VICTIM EMANCIPATION

THROUGH COMPENSATION: A
STUDY WITH SPECIAL
REFERENCE TO SECTION 357
CRPC
BY- PRINSU SEN
INTRODUCTION
Justice must be reformative for the purpose of the perpetrator and rehabilitative for the
survivor.
it is a legitimate expectation that the victim must be given rehabilitative support including
monetary compensation.
 Such compensation has been directed to be paid in public law remedy with reference to Article
21.
 The Hon'ble Supreme Court has in numerous cases, to do justice to the victims, directed
payment of monetary compensation as well as rehabilitative settlement where State or other
authorities failed to protect the life, dignity and liberty of victims. Like KewalPati v State of
U.P, Supreme Court Legal Aid Committee v State of Bihar , Railway Board v Chandrima Das,
Nilabati Behera v State of Orissa , Khatri v State of Bihar.
 International Obligations
The remedy of compensation was given by ICJ in the case “reparation must, as far as possible, wipe out all
consequences of the illegal act and re-establish the situation which would, in all probability have existed if
that act had not been committed.”
Thisis the basis for the maxim restitution in integrum as a remedy to damage and injury. In the Corfu
Channel case.
Article36 of the Articles of Responsibility of States for Internationally Wrongful Acts ARSIWA deals with
compensation as a form of reparation for damages caused. Article 27 of the ARSIWA also introduces a
unique jurisprudence with respect to ascertaining liability and the responsibility to compensate.
Article 75 of the Rome Statute of the International Criminal Court ICC states that the ICC shall establish
principles relating to reparations to, or in respect of, victims of the crimes that the ICC deals with in
accordance with its jurisdiction.
Jeremy Bentham believed that due to the presence of the social contract between the State and the citizen,
victims of crime should be compensated when their property or person was violated.
 EVOLUTION OF THE CONCEPT
 The Hammurabi code of ancient Babylonian makes the earliest reference to State compensation for victims
of crime. It specified that: “If a 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.”

 United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power of 1985,
which recognises four types of rights and entitlements of victims of crime: (a) Access to justice and fair
treatment, (b) Right to restitution, (c) Personal assistance and support services, and (d) Compensation.

 The move towards State compensation was mirrored in the United States, with California being the first State
to do so in 1965. in 1984 the Victims of Crime Act, 1984 was enacted by the Congress, which established a
Crime Victims Fund within the US Treasury. This compensation is provided only to innocent victims and
those who are involved in serious crimes.
 INDIAN POSITION
 The Committee on Reforms of Criminal Justice System, chaired by Justice Dr V.S. Malimath, by the
Ministry of Home Affairs, in its Report submitted to the Government of India in March 2003, perceived that
“justice to victims” is one of the fundamental imperatives of criminal law in India. It suggests a holistic
justice system for the victims by allowing, among other things, participation in criminal proceedings as also
compensation for any loss or injury.
 In India, there are five possible statutory provisions under which compensation may be awarded to victims
of crime, namely:
• Fatal Accidents Act, 1855 • Motor Vehicles Act, 1988 • Criminal Procedure Code, 1973
• Probation of Offenders Act, 1958; and • Constitutional remedies for human rights' violations

Until 2009, there was no comprehensive legislation or a well-designed statutory scheme in India that
allowed a victim to seek compensation from either the perpetrator or the State. The recent amendment to the
CrPC notified in 2009, addressed the victim's right to compensation. It is a step forward; however, some
inherent flaws remain.
 Position Prior to the Amendment 357(1)
 This provision States “Court may award compensation  S. 357(1) empowers the court to award
compensation out of the fine in the following cases: for meeting proper expenses of prosecution;
compensation to a person or dependants for the loss or injury caused by the offence when he can recover
compensation in a civil court; compensation to persons entitled in damages under the Fatal Accidents Act,
1855; and compensation to a bone fide purchaser of property which being the subject of theft, criminal
misappropriation, cheating, etc. is ordered to be restored to the person entitled to it. to victims of crime at the
time of passing of the judgment, if it considers it appropriate in a particular case, in the interest of justice”.

