opted to quell the FIR. The court stated, "The court in the exercise of its inherent powers can
quash the criminal proceedings or FIR or complaint in appropriate cases in order to meet the
ends of justice."
In Gurudath K. v. State of Karnataka34, this case's particulars were indistinguishable from

the situation above. the court in this matter stated, "Even if the offences are non-
compoundable, if they relate to matrimonial disputes and the Court is satisfied that the
parties have settled the same amicably … Section 320 CrPC would not be a bar to the
exercise of the power of quashing of FIR or criminal complaint in respect of such offences."
Therefore, the high court permitted the crimes committed to be compounded upon
concluding that the wife was under no danger or intimidation.
33
SLJ 2003 (1) 188
34
Criminal Petition No. 7258 of 2014
16
Looking at the courts intent, one can safely comprehend that the court aimed to settle
matters as amicably. It is clear and consistent with the belief of the proponents of mediation,
that is, to preserve household relationships and deliver justice swiftly.
A similar methodology was initially taken into account for B.S. Joshi. v. State of
Haryana.,35 the complaint was filed by the wife ,of cruelty in accordance with section 498-A
of the IPC. Amicable settlement by way of divorce agreement was reached and mutually
argued in the High Court, and it was rejected. on appeal The Supreme Court, , considered
that the High Court's inherent powers in accordance with section 482 of the CrPc had
permitted the court to overturn the FIR in the light of the amicable divorce. While holding
that a non-compoundable offence may not be per se compounded, the court thought that the
parties' mutual willingness to settle their differences amicably in this particular case
rendered any subsequent court proceeding contrary to the objective section 489-A of the
IPC. In Ashok Sadarangani v. Union of India36, it was pronounced by which the sustenance
of criminal court proceedings in the wake of a settlement appeared at between the two
parties is "an exercise in futility", therefore enabling the Supreme Court to overturn the FIR
during the exercise of Article 142 of the Constitution.
The quashing of the FIR on the touchstone of mutual agreement is proof of conciliation
evolution as a valid factor in Indian criminal jurisprudence. A similar link between the
processes of mediation and the Compounding of offences was drawn in Sreelal v. Murali
Menon37 , where mediation was prescribed for determining the amount of compensation for
compounding the criminal offence registered.
It is obvious that the notion bears the similarities to mediation – it involves both parties'
express consent, requires compromise agreement on either or both sides, and emphasises
conciliation. It is different from mediation only concerning the lack of a disinterested third-
party as well as the drawing up of restitution agreements. Therefore, the fundamental
precepts of the criminal proceedings mediation are present within the law permitting the
35
Appeal (crl.) 383 of 2003
36
2012-2-L.W.(Crl.) 141
37
C.C No. 4202 of 2009
17
Compounding of offences, affording legal authentication for the incorporation of mediation

in any manner whatsoever in Indian criminal jurisprudence.
While mediation has already been in use in mostly marital disputes in our nation, other
jurisdictions display thorough implementation. Its development transformed in other areas
such as the hate crimes is also suggested. it has even been implemented for a solution to the
heinous offences In Romania. One area in which the fundamental principles of mediation
and it may be employed to help accelerate legal proceedings, especially when it comes to
India, is that of plea bargaining.
5.2.3 Plea bargaining
The incorporation of plea bargaining in the criminal justice process communicates the
legislative intention to incorporate the fundamental principles of restorative justice in the
criminal proceedings by the exchange of official privileges for the defendant's act of self-
revelation. The defendant enters a guilty plea in court in exchange for a lighter sentence, or
less harmful charges being levied, the non-inclusion of some facts in proceedings.
As a perception Plea bargaining was an outcome of inevitability; the likelihood of maximum

criminal cases ensuing in an exoneration due to the very high standard of proof required and
the rapidly burgeoning strain on the courts due to the sheer number of cases filed, coupled
with the chance afforded to the guilty to virtually reform. The guilty plea gained popularity
in the United States in the latter half of the twentieth century and was imported to India
through its inclusion under chapter XXIA of the CrPC.
The 142nd Law Commission Report recommended the provision and opined that it could be
incredibly beneficial to criminal law in India if properly administered. The Malimath
Committee Report, taking cognisance of the courts' burden to sift through numerous trials,
referred to its successful implementation in the United States to back its inclusion in Indian
statute. The 2003 Criminal Law Amendment Bill thus gave statutory recognition to plea
bargaining. While exempting socio-economic crimes against women and young children,
section 265 B of the CrPc mandates that an offender be aware of such rights and voluntarily
accede to using these rights to his benefit.
18
The Supreme Court in Kasambhi Abdul v. State of Gujarat ('Kasambhi')38 bemoaned plea
bargaining in an offence like adulteration that affects society. It classed the guilty plea
submitted by the defendant as a 'subversion of justice and ordered the magistrate to ignore
the plea and proceed with the court proceedings. The Supreme Court affirmed its stand
in Madanlal Ram Chandra Daga v. the State of Maharashtra 39, holding that a court may
never entertain the prospect of a criminal being handed a lighter sentence in pursuance of a
monetary benefit to the complainant.
It is evident from the Supreme Court's firm stance that restorative justice through the vehicle
of plea bargaining did not attain judicial approval from the beginning. The courts did not
derive much prospective utility in moving away from the 'me versus you' approach of the
current adversarial legal system to a victim-oriented settlement method.
Almost three decades later, after the Kasambhi case, a distinct shift in the courts' stance was
noted in Rajinder Kumar Sharma v. The State40, where the Delhi H.C. considered the
quashing of an FIR of forgery under the IPC. While it held that a person of such a 'criminal
bent of mind' may not escape punishment, plea bargaining was held as a viable alternative
for the offender to express his sorrow and seek an avenue to better himself. The Gujarat
High Court decision in State Of Gujarat v. Natwar Thakor41 comes on the heels of the above
judgment, where the former takes cognisance of the current legal stance against plea
bargaining but advocates for a reconsideration of the concept in light of the backlog of
criminal cases in courts across the country. Plea bargaining was also contextualised
concerning restorative justice, with the bench remarking that the possibility of the offender
reforming should not be neglected. Thus, the courts' recent judgments highlight a growing
recognition within the judicial fraternity regarding the benefits associated with restorative
justice.
While the courts have looked at plea bargaining from their perspective, the defendant's view
raises questions regarding due process. The guilty party may be persuaded or pressured to
38
AIR 1976 SC 1929
39
1976(3) SCC 684
40
Crl. A.No.317/2003
41
(2005) Cr.L.J. 2957
19
make a deal that may not be in his/her interest. Under section 265-B(4), the legislative
provision may not be sufficient to relieve such a plea. It is possible that an innocent
defendant pleads guilty, given the protracted and harrowing trial he/she would face
otherwise. It is possible that introducing the basic principles of mediation to plea bargaining
will enhance its practice and other restorative justice in the country.
At first instance, however, the two concepts appear ill-matched. They have different goals –
for one, the primary aim is to reduce caseload while the other seeks to facilitate
discussion. Furthermore, the victim's inclusion in the plea-bargaining process might prove
antithetical to the process as is done in traditional VOM. It would dilute the presumption of
innocence if the victim is convinced of the accused's guilt and divulges information to such
effect during the mediation, before the trial. In circumstances where the victim is unsure of
the offender's guilt or the degree of culpability (if a group committed the crime), the
offender could take advantage of the situation and effect an impasse through non-
cooperation suppression of fundamental facts. Even if the victim is excluded from the
process, the mediator will encounter specific problems. In plea bargains, arriving at the
possible agreement zone is brutal as forecasting the trial's ultimate decision is risky. Without
the victim's involvement, the prosecutor's interests could override the obligation he might
otherwise feel towards the victim. Thus, he might not be inclined to add to an already heavy
caseload. Moreover, each offender in plea bargaining has to be treated separately as each
case's facts and circumstances differ, as does the offender's personality.42
As previously discussed, however, the chief function of a mediator is to facilitate dialogue.

