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Legal Provisions On Compensation To Victims Of Crime

COMPENSATORY JURISPRUDENCE :

• Compensation to victims is a recognised principle of law being enforced through the ordinary civil courts. Under the law of torts, the victims can claim compensation for the injury to the person or property suffered by them.

• However, in the administration of criminal justice, compensatory jurisprudence has been evolved through various international agreements and its extent has been a matter of debate.

WHO IS A VICTIM :

• The term `victim' has been defined in Section-2(wa) of the code of Criminal Procedure, 1973 as `a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged and the expression `victim' includes his or her guardian or legal heir.

• However,the Punjab and Haryana High Court, in the case of M/s Tata Steel Ltd. v. M/s Atma Tube Products (2013(2) RCR(Criminal) 1005) held that legal heirs comprising only the wife, husband, parent and child of a deceased victim are entitled to payment of compensation under Section 357(1)(c) of the Code. Similarly, only those dependents of a deceased victim who have suffered loss or injury as a result of the crime and require rehabilitation, are eligible to seek compensation as per the Scheme formulated under Section 357-A of the Code.

INTERNATIONAL AGREEMENTS :

• International Covenant on Civil and Political Rights, 1966 -Article 9(5) of the ICCPR clearly mandates the right to compensation to anyone who has been a victim of unlawful arrest or detention.

• UN Declaration of Basic Principles of Justice for the Victims of Crime and Abuse of Power, 1985 -This declaration was a landmark in boosting the pro-victim movement. It defined a 'victim' as someone who has suffered harm, physical or mental injury, emotional suffering, economic loss, impairment of fundamental rights through acts or omissions that are in violation of criminal laws operative within a State, regardless of whether the perpetrator is identified, apprehended, prosecuted or convicted and regardless of the familial relationship between the perpetrator and the 'victim'. The declaration has sections concerning access to justice and fair treatment, restitution, compensation and assistance to victims of crime.

COMPENSATION TO VICTIMS OF CRIME : PROVISIONS IN THE CONSTITUTION :

• There are no specific provisions for compensation to victims of crime in the Constitution of India, however, its essence can be extracted from various provisions, which are as follows :

• Article-41 :It states that the state shall, within its economic capacity, make effective provisions for securing assistance in cases of disablement and undeserved want.

• Article-51A : It states that it is the fundamental duty of every citizen of India to have compassion for living creatures and to develop humanism and the spirit of reform.

• Article-21 :The victim's right to compensation has been included as a fundamental right under Article-21 by the Hon'ble courts.

COMPENSATION TO VICTIMS OF CRIME UNDER CrPC, 1973 :

• Section-357 : It deals with the power of the court to order compensation to the victim of a crime. The court may order the offender to pay compensation to the victim as part of the sentence, in addition to any other punishment. The court may also order the compensation to be paid out of any fine imposed on the offender.

• However, this section had certain limitations that hindered the full realization of the right of a victim to get compensation. Therefore, an amendment in the Code was required.

• Therefore, in 1996, the 14th Law commission, headed by Justice K. Jayachandra Reddy, in its 154th report had an entire chapter(XV) on `Victimology' which made radical recommendations on the aspect of compensatory justice through a Victim Compensation Scheme.

• Thereafter, in 2003,the report of a Committee on the Reforms of Criminal Justice System, headed by Justice V.S. Malimath (commonly known as "Malimath Committee Report, 2003") suggested that the victim should be allowed to participate in cases involving serious crimes and also be given adequate compensation. If the victim is dead, the legal representative shall have the right to implement himself or herself as a party, in case of serious offences. The State should provide an advocate of the victim's choice to plead on his/her behalf, where the state bears the cost. Victim compensation is a State obligation in all serious crimes. The Victim Compensation Fund can be created under the victim compensation law and the assets confiscated in organised crimes can be made part of the fund.

• Therefore, in 2009, Section-357A was added in CrPC by way of an amendment. This Section puts an obligation on the state governments to prepare a scheme for providing funds for the purpose of compensation to the victim or his dependents who have suffered loss or injury as a result of the crime and who require rehabilitation. It also empowers the State or District Legal Services Authority to provide medical facilities to the victims free of cost on the certificate of a police officer concerned.

• Section 358: Compensation to persons groundlessly arrested: Whenever any person causes a police officer to arrest another person, if it appears to the Magistrate by whom the case is heard that there was no sufficient ground of causing such arrest, the Magistrate may award such compensation, not exceeding one thousand rupees, to be paid by the person so causing the arrest to the person so arrested, for his loss of time and expenses in the matter, as the Magistrate thinks fit.

In such cases, if more persons than one are arrested, the Magistrate may, in like manner, award to each of them such compensation, not exceeding one hundred rupees, as such Magistrate thinks fit.

