Case BriefsSupreme Court

Supreme Court: A Division Bench of Sanjay Kishan Kaul and Hemant Gupta, JJ. found that direction passed by the Gujarat High Court requiring the appellant-accused to deposit a sum of Rs 2 lakhs each towards compensation to the victims, as a condition for grant of bail was not sustainable.

Backdrop

An unfortunate incident of a free fight took place between rival groups in November, 2019 after which two victims succumbed to their injuries. FIR was filed in Amreli Police Station in which the present appellants were also arrayed as accused. Appellants were arrested. They applied for bail and in December, 2020, bail was granted by the High Court.

The Controversy

While granting bail to the appellants, the High Court imposed a condition on the appellants requiring them to deposit Rs 2 lakhs each as compensation to the victims before the trial court within a period of three months.

Aggrieved by this direction, the appellants approached the Supreme Court contending that there is no such provision in CrPC that entitles the Court to impose such a condition for payment of compensation for the grant of bail. It was submitted that the High Court imposed above-mentioned condition for bail in view of the “amended provisions” relating to victim compensation; however, it did not refer to any specific provision.

Condition Not Sustainable

After referring to various provisions of CrPC including Section 357 (Order to pay compensation), Section 235 (Judgment of acquittal or conviction) and Section 250 (Compensation for accusation without reasonable cause), the Court concluded that:

In our view the objective is clear that in cases of offences against body, compensation to the victim should be a methodology for redemption. Similarly, to prevent unnecessary harassment, compensation has been provided where meaningless criminal proceedings had been started. Such a compensation can hardly be determined at the stage of grant of bail.

The Court hastened to add that it did not mean that no monetary condition can be imposed for grant of bail. It said:

We say so as there are cases of offences against property or otherwise but that cannot be a compensation to be deposited and disbursed as if that grant has to take place as a condition of the person being enlarged on bail.

Concluding as above, the Court held that the direction contained in the impugned order for deposit of compensation of Rs 2 lakhs for the legal heirs of the deceased, naturally cannot be sustained and has to be logically set aside.

Bail Granted

The Court also considered whether bail should be granted to the appellants, and if so, on what terms and conditions. In this context, the appellants contended that the specific allegations against them was that they had beaten the complainant and the witnesses and not any of the deceased. It was a case of a free fight between two groups where each alleged the other to be the aggressor. Not only that, the other accused persons had been granted bail without imposing the aforesaid condition.

The State could not dispute the role of the appellants vis-a-vis the role of the other accused persons who had been enlarged on bail.

In such view of the matter, the Court considered it appropriate to impose the same terms and conditions for grant of bail upon the appellants as imposed on the other accused persons. The condition impugned and set aside above was substituted with the condition that the appellants will not enter the geographical limits of Amreli for a period of six months except for marking presence before the police station concerned and to attend the court proceedings. [Dharmesh v. State of Gujarat, 2021 SCC OnLine SC 458, decided on 07-7-2021]


Tejaswi Pandit, Senior Editorial Assistant has reported this brief.


 

Op EdsOP. ED.

Introduction

A person commits a crime when the pleasure is more than the cost, which they pay in punishment, or they would not do it.[1] Whenever a crime is committed, it creates three victims on three counts, the society, the primary victim and the dependent of the victim. The society, as in the State, deploys statutes such as Penal Code, 1860[2] (IPC) and Code of Criminal Procedure, 1973[3] (CrPC) to punish the offenders. However, the actual victim who suffers loss because of the crime, has little to no say in the prosecution, as the victims are left to the mercy of investigators and the public prosecutors. The society gets its vengeance fulfilled through “deterrence,” by punishing the offenders, and making an announcement that such actions would not be tolerated; and the victims get what is termed as justice. This article would be dealing particularly with the offence of rape, to make a case for compensation to victims, all through a speedy trial with proper safeguards for both the accused and the victim.

 Why is victim compensation important?