From a restorative standpoint, it is also an essential requisite of the criminal justice system.
Plea bargaining, though an offshoot of restorative justice, not give as much importance to
communication. The focus is primarily on "cutting a deal" with an offender believed to be
guilty of a lesser sentence. One reason for the lack of communication is that it is not in
either parties' interest to divulge information that might jeopardise their perceived
advantage. The offender would not want to reveal that he/she is indeed guilty, and the public
42
Vijay Kumar Singh, 'Resolving Commercial Disputes In India: Focus On ‘Mediation’ As An Effective
Alternative ‘Towards Ease Of Doing Business’' [2018] SSRN Electronic Journal.
20
prosecutor would not reveal the true extent of the evidence against the accused significantly
if it fell short of the burden of proof.
Thus, introducing a mediation framework to the existing law on plea bargaining will be a
step towards resolving this informational asymmetry. Since the mediator would be a neutral
third party, he/she would explain the prosecution's case and the defendant's options and
probable consequences. This process would require the mediator and the prosecutor to
discuss the case, possibly revealing gaps or inconsistencies in prosecution arguments. Thus,
the process could likely make the offender more amenable to confiding in him/her. This
would also lessen the pressure felt by the offender in a tense plea bargain scenario. Since the
mediator has been endowed with the actual case knowledge (more or less) of both parties,
the agreement's zone is more comfortable to reach. An active mediator can effectively steer
the dialogue towards such an agreement.
Ram Phal vs State And Ors If a mediator is present during the process, the state prosecutor,
would not be the only one directing the bargaining. That role would be split between the
two, where the prosecutor would introduce the charges and the deals, and the mediator
would govern the flow of the plea bargaining. Unfair deals would be difficult to impose.
Moreover, if the offender proposes such a deal to the mediator in a private caucus, then the
same may be rerouted to the public prosecutor, giving the offender a more significant stake
in the process.)
A long way before the Criminal Amendment Act, 2005, that included clauses related to plea
bargainings, the idea of the plea agreement was investigated by the Supreme Court of India,
and the constitutionality, in the case of Kasambhai v. the State of Gujarat 43and Murlidhar
Meghraj Loya v. the State of Maharashtra44 .
In both cases, the court has not recognised the plea bargainings scheme based on informal
appeal. In the Kasambhai's case, the court pointed out squarely that the accused cannot
proceed to convict based on a guilty plea he entered as a consequence of the complaint and
objected to the public policy of condemning the defendant by prompting him to admit the
43
Kasambhai n.51
44
1980 SCR (2)1037
21
guilt of the allurement if he entered the plea of guilt he will be dropped lightly. The
Supreme Court itself has consistently blasted the idea of plea bargainings which arbitration
is unethical in criminal proceedings.
A decade earlier, in the state of Uttar Pradesh v. Chandrika 45, the Supreme Court ruled that it
had been determined that criminal proceedings could not be disposed of by the court in
compliance with plea bargainings. It must be determined on merits by the court. When the
accused acknowledges guilt, the proper punishment must be executed. In the same case, the
court held that simple recognition or admission of guilt could not be a justification to
minimise the penalty.
While on the other hand, CrPC developed a comprehensive protocol for plea- negotiations,
another it limited its scope for crimes for which a sentence of 7 years and older was imposed
and also for offences committed against a female or infant under the age of 14 years. In the
case of criteria for reform in the penal justice administration, the High Court of Gujarat
46
division bench in the Gujarat State vs. Natwar Harchanji Thakorm noted that the purpose
of the rule is to support simple, accessible, and prompt justice by resolving conflict,
including judicial proceedings and considering the current practical pendency and delay
profile. There should be nothing static. Thus, it is possible to conclude that plea bargaining
are a redress measure that adds a new dimension to judicial reforms.
Nor may the victim compromise with the court on the basis that the sentence is shortened
when it pleads guilty. However, all these decisions were made when no legislative process
was in place to regulate its exploitation. Related constitutional concerns were presented in
the United States about the use of plea bargaining, making it necessary to determine how the
courts of additional jurisdictions have responded to the constitutionality question of plea
bargaining47.
The constitutionality of plea agreements in the United States of America was not discussed
until after its creation as part of criminal justice by the judiciary 48. The court initially asked
if the plea bargaining system was valid as a burden on the accused's right to a jury trial. In
45
A.I.R. 2000 S.C. 164
46
(2005) 1 GLR 709
47
Colin Campbell, Plea bargaining, 1973
22
the United States v. Jackson49, the court repealed a law that only required a jury decision to
impose the death penalty.
However, the situation soon changed. The court limited Jackson's holding in Brady v. the
United States50 just two years later. At Brady, the court noted the positive effects of plea
agreements and emphasised that it favours all parties within the adversary process.
Besides, the court justified the plea-bargaining procedure by recognising that a guilty plea
indicates confidence for a good recovery. Justice White, who gave the court's view, noted,
"the problem we are concerned with is inherent in and of its administration since conviction
pleas are not legally forbidden, since, in individual cases, criminal law provides a variety of
options in the judge or jury and because both the State and the defendant frequently see it as
advantageous to rule out the prospect of full permitted punishment".
The Supreme Court concluded that a minor penalty is not invalid in compliance with plea
bargaining. In Alford v. North Carolina, the court abandoned the argument for probation for
plea deals to avert a potential death penalty, even though both before and after the plea, the
defendant explicitly affirmed innocence. The court affirmed that the accused had rendered
the intelligent and voluntary decision, and the record provides clear evidence of guilt.
In the coming year, the plea bargainings' legitimacy has also been confirmed by the United
States Supreme court of New York v. Santobello 51. Chief Justice Burger, who gave the
court's opinion, noted that the "disposition of charges following a plea discussion is a critical
factor in the process and is, for several reasons, highly desirable.
It contributes to the prompt and significantly final disposition of most criminal matters; it
prevents most of the corrosive effects of pre-trail-imposed idleness on those denied to be
releasing while waiting for a trial. It protects the public from those accused who continue
the criminal activity, while still in pre-trail release; and it increases the recovery chances of
48
Bob Naon, Plea bargaining (1st edn, [Office of Program Research, House of Representatives, State of
Washington] 1976)
49
560 F. 2d 112 (2d Cir. 1977)
50
397 U.S. 742, 90 S. Ct. 1463 (1970)
51
404 U.S. 257 (1971)
23
a culprit if they are eventually detained by shortening the period between charge and
disposition ".
They were repelling another assault on plea bargaining constitutionality in the U.S. The
Supreme Court dealt with a complaint in Bordenkircher v. Hayes about prosecution
vindictiveness where the prosecution endangered to prosecute the defendant on further grave
charges if the plea offer had not been accepted. The court dismissed suitability for breach of
the trial and decided that the prosecution and the defendants had fair negotiating power.
The court later refined this argument in Goodwin v. the United States 52. The victim in this
scenario was charged with further offences after a breakdown in plea-bargaining and
demanded a jury trial. The court ruled that if an initial presumption that an accused was
culpable of lower charges would prove false, a prosecutor might bring additional charges.
The court declined to adopt a vindication presumption and reaffirmed the fairness of the
plea bargaining phase.
The Supreme Court of the United States decided in a set of subsequent rulings on the plea
bargainings' constitutionality, such as Stynchocombe v. Chaffin 53 , Hutto v. Ross 54, Newton
v. Rumery 55, Bursey v. Weatherford 56, and Blackledge v. Allison 57. In the United States,
the challenge of constitutionality has gone from unconstitutional to constitutional and
beyond. Furthermore, in India, because the law is in place with some protections,
particularly provisions that allow for victims' efficient involvement in the mutually
agreeable provision process, we may presume that plea deals within the Indian Criminal
Justice System would no longer be considered unconstitutional by the judicial system.
5.2.4 Compounding
52
434 U.S. 357. 1977
53
(1973) 412 US 17.
54
429 U.S. 28 (1976)
55
778 F.2d 66 (Ist Cir. 1985)
56
429 U.S. 545 (1977)
57
1621, 52 L.Ed.2d 136 (1977)
24
As discussed in the last chapter, our law permits compounding for minor offences. Per se,
Compounding may not look like a practice of restorative justice because the parties file an
application stating Compounding, but the outcome and process are both restorative in
nature. With the sufferer taking part in it on an intended basis, it will be eligible as a means
for restorative justice.
The Madras High Court in Shankar Rangayya58held that Sub-Sec (9) must, therefore, be
considered to imply that no offence will be compounded unless otherwise specified in the
section 263 Trikam Das Udeshi v. Bombay Municipal Corporation The consequence of the
Clause (9) of Section 320 would be the fact that the crimes that are not listed in the two sub-
sections do not constitute to be compoundable. The crimes established by special legislation
do not constitute to be compoundable unless the special legislation itself requires
compounding such a crime59.
Mahesh Chand v. the State of Rajasthan60, Even though Clause (9) of Section 320 Cr. P.C.
inflict bar on compounding offences excluding those referred to therein, the Country's
Supreme Court in Mahesh Chand Case had given the approval to compound the offence U/S
307 IPC. Post Mahesh Chand case in which the various High Court in India had given
contradictory judgments. Some High Courts followed the Supreme Court decision and
allowed the Compounding the offence by invoking their inherent jurisdiction 61. Nonetheless,
other High Courts Have snubbed to compound by stringently ensuing the language of
Section 320 Cr. P.C. and also based on them not having any plenary authority deliberated in
Article 142 of the Constitution on the Supreme Court. Supreme Court allowed compounding
U/S 307 IPC under which. Likewise, in the circumstances regarding section 498A, the
various High Courts have a difference of opinion. Whilst several Courts had given
authorisation for Compounding, and others declined it. The judgment of Mahesh Chand was
58
Shankar Rangayya v. SankarRamayya, AIR 1916 Mad 483
59
See Trikam Das Udeshi v. Bombay Municipal Corporation, AIR 1954 Bom. 427, HariChandranPagadai v.
ThangaswamiNadar AIR 1949 Mad 501.
60
1991 SCC (Cr.) 159
61
ThathapadiVenkatalakshmi v. State of A.P., 1991 Cr.L.J 749 (AP), DaggupatiJayalakshmi v. State, 1993
Cr.L.J. 3162 (AP), Manoj Kumar v. State of Rajasthan, 1999 Cr.L.J 10 (Raj), State v. Md. Akbar, 1999 Cr.LJ
1121 (J&K)
25
over ruled in Ram Lal v. State of J & K 62 by the Supreme Court of India, which held that an
offence which legislation proclaimed to be compoundable by no means even with the
authorisation could not be compounded. The Supreme Court again ruled In B. S. Joshi v. the
State of Haryana63 that in such a scenario under the non-compoundable offence like Section
498A and 406, the High Courts still can use their inherent powers U/S 482 Cr.P.C.
There was a strong endorsement by the Malimath Committee for the annexation of other
crimes also within the compounding and widening scope of the compoundable offence.
Committee noted that as a supplement to the crimes specified as compoundable along with
and without the order of the court, there are numerous other crimes that ought to have to be
included in the list of compoundable offences. Following the committee's recommendations,
where the crimes committed do not constitute a severe nature and the effect is principally on
the sufferer and not concerning the culture's standards, it would be appropriate to promote
the resolution with no trial. Committee expressed that the numerous offences must be added
to the table contained in 320(1) of the Code of Criminal Procedure. Committee also
recommended that the offences that are compoundable with the court's permission could be
rendered compoundable without having the leave of the court.
The Law Commission commended the concept of the widespread use of Compounding and
another comparable mechanism in Criminal litigation64. Therefore, the use of Compounding
and similar mechanisms was promulgated by all wings (legislative discourse, judicial
interpretation, and different committees). They further continuously recommended the use
of a compounding mechanism within the Criminal Justice System.
With this established, the government via these provisions also takes away the victim's right
to participate in the proceedings. Across the globe in different countries, victims of crime
are protected, assisted, restituted and compensated by appropriate laws and acts. However,
in India, crime victims play only a little role in the criminal justice process. In recent times,
62
(1999) 2 SCC 213
63
(2003) 4 SCC 675
64
Law Commission of India, Report on Fast Track Magisterial Courts for Dishonored Cheque Cases, 213th
Report, (2008)
26
among the many reforms canvassed for improving the criminal justice system, advocates a
victim-orientation to criminal justice administration. Victim-orientation includes
tremendous respect and consideration towards victims and their rights in the investigative
and prosecution process, provisions for greater choices to victims in trial and disposition of
the accused, and a scheme of reparation/compensation, particularly for violent crimes.
The restorative justice model adopts a victim-oriented approach to restore the victim to the
same state before the crime. This model highlights the injustice suffered by the victim. Niles
Christie emphasised that the relationship between the victim and the offender begins from
the stage the offence has been committed, in the form of a conflict. He describes this
conflict as the victim's property and stresses that the denial of effective participation in
solving the case is as much loss to the victim as the loss caused by the actual offence. In the
criminal justice system's ordinarily heavily offender-oriented process, restorative philosophy
is essential to impart equal consideration to the victim.
5.2 Right to reparations
5.2.1 Victim's Right to Compensation
There was no distinction between the criminal and civil law in the Ancient societies, owing
to which the entire judicial system was founded on the principle to make up to the sufferer.
Nevertheless, particular developments have attracted a divider between the two. Because of
these advances, the victim's right to receive compensation has been assimilated into the
Civil suit, and then in the criminal suit, the government assumes the obligation to penalise
the perpetrator by treating the victims in the same way as mere bystanders.
Nonetheless, the stipulation of compensation for the victims in our criminal justice system
could be discovered back to the colonial period under Section 545 of the Criminal Procedure
Code of 189865.in 1969, in its 41st report, The Law Commission presented an anomaly while
using substantial compensation in Section 545. When the Code of Criminal Procedure Bill,
1970 was introduced by The Government of India, section 357 emerged as a successor of
65
sub-clause (1)(b) of section 545, the court may issue directions to pay compensation for any loss caused by
an offence when the court believes that the substantial compensation is rightful. The victim may recover such
compensation in a civil court.
27
Section 545. An assessment of the new provision stipulates that the court can pay damages
to the sufferer or a person impacted by the criminal offence. Furthermore, it does not matter
whether such a criminal offence shall be punishable by a fine or not66.
Judicial System must be reformative for the alleged and rehabilitating of the injured person,
and it constitutes a reasonable probability that the injured person should be given the
rehabilitative assistance provided by monetary support for the damage or harm sustained.
Consequently, there remained the necessity to introduce the requirement for compensation
to the sufferer regardless of the criminal proceedings. S. 357 and subsequently, S. 357A has
been inserted in the code of Criminal Procedure. Further, other applicable laws that include
the compensation are the Fatal Accidents Act, 1855, Motor Vehicles, 1988 Probation of
Offenders Act, 1958.
357A had been incorporated with the Malimath Committee Report's suggestion to
acknowledge the recompense as a technique to safeguard the victims' interests. The
provision stated the emphasis is on a victim's rehabilitation, even though the accused has not
been tried.67 Compensation for injuries is paid out of the fine, and that is recovered. The
extent of penalty depends on how the restriction is imposed upon a specific crime
committed and the scope of the court's authority. Further, in compliance with Sec 357 (3),
the judge's power to award compensation is unrestricted.
The stipulation puts the quantum of compensation burden on the accused not to pay any
heed to his economic status. There is no stipulation regarding the assumption of the legal
responsibility between the accused and the government. As envisioned in section 357 crpc,
the whole process may be commenced by the victim or forum. The court may recommend
compensation through the Legal Services Authority, state-level or district level. The section
is to be invoked only in circumstances of a guilty verdict. It works on the premise that the
66
Sub-section 2 of this section, if an order to pay compensation has been passed and an appeal has been made
against it, the compensation should be paid only after the appeal's decision.
67
Section 357 states that compensation is payable for any loss or injury, whether physical or pecuniary and is
payable only when the accused is punished with a sentence of fine or some other sentences of which fine is a
part.
28
defendant has been identified, indicted and sentenced. If the same does not happen, the S.
357 for compensation can not be relied on.
After consultation with the central government, the state government has to concoct a plan
for supporting funds to reimburse victims of a criminal offence that have suffered from
damage or injury caused by the criminal offence. After the proceedings, the judicial
proceedings tribunal may propose damages in two circumstances.
 If it is convinced that the reparation has been granted, section 357 is insufficient for
the rehabilitation.
 Whether or not the case culminates in exoneration or discharge of the accused and
the injured person needs to be rehabilitated.
Therefore, this stipulation is certainly in harmony with delivering the injured person's
rehabilitation rights in compliance with the international rights mechanisms.
Though any particular statute has not defined a victim's rights, the judiciary has provided us
with several favourable decisions to preserve the victims' concerns. Courts and tribunals
have begun to acknowledge the victims' plea and award them accordingly by analysing the
matter. There remains a shift in the approach, which stressed the need for more on the
victim's rights.
The law, as mentioned earlier, compensates for accidents, fatalities, or losses suffered for
multiple causes of injury. Besides all these rules, to redeem reimbursement for the seepage
victims of fatal vapour from the Union Carbide Company at Bhopal, the Indian government
released the Bhopal Gas Leak Tragedy (Processing of Demands) Legislation in 1985. On the
night of 2 December 1983, 4000 lives had been lost, and innumerable people were
physically harmed by a significant expulsion of deadly gas from the MIC storing reservoir at
the Union Carbide (I) Ltd. (UCIL) Bhopal factory68.
The Union of India initiated a suit to demand 3.3 billion dollars as restitution against the
corporation under the District Court's formal enablement as "parens patriae". As an
interlocutory issue about transitional payments was presented for the trial, the Union of
68
1990 AIR 273 1989
29
India and the Union Carbide Company (UCC- 50.99% of UCIL's owners) entered into a
tribunal-assisted settlement. In compliance with this arrangement, the UCC settled upon the
award of the entire amount of 470 US Dollars to the Union of India for all the demands
raised against UCC by all the casualties of the gas seep.
It was observed that There was too much law is regarding compensation, as has already
been stated, there has no single law coping with recompense for victims and misuse of
authority, although the Supreme Court has provided sound rules in a variety of cases to
determine the fair compensation to be given for the different kinds of victims. However,
these cases are rather alarming.
The Prabhu Prasad Sha v state of Bihar69 case followed when the court held not only that the
15-year-old boy was convicted of a crime (actually 15 years in the time of the crime), but at
the same time it was remarked that although social justice standards include a substantial
fine but also that the accused has a fine of Rs. 3000 paid by him given the circumstance of
the accused
In Palaniappa Gounder v. Supreme Court of Tamil Nadu 70 , continuing the previous court's
view, it decreased not only the value of the fine that the High Court levied from Rs. 20 000
to 3 000, but also said that "it seems to us that the High Court has first contemplated what
compensation should be granted to the deceased's heirs and then fined a value that is higher
in the first place.
Besides the fact that the award was not even fixed on objective evidence, with reverence, the
High Court set the cart before the horse when it left the property of fine on the sum of the
award. The court's priority should be to assess the proper punishment to be passed after
registering the warrant of prosecution. The punishment shall be proportionate to the extent
of the crime, and it shall be disproportionate, including the punishment.
69
(2007) 3 PLJR 353
70
(1977) 2 SCC. 634
30
Sarwan Sing v State of Punjab71 again is another note-worthy case, where the Supreme
Court withdrew its previous decision and stipulated in-depth that all that was to be stated
must be taken into consideration before imposing any compensation or fine.
The court laid down that
"It is also the intention of the section for the parties eligible to obtain restitution from the
accused persons even if the penalty does not contain the fine. While section 545 only
allowed reimbursement from the fine that was levied by statute by the tribunal, section
357(3) could order the tribunal to pay compensation if the tribunal imposes a punishment of
which finding does not form part. It is appropriate for the court to determine in granting
compensation if the case is fit to obtain compensation. When the money is proven to have
received, the accused's right to compensate money must be assessed."
The goal is to obtain the fine and to compensate the individual experiencing the loss for
reimbursement. The goal is not served if the accused cannot afford the fine or restitution for
which it was not practicable for the object to enforce a default penalty for not paying the
fine. Whether the accused were willing to afford the compensation to the wounded or his
dependents, there should be little excuse for the court not to direct that compensation.
If an individual who has induced or is exposed to negligence is required to have coverage,