All compensation awarded under this section may be recovered as if it were a fine, and, if it cannot be so recovered, the person by whom it is payable shall be sentenced to simple imprisonment for such term not exceeding thirty days as the Magistrate directs, unless such sum is sooner paid.

• Section 359 : Order to pay costs in non-cognizable cases:

Whenever any complaint of a non-cognizable offence is made to a Court, the Court, if it convicts the accused, may, in addition to the penalty imposed upon him, order him to pay to the complainant, in whole or in pan, the cost incurred by him in the prosecution, and may further order that in default of payment, the accused shall suffer simple imprisonment for a period not exceeding thirty days and such costs may include any expenses incurred in respect of process-fees witnesses and pleader's fees which the Court may consider reasonable.

An order under this section may also be made by an Appellate Court or by the High Court or Court of Session when exercising its powers of revision.

• Section 250: Compensation for accusation without reasonable cause:

If, in any case instituted upon complaint or upon information given to a police officer or to a Magistrate, one or more persons is or are accused before a Magistrate of any offence triable by a Magistrate, and the Magistrate by whom the case is heard discharges or acquits all or any of the accused, and is of opinion that there was no reasonable ground for making the accusation against them or any of them, the Magistrate may, by his order of discharge or acquittal, if the person upon whose complaint or information the accusation was made is present, call upon him forthwith to show cause why he should not pay compensation to such accused or to each or any of such accused when there are more than one or, if such person is not present direct the issue of a summons to him to appear and show cause as aforesaid.

The Magistrate shall record and consider any cause which such complainant or informant may show, and if he is satisfied that there was no reasonable ground for making the accusation, may, for reasons to be recorded, make an order that compensation to such amount not exceeding the amount of fine he is empowered to impose, as he may determine, be paid by such complainant or informant to the accused or to each or any of them.

The Magistrate may, by the order directing payment of the compensation under Sub-Section (2) further order that, in default of payment, the person ordered to pay such compensation shall under go simple imprisonment for a period not exceeding thirty days.

When any person is imprisoned under Sub-Section (3), the provisions of sections 68 and 69 of the Indian Penal Code (45 of 1860) shall, so far as may be, apply.

No person who has been directed to pay compensation under this section shall, by reason of such order, be exempted from any civil or criminal liability in respect of the complaint made or information given by him;

Provided that any amount paid to an accused person under this section shall be taken into account in awarding compensation to such person in any subsequent civil suit relating to the same matter.

A complainant or informant who has been ordered under Sub-Section (2) by a Magistrate of the second class to pay compensation exceeding one hundred rupees, may appeal from the order as if such complainant or informant had been convicted on a trial held by such Magistrate.

When an order for payment of compensation to an accused person is made in a case which is subject to appeal under Sub-Section (6), the compensation shall not be paid to him before the period allowed for the presentation of the appeal has elapsed, or, if an appeal is presented, before the appeal has been decided; and where such order is made in a case which is not so subject to appeal the compensation shall not be paid before the expiration of one month from the date of the order.

The provisions of this section apply to summons-cases as well as to warrant cases.

• Criminal Law (Amendment) Act, 2013 mandates all hospitals, whether public or private, to provide free medical treatment to victims of rape and acid attack.

COMPENSATION TO VICTIMS OF CRIME UNDER SPECIAL LAWS :

• Probation of Offenders Act, 1958 : Section-5 of this Act incorporates the idea of compensation and lays down that while directing the release of an offender on probation for good conduct, the Court may order such person for payment of compensation to the complainant/victim, for the loss or injury caused by his act.

• Motor Vehicles Act, 1988 : This Act embodies the idea of compensatory jurisprudence for the benefit of victims of motor vehicle accidents. It obliges the owner of the vehicle to pay a specific sum of compensation if his negligent act has culminated in the death or permanent disablement of a person. Specific provision for such compensation have been included in the Act.

• The Protection of Women from Domestic Violence Act,2005 : Section-22 of this Act empowers the Magistrate to direct the payment of compensation and damages for physical and mental injuries caused by domestic violence. This provision acknowledges the harm inflicted upon the victim and provides a mechanism for getting financial redress.

• The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 :Under this Act, compensation to victim of caste-based atrocities is mandatory, apart from several other reliefs which depend upon the condition and kind of atrocity caused. Monetary compensation is determined according to the severity of the offence.

