INTRODUCTION
From the inception of the judicial system, the main purposes underlying the existence of the courts of justice is the discovery, vindication and establishment of truth. But does the State's obligation to the victim cease with the mere registration of a case, investigation, commencement of prosecution, conviction, and sentencing of an accused? Or is there still an obligation to the victim after taking these measures as well? The operative principle in criminal justice dispensation is fair trial and justice to not only the accused, but also to the victim of crime. Function of this rule involves subtle judicial balancing of competing interests of the accused, the victim and the society. Justice must be restorative and rehabilitative for the victim as well as reformative for the offender. The victim has a legitimate expectation that he would receive financial compensation as well as other forms of rehabilitative support. The obligation to compensate the victim continues to exist even when the legal system falls short of identifying the suspect or of gathering and presenting sufficient evidence to achieve the guilty party's conviction.
DEVELOPMENT OF CONCEPT OF VICTIM COMPENSATION
Compensation to victims is considered as a major component towards ensuring victim justice. The Right to compensation has been given a significant place under the United Nations Declaration of basic Principles of Justice, 1985, which was adopted by the General assembly at its 96th Plenary Meeting, 29th November, 1985. This declaration provides that the State is responsible for compensating victims, in case compensation from the offender or from other sources is not available.
The Malimath Committee in its report in 2003 addressed the subject of victim compensation and recommended that the victim should be given a right to adequate compensation. The Committee recommended that in case of compensation being inadequate, victim shall have a right to prefer an appeal. The obligation of State to recompense the victim was recognized irrespective of the status of the offender, or whether the offender was apprehended or not, convicted or acquitted. Setting up of Victim Compensation Fund under the Legal Services Authority was also recommended.
226th Report of Law Commission of India (2009) was submitted to the Supreme Court of India for inclusion of acid attacks as specific offences in the Indian Penal Code and a law for compensation for victims of crime. The Commission recommended for enactment of a law to establish Criminal Injuries Compensation Boards at central, state and district levels to ensure compensatory justice to victims.
CONSTITUTIONAL FRAMEWORK AND LEGISLATIVE HISTORY
Compensation in India has been directed to be paid in public law remedy with reference to Article 21 of the Constitution. When the State or other authorities failed to protect the victims' life, dignity, and liberty, the Supreme Court has on occasion ordered the payment of monetary compensation as well as rehabilitative support in order to do justice to the victims.
Over the last few years, some amendments have been made in criminal laws in India giving rights to victims of crime at different stages of criminal justice system. Award of compensation to a victim of crime is one such development that has taken place in India.
The 41st Report of the Law Commission of India submitted in 1969, discussed section 545 of the Code of Criminal Procedure of 1898 and stated that the significance of the recoverability of compensation should be enforceable in a civil court akin to the public remedy available to tort. The use of the word “substantial” excluded cases where nominal compensation may be found recoverable. The Code of Criminal Procedure Bill, 1970, which aimed to revise Section 545 and reintroduced it in the form of Section 357 as it stands now in the Code of Criminal Procedure, 1973. The word “substantial” was omitted, which altered the approach to demarcation. Additionally, two new sub-sections were added. Subsection (3) of the section provides for the payment of compensation, even in cases where the sentence does not include any fine. On the other hand, subsection (4) outlines the jurisdiction and powers of courts regarding this section. It states that an Appellate Court, the High Court, or any other court may issue an order for the award of compensation while exercising revisionary powers.
Section 357 of the Cr.P.C. encompasses two scenarios. The first is when the court imposes a sentence that includes a fine or a sentence, including death, in which the fine is a component; in such cases, as per subsection (1), the court has the authority to order that the recovered fine, either wholly or in part, be utilized as specified in the subsection. The legislation also addresses a second scenario, where a sentence is imposed that does not include a fine. Subsection (3) of Section 357 empowers the court, during the judgment, to direct the accused person to pay a specific amount as compensation to the individual who has suffered losses due to the committed act.
An examination of Section 357 of the Cr.P.C. reveals the forward-thinking approach of the legislature in encompassing various categories eligible for compensation. These categories include the "costs incurred in prosecution" (Section 357(1a)), "any person" who has suffered loss or injury due to the offense (Section 357(1b)), "persons" who have the right to claim damages from the convicted person under the Fatal Accidents Act, 1855 (Section 357(1c)), and a "bonafide purchaser" of property involved in the offense (Section 357(1d).
VICTIM
Under the Criminal Procedure Code, 1973, by virtue of Act 5 of 2009, the definition of “victim” was added by way of section 2(wa) to mean 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.
The words “loss” or “injury” contained in the definition are however not defined in the Code. However, section 2(y) of the Code clarifies that the words and expressions used, but not defined in the Code but defined in the Indian Penal Code, shall have the same meaning respectively assigned to them in that Code. “Injury” has been defined under section 44 IPC as denoting any harm whatever illegally caused to any person, in body, mind, reputation or property.
