AN ASSIGNMENT

ON

VICTIM COMPENSATION IN INDIA

SUBJECT - VICTIMOLOGY

ACADEMIC ASSIGNMENT 2023-24

Submitted to Submitted by
Ms. Manali Shrivastava Manju Dhruv
Faculty of Law Class- LL.M (one year) 1stSEM
Roll No: MU23LLM1Y037

MATS UNIVERSITY
DEPARTMENT OF LAW
 INDEX

ACKNOWLEDGMENT…………………………………………………………………………...…...

LIST OF CASES………………………………………………………………………………………

CHAPTER

1. Introduction……………………………………………………………………
2. Victim Compensation: Definition, Nature & Scope……………………………...
3. Victim Compensation: Indian Position…………………………………………
4. Suggestions and Recommendations……………………………………………

CONCLUSION………………………………………………………………………

BIBLIOGRAPHY………………………………………………………………
 ACKNOWLEDGMENT

The writing a project has one of the most significant academic challenges I have ever faced. Any attempt at any
level can’t be satisfactorily completed without the support and guidance of learned people. I am overwhelmed in
all humbleness and gratefulness to acknowledgment our depth to all those helped us to put these ideas, well above the
level of simplicity and into something effectively and moreover on time

In preparation of my assignment, I had to take the help and guidance of some respected persons, who deserve my
deepest gratitude. As the completion of this assignment gave me much pleasure, I would like to show my gratitude to
Ms. Manali Shrivastava, Faculty of Law, of M a t s u n i v e r s i t y for giving me good guidelines for assignment
throughout numerous consultations and introduced me to the Methodology of work. She had been very kind and
patient while suggesting me the outlines of this project and correcting my doubts.

In addition, I would like to extend the thanks to my parents for their selfless encouragement and support given to
me at critical junctures during the making to this project.

Manju Dhruv
Class- LL.M (one year) 1stSEM
Roll No: MU23LLM1Y037
 L I S T OF C A S E S

I. D.K. Basu v. State of West Bengal, AIR 1997 SC 610

II. General Manager, Kerala State Road Transport v. Saradhamma, 1987ACCJ 926 Kerala

III. Rudal Shah v. State of Bihar AIR 1983 SC 1086

IV. State of Gujarat v. Shantilal, AIR 1969 SC 634 at 644

V. Saheli v. Commissioner of Police, Delhi, AIR 1990 SC 513

VI. Sarwan Singh v. State of Punjab, AIR 2002 SC 362

 R E S E A R C H METHO DOLO GY

TITLE

Victim compensation in India

RESEARCH PROBLEM

 Who is a victim?
 Does the term victim include an offender also?
 Can the state be an offender?
 What is justice?
 Whether the justice is a relative concept or is absolute?
 Does, if yes how far, the psychology of the victim or the society affects the concept of justice?
 What is victim compensation?
 How to decide the amount of compensation?
 Should it be the offender or the state to compensate the victim?
 How does compensation affect the offender?
 Does the Compensatory Jurisprudence play any role in controlling crime?
 What is the jurisprudence related to victim compensation in India?
 What is the jurisprudence in other countries? How much can India learn from the same?
 What is the International legal mechanism related to victim compensation?

SCOPE, AIM AND OBJECT OF THE PROJECT

There are various approaches of punishment like retributive, rehabilitative, reformative etc. All these approaches focus
on the offenders. They focus on punishing the offenders or to rehabilitate and reform them to reintegrate them into the
society etc. But they ignore the actual justice to the victim as merely punishing an offender does not compensate the
loss suffered by the victim. Punishment is just a means to give satisfaction to the retributive feelings of a victim but it
actually does not provide him any material help. With this view inconsideration a new concept or a new reaction to
crime has emerged, known as Compensatory Jurisprudence. This is a concept of compensating the victim or his family
for the loss suffered due to the crime committed against him. In this project work we would be discussing the concept
of victim compensation.

The aim of this Assignment is to critically examine the need of victim compensation and how effective
measures can be taken to implement it efficiently Our aim is to conduct a study of those problems in the light of
various cases and also in reference to various other authorities on the subject.

The project revolves around the concept of Victim compensation. It is aimed to getting an insight into intricacies
of Victimology through victim compensation, emphasis being laid on how Victims of violent crimes are likely
to suffer some form of financial and emotional stress due to court appearances, legal fees, physical injuries, emotional
trauma, and more and how Victim compensation exists to help relieve some of that financial burden. The project also
throws light upon the criteria for determining the law applicable to it with reference to The Code of Criminal
Procedure, 1973, the Probation of Offenders Act, 1958, The Motor Vehicles Act, 1988.
The assignment’s objectives are:

I. To study historical perspective of victim compensation.

II. To study the philosophical basis of victim compensation.

III. To study definition, nature and scope of victim compensation.

IV. To study Indian position of victim compensation.

V. To study international position of victim compensation.

LITERATURE REVIEW
Here, we would discuss the works of few scholars, briefly, who have tried to explain the concept of victim
compensation and blood money. According to Prof. Mehraj Uddin Mir, victim compensation has become an important
aspect of rendering justice to victims and along with traditional notion of punishment compensation to victim has
reduced the accused oriented approach in the criminal justice system. 1 Prof. Mir in his work compares the victim
compensation programmes in India, the USA and the UK, and concludes that though the Indian position on victim
compensation has positively changed during the last few decades but this concept is more developed in USA and
UK and India still has a long way to go. 2

In his work Prof. Mir though discusses the concept of victim compensation and the benefits to the victim from the
victim compensation scheme he does not say anything about its effects on crime control. Thus, he has discussed the
things concentrating on victim and ignores the offenders.