 Unfortunately, under Section 357(1), compensation is obtainable only when the court imposes a fine and the
amount of compensation is limited to the amount of the fine. It lays down four grounds for imposing a fine:
(1) defraying pecuniary losses incurred by the person in prosecution, or (2) by a bona fide purchaser of
stolen goods, or (3) for loss caused by injury or death, or (4) if the victim has suffered loss or injury caused
by the offence.
Position Prior to the Amendment 357(3)

 However, Section 357(3) [ S. 357(3): “When a Court imposes a sentence, of which fine
does not form a part, the Court may, when passing judgment, order the accused to pay, by
way of compensation, such amount as may be specified in the order to the person, who has
suffered any loss or injury by reason of the act for which the accused person has been so
sentenced”.] empowers the Court to award compensation for loss or injury suffered by a
person, even in cases where fine does not form a part of the sentence. It is left to the
discretion of the court to decide the amount of compensation, depending on the facts and
circumstances of each case. This sub-section was introduced after the repeal of the CrPC
of 1898. Since, this provision is not conditioned on a sentence of fine; some argue that it
assumes the role of an additional punishment.
 Position Post Amendment
 To address the absence of a definition of a victim, sub-section (w) has been inserted in
Section 2 of the amended CrPC as below:
“(wa)”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 the expression
“victim” includes his or her guardian or legal heir”.
Given the propensity of a narrow interpretation of “loss or injury” suffered by the victim
we believe that an expansive delineation of what constitutes loss or injury should be
added by the legislature. This will also check the varied interpretations made and
ensure uniformity in the dispensation of compensation. Explicit inclusion of
compensation to victims of criminal abuse of power should also have been made.
 Analysis of Section 357-A
 section (1) of Section 357-A of the CrPC discusses the preparation of a scheme to provide funds for the
compensation of victims or his dependents who have suffered loss or injury as a result of a crime and who
require rehabilitation.
 Sub-section (2) States that whenever the Court makes a recommendation for compensation the District Legal
Service Authority or the State Legal Service Authority, as the case may be, shall decide the quantum of
compensation to be awarded under the above mentioned scheme.
 It is a positive development that in sub-section (3) the trial court has been empowered to make
recommendations for compensation in cases where-
• Either the quantum of compensation fixed by the Legal Services Authority is found to be inadequate; or,
• Where the case ends in acquittal or discharge of the accused and the victim has to be rehabilitated.
 Analysis of Section 357-A
 Sub-section (4) of Section 357-A States that even where no trial takes place and the
offender is not traced or identified; but the victim is known, the victim or his dependents
can apply to the State or the District Legal Services Authority for award of compensation.
 Sub-section (5) says that on receipt of the application under sub-section (4), the State or
the District Legal Services Authority shall, after due enquiry award adequate
compensation by completing the enquiry within two months.
 Further, sub-section (6), States that, in order to alleviate the suffering of the victim, the
State or District Legal Services Authority may order immediate first-aid facility or
medical benefits to be made available free of cost or any other interim relief as the
appropriate authority deems fit.
372 CRPC
 Furthermore, Section 372 of the CrPC has been amended, containing the following
proviso:
 “Provided that the victim shall have a right to prefer an appeal against any order
passed by the Court acquitting the accused or convicting for a lesser offence or
imposing inadequate compensation, and such appeal shall lie to the Court to which an
appeal ordinarily lies against the order of conviction of such Court.”
 
