Ker HC | [S. 357A CrPC] Strengthening jurisprudence behind victim compensation, Court allows petition stating ‘statutory provision is not given retrospective effect and instead a prospective benefit is given based on an antecedent fact’

Kerala High Court: Bechu Kurian Thomas, J., while allowing the present petition said,

“… While interpreting Section 357A(4) CrPC, this Court cannot be oblivious of the agony stricken face of the victim and the trauma and travails such victims have undergone, especially when their offenders have not even been identified or traced out or a trial conducted.”


Respondents 2 to 4 are the legal heirs of one late Sri Sivadas. In a motor vehicle accident that took place on 26-03-2008, Sivadas succumbed to his injuries. Though a crime was registered by the Alappuzha Traffic Police, the accused could not be identified or traced and the trial has not taken place. In 2013, the legal heirs of late Sivadas applied to the District Legal Services Authority, Alappuzha, seeking compensation from the State under Section 357A(4) of the Code of Criminal Procedure, 1973. The question before the Court in the present case was related to the applicability of Section 357(4) CrPC as the case at hand was prior to the said amendment of 2009 and as a general rule, penal laws are applied prospectively.


On victim compensation and its roots under Indian Constitution

“The principles of victimology have their foundations in Indian constitutional jurisprudence. The fundamental rights under Part III and the directive principles of state policy in Part IV of the Constitution of India form the bulwark for a new social order. The social and economic justice provided in Article 38 and Article 41, which mandates the State to secure the right to public assistance in case of disablement and undeserved want, Article 51A which makes it a fundamental duty to have compassion for living creatures and to develop humanism. According to the Law Commission of India, if the above Constitutional provisions are expanded and interpreted imaginatively, they could form the constitutional underpinnings for victimology in India.”

Further, Court reproduced the language of Section 357A Code of Criminal Procedure, 1973 as introduced by the Code of Criminal Procedure Amendment Act, 2008 (No. 5 of 2009).

 On legislative intent of the Act

“It is a settled proposition of law that when a strict application of the definition in a statute will frustrate the legislative intent of a particular provision or when the defined word is used and makes the provision unworkable, then recourse can be had to a different meaning. This recourse to a different meaning is intended by the legislature by using the legislative tool in the form of the words ‘unless the context otherwise requires’… To add meaning and life to Section 357A(4) CrPC, it is necessary that the word ‘victim’ in Section 357A(4) is meant as a person who suffers any loss or injury by reason of the act or omission of another in which the offender has not been traced or identified and against whom a trial has not taken place. Such an interpretation alone would make Section 357A(4) CrPC, workable, and have meaning.”

 On Section 357A (4) CrPC being a substantive law and a remedial/welfare piece of legislation

“Section 357A CrPC, was brought in with effect from 31-12-2009 through the Code of Criminal Procedure Amendment Act, 2008, (Act 5 of 2009). The amended provisions do not mention anywhere that the amendment is prospective or even retrospective in character. There is no dispute that procedural statutes are generally retrospective in operation, while statutes that are substantive are prospective in their application unless by express stipulation or by necessary intendment, the provisions provide for otherwise. In the quest to ascertain whether Section 357A(4) CrPC applies to offences that occurred prior to 31-12-2009, it is necessary to identify whether the provision is substantive or procedural.

Substantive law is that part of the law, which creates, defines, and regulate the rights, duties and powers of parties, while procedural law, as the name itself indicates, relates to that part of the law, which prescribes procedures and methods for enforcing rights and duties and for obtaining redress. In simpler terms, when substantive law creates, defines or regulate rights, the procedural law creates the method for enforcing or having redressal for the rights so created.

A reading of Sections 357A(1)(4)&(5) CrPC, will make it explicit that the said sub-clauses create a right upon the victim to obtain an award of compensation on satisfying the conditions stipulated therein. There was no statutory provision akin to Section 357A(4) CrPC, earlier. There was neither any remedy available to a victim to claim compensation against the State nor was there any obligation for the State to pay compensation towards a victim, especially when the accused had not been identified or traced and the trial had not taken place.

As a substantive law, the aforesaid statutory provision will have only prospective application. However, in the case of Section 357A(1)(4)and(5) CrPC, there is a difference. Rehabilitation of the victim is the scope, purport and import of Section 357A(4) CrPC, when read along with Section 357A (1) CrPC. This is more explicit when understood in the background of the recommendation of the 154th report of the Law Commission of India. Rehabilitation of the victim was a remedial measure. It remedied the weakness in the then existing provisions for compensating the crime victims, especially to those victims, whose perpetrators had not been traced. The provision is remedial. Remedial statutes or provisions are also known as welfare, beneficent or social justice-oriented legislation. While interpreting a provision brought in as a remedial measure, that too, as a means of welfare for the victims of crimes, in which the perpetrators or offenders have not been identified and in which trial has not taken place, the Court must always be wary and vigilant of not defeating the welfare intended by the legislature. In remedial provisions, as well as in welfare legislation, the words of the statute must be construed in such a manner that it provides the most complete remedy which the phraseology permits. The Court must, always, in such circumstances, interpret the words in such a manner, that the relief contemplated by the provision, is secured and not denied to the class intended to be benefited.


While allowing the present petition, Court concluded with the following remarks;

(i) The provisions in Section 357A(1)(4)&(5) CrPC are substantive in character.

(ii) The victims under Section 357A(4) of the CrPC are entitled to claim compensation for incidents that occurred even prior to the coming into force of the said provision.

(iii) By giving the benefit to victims under Section 357A(4) CrPC, for crimes that occurred prior to 31-12-2009, the statutory provision is not given retrospective effect and instead a prospective benefit is given based on an antecedent fact.[District Collector v. District Legal Service Authority, 2020 SCC OnLine Ker 8292, decided on decided 22-12-2020]

Sakshi Shukla, Editorial Assistant has put this story together.

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