Frances L. Pierson talks about victim compensation through sentencing. He says that victim compensation through
sentencing benefits the offender, victim and the criminal justice system. The offender experiences the rehabilitative
effect of personally redressing his crime and recognizes the human costs of his crime. The victim receives recognition
of his injury.
through the criminal process and receives a monetary award to compensate, at least as mochas money will allow, for
his injuries. 3

Abner J. Mikva provides for the need for a compensation program which operates regardless of whether the criminal
is caught or has financial resources. 4
Thus, he makes it the responsibility of the state to compensate a victim and
his work is totally victim oriented. He does not discuss how it will affect the offender or how it is going to control
crime.
Evan J. Manderyet. al give the concept of compensation for victims of the criminal justice system i.e. person who are
wrongly convicted for the commission of an offence. 5

1
Prof. Mehraj Uddin Mir, Compensatory Jurisprudence and Crime Victim: A Comparative Analysis, Vitasta law Journal, Vol. No. 4,
2014.
2
Ibid.
3
Frances L. Pierson, Victim Compensation through Sentencing.
4
Abner J. Mikva, Victimless Justice,71 J. Crim. L. & Criminology 189 (1980)
5
Evan J. Mandery, Amy Schlosberg, Valerie West, and Bennett Callaghan, Compensation Statutes and Post
exoneration Offending,103 J. Crim. L. & Criminology 553 (2013).
Their work raises the question what should be the definition of victim and should, in these kinds of cases, state be
included in the definition of offender?

Marlene A. Young says that victim compensation is a form of victim assistance in meeting financial, physical,
emotional and social needs of victims, and plays a vital role in victim recovery. 6 His work is also victim oriented and
does not discuss how a criminal to be treated in order to control crime. Harvemyc Gregor, too, is victim oriented and
provides that the object of an award of damages is to compensate the plaintiff for his loss and not to punish the
defendant for his wrongdoing is a modern notion. 7

Dr.B.M. Shukla in his work discusses the concept of victim compensation under the Indian Criminal Law. 8
He
discusses the various legal provisions and powers of courts in this regard and finally concludes that in India victim
compensation is only a theoretical concept and is just there on the papers and has no practicality. He gives various
reasons for this problem but does not consider the psychological perspective i.e. the concept of justice in Indian society.
if for a society retribution is the real justice, then, obviously, compensation cannot give the victims a mental satisfaction
that justice is done and thus, it may have an impact on the practicality of the concept of victim compensation.

RESEARCH METHODOLOGY

The researcher has adopted purely doctrinal and analytical method of research. The researcher has made extensive uses
of the available resources of law journals, articles, law reports, legislations for the purpose of research. The data
and information given in this project based on my research upon various gathered books.

SOURCE OF DATA COLLECTION

Both primary and secondary sources have been used for collection of the relevant data:
• Books
• Bare acts
• Law reports
• Articles

HYPOTHESIS

The hypothesis so assumed in the study is that, A Victim is an individual who suffers various forms of loss or
injury directly resulting from a criminal act, where cases can languish for years before resolution, victims find
themselves enduring prolonged periods of waiting, often spending a significant portion of their lives yearning for
justice to be served, the compensation means available to Various crime victims, and the rationale for state
compensation to victims and why there is a need for a sensitized judiciary that recognizes the importance of
victim compensation. And how National Judicial Academy can impart requisite training to all judicial
officers in the country to make the provision operative and meaningful.

6
Marlene A. Young, The Role of Victim Compensation in Rebuilding Victims’ Lives
7
Harvemyc Gregor, Compensation Versus Punishment in Damages Awards; Modern Law Review, 1965.
8
Dr.B.M Shukla, Victim Compensation under the Indian Criminal Law, Gujarat Law Herald, 18(1), 1998, p.45-48
METHOD OF WRITING
The method of writing followed in the course if this research project is primarily analytical and doctrinal.

MODE OF CITATION
The researcher has followed a uniform mode of citation throughout the course of this project.

TIMESCALE
It took a week to collect all the relevant data and information.
 1. INTRODUCTION

VICTIMOLOGY AND VICTIM COMPENSATION: PHILOSOPHICAL BASIS

Crime affects a large number of victims who suffer physical, social, financial or emotional injury or harm which need to

be promptly redressed by providing them easy access to justice. Though the victims of crime generally found support

and assistance from their family, tribe or community, they have, by and large, remained forgotten person in the criminal

justice administration system. It is only in recent decades that the impact of the victimization on crime affected persons

drew attention of criminal law jurisdictions around the world and they were convinced that the victims needed to be

treated with compassion and their dignity and fundamental rights must be protected and preserved. This concept of

looking at crime from the perspective of victims has emerged as an independent branch of criminology known as

victimology. In the present chapter we would be discussing the concept of victimology and the philosophical basis of

victimology and victim compensation.