only an individual who is accused of causing harm to the requisite men who are prepared to
cover up for the person who is injured may provide direct compensation. That is only fitting.
Therefore, the court's responsibility is to consider the essence of the offence. The damage
sustained and, in deciding the size of the punishment or indemnity, the validity of the
petition for restitution, and the individual's capacity to compensate, and other applicable
circumstances.
Bhupendra Singh v State of M. P72. is the next relevant event. This was the outcome of a
conflict between students at the institution, in which the judge, although enabling the
71
AIR 1953 SC 364
72
AIR 1981 SC 1240
31
aggregation of the crime to take effect, could not neglect the victims' cause and awarded Rs.
3000 reimbursement.
After Sarwan Singh, the second-largest case which came under the Supreme Court was the
Sukhbir Singh and others v. the State of Haryana 73, in the court repeated their firm
knowledge in words written as, "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 considering the nature of the crime,
the justness of claim by the victim, and the accused's ability to pay.
If there is more than one accused, they may be asked to pay in equal terms unless their
capacity to pay varies considerably. May also vary depending upon the acts of each accused.
A reasonable period for payment of compensation, if necessary, by instalments may also be
given. The court may enforce the order by imposing a sentence in default".
For Balraj Singh v U. P74. State, in this case, it was explained in the most applicable term the
same argument as mentioned above by stating that, in comparison to the other sentence, the
right to offer reimbursement is not ancillary this other sentence.
The Principles of Victimology75 has its foundations in the Indian Constitution, particularly
in the fundamental rights and DPSPs76. The judiciary took a new initiative in advancing the
compensating solution by Art. 32 or 226/227. In Rudal Shah v. the State of Bihar77 ,
compensation was awarded u/a. 32 for the denial of part iii of the constitution.
In-State of Punjab v. Ajaib Singh78 , the court conferred compensation of 5 lakhs even
though the accused was acquitted, Thereby establishing an attitude for giving compensation
for the victims. The Supreme Court established the concept of compensation for victims
because the welfare state must safeguard the citizens' constitutional rights against their
73
Criminal Appeal No. 650 of 1992
74
1995 AIR 1935
75
Law Commission of India, 154th report on the Code of Criminal Procedure, 1973(1996), at 57.
76
Article 38 & 41 of the Constitution of India.
77
(1983)4 SCC 141.
78
(1995) 2 SCC 486.
32
agencies' acts. It is also liable for the victims' disadvantages on humanitarian grounds and
their duty to safeguard their issues like the equitable Justice acts.
It is found that the state's compensation in respect to the official's conduct has evolved from
the court against the English law doctrine: "King can do no wrong". Nilabati Behra v State
of Orissa79 made it clear that the Sovereign Immunity doctrine is only applied in cases of
severe cases under by the government officials and not in the cases of violating the
fundamental constitutional rights, and therefore, in a manner said the in matters leading to
horrendous crimes such laws are not applicable.
Rudal Shah v. the State of Bihar80 is the most famous case in which the Supreme Court
finalised a compensation of Rs. 35,000 to be paid by the state to Rudal Shah, as he was held
as a prisoner for 14 years, which was found to be a breach under Article 21 requirements.
The Bhim Singh v. State of Jammu and Kashmir 81 case is another big case where police
detained an MLA named Bhim Singh to prohibit him from attending the Legislative
Assembly. In addition to obtaining his wife's written petition, the court also ordered the state
to pay a compensation of Rs. 50,000 to him. The Meja Singh v. Police Station 82, SHO case
of Zira is another case in which the P&H High Court took the victim's cause and granted
him Rs. 25,000 compensation for the unlawful imprisonment of the petitioners' son.
This time in Ravicant Patil v Maharashtra District 83, DG Police, The Bombay High Court,
considered the victim's case and cause. As the police presented the petitioner in handcuffs
into the Supreme Court, resulting in clear violation, as the law decided after Delhi
Administration v. Prem Shanker's case84.
Another burning matter of discussion is the Custodial Death, in which the courts ordered to
compensate the crime victims, one of the most critical cases to be mentioned in Mrs Cardino
79
1993 AIR 1960
80
(1983) 4 SCC 141
81
1986 SC 494.
82
1991 ACJ 439
83
1991 ACJ 888
84
1980 AIR 1535
33
v UOI85 in which the police arrested an accused of misappropriation of hospital utensils and
some plasticware worth Rs. 1500, but was also compensated because of the torture and the
beatings he underwent as any hard-core criminal by the police officials. The Bombay High
Court, upon judging this case, finalised their statement by offering an Rs. 2,00,000
compensation to be paid to the accused or victim in this case by the state of Maharashtra.
The Honorable Supreme Court has ordered to reimburse the fee of Rs1,50,000 owed by the
State to Nilabati Behra in the case against the State of Orissa, where the petitioner's son
taken into custody by police and discovered to be dead and deposed on the railway track
with many injuries the following day. On the subject of such brutal usage of force and the
86
abuse by the policemen outside the jurisdiction, Saheli v. Commissioner of Police is
another significant case under which the son of Kamlesh Kumari died because of the ill-
treatment of a Delhi Police Sub Inspector. The court hence declared the administration of
Delhi to pay a compensation fee of Rs. 75,000.
In a groundbreaking manner, the next significant case is Gudalure Cherian v Union of