The Criminal Justice System includes three broad fields of study: Criminology (the scientific study of crime), Penology (the study of penal actions consequent to the crime) and Victimology (a comparatively newer branch which centers around the measures such as compensation, rehabilitation, and justice to the victim). The victim is a forgotten party, as the historical evolution of the system, from private vengeance to State administered justice, has resulted in a criminal justice process in which the victims play only a secondary role.[4] The modern day emergence of the idea of compensation for victims of crime commenced only in the 1950s when it was pressed by the British Magistrate and social reformer, Margery Fry.[5] It further took concrete shape when the United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power was unanimously adopted by the General Assembly on 11-11-1985,  Clause 8 of which deals with compensation to the victims of the crime.

 Articles 41[6] and 51-A[7] of the Indian Constitution lay down the duty of the State to secure “the right to public assistance in cases of disablement and in other cases of undeserved want” and to “have compassion for living creatures” and “to develop humanism” respectively. Justice Krishna Iyer, in Maru Ram v. Union of India,[8] said that victimology, a burgeoning branch of humane criminal justice, must find fulfilment, not through barbarity but by compulsory recoupment by the wrongdoer of the damage inflicted not by giving more pain to the offender but by lessening the loss of the forlorn.[9]

In 2003, the Justice Malimath Committee observed that, “victims of crime are important players in criminal justice administration both as complainant/informant and as witness for the police/prosecution. Despite the system being heavily dependent on the victim, criminal justice has been concerned with the offender and his interests almost subordinating or disregarding the interest of the victim. In civil law systems generally, the victims enjoyed better status than in Administration of Criminal Justice.”[10] In Ankush Shivaji Gaikwad v. State of Maharashtra,[11] it has been observed that: “The object and purpose of the provision is to enable the Court to direct the State to pay compensation to the victim where the compensation under Section 357[12] was not adequate or where the case ended in acquittal or discharge and the victim was required to be rehabilitated. Under this provision, even if the accused is not tried but the victim needs to be rehabilitated, the victim may request the State or District Legal Services Authority to award him/her compensation.”

I. Victim compensation regime

The Law Commission of India observed that, “We have a fairly comprehensive provision for payment of compensation to the injured party under Section 545 of the Criminal Procedure Code, 1898. It is regrettable that our courts do not exercise their statutory powers under this section as freely and as liberally as could be desired. The section has, no doubt, its limitations. Its application depends, in the first instance, on whether the court considers a substantial fine as proper punishment for the offence. In the most serious cases, the court may think that a heavy fine in addition to imprisonment for a long term is not justifiable, especially when the public prosecutor ignores the plight of the victim of the offence and does not press for compensation on his behalf.”[13] Later, taking note of the insensitive attitude of subordinate courts, the Supreme Court in Hari Singh v. Sukhbir Singh,[14] while directing the courts to exercise their powers liberally, observed that Section 357 is an important provision but the courts have seldom invoked it, perhaps due to the ignorance of the object of it.

Thereafter, the debate gained momentum and Section 357-A CrPC was inserted into the CrPC, which provides the State to frame a Victim Compensation Scheme. Compensation shall be paid to the victim depending on the facts and circumstances of the case as per such scheme. Enquiry has to be held by the State Legal Services Authority or the District Legal Services Authority, as the case may be. The law as it stands today, has provisions relating to compensation of victims such as Sections 357, 357-A, 357-B, 357-C, 358 and 359 of CrPC[15]. There is one more provision in Section 250 CrPC, 1973[16], wherein if the prosecution is launched based on false accusation, and ultimately after trial, if the person is acquitted and if the trial court finds that false case is foisted, then, the compensation is to be levied on the complainant under Section 250 CrPC. In such matters, the alleged accused is the victim of the illegal prosecution. Because of the guilt of the complainant/State, the accused has suffered. Even FIR attaches a stigma in certain cases. Therefore, if an accusation is made without unreasonable cause and if the court feels that a false case is launched, then the court may impose compensation under Section 250 CrPC.

