Study on Victim Compensation Scheme under Section 357A of the CrPC

Abstract 

According to Section 2(y) of the Bharatiya Nagarik Suraksha Sanhita (BNSS), a victim is a person who has suffered any loss or injury due to the actions or omissions of the accused. The victim of any type of crime is always the neglected individual in the criminal justice system around the world, and India is no different. Though the concept of victim compensation is not new in India, the Manusmriti states in Chapter VIII, verse 287,2 that if a limb is injured, the aggressor must pay for the cure. However, in modern India, regulations governing victim compensation are in their early stages, having only been developed in the late 2000s. 

This article aims to analyze the aspects of victim compensation in the Indian Criminal Justice  System. The focus is on section 357A of Cr. P. C, which forms the basis of a powerful shift in  India’s victimological policies, by making it incumbent on the state to reimburse the victims,  especially when the offenders cannot be traced or convicted. 

Keywords

Compensation, Compensation schemes, Victim, Criminal justice, India,  Provisions, Section 357A CrPC 

Introduction 

More than four decades ago, Krishna Iyer, J. highlighted the continued apathy of the Criminal  Justice System: “It is the weakness of our jurisprudence that victims of crime and the distress of the dependents of the victim do not attract the attention of the law. Victim reparation is still the vanishing point of our criminal law.3 It is widely recognized that the criminal justice system has the primary objective to safeguard fundamental rights. According to Article 32 of the  Indian Constitution, aggrieved parties can approach the Supreme Court. So much so that he or she can use the remedies provided by Article 226 of the Indian Constitution to approach the  High Courts.4 The entire Criminal Justice System (CJS) is focused on accused individuals to  determine their guilt or innocence. It handles criminal trials, convictions, restitution,  reformation, and rehabilitation. Unfortunately, the victim of a crime is viewed as only a witness  in the prosecution of the offense. Victims endure physical, emotional, and mental pain, and  economic damages are rarely considered because they play no significant role in the criminal  justice system.5 

The Malimath Committee was founded to improve the Criminal Justice System (CJS). Following a thorough analysis of the national criminal law systems, the committee made many  recommendations to implement a new change in the existing CJS and one of the topics  highlighted was victim compensation. The Committee wanted the victims to be included in the  criminal justice system as they have traditionally been sidelined. They noted that victim  compensation is the State’s obligation and suggested that a Victim Compensation Fund should  be created, and the assets confiscated in organized crimes could be used as a part of the  fund.Victim compensation is an important concept in the criminal justice system as it exists to  ensure that victims are not left without redress after becoming victims of criminal acts. In this  article, an analysis of the concept is implemented using a doctrinal research method. Landmark  case laws have been reviewed in discussing compensations granted to victims who have  undergone such trauma. 

Who are victims 

Internationally, the 1985 UN Declaration of Basic Principles of Justice for Victims of Crime  and Abuse of Power, was a watershed moment in the pro-victim movement's development. The  Declaration defined a 'victim' as someone who has suffered harm, physical or mental injury,  emotional suffering, economic loss, and impairment of fundamental rights through acts or criminal laws, regardless of whether the perpetrator  has been recognized, captured, or prosecuted. 

The victim is for the first time defined under newly inserted section 2(wa) by the Criminal  (Amendment) Act, 2009 and according to the “victim means a person who has suffered any  damage or injury suffered because of the conduct or omission for which the accused person  has been prosecuted, and the term "victim" includes his or her guardian or legal heir”. In 2009  the Criminal Amendment Act provided an enlarged definition of victim which not only  included the injured person himself but also the dependents of the victim. 

In the case of Jagjeet Singh and Others (S) v. Ashish Mishra Alias Monu and Another (2022)6 the Supreme Court discusses the rights of victims in the criminal justice system, reinforcing  the definition and importance of victim participation. The Supreme Court highlighted the need  to provide representation to victims in criminal proceedings and affirmed the victim's right to  file an appeal against an order of acquittal. 