VICTIMOLOGY –DEFINITION & MEANING

The term victimology was coined in 1947 by Benjamin Mendelsohn. It can be defined as the scientific study of
victimization, including the relationships between victims and offenders, the interactions between the victims and the
criminal justice system; that is, the police and courts, and correctional officials. It also includes connections between victims
and other social groups and institutions, such as the media, businesses and social movements. However, the term
victimology is not restricted to the study of crime-victims alone but it may extend to other forms of human rights violations
that are not necessarily crimes. 9

The term ‘victim’ in general parlance refers to all those who experience injury, loss or hardship due to any cause and one
of such cause may be crime. therefore, victimology may be defined as a study of people who experience injury or hardship
due to any cause. Such injury or harm may be physical, psychological, emotional or financial. It therefore follows ‘the
victim of crime’ is the person who has suffered at the hand of perpetrator of crime. 10

The study of victims of crime and specially the reasons why some people are more vulnerable to victimization than others
constitute the core subject of study for victimologist around the world. 11

While defining ‘victim of crime’ different approaches can be seen in both criminological and victimological literature. One
approach is to limit the concept to victims of traditional crimes such as murder, rape, robbery, burglary etc. However, it has
also been proposed to include a broader definition of the concept by covering groups such as prisoners, immigrants, subjects
of medical experimentation and persons charged with crime but not proved guilty. 12

9
Paranjape, N.V., Criminology & Penology with Victimology (15th ed.) Central Law Publications, p.663.
10
ibid
11
Rachel Matison, Criminal Victimization, the World Society of Victimology (No.30 of 2009).
12
Prof. Mehraj Uddin Mir, Compensatory Jurisprudence and Crime Victim: A Comparative Analysis, Vitastalaw Journal, Vol. 4 No. 4,
2014, p.5.
As per definition of victim by the U.N. Declaration of 1985,

“Victim means persons who, individually or collectively, have suffered harm,

including physical or mental injury, emotional suffering, economic loss or substantial
impairment of their fundamental rights, through acts or omissions that are in violation
of criminal law operating within the member states including those
laws prescribing criminal abuse of power. A person may be considered as victim,
irrespective of whether the perpetrator is identified, apprehended, prosecuted or
convicted or irrespective of the familial relationship between the perpetrator and the
victim. The term victim also includes, where appropriate the immediate family or
dependents of the direct victim and persons who have suffered harm in intervening to
assist victims in distress or to prevent victimization. The provisions are applicable to
everyone irrespective of race, age, colour, nationality, religion, language, political and
other affiliation, cultural belief or practices, property birth or family status, ethnic
or social origin disability and nationality.”13

Therefore, victim means the person or persons who have suffered financial,
social, psychological or physical harm as a result of an offence, and includes in the case of any
homicide, an appropriate member of the immediate family of any such person. 14

In response to the UN Declaration of 1985, in India the Code of Criminal Procedure was amended in 2008 and the expression
‘victim of crime’ has been defined in Section 2(WA) 15 of the Code of Criminal Procedure, 1973. This Section defines victim
as:

“The term victim means a person who has suffered any loss or injury caused by reason of the act or omission for which the
accused person has been charged and includes his/her guardian or legal heir.”

Victimology has now emerged as a branch of criminology dealing exclusively with the victims of crime who need to be
treated with compassion and rendered compensation and assistance under the criminal justice system. While criminology
is concerned mainly with the causation of crime, victimology is primarily concerned with the study as to why people fall a
victim to crime and how they can be helped and assisted against abuse of power or criminal acts of offenders through access
to criminal justice system. The study also outlines the steps to be taken to prevent victimization against crimes and provide
legal remedies to the victims of crime. 16

VICTIMOLOGY –HISTORICAL PERSPECTIVE

The origin of victimology as a part of criminology may be traced back to 1940’s when founders of this branch of knowledge,
notably, Mendelsohn, Von Henting and Wolfgang initially tended to use the term to mean “hapless dupes who instigated
their own victimization” which they termed as ‘victim precipitation’. However, the notion of “victim precipitation” invoked
criticism by feminists by 1980’sand the term victim was interpreted in a wider sense to include “anyone caught up in an
asymmetric relationship or situation”. The word ‘asymmetry’ connotes anything imbalanced, exploitative, parasitical,
oppressive, disturbing and alienating or having inherent suffering. Thus, in the modern sense, the concept of victimology

13
UN Declaration of the Basic Principles of Justice for the Victims of Crime and Abuse of Power, 1985.
14
Definition given in the report of Malimath Committee at p. 82.
15
Sec. 2(WA) inserted by CrPC Amendment Act, 2008 (w.e.f.31-12-2009).
16
Paranjape, N.V., Criminology & Penology with Victimology (15th ed.) Central Law Publications, p.663
includes any person who experiences injury, loss or hardship due to any cause. The term may be used in many forms such
as accident victims, flood victims, famine victims, tsunami victims, blast victims, cancer victims and so on. The common
element in all of them is some kind of suffering, injury or harm caused by forces beyond victim’s control.

THEORIES OF VICTIMOLOGY

With the advance of victimological studies, the theory of victim precipitation came to
be perceived as a negative approach to victim because it only focused on how victim’s owncontribution led to his
victimization. Therefore, most of the criminologists refuse to accept this theory, it being destructive in nature.