Section 357 of the CrPC is an amalgamation of Sections 545 and 546 of the erstwhile Code of Criminal Procedure, 1898, which was based on the recommendations of the Law Commission of India.[17] The Supreme Court in Palaniappa Gounder v. State of T.N.,[18] observed that an order for compensation can be passed under Section 357(1)(c) only when a Court imposes a sentence of fine or a sentence of which fine forms a part. With the insertion of Sections 357-A[19] and 357-B,[20] the horizons of the victim compensation regime stood broadened. Before this amendment, it was the duty of the accused to compensate the victim after the conclusion of the trial, but the State had no duty to pay compensation whatsoever.[21] The victim compensation scheme is retrospective in nature, if a crime was committed before the scheme was implemented, the victim still cannot be denied compensation if it deserves the compensation. A victim is granted compensation under Section 357-A because the fundamental right to life is violated, and denial or delay of compensation would “continue such violation and perpetrate gross inhumanity on the victim in question.”[22]

In Ashwani Gupta v. Govt. of India,[23] the Delhi High Court held that mere punishment of the offender cannot give much solace to the family of the victim. Since the civil action for damages is a long drawn/cumbersome judicial process, the compensation of Section 357 would be a useful and effective remedy. In Rattan Singh v. State of Punjab,[24] Krishna Iyer J., held that it is a weakness of our jurisprudence that the victims of the crime do not attract the attention of law. The law in many jurisdictions particularly in continental countries recognises two types of rights of victims of crime, firstly, the victim’s right to participate in criminal proceedings and secondly, the right to seek and receive compensation from the criminal court for injuries.

A three-Judge Bench of the Delhi High Court in Karan v. State NCT of Delhi,[25] reiterated that there exists a mandatory duty on the Court to apply its mind to the question of victim compensation under Section 357 of the CrPC in every criminal case. The court is duty-bound to provide reasons, in every criminal case, based upon which it has exercised its discretion in awarding or refusing the compensation. While observing that the quantum of the compensation is to be determined by the courts, based on factors such as the gravity of the offence, severity of mental and physical harm/injury suffered by the victim, damage/losses suffered by the victims and the capacity of the accused to pay, the court laid down the following steps to be followed:

  1. Post-conviction of the accused, the trial court shall direct the accused to file particulars of his income and assets through an affidavit accompanied with supporting documents within 10 days. After the conviction of the accused, the State shall file an affidavit disclosing the expenses incurred on the prosecution within 30 days.
  2. On receiving the accused’s affidavit, the trial court shall send the copy of the judgment and the affidavit to the Delhi State Legal Services Authority (DSLSA). The DSLSA shall then conduct a summary inquiry to compute the loss suffered by the victim and the paying capacity of the accused. It shall submit the victim impact report along with its recommendations within 30 days. The DSLSA may request the assistance of the concerned SDM, SHO and/or the prosecution in this exercise.
  3. The trial court shall then consider the victim impact report, considering the factors enumerated above, hear the parties involved including the victim(s) and accordingly award compensation to the victim(s) and cost of the prosecution to the State if the accused has the capacity to pay. The court shall direct the accused to deposit the compensation with DSLSA whereupon DSLSA shall disburse the amount to the victims according to their scheme.
  4. If the accused does not have the capacity to pay the compensation or the compensation awarded against the accused is not adequate for rehabilitation of the victim, the court shall invoke Section 357-A CrPC to recommend the case to the Delhi State Legal Services Authority for award of compensation from the victim compensation fund under the Delhi, Victims Compensation Scheme, 2018.
  5. In matters of appeal or revision where Section 357 has not been complied with, the public prosecutor shall file an application seeking court’s direction for enforcing this procedure in accordance with Section 357(4) of the CrPC.