Objective of Compensation 

Compensation is defined as anything given to make things equal, to compensate for loss,  compensation, remuneration, or payment. recompense refers to providing monetary or in-kind  recompense for loss or injury. Its purpose is to pay victims of crime, their legal representatives,  or anybody who has suffered financial or non-financial loss. Compensation for victims of crime refers to something offered in reparation, i.e., equal rendered. Compensation is to compensate  the victim or legal representative of the deceased for their losses.7 

As per Black’s Law Dictionary, ‘Compensation means payment of damages or any other act  that court order to be done by a person who has caused injury to another and must therefore  make the other whole.’8 

In India, under five statutory provisions, the concept of compensation is mentioned and can be  awarded to victims of crime. The statutory provisions are the Fatal Accidents Act (1855),  Motor Vehicles Act (1988), Criminal Procedure Code (1973), Probation of Offenders Act  (1958), and Constitutional Remedies for Human Rights violation 

In the Shantilal case9 and Smt. P. Ramadevi v. C.B. Saikrishna case10, Supreme Court of India  held that compensation is something given to make things equivalent, anything is given to  make amends for loss, recompense, remuneration, or pay. Hence in the legal sense  compensation can mean an act of the court that orders a certain sum of money that the person  dignified would receive equal value for his loss or be compensated for his injuries. 

The Hon'ble Supreme Court highlighted the need for victim compensation in Maru Ram v.  Union of India. "... A crime victim cannot be a 'forgotten man' in the criminal justice system."  He is the person who has suffered the most. His family is distraught, particularly because of  the death and bodily injuries. This is in addition to issues like loss of honor and shame. An  honor or a life lost cannot be restored, but cash recompense can provide some comfort."11 

Compensatory Provisions under Cr.P.C. 

Until recently, criminal law was viewed in a two-dimensional manner, with courts deciding  between the accused and the state. The de facto victim of a crime had no role in the adjudication  process and was made to sit outside the Court as a passive observer. However, as it became  clear that the criminal justice system's attitude of preventing and punishing 'crime' had  neglected the 'victim', laws governing victims' rights to be heard and participate in criminal  proceedings began to positively change. 

The concept of rehabilitative compensation provided by the state first appeared in India's  criminal justice system in 2009, when Section 357A12 was added to the CrPC. Section 357A  was created to specifically compensate victims and their families. The provision also required  each State Government to develop "a scheme for providing funds for compensation to the  victim or his dependents who have suffered loss or injury as a result of the crime and who  require rehabilitation. The newly added provision section empowered the court to order the State to provide  compensation to the victim if the amount awarded under Section 357 is insufficient for their rehabilitation, or if the accused is acquitted or dismissed and the victim requires rehabilitation. Compensation can be awarded under the schemes legislated under section 357A CrPC in four  scenarios: (i) conviction, (ii) acquittal, (iii) discharge, and (iv) where the criminal cannot be  discovered or recognized. Section 357A included the recommendations of the Law  Commission's 154th Report.  

The Victim Compensation process is initiated using two techniques. First, the trial court has  the authority to make recommendations to the District Legal Services Authority (DLSA) or  State Legal Services Authority (SLSA), as the case may be, on the amount of compensation to  be paid under the State Government's scheme. The trial court may also issue a recommendation  if it is convinced that the compensation awarded under Section 357 of the CrPC is insufficient  for rehabilitation. Second, if the criminal cannot be discovered or recognized but the victim  can, the victim and his dependents can apply to the DLSA or SLSA for compensation. Upon  receiving such an application, the DLSA or SLSA has to conduct an enquiry and award  adequate compensation within two months.13 

The Central Government established the Central Victim Compensation Fund Scheme on  October 14, 2015, with a notification issued by the Ministry of Home Affairs. The goal of the  fund is to assist and enhance current victim compensation schemes developed by states and  union territories, therefore decreasing compensation disparities and the burden of victims. 