India87. Under this case, the Supreme Court used an innovative process to deal with the CBI
problems on and upon complete investigation. the Uttar Pradesh government suspend the
police officers and then medical officials who attempted to save the defendants and ordered
the state to reimburse the rape victims by compensating them with Rs 2,50,000 for the other
offence victims, a sum of Rs. 1,00,000. Bodhi Gautam Satta v. Shubhra Chakraborty 88 was
the next in line, where the Supreme Court came up with the idea of "interim compensation",
enforcing the 3rd part right opposing the person by stating:
"This decision recognises the right of the victim for compensation by providing that the
court shall award it on conviction of the offender subject to the finalisation of the scheme by
the Central Government. If the court trying an offence of rape has jurisdiction to award the
compensation at the final stage, there is no reason to deny the court the right to award
interim compensation, which should also be provided in the scheme. Based on principles set
85
2016 SCC Online SC 745
86
(1990) 1 SCC 422
87
(1992) 1 SCC 397
88
1996 AIR 922
34
out in the decision as mentioned earlier in Delhi Domestic Working Women's Forum, the
jurisdiction to pay interim compensation shall be treated to be part of the general jurisdiction
of the Courts trying the offences of rape which, as pointed out above, is an offence against
basic human rights as also the Fundamental Right of Personal Liberty and life."
The court laid out that, "Having regard to the facts and circumstances of the present case in
which there is a serious allegation that Bodhisatwa Gautam had 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 the occasions.
On being prima facie satisfied, we dispose of this matter by providing that Bodhisattwa
Gautam shall pay in Subhra Chakraborty a sum of Rs. 1000/- every month as interim
compensation during the Criminal Case… in the Court of Judicial Magistrate, 1st Class,
Kohima, Nagaland. He shall also be liable to pay arrears of compensation at the same rate
from the date on which the complaint was filed, till this date".
In practical cases, in accidents, the most significant number of cases is when money is
provided. In assessing only justice for victims of injuries, the Supreme Court has also
provided many rules and guidelines for offering any compensation. Although no money has
been paid in certain rough cases or insufficient money has been provided, it has usually been
found that compensation is given to such claimants freely in compliance with observations
reached by the tribunals and judges.
{The Supreme Court, in various cases, has awarded compensation to the victim while
convicting the accused. The trend followed by the S.C. in its precedents depicts that it was
not very optimistic of S. 357. However, the Supreme Court has accepted a different trend
wherein it was held that the power of the court u/s. 357 to award compensation was not
ancillary but in addition to other sentences. Further, in this case, the court, by expanding the
scope, has interpreted the section to mean that the compensation should be reasonable and
must be awarded after considering the gravity or misconduct of the accused and the
accused's capacity to pay.89
89
Hari Singh v. Sukhbir Singh,(1988) 4 SCC 551
35
The progressive judgment of the court in the above case was not allowed by the court in its
last judgment in Brij Lal v. Prem Chand90, State of UP v. Jodha Singh 91, State of Mysore v.
Tyhappa92, Nand Ballabh ant v. U.T. of Delhi 93and Gur Swami v. State94, wherein the court
awarded compensation out of the fine amount and was more sympathetic towards the
accused than the victim.
Additionally, the Supreme Court emphasised setting up a Compensation Board (exclusively