 The section provides a victim a specific right of appeal in the following circumstances:
 • Acquittal of the accused,
 • Conviction for a lesser offence, and;
 • Inadequate compensation.
Hari Singh v. Sukhbir Singh(hereinafter
“Hari Krishna”)  ,
 Hari Singh v. Sukhbir Singh(hereinafter “Hari Krishna”)  ,
directed all courts to exercise Section 357 liberally and award
adequate compensation, particularly in cases where the accused
is released on admonition, probation or when the parties enter
into a compromise. At the same time, the court cautioned that the
compensation must be reasonable, fair and just; taking into
account the facts and circumstances of each case — nature of the
crime, veracity of the claim and ability of the accused to pay.
Hari Singh v. Sukhbir Singh, (1988) 4 SCC 551.
Baldev Singh v. State of Punjab
 Baldev Singh v. State of Punjab  is another important case in the
victimological approach of judicial law making. The Supreme
Court ordered a grant of compensation by invoking Section
357(3) of the CrPC. The Supreme Court held that in the
circumstances of the case an order of compensation would be
more appropriate instead of sentence of imprisonment. Here, the
Court used its judicial discretion to the benefit of the victims and
opted for the compensation theory instead of extending the
sentences of imprisonment.
 Evolution of the Constitutional Remedy of
Victim Compensation
 A new era in the Indian victimological thinking began with the initiative taken by the
Indian judiciary in the nature of evolving a new kind of compensatory Constitutional
remedy through Articles 32 or 226/227. The starting point would be the case of Rudul
Sah v. State of Bihar . in this case, Chief Justice Chandrachud, invoked the
extraordinary power vested in the Supreme Court under article 32 to award
compensation, for the first time, for the deprivation of fundamental rights. Interestingly.
 in the case of the State of Punjab v. Ajaib Singh the Supreme Court went a step further
and granted a compensation of Rs 5 lakhs even after acquitting the accused.
 State of Punjab v. Ajaib Singh, (1995) 2 SCC 486, ¶ 9.
CONT..
 Following this, in the landmark case of Bodhisattwa Gautam v. Subhra
Chakraborty the Supreme Court of India evolved creative principles of
victimology and victim justice. Firstly, it held that the award of compensation,
as an interim relief is necessary so that undue delay in the delivering of justice
to a victim of crime is not caused. Secondly, it held that the court had
jurisdiction to award such compensation to the victim even when the accused
is not convicted, due to the slow progress of the criminal proceedings. These
principles evolved by the court were futuristic, perhaps a form of judicial
activism; and have been subsequently incorporated into the 2009 amendment
to the CrPC. Bodhisattwa Gautam v. Subhra Chakraborty, (1996) 1 SCC 490.
CONT..
 In the Uttrakhand Stir (Rallyist) case , the Allahabad High Court delivered a
path-breaking judgment in a group of six cases arising out of the incidents in
Khatima, Mussoorie and Muzaffarnagar. The brief facts of the case are that
twenty four persons were killed, seven women were raped, seventeen were
sexually molested while many others were injured and illegally detained as a
result of police firing and atrocities committed on a peaceful demonstration for
a separate State of Uttaranchal in 1994.
 Uttarakhand Sangharsh Samiti v. State of U.P., 1996 SCC OnLine All 1029 :
(1996) 1 UPLBEC 461.
CONT..
 The court in a historic decree awarded Rs 10 lakhs each to deceased victims' families and
Rs 10 lakhs for rape victims judging the crime equivalent to death; Rs 5 lakhs to the victims
of sexual molestation; and Rs 2.5 lakhs to Rs 50,000 for less serious injuries. Thus, the
court while advancing the cause of human rights and giving more teeth to the Constitutional
guarantee for a right to live with dignity vide Article 21, declared that the court itself could
award compensation in a case of human rights violation.

 In the instant case, the State was held vicariously responsible for the crimes committed by
its officers and was directed to compensate the victims and was not protected under the
doctrine of sovereign immunity wherein the State can avoid criminal liability in the name of
“Acts of State”.
CONT..
 In the case of D.K. Basu v. State of W.B.  the Supreme Court held that monetary compensation
for redressal by the court is useful. It is perhaps the only effective remedy to “apply balm to the
wounds” of the family members of the deceased victim, who may have been the breadwinner
of the family.
  
 However diverging from this trend, in the A.K. Singh case , the Supreme Court set aside the
High Court's order directing the convicts to furnish compensation to the victims, holding that
Rs 10 lakhs was in excess of the required compensation for the crime. This decision was made
despite the fact that State functionaries perpetrated this crime against innocent members of a
peaceful demonstration.
 D.K. Basu v. State of W.B., (1997) 1 SCC 416, ¶ 44.
 A.K. Singh v. Uttarakhand Jan Morcha, (1999) 4 SCC 476.
CONT..
 On the other hand in the recent case of, Railway Board v. Chandrima Das  , the Supreme Court
ordered the payment of Rs 10 lakhs as compensation to a Bangladeshi national who was
repeatedly raped by Railway employees. The Court upheld the Calcutta High Court's decision
that even as a foreign national she was entitled to the fundamental right to life in India, and thus
there was a Constitutional liability to pay compensation to her.

 Thus, as observable by the judicial trends, compensation available under a Constitutional

remedy has been far more readily invoked and amounts of a greater quantum have been granted
than under Section 357(3) of the CrPC. The judiciary has to be urged to be liberal in invoking
Section 357-A and ensure that it is not the non-exercise of discretion by them that become the
vanishing point of victim compensation in India.
CONCLUSION

 Unlike in the Western countries, the victims of crime in India do not have a
statutory right to be compensated. There is no compulsion on the court to
record reasons for not invoking its powers to provide compensation.
Moreover, there is no effective institutional mechanism for recovering the
ordered compensation from the recalcitrant accused and paying it to the
victim. Ch. XXXII of the CrPC contains a few provisions dealing with
recovery of “fine” and “money” payable by virtue of any order made under
the CrPC. However, they are insufficient.] in light of the above, various
efforts have been made towards the establishment of a State funded victim
compensation fund as envisaged in the amended law.