Compensation for offences against women

 Rape is one of the most heinous crimes against mankind, as no other crime in itself includes all the costs i.e. transaction cost + social cost + psychological cost.[26] In Bodhisattwa Gautam v. Subhra Chakraborty,[27] the Supreme Court reiterated that:

“Rape is not only a crime against the person of a woman (victim), it is a crime against the entire society. It destroys the entire psychology of a woman and pushed her into deep emotional crises. It is only by her sheer will power that she rehabilitates herself in the society which, on coming to know of the rape, looks down upon her in derision and contempt. Rape is, therefore, the most hated crime. It is a crime against basic human rights and is also violative of the victim’s most cherished of the fundamental rights, namely, the right to life contained in Article 21[28].”

The Criminal Law (Amendment) Act, 2013[29] was enacted to address the inadequacy in law relating to sexual offences against women and children, which led to the creation of the Nirbhaya Fund. The Central Government also set up the Central Victim Compensation Fund Scheme vide the notification dated 14-10-2015, by the Ministry of Home Affairs.[30] However, last year, it was reported that only 36 per cent of the Nirbhaya Fund had been utilised in the past seven years, which speaks in volumes of the enforcement backdrops apropos India’s bureaucracy.[31] Moreover, 99 per cent of the minor rape victims of sexual assault remained without any compensation.[32]

The Supreme Court in Nipun Saxena v. Union of India,[33] deemed it appropriate for National Legal Services Authority (NALSA) to set up a Committee to prepare Model Rules for Victim Compensation for sexual offences and acid attacks. Thereafter, the Committee finalised the Compensation Scheme for Women Victims/Survivors of Sexual Assault/other Crimes — 2018.[34] As per the scheme, a victim of gang rape would get a minimum compensation of Rs 5 lakhs and up to a maximum of Rs 10 lakhs. Similarly, in case of rape and unnatural sexual assault, the victim would get a minimum of Rs 4 lakhs and a maximum of Rs 7 lakhs. The victims of acid attacks, in case of disfigurement of face, would get a minimum compensation of Rs 7 lakhs, while the upper limit would be Rs 8 lakhs. The court then accepted the said scheme to be applicable across India, which remains the law of the land.[35]

Conclusion

While considering the problem of penology the court should not overlook the plight of victimology. Considering the victim compensation scheme under CrPC, along with the NALSA guidelines, it appears that a court must order the specified amount of compensation for the victims of rape.  It is submitted that the idea of a victim compensation scheme under the CrPC is complete and ideal on principle, however, the courts have been assigned the greater duty to pass orders for compensation, based on the facts and circumstances of a particular case. Once the order for compensation has been passed, the duty shifts onto the bureaucracy, for grant of compensation to victims.


The author is a student of BA LLB (Hons.) course at Jamia Millia Islamia, Delhi.

[1] David. D. Friedman, Law’s Order:  What Economics has to with Law and why it Matters (Princeton University Press, 2000) 223, in Manika Kamthan, Rape and Compensation: An Economic Analysis of the Criminal Law on Rape in India, NALSAR Law Review, 2013 7(1) 38, 43 <http://www.commonlii.org/in/journals/NALSARLawRw/2013/4.pdf>

[2] <http://www.scconline.com/DocumentLink/8C283O3C>.

[3] <http://www.scconline.com/DocumentLink/Wk1w7Fnv>.

[4] A.S. Raineri, Re-Integrating the Victim into the Sentencing Process: Victim Impact Statements as an Element of Offender Disposition, QUT LJ 1995 (11) 79, Dipa Dube, Victim Compensation Schemes in India: An Analysis, International Journal of Criminal Justice Sciences, 2018 13(2) 339, 340, <http://www.sascv.org/ijcjs/pdfs/DubeVol13Issue2IJCJS.pdf>.

[5] Ibid.

[6] <http://www.scconline.com/DocumentLink/4K1yIhAx>.

[7] <http://www.scconline.com/DocumentLink/mAj3qHzU>.