for rape victims) in Delhi Working Women's Forum v. Union of India 95. It ordered the
National Commission for Women to evolve a scheme "to wipe out the tears from the eyes of
unfortunate victims of rape." NCW had sent a draft to the Central Government in 1995. The
scheme is called "Scheme for Relief and Rehabilitation of Victims of Rape 96. Some salient
features of the scheme include allocating funds to the Ministry of Women and Child
Development by the Central Government, establishing a Criminal Injuries Relief and
Rehabilitation Board in every district, determination of relief based on specific parameters
such as the severity of the bodily injury, loss of earning, psychological trauma caused,
providing enhanced relief in grievous offences etc.
The paradigm shift towards enhancing the compensation was adopted by the court
to provide solace to the victim and service social justice. Thus, in Ankush Shiwaji Gaikwad
v. The State of Maharashtra97, it was held that the legislative intent of the provisions relating
to victim compensation was to reassure the victim that he is not a forgotten party in the
criminal justice system. Further, the court's landmark decision in Suresh v. State of
Haryana98 awarded the victim with interim compensation, and the state was directed to pay a
number of Rs 10 lakhs to the family of the victims who had been abducted and murdered.
90
1989 AIR 1661
91
AIR 1989 SC 1822
92
1984 AIR 1780
93
(1976) 4 SCC 512
94
AIR 1979 SC 892
95
(1995) 1 SCC 14
96
The scheme was attached as an appendix to the 2005 annual report of NCW
97
AIR 2013 SC 2454.
98
2015 Cri L J 661
36
Though India has been a latecomer in developing victim protection programs for the
victims, the nation has at least five separate victim compensation programs. The oldest is
coverage for the dependent relatives of the victims lost in accidents or for the person who is
injured. Since considering the rate of compensation schemes globally, India (about 130,000
per year) has the most fatalities and accidents in road traffic, insurance-based coverage is
also required to a greater extent. In unavoidable automobile accidents, "Motor Vehicle
Accidents Claims Tribunals" and their Tribunals Appellate offer fair coverage. The persons
involved are charged by the insurance provider when each motor vehicle is to be covered at
the point of purchase and registration for its responsibility to the third party where the
accident is proven to not arise from the carelessness of the persons affected.
In the case of R. Gandhi v. Union of India 99 (1989), a PIL was filed by Tamil Nadu's
lawyers' association for seeking compensation for the loss caused to the Sikh community by
the violent activities after the assassination of Indira Gandhi. The Madras High Court
directed to pay compensation to the victims of Coimbatore.
The state must protect such rights, and if the state fails to do so, they are liable to pay
compensation to the victim. The court also held that compensation should be awarded
without delay and even without waiting for the court to convict the accused. The court also
involved the National Commission for Women in the case and asked to develop a procedure
for allocating the compensation in such cases. This judgment of the case led to Section
357A in the Criminal Procedure Code, 1973 for setting up a Victim Compensation Scheme
by the State Government on the Central Government's advice.
Delhi high court pondered upon the predicament and neglect faced by victims in Karan v.
NCT of Delhi100.a triple judge bench attempted to safeguard the interests of the sufferers by
offering detailed instructions for the compensation for the victims, its calculation and the
payout. Court was of opinion
"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
99
(1999) 8 SCC 106
100
(Crl A no. 352/ 2020),
37
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. "The judgement established STANDARD
OPERATING PROCEDURE (with respect to operation of Delhi Victim Compensation
scheme 2018) PAC-C Protocol Proceedings for Assistance of Compensation Computation.
Through this judgement a duty has been assigned to the court who is convicting to
enumerate manner. Also, a further duty has been given for supporting the court convicting
to all district legal services authority and Delhi legal services authority so that the court can
decide upon a compensation which is operational and sufficient for meeting the needs of
victims. Our system puts the blame of crime on the state and that is why state is the one
fighting the criminal case. An affirmative assertive and valuable obligation has been
imposed by our Criminal justice system for protection of citizens. Therefore, the blame is on
state of any injury caused. And thus, the reparations for same becomes the prerogative of
state. "Grant of compensation to the victims" of a criminal offence, is thus a necessary result
of such a failure.
The Delhi victim compensation scheme was endorsed by the after the directions of the
Hon'ble Supreme Court of India, for the first time in 2011 in conformity with the legislative
requirement which has been updated time n again latest in 2018.Scheme has also given
provisions for establishing Victim Compensation Fund and from here the award of
compensation is to be made. further compensation can be interim or final.
38
Figure 4
39
Application to be presented for provisional or definitive

compensation by the victim through the Victims dependents
or the Station house officer.
Making an
there must be a copy of the First Information Report (FIR),
Application before medical report, death certificate, if available, copy of
the District/State judgment/ recommendation of court if the trial is over,
Legal Service submittedalong with The application must be s to the State
Authority or District Legal Services Authority
District Legal Service Authority of every state first verify the content
The Scrutiny Stage of the claim. Specific loss, injury, rehabilitation is taken into
consideration.
The gravity of the offence and the loss suffered by the victim.
Medical expenditure incurred during treatment.
Loss of livelihood as a result of injury or trauma.
Whether the crime was a single isolated event (Example Theft) or
whether it took place over an extended period of time (Example
Deciding the multiple times, Rape with a woman who has been locked in a
Quantum of house)
Compensation to Whether the victim became pregnant as a result of such offence.
be Given to Victim In the case of death, the age of deceased, his monthly income, the
number of dependents, life expectancy, future promotional/growth
of Crime prospects etc.
Or any other factor which the Legal Service Authority might deem
fit.
The amount of compensation so awarded shall be disbursed by the

respective Legal Service Authority by depositing the same in a
Nationalized Bank in the joint or single name of the
victim/dependent(s).
Out of the amount so deposited, 75% (seventy-five percent) of the
same shall be put in a fixed deposit for a minimum period of three
Method of years.
Disbursement of The remaining 25% (twenty-five percent) shall be available for
Compensation utilization and initial expenses by the victim/dependent(s), as the
case may be.
In the case of a minor, 80% of the amount of compensation so
awarded, shall be deposited in the fixed deposit account and shall be
drawn only on attainment of the age of majority, but not before three
years of the deposit
5.3.Rehabilitation and Assistance