Constitution of India 

Under Article 3214, the Supreme Court of India has the authority to grant remedy and  implement any procedure for enforcing basic rights. An aggrieved individual can file a petition  to the Supreme Court or the High Court for the enforcement of fundamental rights under  Articles 32 and 226,15 respectively. The Supreme Court and the High Court have repeatedly  expanded the scope of Article 21 of the Constitution in a series of decisions, interpreting it in  new ways from a humanitarian perspective. India has signed various international human rights  treaties, including the Universal Declaration of Human Rights, the International Covenant on  Civil and Political Rights, the International Covenant on Economic, Social, and Cultural  Rights, and the Convention on the Elimination of All Forms of Discrimination against women and children These conventions focus on the access to fair justice, effective implementation of  personal assistance and compensation as the foremost right of the victim 

According to this constitutional article, "the Supreme Court may give remedial assistance,  which may include compensation in appropriate cases". In Khatri (II) v. State of Bihar,16 the  Honourable Apex Court addressed the issue of compensation for the first time. Justice  Bhagwati stated, "Why should the court not be prepared to forge new tools and devise new  remedies for the purpose of vindicating the most precious of the fundamental rights to life and  personal liberty." 

Furthermore, in Rabindra Nath Ghosal v. University of Calcutta and Ors.17 the Court stated  that compensation is a sort of damage awarded under public law and that when basic rights are  violated, the only means to punish is through compensation. The imposition of a penalty on the  perpetrator who committed the crime and punishment alone is insufficient redress, as is the  failure of nations to protect the people's fundamental rights. Court established under Articles  32 and 226 of the Constitution to offer compensation for the protection of fundamental rights  when the state abuses its power. 

The Hon’ble Supreme Court expanded the scope of the fundamental right to life and personal  liberty to include the right to compensation of the victim. In the case of Rudal Shah v. The State  of Bihar,18 The Supreme Court ordered compensation of Rs. 35,000/- to the victim, who was  kept in prison for 14 years despite being acquitted. Following the Rudal Shah case, the Supreme  Court restated its order in numerous other cases that compensation is an inherent aspect of the  right to life and liberty enshrined under Article 21. 

Judicial Interpretation of Section 357A 

In the case of Ankush Shivaji Gaikwad v. State of Maharashtra19 where the Supreme Court  emphasized the right to grant compensation under Section 357 is not consequential to other  penalties but is part of justice. 

In the case of State Through Central Bureau of Investigation, Anti-Corruption Branch,  Chandigarh v. Sanjiv Bhalla and Another20 the court has ruled that the court has a legal  requirement to consider victim compensation in every criminal proceeding which is to be  carried out by the court. 

A major piece of legislation was the inclusion of Section 357-A in the Code of Criminal  Procedure which, as was illustrated in Suresh and Another v State of Haryana 21 empowers  compensation irrespective of the fate of the criminal trial. The basis for this provision was the  opinions of the Law Commission and suggests the trend toward acknowledging the victims’  rights and their concerns. 

The judiciary has been very active in the way it has sought to address the needs of the victim  in the criminal justice system not only in monetary terms but also in terms of his or her  rehabilitation. In Mallikarjuna Kodagali v. State Of Karnataka22, the Court realized that it is high  time to act more humanly in trials and realize that the question of victims’ rights should be  answered as well; otherwise, the compensation should be reasonable and prompt. In the same  case, it was also stressed that as much as the accused has certain rights, the victims also have  similar kinds of rights that cannot be overemphasized. This balancing of interests proves to be  important in achieving the goal of equity in the criminal justice system D. K Basu v. State Of  W. B23(1996). It may be useful to note here that the focus of the compensation in this judgment  is thus more on the principle of compensation than punishment. It means that the purpose of  applying balm is to treat the injury made to the victim, not to inflict more pain on the  perpetrator. The deserving citizens who have had their rights infringed on have to be  compensated as pointed out by the court. 