[8] (1981) 1 SCC 107

[9] In several cases, the Supreme Court has held that compensation is an integral aspect of right to life (Bhim Singh v. State of J&K, (1985) 4 SCC 677; Jacob George v. State of Kerala, (1994) 3 SCC 430; Manju Bhatia v. New Delhi Municipal Council, (1997) 6 SCC 370; Paschim Banga Khet Mazdoor Samity v. State of W.B., (1996) 4 SCC 37; People’s Union for Democratic Rights v. Police Commr., (1989) 4 SCC 730; People’s Union for Democratic Rights v. State of Bihar, (1987) 1 SCC 265

[10] Justice Malimath Committee on Reforms of Criminal Justice System (Ministry of Home Affairs, New Delhi, 2003) Para 6.9.1, <https://www.mha.gov.in/sites/default/files/criminal_justice_system_2.pdf>.

[11]  (2013) 6 SCC 770

[12] <http://www.scconline.com/DocumentLink/8QR4Ci8Q>.

[13] Law Commission of India, Code of Criminal Procedure, 1898 (Law Commission No. 42, 1971) para 3.17.

[14] (1988) 4 SCC 551; also followed in Roy Fernandes v. State of Goa, (2012) 3 SCC 221: AIR 2012 Cri LJ 1542; R. Mohan v. A.K. Vijaya Kumar, (2012) 8 SCC 721: 2012 Cri LJ 3953

[15] <http://www.scconline.com/DocumentLink/Wk1w7Fnv>.

[16] <http://www.scconline.com/DocumentLink/FS7e2HAx>.

[17] Law Commission of India, Code of Criminal Procedure, 1898 (Law Commission No. 41, 1969).

[18] (1977) 2 SCC 634

[19] Ins. vide CrPC (Amendment) Act, 2008 (5 of 2009), S. 28 (w.e.f. 31-12-2009). The insertion of this section is to provide for the State Government to prepare, in coordination with the Government, a victim compensation scheme.

[20] Ins. vide Criminal Law (Amendment) Act, 2013 (13 of 2013), S. 23 (w.e.f. 3.2.2013) <http://www.scconline.com/DocumentLink/nus8w4N9>.

[21] State of M.P. v. Mangu, 1995 SCC OnLine MP 89. The court said that, “The criminal court exercising jurisdiction under S. 357 of the Code cannot mulct the State with the liability to pay compensation to the victim either temporarily or otherwise. The statute does not enable the court to direct the State to pay compensation in the first instance and subsequently recover it from the accused.”

[22] Serina Mondal v. State of W.B., 2018 SCC OnLine Cal 4238

[23] 2005 SCC OnLine Del 20 : (2005) 117 DLT 112

[24] (1979) 4 SCC 719

[25] 2020 SCC OnLine Del 775

[26] Manika Kamthan, Rape and Compensation: An Economic Analysis of the Criminal Law on Rape in India, NALSAR Law Review, 2013 7(1) 38, 41 <http://www.commonlii.org/in/journals/NALSARLawRw/2013/4.pdf> last accessed 12-4-2021.

[27] (1996) 1 SCC 490

[28] <http://www.scconline.com/DocumentLink/VN1u87S9>.

[29] <http://www.scconline.com/DocumentLink/nus8w4N9>.

[30] Central Victim Compensation Fund Scheme Guidelines, Ministry of Home Affairs, 2015, <https://www.mha.gov.in/sites/default/files/CVCFFuideliness_141015_1_0.pdf> last accessed 30-4-2021.

[31] Fatima Khan, Only 36% of Nirbhaya Fund Used Since 2013, Panel Tells House Hours Before Convicts’ Hanging (The Print, 20-3-2020) <https://theprint.in/india/governance/only-36-of-nirbhaya-fund-used-since-2013-panel-tells-house-hours-before-convicts-hanging/384866/> last accessed 25-3-2021.

[32] CNN-News18, No Compensation for 99% Minor Rape Victims: SC Fumes Over National Survey (News18.com, 15-11-2019) <https://www.news18.com/news/india/no-compensation-for-99-minor-rape-victims-sc-fumes-over-national-survey-2387679.html> last accessed 25-3-2019.