Marvin Wolfgang, who opposed the theory of ‘victim precipitation’, believed in

the phenomenon, of ’victim facilitation’ rather than ‘victim blaming’. He did not blame thevictim
but asserted that the interactions of the victim make him/her vulnerable to a crime. Thus, the idea
behind victim facilitation is to study the elements that make victim more accessible or vulnerable
to a crime attack. 17
Benjamin Mendelsohn propounded a three-model theory of victimology and
observed that the conditions that precipitate crime can be classified into three general categories as
follows:

1)In terms of time and space, the victim being in the wrong place at a wrong time.

2)Attracting factors and life-style also create a fertile ground for incidence of crime

3)There are certain pre-disposing factors such as being too young, being too poor,
being in minority, being unemployed etc. which may lead to the victimization of a
person to crime. 18

Later, Cohen and Felson (1979) came out with their ‘Routine Activities Theory’, which pre-
supposes that a crime occurs when three conditions come together, namely

(i) suitable target

(ii) motivated offender
(iii) absence of security or parental care or guardianship. 19

Earlier, when criminology was in its emerging stage, victimology simply meant study of crime from the perspective of the
victim. Mendelsohn and Von Hentig were the first to explore the possibility of developing victimology as an independent
branch of criminology and therefore, they are considered as the ‘father of victimology’. 20

To begin with, Von Hentig concentrated on the study of behaviours and vulnerabilities of victims of crime, such as resistance
of rape victims or victims of murder. He concluded that crime victims were mostly ‘depressive type’ who fell an easy target
to crime due to their own carelessness. 21

The modern trend is to study victimology as a multi-disciplinary subject. It is not only focused on victims of crime but also
encompasses within it, the study of victims of traffic hazards, natural disasters, war crimes, abuse of power, corruption etc.

17
Ibid
18
Ibid
19
Ibid
20
Id. at 664-65.
21
Id. at 665.
The professionals involved in victimological studies may, therefore, be legal practitioners, judges, policymakers, law
teachers etc. 22

VICTIM COMPENSATION

The compensation to victim of crime is a matter of concern, throughout the world the condition of the victims of crime is
no better. For a quite long time the victim was not the concern for traditional criminology. The function of compensation is
straightforward. Compensation serves to right what would otherwise count as wrongful injuries to persons or their
property. 23

The evolution of victim compensation was a key factor in the victim assistance movement. Part of the problem in perception
might be traced to the fact that much has been written through these years about structure and function of victim
compensation. But little attention has been paid to the fact that victim compensation is a form of victim assistance in meeting
financial, physical, emotional and social needs of victims, and has played a vital role in victim recovery. Even less attention
has been paid to the possible role victim compensation can have in future victim assistance efforts. 24

VICTIM COMPENSATION: A HISTORICAL PERSPECTIVE

The idea of victim compensation can be traced back as early as the Babylonian civilization before 2380 B.C. in Ancient
Babylonia, the Hammurabi code specifies that:

“Ifa man has committed robbery and is caught, that man shall be put to death. If the robber is not caught, the man who has
been robbed shall formally declare what he has lost... and the city… shall replace whatever he has lost for him. if it is the
life of the owner that is lost, the city or the mayor shall pay one maneh of silver to his kinsfolk.” (Sections 22-24) 25

In the early Common Law of Middle England, if a man was murdered, the man’s family was
entitled to a wergild of four pounds. Gradually, however as the criminal justice system was
separated from civil proceedings, state reparations began to subside and the state
became primarily responsible for imposing punishment based not only on harm done to individu
alvictims but also harm done to the King or Feudal Lord. 26

Eleventh century has been referred by Stephen Schafer (1968) as the ‘golden age ‘of the victim because victims exercised
such an important role in the criminal justice process, which cantered on the reparation of the victim. Interestingly,
reparation of the victim was according to Schafer, an indication of how evolved a society was. For example, the Saxons and
the Germans introduced the use of ‘wergald’, which meant that they renounced a vendetta after a serious bodily injury,
provided that the offender compensated the victim or his family. The agreement between the victim (or the victim’s clan)
put an end to any further violence. 27

But the thirteenth century witnessed the decline of victim’s role and was dominated by the notion that crime was primarily
a social threat rather than a harm done against an individual. After that the responsibility of victim was taken by the state
and position of victim got marginalized in the criminal justice system. Resultantly, the system of paying compensation to
the victim was replaced by the offender paying compensation to the state. This practice still exists today and is referred to

22
Ibid
23
Robert E. Goodin, Theories of Compensation, Oxford Journal of Legal Studies, Vol. 9, 1989, p. 56.
24
Marlene A. Young, The Role of Victim Compensation in Rebuilding Victims’ Lives, p. 1.
25
Marlene A. Young, The Role of Victim Compensation in Rebuilding Victims’ Lives, p. 1.
26
C.R. Jeffery. “The developments of crime in early English Society,” Journal of Criminal Law, Criminology and Police
Science, 47, 6 (March-April 1957).
27
Ibid
as fine. With the emergence of victimology in the century mainly because of the studies of Benjamin Mendelsohn and Hans
Von Hentig, the pioneers in victimology, plight of crime victims was again brought forth by describing themes forgotten
entity in the criminal justice system. 28

The last few decades have seen an unprecedented rise in interest in the victim
by politicians, criminal justice policy makers and a diverse range of scholars in feminism, criminology,
victimology, sociology, law and public policy. Organized victim movement began
to appear in the UK, the US, Canada, Australia and New Zealand between the 1970sand early 1980s.29

VICTIM COMPENSATION: JUSTICE PRINCIPLES

There also has been some discussion of the goals of victim compensation. Initially there was little agreement on what
the goals should be defined. Two early authors reflecting upon major justifications suggested four principal goals: “social
welfare, social contract, symbolic, and instrumental.” 30

interestingly, each of these justifications was used in those early years for responding to the needs of victims. Initially,
the social welfare goal was one of the most commonly cited, particularly in the United States. It is reflected in former
Justice Goldberg’s comment: “In a fundamental sense, then, one who suffers the impact of criminal violence is also the
victim of society’s long inattention to poverty and social injustice…” 31

It is also reflected in early legislation in which compensation was established as a “matter of grace,” not a matter of
right.

