Case BriefsHigh Courts

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.”

 Background

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.

 Observation

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.

 Decision

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.

Case BriefsHigh Courts

Punjab and Haryana High Court: The Division Bench of Daya Chaudhary & Sudhir Mittal, JJ. allowed the application for the enhancement of compensation to minor rape victim under Punjab Victim Compensation Scheme, 2017.

An application for enhancement of compensation was made in this case which was awarded by Sessions Judge.

The victim child was awarded compensation of Rs 6000 out of the amount of fine. The appeal was filed for enhancement of compensation which was earlier admitted. Victim (minor) through her natural guardian and mother also filed an application under Section 482 CrPC read with Section 357-A CrPC seeking recommendation to Respondent 2 i.e. District Legal Services Authority to grant compensation to her under the Punjab Victim Compensation Scheme, 2017 framed under Section 357-A of CrPC.

Ravinder Kaur Manaise, Counsel for the applicant submitted that applicant-victim was five years of age at the time of occurrence and suffered injury. It was submitted that for her physical and mental rehabilitation adequate compensation is required to be awarded to her as per Punjab Victim Compensation Scheme, 2017.

H.S. Sullar, DAG, Punjab for the respondent contended that the amount of compensation can be recovered from the accused, later on as he was in custody.

The Court referred to the Punjab Victim Compensation Scheme and noted the relevant clause of the said scheme as “the applicant is entitled to compensation, which is to be disbursed through the Bank account of the victim or through a designated person to be nominated by the Punjab Legal Services Authority or District Legal Services Authority as the case may be. The compensation is required to be paid in lump sum or in two installments as decided by the Punjab Legal Services Authority or District Legal Services Authority.” Regarding the amount of the compensation it was directed that “in case victim is less than 14 years of age, the amount of compensation is to be increased by 50% over the amount specified in the schedule, meaning, thereby, she is entitled to Rs 4,50,000.”  Thus, the petition was allowed and respondents were directed to grant the compensation to minor as per Punjab Victim Compensation Scheme, 2017. It was further directed that the Punjab State Legal Services Authority was at liberty to recover the amount so paid to the victim from the accused. [‘X’ v. State of Punjab, 2019 SCC OnLine P&H 1026, decided on 22-05-2019]

Case BriefsSupreme Court

Supreme Court: In the case where a 35-year-old woman victim of sexual assault had sought for termination of pregnancy on the ground that she is HIV positive, the Court, after considering the report of the AIIMs medical Board which stated that the procedure involved in termination of the pregnancy is risky to the life of the petitioner and the fetus in the womb, held that though there cannot be termination of pregnancy but the State of Bihar will provide all the medical facilities to the petitioner as per the treatment graph given by the doctors who are going to examine the petitioner at AIIMS through the Indira Gandhi Institute of Medical Sciences at Patna.

The Medical Board had also suggested that she is advised to continue HAART therapy and routine antenatal care, to reduce the risk of HIV transmission to the fetus/baby to the minimum. The Court hence, directed the Indira Gandhi Institute of Medical Sciences to work in coordination with AIIMS, New Delhi so that the health condition of the petitioner is not further jeopardized.

The Bench of Dipak Misra and A.M. Khanwilkar, JJ also directed the State of Bihar to pay Rs. 3,00,000 to the petitioner as compensation under the scheme of Section 357-A CrPC within 4 weeks as she has been a victim of rape. [Indu Devi v. State of Bihar, 2017 SCC OnLine SC 560, order dated 09.05.2017]