[33] 2017 SCC OnLine SC 1776

[34] NALSA, Compensation Scheme for Women Victims/Survivors of Sexual Assault/other Crimes — 2018, <https://nalsa.gov.in/services/victim-compensation/nalsa-s-compensation-scheme-for-women-victims-survivors-of-sexual-assault-other-crimes—2018> last accessed 14-4-2021.

[35] Nipun Saxena v. Union of India, 2018 SCC OnLine SC 2439

Case BriefsHigh Courts

Jharkhand High Court: Ananda Sen, J., addressed the instant petition against the impugned order of the Judicial Commissioner, whereby the petitioner was directed to pay a sum of Rs 1 lakh as ad-interim victim compensation.

Background

The informant had purchased a car from the respondents and paid Rs 50,000 in cash and the rest balance amount of Rs 2,85,000 had been paid through bank transfer. The parties had agreed that the entire paperwork including transfer of name and issuance of NOC would be completed and sent to the informant but even after lapse of 9 months no documents were received by the informant. In the meantime, said car met with an accident and due to lack of documents including NOC, informant could not get benefit of insurance claim, thus he was cheated. The petitioners, who were accused in the FIR registered under Sections 406 and 420 of Penal Code.

While granting anticipatory bail, the Judicial Commissioner had directed the petitioners to pay a sum of Rs 1 lakh collectively, in favour of the informant/victim, as ad-interim victim compensation. It was submitted by the petitioners that the Court had committed a grave error in granting victim compensation at the stage of grant of bail by directing the petitioners to pay the said amount. It had been further submitted that at the stage of bail, the petitioners were merely an accused. As there was a presumption of innocence in their favour, the petitioners could not have been directed to compensate the informant.

Are the Courts empowered to direct payment and fix quantum thereof of victim compensation under Section 357A of CrPC?

Noticing the provisions of Section 357A, the Bench stated that there had to be a fund, created for the purpose of paying compensation. The intention of legislature was clear that the amount of compensation to be paid to the victim or the dependent of the victim had to be from the fund itself. As per the provision, the role of the Court was only to recommend payment of victim compensation, which was to be made to the District Legal Services Authority or the State Legal Services Authority. Thus, stated the Court,

“The Court is not vested with the power under Section 357A of the Code to quantify the amount of compensation, rather that power is vested with the Legal Services Authority.”

Citing the ruled laid down in Taylor v. Taylor, [L.R.] 1 Ch.D. 426, which was, also applied by the Supreme Court in Rao Shiv Bahadur Singh Vs. State of Vindhya Pradesh, 1954 SCR 1098, the Bench said, “It is well settled that where the statute provides for a thing to be done in a particular manner, then it has to be done in that manner and in no other manner.”

Thus, the Court could only recommend payment of victim compensation, quantum of which had to be ascertained and determined by the State or the District Legal Services Authority. Further, the Court expressed,

“An accused cannot be saddled with payment of victim compensation, as the same is not in consonance with Section 357A nor with the Scheme, the Court could not have directed the petitioners to pay the said amount as victim compensation.”

Whether the victim compensation can be granted at the time of granting bail or at any stage prior to conclusion of the trial?

Supreme Court, in the case of Ankush Shivaji Gaikwad v. State of Maharashtra, (2013) 6 SCC 770, had held that the occasion to consider the question of award of compensation would logically arise only after the Court records conviction of the accused. The Bench remarked that before granting compensation, there had to be some inquiry. If any Court, under Section 357A of the Code, quantify the amount of compensation, the same could not be without an inquiry as to whether the compensation was adequate or not. Thus, legislature, in its wisdom, had vested the power of inquiry, as envisaged in Section 357A (5), with the State or District Legal Services Authority and the Court had only been vested with a power to recommend payment of victim compensation. This recommendation should be without quantifying the amount. The Bench stated,

“Once the victim is identified, there is no embargo in paying victim compensation even at the stage of consideration of bail of the accused, which is an interlocutory phase.”