40
5.3.1 Rehabilitation and Assitance Provided to the Victims under PWDA101
Nehru once said, "You can tell the condition of a nation by looking at the status of its
women." the overall number of domestic violence instances filed rose from 50,703 in 2009
to 125298 in 2019, As per the data published by India's National Crime Records Bureau 102.
The same is exemplified in an upsurge of 134% in years.
Domestic violence cases against Women in India - 2019
Incidents Victims Rate per lakh of the

population
125298 126575 19.3
Source: National Crime Records Bureau
PWDVA was drafted to guarantee that female life was a life liberated from violence in the
family. To achieve this goal, it envisions a reaction structure that involves having a
multiplicity of assistance groups to support domestic violence's sufferer. The statute
provides precise responsibility to the central and state governments to deliver the proper
foundation for efficient execution.103
1. Protection Officers
A crucial link was standing between the women looking for assistance as per the PWDVA
and the organisations that facilitate and offer relief or something like it. It is the protection
officer who, on the one hand, helps the lady to avail the assistance while, on the other hand,
has to act as the arranger sandwiched between the court and the woman. Moreover,
101
102
National crime records bureau
103
Section 11, PWDVA, 2005
41
following the PWDVA, one of the first official persons is the Protection officer to whom a
woman will be turning for assistance.
One of the primary duties of a protection officer is to curtail the exposure of the one asking
for assistance from further violence. The duty extends to deliver her to security and allow
her to gain access to provide support to reach essential services for her like the Shelter
Homes and Medical Facilities104.
Much discretion has been given to the state governments, and they have already been made
accountable for the selection of the Protection officers. Also, they have been entrusted with
a responsibility to regulate the number of such officers to be selected. Competent
jurisdiction of such chosen P.O.s and any notification necessary for the accordance with that
effect is also prerogative of state government.105
It has been set out that that priority should be given to ladies for such positions, and the
nomination may well be there from amongst government officials or representatives of
NGOs106. It further asserts that the P.O.s should have at least three consecutive years of
relevant professional experience and be hired for a certain minimum of three years. 107
Additionally, the state governments have already been instructed to deliver the required
office to assist them.108
2. Service Providers
The act offers for registration of NGOs with the state government 109 , thus Acknowledging
the crucial role of NGOs on women's rights. By way Of this provision, it is not merely their
work that has been granted validity. They are also acknowledged as public servants in
104
After the female files an application under the PWDVA, the court assumes supervision and directs the PO
to perform various functions stipulated under the PWDVA.
105
The detailed guidelines regarding the qualifications and experience of POs have been provided in the Rule
3, Protection of Women from Domestic Violence Rules, 2006 (PWDVR).
106
Rule 3 (1), PWDVR, 2006.
107
Rules 3 (2) & 3 (3), PWDVR, 2006.
108
Rule 3 (4), PWDVR, 2006.
109
Section 10(1) of the PWDVA
42
accordance with the law and shielded from every act done in good faith to prevent violence
in the family110.
Their function stretches further than delivering guidance and pre-litigation assistance to the
services to help the females in the court and then continue to follow through until she gets
all the appropriate reprieves. It was meant to be an optional responsibility that any civil
society organisation could choose to take. 111
3. Medical Facilities and Shelter Homes
Medical Facilities and Shelter homes together have been officially acknowledged as
assisting with public services by The PWDVA accessible to mistreated females. It identifies
both of these services and solicits their responsibilities.
5.3.1 Rehabilation and Assitance Provided to the Victims under Juvenile Justice Laws
The association amid early abuse of the child and young offending has the most unswerving
and vigorous link, although not every wronged adolescence becomes tangled in
misbehavior. More specifically, victimisation has been linked to committing acts of
community violence, sexual assault, and a variety of other delinquent behaviors. The phase
at which kids experience ill-treatment is connected to delinquent behavior later on like if a
child has gone through mistreatment in teenage years, it can partake disadvantageous
consequences criminal in nature above.
The 'Global Status Report on Preventing Violence Against Children' documented that 1 in
10 kids globally is vulnerable to many forms of violence. As quoted in a recent report, "poly
victimised children are at increased risk for losing the fundamental capacities necessary for
112
normal development, successful learning, and a productive adulthood." adolescents who
are poly victimised may be the ones oppresses at home or school and further when they take
to criminal activities and are placed in correction systems their victimisation increases
making them all the more vulnerable.
110
The Act provides a procedure for any voluntary association to apply for registration as Service provider.
111
Section 10(3), PWDVA, 2005.
112
Global status report on preventing violence against children. Geneva: World Health Organization; 2020.
http://apps.who.int/iris.
43
Several studies have shown that being exposed to personal aggression is associated with a
heightened probability of participating in delinquency. Youngsters who go through poly
victimisation demonstrate augmented peril of destructive and disparaging conduct when
related to their counterparts; that is, youngsters not been poly victimised. 113Although there is
the prevalence of brutality amongst youngsters and kids in our nation, there is less
likelihood of them getting assistance in recuperating from the mental damage resulting from
that encounter. in line with the numerous young people not being able to obtain the help that
will be able to efficiently assist them to regain the feeling of security, mend their own social
and emotional scars, as well as reducing their risk of following participation in the faulty
behaviour.
Figure 5
When they associate themselves with delinquencies and are put into correction systems,
their victimisation becomes all the more serious. It may impact young people in various
realms of operation and will be able to substantially change the way they look at their own
and communicate with the outside world. Further, when they move out of the correctional
institutions, the circumstances have already destabilised the developmental procedures
113
Ibid.
44
associated with education,

societal, psychological health,
and conduct in everyone else's
direction. When the children
are not encouraged in loving
and safe, and sound situations,
there is a reduction in security
and increased powerlessness
sentiments. These alterations
result in discernments of the
world and themselves can
hinder developmentally
important tasks and youth
experiences.
Abuse may promote the thinking that misleads the whole world and intensifies the spotlight
on apparent dangers. With an important emphasis on self-protection, young persons with a
history of discrimination might have trouble concentrating within the classroom or
screening the whole world from other people's viewpoints. Compromises in these important
abilities have implications for how youth connect with others and modulate their feelings
and reactions.
Children subjected to prolonged brutality are equivalent to those living in "urban war
zones," and their own social parameters are so reworked that they think that they are not
secure and will not be able to be protected by society. 114The general concern and security
worries, in conjunction with the abuse, may have a considerable impact on youngsters'
emotive and psychological well-being.
Following cognitive societal and psychological patterns, which victimisation encourages

may impact decisions regarding personality and activities, i.e., they may hunt or can be
114
James Garbarino and Garry Sigman, A Child's Right To A Healthy Environment (1st edn, Springer 2010).
45
lured for refuge in gangs since these deviant societal assemblages may be seen as
protective.115
Disposal of Juveniles Arrested and Sent to Courts 2019*
Total Number of 80590