CENTRAL GOVERNMENT SCHEME FOR VICTIM COMPENSATION :

• Central Victim Compensation Fund : The government introduced this scheme in 2016, with an initial corpus of Rs. 200 Crores, to support and supplement the existing Victim Compensation Schemes notified by various states and to effectively implement such schemes notified under Section-357A of CrPC. The minimum amount of compensation has been prescribed under the scheme for various offences which are reproduced as under:

Minimum Amount Of Compensation

SI. No.	Description of Injures/loss	Minimum Amount of Compensation
1	Acid attack	Rs. 3 lakhs
2	Rape	Rs. 3 lakhs
3	Physical abuse of minor	Rs. 2 laths
4	Rehabilitation of victim of Human Trafficking	Rs. 1 lakh
5	Sexual assault (Excluding rape)	Rs. 50,000/-
6	Permanent Disability (80% or more)	Rs. 2 lakhs
7	Death	Rs. 2 lakhs
8	Partial Disability (40% to 80%)	Rs. 1 lakh
9	Burns affecting greater than 25% of the body (excluding Acid Attack cases)	Rs. 2 lakhs
10	Loss of fertility	Rs. 50,000/-
11	Loss of foetus	Rs. 1.5 laths
12	Women victims of cross border firing: (a) Death or Permanent Disability (80% or more) (b) Partial Disability	Rs. 2 lakhs Rs. 1 lakh

Note: If the victim is less than 14 years of age, the compensation shall be increased by 50% over the amount specified above.

ROLE OF JUDICIARY IN STRENGTHENING THE VICTIM'S RIGHT TO COMPENSATION

• The judiciary has played a pivotal role in reinforcing the statutory provision as well as setting precedents to award compensation to victims of crime. Some notable cases which showcase the changing trend of the judiciary in awarding compensation as a matter of the right of the victim are as follows :

• Rudul Sah v. State of Bihar (AIR 1983 SC 1086) - This case brought about a revolutionary breakthrough in human rights jurisprudence by granting monetary compensation to an unfortunate victim of State lawlessness on the part of the Bihar Government for keeping him in illegal detention for over 14 years after his acquittal of a murder charge.

• Ankush Shivaji Gaikwad v. State of Maharashtra (2013 SCC 770) - In this case, the apex court made it mandatory for trial courts to consider grant of interim compensation to victims of crime.

• MC Mehta v. UOI (AIR 1987 SC 965) - In this case the SC held that the power under Art. 32 is not only confined to preventive measures when fundamental rights are threatened to be violated, but also extends to remedial measures including, grant of monetary compensation when the rights are already violated.

• Suresh v. State of Haryana (2015 SCC 227) - In this case, it was held that it is the duty of courts, on taking cognizance of a criminal offence, to assess whether the victim of the crime needs immediate financial relief.

• Nipun Saxena v. UOI (Cri MP 16041/2014) - Pursuant to the directions issued by the Supreme Court in this case, NALSA drafted the Compensation Scheme for Women Victims/Survivor of Sexual Assault/Other Crimes,2018. Salient features of the scheme are that women are eligible to get compensation from various scheme and can also apply for the same online.

CHALLENGES DESPITE LEGAL PROVISIONS :

• Lack of Uniformity in provisions-Since the schemes for compensation to victims of crime are varied in different states, there is lack of uniformity, not only in the amount of the compensation, but also in the eligibility criteria to be eligible to claim such compensation. It also acts as a loophole for states to decide compensation amount.

• Implementation of Schemes - The implementation of various schemes presents various loopholes in the actual disbursement of financial relief. According to the National Legal Service Authority's report on Victim Compensation Schemes (April 2018-March 2019), 16354 applications were received in the country under Victim Compensation Scheme, out of which, 9589 applications were still pending at that time.

• Lack of Awareness - In many cases, the victims are not aware of the various schemes which can provide monetary compensation.

CONCLUSION :

The primary aim of criminal justice administration was to punish the offender. However, in accordance with this aim, the victim often got overlooked. The 'victim' -who is the de facto sufferer of a crime had no participation in the adjudicatory process and was made to sit outside the Court as a mute spectator. However, various international declarations,domestic legislations and Courts across the world recognized the 'victim' and they voiced together for his right of representation, compensation and assistance. In India, the right of a victim to get compensation has not been explicitly mentioned in the supreme law of the land, i.e. the Constitution, however, it can be interpreted from various provisions, keeping in line the principles of a welfare state. After much deliberations, as mentioned above, the present legal provisions with regard to the victim's right of compensation have reached a significant stage, wherein, various special laws also recognize this right along with the Criminal Procedure Code. However, there are still certain challenges that act as an impediment for the effective realization of this right as enshrined by our judiciary in various cases. The major obstacle being the lack of a uniform scheme for victim compensation with a binding effect on the states. Also, in addition to the formation of such policies, their implementation in true spirit is the need of the hour to provide the victims with adequate relief. Furthermore, the compensation to the victims of crime should not be limited to monetary compensation, but extend to rehabilitation measures as well. Therefore, to conclude, it would be appropriate to state that we are on the right track of recognizing the rights of the victim, wherein, the right has been recognized by the Legislature, the Executive and the Judiciary and with the constructive efforts of all three organs of the government, we can strive for the actual realization of the ideals of our Constitution to ensure the spirit of humanity.

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