Therefore, it had been held that victim compensation could be granted at any stage of the proceeding, even at the stage of grant of bail, or even after the conclusion of trial, the Court could recommend payment of victim compensation by way of interim measure, to the victim.

Whether willingness to pay victim compensation can be a relevant ground for the grant of interim bail?

Regarding the question, whether offering to pay compensation could be a valid consideration for bail, the Bench expressed,

“In that event, there will be persons with criminal intent in their mind, who will be roaming in the society with a knife in one hand and a purse full of money in another.”

 Thus, the Bench opined, if payment of compensation becomes a consideration for the grant of bail, not only same would be against the provision of law, but would also have a catastrophic effect upon the administration of criminal justice. Thus, any submission on behalf of the accused volunteering to pay compensation to the victim, in lieu of grant of bail, should not, at all, be considered by the Court. The Court should not be swayed by those submissions made by the parties, rather should evaluate and base the order on the correct perspective.

Lastly, the Bench ruled out, the offence alleged and the nature of injury, if any, caused to the victim was not covered by the schedules of Victim Compensation Scheme framed by the State. Thus, when the loss or injury so allegedly caused, was not expressly covered under the Schedules of the Scheme, there could not be any recommendation far less a direction to pay victim compensation by the accused as a condition of bail against the provision of law. Hence, the impugned order was set aside.[Sumit Kumar Shaw v. State of Jharkhand, Cr. M.P. No. 2194 of  2020, decided on 29-01-2021]


 Appearance before the Court by:

 For the Petitioners: Adv. Indrajit Sinha

For the State: State Counsel IV P.A.S. Pati

For the Opposite Party  2: Adv. Soumitra Baroi


Kamini Sharma, Editorial Assistant has reported this brief.

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]


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Case BriefsForeign Courts

Supreme Court of United Kingdom: The question that come for consideration of Court was whether a claim to damages against the UK Motor Insurers’ Bureau was to be determined in accordance with English or Greek law, where the respondent had been injured by an uninsured driver while on holiday in Greece.

Various EU Directives, transposed into English law by the Motor Vehicles (Compulsory Insurance) (Information Centre and Compensation Body) Regulations 2003 ensured that compensation was available for victims of motor accidents occurring anywhere within the EU. The scheme provided that victims could claim compensation directly from the designated compensation body in their own member state, in certain circumstances.

Two questions which were taken up in this appeal was whether the Directives prescribe any particular approach to the scope or measure of recovery applicable in a claim against a compensation body under article 7 of the Fourth Directive (article 25(1) of the Sixth Directive). The second is if they do, whether the language of Regulation 13(2)(b) of the 2003 Regulations reflects this approach, or mandates some different approach, whatever the Directives may have required.

As to the first question, viewed as a whole, the Directives were and are a scheme of which the constant aim has been to improve the prospects and ease with which injured parties can recover the compensation to which they are “entitled” in respect of any loss or damage caused by vehicles. The inference is that the victim of a motor accident is entitled to the same compensation, whether against the driver responsible, his or her insurer, or, that failing, against the motor insurance bureau of the State of the accident or indeed the compensation body established in the victim’s state of residence.

The Directives do not leave it to individual member states to provide for compensation in accordance with any law that such states may choose. On the contrary, they proceed on the basis that a victim’s entitlement to compensation will be measured on a consistent basis, by reference to the law of the state of the accident, whichever of the routes to recovery provided by the Directives he or she invokes.

Lord Mance while giving the lead judgment, with which the other Justices agreed found that the Directives proceeded on the basis that a victim’s compensation was to be measured on a consistent basis, by reference to the law of the state where the accident occurred. This position in EU law was clear. As to the second question, the 2003 Regulations were consistent with the Directives. The reference in Regulation 12(2)(b) to recovery “under the laws applying in the part of the United Kingdom in which the injured party resided at the date of the accident” was to determine which of the UK’s three legal systems should apply. It did not refer to the measure of recovery. [Moreno v The Motor Insurers’ Bureau, [2016] 1 WLR 3194, decided on August 3, 2016]