The second theory for state compensation programs was based on the social contract stemming from Jeremy Bentham’s
argument:

“Has a crime been committed? Those who have suffered by it, either in their person or
their fortune, are abandoned to their evil condition. The society which they have contributed tomaintain, and which
ought to protect them, owes them, however, an indemnity when its protection has not been effectual.” 32

The thinking was that a person’s natural right to avenge wrongs done to him or her should be subordinated to society’s
larger interest in serving as the individual’s protector from harm, or, failing that, as the instrument of consistent and fair-
minded justice. Still, society may not justly “steal” one’s natural right of self-protection or vengeance, but rather it must
either perform as a protector or pay as avenger. 33

While this justification has never been completely embraced –since it would imply a legal argument to compensate all
victims of crime as well a legal obligation to fully compensate for all damages –it has to considerable extent become the
basis for arguments today that seek compensation as a partial source of a justice response to victims. It is significant that

28
Prof. Mehraj Uddin Mir, Compensatory Jurisprudence and Crime Victim: A Comparative Analysis, Vitastalaw Journal, Vol. 4
No. 4, 2014, p.2-3.
29
Walklate, S., Handbook of Victims and Victimology (2007) p. 380.
30
D. Chappell and L. P. Sutton. “Evaluating the Effectiveness of Programs to Compensate the Victims of Crime,” in
Victimology: A New Focus, Volume II, Society’s Reaction to Victimology, I. Drapkin and E. Viano, eds. Lexington Books:
Lexington, MA (1974).
31
A.J. Goldberg. Preface: Symposium on Governmental Compensation for Victims of Violence. Southern California Law
Review
43 (1970)
32
The Works of Jeremy Bentham New York: Russell and Russell, 1962, p. 589
33
Marlene A. Young, The Role of Victim Compensation in Rebuilding Victims’ Lives, p. 2
virtually all state compensation laws in the United States include a right to compensation. Denmark, England, Wales and
Scotland also consider that “a victim of a violent offence in principle has a right to state compensation.” 34

The third possible justification scheme was based on the symbolic value of victims. This
is probably the least examined issue raised by compensation. In the early years of moderncompensation, it was often
rejected as demeaning to victims since it would serve as a placebo in place of “real” and effective reparations that could
help victims recover financially. However, as this paper will argue, the more that is learned about the emotional aftermath
of victimization and role of social response, it may still be one of the most valuable effects of compensation to many
victims. 35

The fourth goal of compensation addressed the instrumental functions within the
criminal justice system that compensation would serve. There was an early notion that statecompensation programs
would encourage participation by victims in reporting crime, assisting with investigations, and participating in
prosecution. There has been little evidence that this is the case. If victims do not want to participate or cooperate, then
they do not apply –indeed maynot apply –for compensation. There may be a few victims for whom thefinancial
inducement was enough to sustain their cooperation – “sustain” since the crimes against all potentially eligible victims
were known to the police, which usually mean the victim reported the crime and thus were initially cooperative. Yet,
there is only rare anecdotal evidence that a victim continued to cooperate with the justice system to preserve their
compensation right. 36

34
E. Hoegen and Mario Brienen, Victims of Crime in 22 European Criminal Justice Systems. Wolf Legal Productions: The
Netherlands (2000).
35
Marlene A. Young, The Role of Victim Compensation in Rebuilding Victims’ Lives, p. 3.
36
Ibid.
 3. VICTIM COMPENSATION: DEFINITION, NATURE & SCOPE

Victimology is not confined now in studying the penal couple relation only. The compensation to victim is also gaining
importance. A person sustaining injuries or his dependants in case of his death may be provided compensation. In certain
primitive societies and in medieval period the compensation was given to the victim or his family by the offender or the
clan to which he belonged.

The wrong doer may not be competent to pay the compensation and so the need arises of the state responsibility to pay
compensation.

COMPENSATION: MEANING AND DEFINITION

Ubi jus, ibi remedium is the basic principle in the tort that states that there is no wrong without a remedy and the rule of
law requires that wrongs should not remain un redressed. The compensation constitutes an important remedial measure in
tort law and the principles relating to the determination of damages and compensation in tort are well established. There are
several dimensions to the issue of payment of damages and compensation in the law relating to torts includes the measure
of damages, quantum of damages, assessment of damages, intention of the wrongdoer, proximity of the cause etc. 37

Under the Tort law, in order to claim compensation, the tort must be of such a nature as will entitle the plaintiff to recover
damages. Where, therefore, the case is of a nature which: 38

a) does not give rise to a right to the plaintiff to recover damages, or to the existence of the
liability of the defendant, as where the defendant has committed no wrong, whether a breach
of contract or a tort, or

b) does not occasion any loss or damage, or no cause of action accrues to the plaintiff, as when
he himself is at fault or the damages are too remote, or he has failed to mitigate his damages.
Compensation cannot be granted. Thus, the plaintiff cannot recover that part of the loss.

a) which is due to his own contributory negligence; or

b) of which the defendant’s conduct is not the cause; or

c) which is not within the scope of the protection of the particular contract or tort; or

d) which he should have avoided or mitigated; or

e) which is too uncertain; or

f) which is past or prospective, that is, is too remote.