Juveniles booked
Juveniles Released as cases un-occurred/ 3358

quashed/ Discharged by courts
Juveniles sent home after advice or

admonition 18765
Juvenile Sent to Special Home or Fit 10340

Institute
Juveniles awarded Imprisonment 658
Source: National Crime Records Bureau
There is clear testimony to suggest that the time in correctional institutions is traumatic for
the young. The manifestations of post-traumatic stress disorder are linked to further criminal
activity. Augmented post-traumatic stress symptoms are associated with a higher number of
arrests and increased delinquency severity within the past year.
Also, exposure to trauma can encourage young people to feel absolutely no prospects for
themselves. That increases their participation in irresponsible and perilous activities.
"Pessimistic self-appraisals—shame" and "self-blame—are" commonly seen among young
people that have been persecuted. The first-hand experience of pain and following PTSD
symptoms might lead to self-alienation and helplessness—creating circumstances where
young individuals are more accountable to move away from other people, reject pro-social
principles, and participate in harmful activities.
115
Ibid.
46
Tackling the Progression of Abuse and Consequent Criminal behaviour, victimisation again
acts as trauma, and such experience can leave behind a juvenile with personal processing
shortfalls. Young people are much more likely to misinterpret social signals, misperceive
intent, and make use of assertive strategies to tackle personal problems that arise. Thus
leading them towards a life of negativity and criminal activities.
The most important point that remains to break the relationship between "victimisation and
delinquent behaviour" is re-establishing emotional security—the feeling of getting adequate
inner and external resources to tackle the challenges. The primary objective of upsetting the
sequence is to help the juvenile rebuild emotional well-being by utilising healthy handling
tactics. Achieving this objective usually includes systemic and individual intervention
measures that can address previous abuse and ready the young people to handle the stressful
situations in their situations.
In Salil Bali v. Union of India & Anr 116, it was argued to modify the law relating to Juvenile
Justice and to decrease the child's age of maturity from 18 years to 16 years as well as to
change the law in such a manner that the juveniles who committed the atrocious crimes like
rape and murder ought to be brought to justice as a grown-up. The Supreme Court held that
the Juvenile Act was founded upon the sensible tenets and refused to accept the request and
complete harmony with India's Constitution. Various Transnational Instruments also
identifies child rights like Beijing Rules, Riyadh Guidelines, enabling the juveniles to have
an autonomous criminal justice administration structure.
Even in Mukesh & Ors v. the State of Delhi 117, the supreme court declined to provide the
rougher punishment based on the behaviour's atrociousness. Here is an exemption in cases
in which a child uses the illegal predilections for the young, and it becomes almost
impossible to reintegrate them with the other members of the society, even though such
instances are extremely few. A healthier approach is attempting to reintegration of children
in the conventional society rather than keeping them together with the toughened offenders
in prison.
116
(2013) 7 SCC 705
117
(2017) 6 SCC 1
47
In Sanjay Suri v. Delhi Administration118, the release of juvenile undertrial detainees was
commissioned by the Supreme Court. The verdict also underscored that the prison agencies
would not accept the juvenile's age as long as the age is explicitly declared in the papers
advocating imprisonment.
the order of the High Court to send out a youngster to a prison sentence for having
committed a crime turned out to be questioned before the Supreme Court In Jayendra v. the
State of UP119, The apex Court asked for the testimony prepared by the doctors in charge of
the prison to decide the age of the juvenile. It was discovered that his age at that point in
time when he committied an the crime was 16 years and four months and the punishment for
incarceration was overturned, as well as the convict has been released instantly.?
In Munna v. State of UP, the apex court issued particular instructions about kids in the
detention centre. The supreme court found that even though a youngster is found guilty of
the crime, he would not necessarily be abused. They do not have to lock up-up and around
their basic human rights as soon as they enter prison.
The Supreme Court, Through The Bhoop Ram v. the State of UP120, abided by the ruling of
Jayendra v. State of UP121 and this was additionally considered that the point in time of the
commission of a crime is adequate to decide the age of an individual.
In Raj Singh v. the State of Haryana 122, the Supreme court considered that the child's age
needs to be decided at the very moment of a crime occurrence. However, the court rejected
this ruling in Arnit Das v. the State of Bihar 123, in this instance, R.C Lahoti, J. prompts the
fact that this is important to remember that both the very definition of juvenile nor any other
requirement that is contained in the act precisely offers day on with reference to which the
child's age (a boy or a girl has to be determined). The reasoning behind this verdict is the
118
1987 (2) SC 276
119
Criminal Appeal No. 551 Of 1981
120
1976 SCC (Cri) 599
121
Jayendra n.106
122
2017) 186 PLR 765
123
(2000)5 SCC 488
48
apex court has discovered the dilemma that several kids have been lodged in the adult
detention centre because they do not have proof to demonstrate their own age.
In Raj Singh v. the State of Haryana124, the young who had been not more than 16 years of
year-old at the point in time of the initiation of the crime committed was found guilty
following Section 20 of the Narcotic Drugs & Psychotropic Substances Act, 1985 and has
been awarded the sentence of a prison sentence. The court ruled that under section 2(e) of
the Juvenile Justice (Care & Protection) Act, 1986, a juvenile who shall have been found
guilty of an offence turned out to be a juvenile. Therefore the whole trial had been
overturned.
One thing to be understood is that every child is not born in well to do homes. Some of the
children necessities due to poverty and some are devoid of home comforts due to not having
parents or when the parents cannot care for them. It becomes the state's duty to act as a
parent to these children and care for them. in addition to this, this state has an additional
responsibility to take care of children who come in conflict with the law.
These juvenile police units with special training must be set up who will help discover
delinquents and pre-delinquents. When a child conflicts with the law, the juvenile in India is
placed in two categories: CINOCAP125 and the second one is CICWL126. Articles 15(3),39(e)
and (f),45 and 47 and also the U.N. Convention on the Rights of the Child (CRC) and UN
Standard Minimum Rules for Administration of Juvenile Justice (Beijing Rules) have been
the obligation on which the policy of juvenile laws in India have been framed.
There is a certain category of children who needs immediate attention in terms of

corrections. These children can be classified as vagabonds, orphans, destitute, beggars,
truants, mischievous children, and children in conflict with the law. The corrections talked
about are either institutional or non-institutional.
Pre-Trial Processes
124
Raj singh n 110
125
Child in Need of Care and Protection
126
Children in Conflict with Law
49
while coping with a "child in conflict with the law", not including heinous offences, 127 there
is no need by the police for the first information report (FIR) or charge sheet. 128 Information
that has been documented in the common daily diary is enough. Following apprehension by
the police, there is a provision where the juvenile is supposed to be produced before the
Juvenile Justice Board.
After the report is filed on the juvenile's societal backdrop, files and the situations and
apprehension incidents are submitted before the juvenile board. If a juvenile is found to be
charged with a "bailable or non-bailable offence' he "shall" be discharged on bail or put
under the supervision of an appropriate person/organisation. 129 If the bail happens to be
refused, the juvenile will not be sent to prison and placed in an observation home.
Role of the police in Juvenile justice
The two principal elements of criminal justice are Police and Courts. When it comes to
juvenile delinquents, police get a much more significant role to play, just As the legislative
provisions offer for the vigorous involvement of police in instances concerning juveniles.
There exist three different ways in which police departments as an organisation can play a
part.
1.State level - The Inspector General of Police, is the Nodal Officer
2.District/city level - there is SJPU (Special Juvenile Police Unit) headed by the S.P.
3. Police station level – There are Juvenile or Child Welfare Officers (JCWO).
The apprehension of juveniles may be in "non-serious offences" or in "serious offences". In

both these cases, the best interest of the child is paramount. The juvenile is As soon as the
police apprehend the juvenile, if the case happens to be a petty offence, it might be disposed
of there and then.5 On apprehension, the child is not supposed to be cuffed by the hand, nor
127
Like rape or murder.
128
Rule 11(11) of the Juvenile Justice Rules, 2007
129
Section 12
50
is he dispatched to jail. As an alternative to this, the child is intended to be turned over to the
closest JCWO130.
After this, information needs to be provided to the mother and father and probation officer
to get the "Social Investigation Report". regarding the date, time and place, need of surety
and bail bond; the Parents need to be notified in detail. They are also given a copy of the
police report and requested to deliver the evidence of juvenility. Before the child is handed
over to the JCWO, it is the police department's sole obligation to care for the food, security,
and other facilities. Also, it remains the police's duty to produce the juvenile before the
board within 24 hours.
Trial and Adjudication
Alteration of antisocial conduct is considered to be one of the fundamental purposes of