Challenges in the Implementation of Victim Compensation Scheme24 

Many problems plague the implementation of the victim compensation scheme as envisioned  under Section 357A. This is mainly due to the allocation of responsibility between the state  government for legislation, the DLSA, and other instrumentalities for implementation. Most  states tend to forego the notification of a dedicated Victim Compensation Scheme under  Section 357A since they place reliance on other relief funds that compensate victims. 

There are several main problems in the context of the execution of the scheme in India which  can be described as lack of awareness, lack of uniformity across states, and procedural hurdles  like bureaucratic red-tapism affect the application of legal provisions that exist under Section  357A of the Criminal Procedure Code (CrPC) which requires states to formulate compensation  schemes for the victims. The Indian population, particularly the rural people, lack knowledge  in relation to their legal entitlements to compensation. The police who are instrumental in  handling these cases have no knowledge or training in handling compensation claims. The lack  of awareness also results in a delay and lapse because of the limitation period for application.  Furthermore, by failing to follow up on the compensation application, courts fail to fulfill their  duty to ensure that compensation is not only awarded but also received by the victim. Another  criticism concerning compensation provisions has been directed towards the Indian courts’  insensitivity, where the Apex Court admitted that it was a systemic failure in cases such as Hari  Krishan vs Sukhbir Singh and Ankush Shivaji Gaikwad vs State of Maharashtra. 

Another major concern is the absence of a unified national structure for compensating the  victims with considerable differences in the extent of compensation along with the procedure  for the same among various states. For example, compensation paid to rape victims varies from  Rs. 20,000 in Chhattisgarh to Rs. 10 lakh in Goa. The procedural formalities and time standards  for filing applications also differ, with no chance for the victims to sort through the mare  labyrinth. In addition, these schemes are significantly affected by the failure of victims to report  sexual offenses due to culture, blame and victimization, and the fear of reprisal. 

Conclusion 

Compensation of the victims in India is a subject of growing concern that has received lots of  attention once Section 357A of the Cr. P. C. and the various state and central schemes as  outlined below. However, the system that has been developed does not represent an optimal  solution in all scenarios. Although there is a law in place there are shortcomings in the  implementation through bureaucratic procedures, ignorance of the law, and varying degrees of  compliance among states. Compensation laws have been raised to new horizons via the judicial  interpretation of such acts pointing to the state’s responsibility to its citizens. For victim compensation to be fully effective as a form of compensation there needs to be  changes in the perception, availability, and efficacy of these schemes. Also, the process of  compensation award must be fast and one should not be forced to wait for Long legal means  before he or she is compensated. Finally, it can be stated that the effective strategy focuses on  a victim-based approach that implies restorative justice and dwells on the principles of human  dignity. 

Therefore, despite the Indian legislation’s efforts towards recognizing and establishing victim  compensation schemes for compensation and supporting the victims, the implementation  process seems labored with complicities. One major issue is the lack of understanding as to the  existence of these schemes among the public and law enforcement agencies; the variation and  the inconsistent procedures and frameworks in each state also hamper the efficiency of these  schemes. The situation is worsened by underreporting of sexual offenses, societal pressure, and  bureaucratic delay hence many victims are left without the compensation they are supposed to  receive. The loopholes in the system can again be seen through the mare and knick of state specific procedures and the I turn hostile, for social or familial pressure, victims excluded from  the prosecution process. For these problems, it is imperative that there is a set of guidelines that  apply across the country, for police to be trained well in handling cases for compensation  procedures to be made less complicated, and for it to be immediately provided. If these reforms  are not made, then the very essence of the compensation schemes which intend to help the  victims of crime and provide justice to them will remain unaddressed and the legal rights of  many will remain unheard.

AUTHOR:

Chukki Anagha C

Alliance School of Law, Alliance University