However, the term “Compensation” in present context means amends for the loss sustained. Compensation is anything
given to make things equivalent, a thing given to make amends for loss, recompense, remuneration or pay. 39
It is a sign
of responsibility of the society which is civil in nature representing a non-criminal purpose and end. 40

37
Mundrathi, S., Law on Compensation-To Victims of Crime and Abuse of Power 182, Deep and Deep Publications, New
Delhi, (2007) p.9.
38
Ibid
39
State of Gujarat v. Shantilal, AIR 1969 SC 634 at 644.
40
Devasia, V.V. and Devasia, L. Criminology, Victimology and Corrections 97, Ashish Publishing House
(1992)
Compensation, as distinct from damages is used in relation to a wrongful act, which cause the injury. 41

Literally, compensation means the money which is given to compensate for loss or injury, whole purpose of
compensation is to makegood the losses sustained by the victim of crime or by the legal representative of the deceased
or who has suffered of pecuniary loss or non-pecuniary loss. Compensation to the victims of crime means
something given in recompense. equivalent rendered. It is to be note that the whole purpose of compensation is to
makegood the loss sustained by the victim or legal representative of the deceased. Generally, the term compensation
limits itself to monetary compensation which is calculated on the basis fortwo head i.e. pecuniary loss and non-pecuniary
loss.42

According to Oxford dictionary, “Compensation means to provide something good

to balance or reduce the bad effect of damage, loss, injury etc”.

According to Black’s Law Dictionary, “Compensation means payment of damages, or any other act that
court orders to be done by a person who has caused injury to another and must therefore make the other
whole.”

In criminal-victim relationships, compensation concerns in making amends to him; or, perhaps, it is simply
compensation for the damage or injury caused by a crime against him. As commonly understood it carries with it the
idea of making whole, or giving an equivalent, to one party and has no relation to any advantage to the other. It is
counterbalancing of the victim’s sufferings and loss that result from victimization. It is a sign of responsibility a non-
criminal purpose and end. Crime victim compensation is a government program to reimburse victims of violent crimes-
such as assault, homicide, rape, and, in some states, burglary -as well as their families for many of their out-of-pocket
expenses. Every state has a crime victim compensation program.

JUSTIFICATION FOR VICTIM COMPENSATION

“Victim compensation is a novel idea and if successfully meted out it retains the
equity between the injured and the injurer. Victim’s ego gets satisfied and he feels s
ense of belongingness and security in the society. The modern world has almost dis
couraged the reimbursement to the victim by offender or his family because the state
sponsored punishment supplanted victim and family reparations. The restitution ha
s replaced by punishment.”

As justice should not only be done but it must be seen to have been done, therefore according to punishment
to the offender or violator of the rights be it may legal rights, fundamental rights or human rights, of an individual
is just the former part of justice. the justice has been done by punishing the culprit. But the later part that it must
be seen to have been done still requires something more to be done. It requires just not only punishment to the
accused but caring for the victim and protection of his rights and supporting him in times of distress. The idea of
victim and compensation to such victim is not new but was existing in the ancient time, which got lost in the later
period when the state emerged focusing primarily on retribution on behalf of a victim by itself. The later criminal
justice system due to its’ over emphasis on the offender and his rights, lost right of the victims. After Independence,
we the people of India devised for our self and excellent piece of state craft in the form of constitution of India,

41
General Manager, Kerala State Road Transport v. Saradhamma, 1987ACCJ 926 Kerala
42
Randhawa, G.S., Victimology and Compensatory Jurisprudence 166-167, Central Law Publications, Allahabad (2011)
 wherein due to the commitment to the human dignity, we classified certain rights as fundamental rights was done
and granting of power to the various wings governing “we the people” under the expectation that they shall never
toy with these basic rights, took place. Apart from it, India became signatory to various internationalcovenants
and conventions with regard to the human rights which also warrant the state to take care of the human rights and
other rights mentioned therein which are primarily indispensable so far as the human being is concerned. 43

43
Ibid
 4. VICTIM COMPENSATION: INDIAN POSITION

The legislative framework regarding compensatory relief to victims of crime in India may be traced to the Code of
Criminal Procedure. The Probation of Offenders Act, 1958 and Motor Vehicle Act, 1988 also contain provisions for award
of compensation to victims of crime.

COMPENSATORY PROVISIONS UNDER CR.P.C.

The Code of Criminal Procedure, 1973 has empowered the criminal courts in India for the payment of compensation to the
victims of crime under different provisions. Section 357 is the main provision dealing with compensatory provisions.
Section 545 of the old Criminal Procedure dealt with the same subject-matter though it was somewhat narrower in scope.