correctional facilities. The Juvenile Justice (care and protection) act,2000 pays extraordinary
consideration to the children in a community estrangement position.
There exist Two separate committees to manage and care for children in conflict
A. CWC Child Welfare Committee comprises
This committee is constituted of members five in number; one out of five is the chairperson
while others are the members131 ,
B. JJB-Juvenile Justice Board-
The board consists of three members; one of them is a metropolitan Magistrate 132 and two
social workers. Out of these members, one must be a woman delegate.
The above committees decide on the institutionalisation of such juveniles, and they are then
placed in any of the establishments such as the Children's Home, Observation Home,
Special Home, After-Care Hostel, Fit Institution, or they could be offered for adoption
/foster care.
130
Juvenile or Child Welfare Officers
131
at least one member should be a woman
132
Someone who has special knowledge of the child welfare /social welfare.
51
The probe is conducted by the Juvenile Justice Board of the juvenile accused of the crime
and delivered before it following the powers following Section 14 of the Juvenile Justice
Act.
Post-Trial Processes
The juvenile's case files are eliminated from the system After the termination of the appeal
period. This is done to ensure no ineligibility connects to a child in the conflict of law. For
the duration Of his time in a "children's home" or the "special home" in its recovery and the
juvenile commence's social reintegration following Section 40 of the act's provisions by
government authorised After-care organisations after they leave the Juvenile homes.
Children's home
The government of the states or the voluntary organisations in collaboration with the state
government for the response, attention, handling, teaching, teaching, growth, and
reintegration of the child in the necessity of care and protection has established children's
home in each region group of districts.
A single home can also be a possibility for A child below the age of ten, whether male or
female, although and all the essential amenities may vary on the age of the child, for
example, and all the essential amenities for newborns and toddlers are different from those
beyond the age of five years. Separate institutions with the purpose of integration and
restitution of children for age above ten must be there separately for boy and girl child.
Shelter homes
Voluntary organisations in conjecture and with the assistance of The State government
homes for children exist for an emergency where the child can be placed by authorities. 133.
Shelter Homes are administered by the state government with the voluntary organisations
and are supposed to act as
1. Short stay homes
133
police officer/SJPU/any public servant/child line/voluntary organization/social worker/public/child himself
52
These are meant for a temporary stay, and the stay can be for a maximum period of one
year.
2. Transitional Homes
These are meant for children in need of immediate care for a maximum period of four
months.
3. Twenty-four hours of drop-in centres
These are available for daycare or night shelter.
There will be distinct shelter houses for girls and boys with bare minimum accommodation
and living service and essential amenities.
Adoption
Once the child is at the children's home, the commission shall give the child adoption to a
household and family ready and competent to assume complete accountability 134. The
principal objective of this is to offer a permanent and lasting replacement for a family to the
child whose birth parents have not cared for them.
Foster care
There can be a provision of Foster care for those children who are not to be given in
adoption. There should be emotional stability and financial soundness for those opting to be
foster parents. They must also be physically appropriate and must possess the ability to take
care of the child.
In foster care, for a short or temporary period, the children from the homes are placed in the
care and protection of other families and the families of children, the parents can meet the
child. There also exists a possibility of a child returning to his parents135.
Sponsorship136
134
(Provided all the conditions of JJ Act and the Adoption Act are fulfilled)
135
There shall be no discrimination of caste, religion, ethnic status etc but decision will be taken in the best
interest of the child.
53
It might be individual, group or community sponsorship. Sponsorship is a kind of

supplemental assistance given to children's home, special home, or families to encounter the
medicinal, scholastic, nutritive, and additional children's requirements.
After-care hostels
Those leaving children's home and special homes and those above 18 years of age by the
State government have set up After-care hostels for juveniles. The highest duration of living
here is three years or up to the age of 21 years 137. This system promotes professional and
vocational education and training to achieve occupation and progressively nurture
themselves without any support. A scholarship shall be offered for the duration of the
coaching period, and at the same time, the loans could be arranged to establish a commercial
operation. Kids in these establishments must be equipped with the subsequent amenities:
a. Lodging together with boarding and clothing, which should be a minimum of 4-6
pairs annually.
b. Hygiene and cleanliness, including clean water for consumption and washing.
c. Appropriate sewerage system, adequate toilet facilities and bathroom facilities
d. Nutrition – a minimum of four meals per day, and a specific diet for the ill, exclusive
meal on vacations and festivities events.
e. Health-care – there should be monthly medical check-up.
f. Drug abuse preventive programs.
Role of a probation officer
The State government assigns the Probation Officer and the appointment of an Honorary
Probation Officer, ie. P.O. is by voluntary organisations. When the juvenile is apprehended,
he is placed under a PO. he happens to be the caseworker and is required to make
preparations for the care plan and then follow up of the young is also his prerogative. In the
juvenile justice system, a very important role has been played by the probation officer; after
136
Section 42, Juvenile Justice Act, 2000.
137
Section 40, Juvenile Justice Act, 2000.
54
his apprehension, the P.O. has to accumulate information, formulate the investigation report,
and handle the juvenile.138 For the juvenile, they are to be a "companion, philosopher and a
guide". They are to assist a juvenile in getting in touch with their families and supporting
them in getting back with the juvenile and social reintegration.
Provisions of the juvenile justice (care and protection of children) act,2015
The Juvenile Justice (Care and Protection of Children) Act,2015 provides for Certain
stipulations that authorise juveniles between 16-18 years of age to stand in the trial due to
the infamous crimes. Sec.2(33) of IPC stipulates that
"Heinous offences are those offences for which the minimum punishment is imprisonment
for seven years or more."
Primary Evaluation of the juvenile's psychological and bodily ability and capacity is
provided under Sec 15 of the said act .it also provides about the juvenile's capability to
comprehend the aftereffects and the circumstances in which the most odious wrongdoings.
The assessment would be done by experienced jurists who may assist psychologists, social
workers, and ladies in discovering whether the crime was accomplished with a grown-up
brain or childish psyche. Just after the statement of a Preliminary Evaluation Committee's
decision will be taken to determine if the teenager ought to be attempted like an adult
following the Adult Criminal justice system or continuing to receive treatment of a teen
following the juvenile system139.
The juvenile would not be given any life sentence or even death punishment. Such An Act
comprises the provisions of the Hague Convention on Protection of Children" and
collaboration in reverence of Intercountry Adoption not revealed in the act 140 . It has
rationalised adoption measures for bereaved abandoned progenies. It sets up a legislative
position for Child Adoption Resources Authority (CARA). The legislation provides for the
138
in case of bail/at the time of final order/post release, assistant the institution.
139
Dr. Rahul Tripathi, "Juvenile Delinquency: Overview, Prevention and Laws In India" [2016] The
International Journal of Social Sciences and Humanities Invention
140
Juvenile Justice (Care and Protection of Children) Act, 2000
55
sponsoring and adoptive parents entirely new arrangements, thus enhancing the time limit
for adoptions across the countries141.
To conclude, India was put into the path of pro victim movement by the united nations
general assembly when it ratified the pro victim jurisprudence by adopting the Declaration
of The Basic Principles of Justice for The Victims of Crime and Abuse of Power. The
restrictive approach taken when ascertaining victimisation became obsolete through this
declaration, and a new approach arose, which included dependents. Victims' rights have still
not undergone much change despite the changing time and development in the ideology.
This is the inadequacy inside the system, which is being remedied by the legislative
authority and the directives of higher courts. Laws related to juvenile and domestic violence
have taken a restorative path, but the other laws still are at the threshold.
141
Ahmad Shaikh, "Juvenile Delinquency Act and The Prevention of Juvenile Delinquency In India." [2020]
SSRN Electronic Journal

New Revised Chapter 5

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

New Revised Chapter 5

Uploaded by

Copyright:

Available Formats

1

Judicial Approaches to Restorative Justice

Justice Krishna Ayyar

5.1 U.N Mandate for Victim's Right

that the four essential

Access to justice victim rights in U.N.

Up Till the 1970s, the

Restitution and victims did not have

Reparations any individual rights

Figure 2 Pictoral Representation of Victim Rights

Restorative justice model works in three stages

1.Pretrial stage the first stage would include access to justice.

2. Trial stage would include appropriate victim involvement

3. Post -trial stage would include external support mechanism

To ensure the restorative model's successful implementation, a criminal justice system

Legal Services Authorities provide legal services to accused/convicts in custody or

5.2 Right to Participation

VICTIMS RIGHT TO PARTICIPATE IN

Fair trial-Right Victim

5.2.1 Fair trial - Right to Representation

1. Right to be Represented by a lawyer of choice.

5.2.2 Victim-Offender Mediation

General Statistical Report

Tis Hazari Courts, Delhi.12

Report between the referring date 22/8/2005 to 31.03.2021

Total no. of cases referred for mediation: - 109490

No. of cases that were not fit for mediation: 14026

No. of Balance Cases: 95464

No. of cases pending for mediation: 530

No. of Disposed Cases: 94934

No. of cases settled : 56916

No. of cases not settled 38018

No. of connected cases settled: 14691

karkardooma Courts, Delhi.13

Report between the referring date 01/12/2005 to 31.03.2021

Total no. of cases referred for mediation: 61784

No. of cases which were not fit for 12889

No. of Balance Cases: 48895

No. of cases pending for mediation: 537

No. of Disposed Cases: 48358

No. of cases settled: 37485

No. of cases not settled: 10873

No. of connected cases settled: 14821

Rohini Courts, Delhi.14

Report between the referring date 02/02/2009 to 31.03.2021

Total no. of cases referred for mediation: 49683

No. of cases which were not fit for mediation: 10352

No. of Balance Cases: 39331

No. of cases pending for mediation: 259

No. of Disposed Cases: 39072

No. of cases settled : 23253

No. of cases not settled : 15819

No. of connected cases settled: 7600

Dwarka Courts, Delhi.15

Report between the referring date 06/07/2009 to 31.03.2021

Total no. of cases referred for mediation: 43331

No. of cases which were not fit for mediation: 7643

No. of Balance Cases: 35688

No. of cases pending for mediation: 317

No. of Disposed Cases: 35371

No. of cases settled : 24761

No. of cases not settled : 10610

No. of connected cases settled: 5101