Section 357(1) lays down inter alia: “Whenever under any law in force for the time being a criminal court imposes a fine
or a sentence (including a sentence to death) of which fine forms a part, the court may, when passing judgment, order the
whole or any part of the fine recovered to be applied:
a) In defraying expenses properly incurred in the prosecution;
b) In the payment to any person of compensation for any loss or injury caused by the offence when compensation is, in
the opinion of the court, recoverable by such person in a civil court;
c) When any person is convicted of any offence for having caused the death of another. Another person of having abetted
the commission of such an offence in paying compensation to persons who are, under the Fatal Accidents Act,1855,
entitled to recover damages from the person sentenced for the loss resulting to them from such death.”

Sub-section (3) of Section 357 was added, as recommended by the Law Commission in its Forty-first Report, in the
new Criminal Procedure Code of 1973 and it provides: “When a court imposes a sentence of which fine does not form
a part, the court may, when passing judgment, order the accused person to pay, by way of compensation such amount
as may be specified in the order, to the person who has suffered any lessor injury by reasons of the act for which the
accused person has been sentenced. “The court has very limited discretion under Section 357 (1); it can give
compensation only out of the fine if imposed on the offender, quantum of compensation is limited to the fine levied,
compensation to the victim under this section can be allowed by the court if it is of the opinion that the compensation
is recoverable by such person in a civil suit. The court has however, much more discretion under sub-section (3) of
Section 357; though only if fine does not form a part of the sentence. Theoretically, the power of the court is unlimited,
though practical considerations would prevail. A magistrate can order for higher compensation than the amount of fine
he can impose. Similarly, Section 358 empowers a magistrate to order a person to pay compensation not exceeding
one thousand rupees to another person for causing a police officer to arrest such other person wrongfully. Likewise,
Section 359 of Criminal Procedure Code relates to an order to pay costs in non-cognizable cases.
It is evident that only marginal action is possible
under Section 357 of the Code of Criminal Procedure to compensate the victims of crime and this fact has been testified
by various constraints and limitations. Some of such constraints include, dependence on
the paying capacity of the offender which acts as a bar against the victim getting anycompensation. There is a general
reluctance on the part of the criminal courts regarding the use of the criminal law process for compensation purposes,
coupled with the indifference and even ignorance on the part of lawyers and clients and many opportunities are lost
because of their default. The courts are reluctant to impose fine along with substantial imprisonment in serious offences
and the scope of fine in any case is very limited in terms of quantum in minor offences. Maximum fines have been laid
down for various offences which were fixed a long time ago and their monetary value must now be a very small fraction
of what they might have been at the time when these fines were introduced in the Penal Code. Conviction is necessary
for the payment of compensation. As is well known, conviction may not be possible in many cases irrespective of the
merits of the case.
COMPENSATION UNDER PROBATION OF OFFENDERS ACT
The Probation of Offenders Act, 1958 also contains provisions for compensatory relief to victim of crime under Section
5(1) of the Act. The Section provides that the court directing the release of an offender under Section 3 or Section 4 of
the Act, may if it deems fit, further direct the accused to pay such compensation to the victim, as the court thinks
reasonable for the loss or injury caused to the latter, as also the costs of the proceedings.
COMPENSATION TO VICTIM UNDER MOTOR VEHICLE ACT
The victims of vehicular accidents or their legal representatives in case of death of the victim are entitled to
claim compensation from the offender under Section 5 of the Motor Vehicle Act, 1988. However, the power in this
regard is vested only with the trial court and none else.
COMPENSATION TO VICTIM UNDER THE SCHEDULED CASTES AND SCHEDULED TRIBES
(PREVENTION OF ATROCITIES ACT) 1989
Financial Assistance ranging from Rs. 85000/- to Rs. 8,25,000/- is provided to the members of Scheduled Caste who
becomes victims of atrocity by Non-Scheduled Caste persons for various acts like damage and loss of properties,
grievous hurt, temporary / permanent incapacitation, Murder, death, rape, gang rape , kidnapping, outrage of modesty
etc. and FIR is registered under the provisions of SC/ST(PoA) Act,1989. The financial assistance is given as per the
norms prescribed in Annexure-I annexed with the SC/ST(PoA) Rules,1995.
COMPENSATORY RELIEF TO VICTIMS –JUDICIAL TREND
The contribution of judiciary to redress the claims of victims of crime is no less significant. The higher courts have
played a dominant role in assuring compensatory justice to the victims of crime. While awarding such compensatory
relief, they have exercised due care and caution to ensure that people’s faith in judicial process is not shattered and the
victims’ protective rights are not denied to them. Some of the landmark judgments of the Supreme Court ensuring
restorative justice to victims of crime reflect the growing concern of judiciary to protect the rights of victims.
Elaborating the scope of award of compensation to victim of crime under Section 358 of Cr.P.C., Justice V.Y.
Chandrachud CJI (as he then was), in Rudal Shah v. State of Bihar, 44 observed that a person is entitled to compensation
for the loss or injury caused by the offence, and it includes the wife, husband, parent and children of the deceased
victim.
The Apex Court in Sarwan Singh v. State of Punjab45 enumerated the factors which the
courts should take into consideration while ordering award of compensation to victim of
crime. these factors include capacity of the accused to pay, nature of the offence and the
nature of injury suffered by the victim as also the overall effect of crime on the victim’s
familial and social life and emotional or financial loss caused to him/her. The Court ruled
that the quantum of compensation must be reasonable, depending the facts, circumstances
and justness of victim’s claim. The accused mustbe given reasonable time for payment of
compensation and if necessary, it may be ordered to be paid in instatements.

44
AIR 1983 SC 1086
45
AIR 2000 SC 362
 In yet another landmark case on victim’s compensatory relief, namely. Basu v. State of
West Bengal46 the Supreme Court, inter alia made the following observation: “The
monetary and pecuniary compensation is an appropriate and indeed an effective and
sometimes perhaps the only suitable remedy for the redressal of the established
infringement of the fundamental right to life of a citizen by the public servants. The state
is vicariously liable to which the defence of sovereign immunity is not available and the
citizen must receive the amount of compensation from the state; which shall have the right
to be indemnified from the wrongdoer.”

In the case of SAHELI (a women social activist organisation) the Apex Court directed the
Delhi Administration to pay Rs. 75,000/-as exemplary compensation to the mother of a
nine-year-old boy who died due to beating by police officer while extracting information
from him regarding the offence. 47

46
AIR 1997 SC 610.
47
SAHELI V. Commissioner of Police, Delhi, AIR 1990 SC 513
 6. SUGGESTIONS & RECOMMENDATIONS

Upon making an analysis, it is reflected that Indian position on victim compensation has positively changed during the
last few decades. some suggestions can be concluded as under:
 A comprehensive victim compensation legislation should be made.
 A greater level of victim participation in the Indian Criminal Justice system is required.
 A Victim Impact Statement will contain the following:
I) The physical, psychological or emotional impact of the crime.
ii) The harm done to family relationship by the crime, such as the loss of a parent and caregiver.
iii) The need for restitution.
iv) The victim’s opinion of an appropriate sentence of an offender.
 Another important measure to be adopted in India is to make compensation a statutory right, with a
provision mandating that the judges have to record reason for not awarding compensation.
 State Constituted Victim Assistance Fund can be considered as ready and immediate relief which inter-
alia can help in preventing further victimization.
 Establishment of Acts like Victim of Crime Act (VOCA) 1984 of USA to provide assistance to the
“victim assistance efforts” or to “state victim compensation programmes” in the form of providing
subsidies etc. can be viewed as a welcome step to be adopted in India.

LAW COMMISSION’S REPORT

Fourteenth Law Commission of India in its 154th report on the Criminal Procedure Code while expressing its deep
concern for the crime victims had suggested a comprehensive victim compensation scheme particularly for those of
custodial crimes, rapes, child-abuse etc.to be administered on the recommendations of a trial court by the legal services
authorities constituted at the district and state levels under the Legal Services Authorities Act, 1987.48

The report observed: “In India the principles of compensation to crime victims need to be reviewed and expanded to
cover all cases. The compensation should not be limited only to fines, penalties and forfeitures realized. The state
should accept the principle of providing assistance to victims out of its own funds…”

MALIMATH COMMITTEE RECOMMENDATIONS

Regarding victim compensation the Malimath Committee has recommended49 that: “Victim compensation is a state
obligation in all serious crimes, whether the offender is apprehended or not, convicted or acquitted. This is to be
organized in a separate legislation by parliament. The draft bill on the subject submitted to Government in1995 by the
Indian Society of Victimology provides a tentative framework for consideration. “The committee has also
recommended that: “The victim compensation law will, provide for the creation of a Victim Compensation Fund to be
administered possibly by the Legal Services Authority. The law should provide for the scale of compensation for
different offences for the guidance of the court. It may specify offences in which compensation may not be granted

48
Available at http://bombayhighcourt.nic.in/libweb/commission/law_commission.
49
Prof. Mehraj Uddin Mir, Compensatory Jurisprudence and Crime Victim: A Comparative Analysis, Vitastalaw Journal,
Vol. 4 No. 4, 2014, p.11.
and conditions under which, it may be awarded or withdrawn. “It should be understood that victimology and justice
for victims of crime is not exclusively legal problem, it also has sociological, psychological, financial and ethical
implications which need to be addressed jointly by experts working in these fields adopting a multi-disciplinary
approach. A community based joint Victim Impact Panel on the American pattern may be constituted comprising
lawyers, judges, sociologists, psychologists, women activists, politicians etc. to decide victim’s rights and claims and
their rehabilitation in the society. 50

50
Paranjape, N.V., Criminology & Penology with Victimology (15th ed.) Central Law Publications, p.683.
 7. CONCLUSION

Victim compensation has now become an important aspect of rendering justice to victims. Along with traditional notion of
punishment, compensation to victim has reduced the accused oriented approach in the criminal justice system. But in India
despite some embryonic developments in this direction, there are number of lacunae in this field and for that coordinated
efforts by all the agencies of criminal justice system is required. After the coordinated work efforts, transparency and
accountability in every segment of criminal justice system is another important requirement to make the effective
implementation of existing provisions possible, besides laying ground for legislating new victim compensation programs.
 BIBLIOGRAPHY

 Abner J. Mikva, Victimless Justice, 71 J. Crim. L. & Criminology 189 (1980)

 Adrew Karman, Crime Victims: An Introduction of Victimology (2003)
 Dr. B. M. Shukla, Victim Compensation Under the Criminal Law, Gujrat Law Herald, 18(1) 1998
 Mishra S.N., The code of Criminal procedure code, 1973 (18th ed.)
 Paranjape N.V., Criminology & Penology with Victimology
 http://Victimsofcrime.org/help-for-crime-vitims/get-help-bulletins-for-crime-victims/crime-victim-compensetion