It is thus clear that if a person who has suffered an injury in body or mind or reputation or to his/ her property or if such person has been caused loss of property, to which he is legally entitled, unlawfully at the hands of another person who has been charged as an accused is a “victim” within the meaning of section 2(wa). Further, as per the definition, if such “victim” of the first part does not survive, the second part of the definition becomes operative, whereupon the guardian incase such victim was a minor or of unsound mind, or the legal heirs of the deceased victim, as the case may be, step into the shoes of the ‘victim’ for varied purposes, including claim of compensation. Thus, three categories of persons have been defined in the term ‘victim’ namely, (i) who has suffered loss or injury; (ii) guardian of the above category, if the sufferer is a minor or of unsound mind; and (iii) legal heirs of the first category if the sufferer dies.
SECTION 357A Cr.P.C. AND ROLE OF THE GOVERNMENT IN VICTIM COMPENSATION SCHEME
In 2008, significant changes were made to the Criminal Procedure Code, specifically focusing on the rights of victims in criminal trials, particularly those involving sexual offenses. While Section 357 remained unchanged, a new provision called Section 357A was introduced. This provision grants the court the power to direct the State to provide compensation to the victim if the amount awarded under Section 357 is not sufficient for their rehabilitation, or in cases where the accused is acquitted or discharged and the victim requires rehabilitation.
Section 357A recognizes compensation as a means to protect the interests of victims. It was included based on the recommendations of the 154th Report of the Law Commission. The main emphasis of this provision is on rehabilitating the victim even if the accused is not tried. In such situations, the victim needs to apply to the State or District Legal Service Authorities, as applicable, to seek compensation.
The concept of State responsibility entails that the State is held liable for its inability to safeguard the public from criminal activities. It implies that compensation is a result of this failure. Although contemporary legal principles recognize that individual wrongdoing cannot be attributed to the State, they endorse the notion that the State should provide assistance to those who are vulnerable as a matter of public policy.
Section 357A of the Criminal Procedure Code makes it the duty of the State Government to establish a compensation scheme for victims of crime, their dependents, and those who have suffered loss or injury as a result of crime and require rehabilitation. This scheme is applicable in the situations when the accused is acquitted or discharged, or when the accused lacks the means to pay, or when the accused cannot be identified or located.
The Central government has established the Central Victim Compensation Fund Scheme through a notification issued by the Ministry of Home Affairs on October 14, 2015. The objective of this scheme is to support and supplement existing victim compensation schemes implemented by states and union territories, thereby reducing the disparity in compensation amounts.
JUDICIAL APPROACH
The Supreme Court, in the case of Suresh and Anr. v. State of Haryana[1], highlighted certain inherent limitations in Section 357. These limitations include the fact that Section 357 can only be invoked upon conviction, and even then, it is at the discretion of the judge and subject to the financial capacity of the accused to pay. Another limitation is the considerable time taken in the disposal of criminal cases, while victims often require immediate relief and cannot afford to wait for a lengthy conviction process. Additionally, the amount of compensation depends on the financial capacity of the accused, for which evidence is rarely collected. Victims often face challenges in making a representation for compensation due to a lack of legal aid or other resources. Given the low conviction rates, Section 357 is considered insufficient in addressing the needs of the victims.
Expressing concerns for the well-being of crime victims, the Supreme Court, in the case State of Gujarat v. Hon'ble High Court of Gujarat[2], recommended that the State should enact a law to allocate a portion of wages earned by prisoners as compensation for deserving victims. This compensation could be paid directly to the victims or through a common fund established for this purpose or through another feasible method. The importance of reparations, restitution, and protection of victims' rights was emphasized, as the justice system would lose its meaning if victims were not properly attended to.
In the case of Bodhisattwa Gautam v. Subhra Chakraborty[3], the Supreme Court ordered the appellant to pay interim maintenance of Rs. 1,000/- per month to the victim during the pendency of the criminal case. The Court recognized the need to provide immediate relief to the victim.
In Palaniappa Gounder v. State of Tamil Nadu[4], the Supreme Court observed that compensation orders under Section 357(1)(c) could only be issued when the court imposes a fine or a sentence that includes a fine. However, with the introduction of Sections 357A and 357B, the scope of the victim compensation framework expanded. Prior to this amendment, it was solely the responsibility of the accused to compensate the victim after the trial, while the State had no obligation to provide compensation. The victim compensation scheme is retrospective in nature, ensuring that deserving victims are not denied compensation even if the crime occurred before the implementation of the scheme. Compensation under Section 357-A is granted when a fundamental right of the victim is violated, and denying or delaying compensation would perpetuate such violation and inflict grave inhumanity on the victim.
In the case of Ashwani Gupta v. Govt. of India[5], the Delhi High Court recognized that mere punishment of the offender may not offer significant solace to the victim's family. As civil action for damages can be a lengthy and complex process, the compensation provided under Section 357 would serve as a useful and effective remedy.
A three-Judge Bench of the Delhi High Court in Karan v. State NCT of Delhi[6], 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 certain guidelines and steps to be followed in this regard.
CONCLUSION
Victim compensation laws, which are an essential aspect of the criminal justice system as they aim to provide amelioration to the victim in the form of financial assistance and support to victims of crime, have made significant progress in India in recognizing and addressing the rights of victims, though there still are areas which require consideration. Some of such areas are limited scope and inadequate awareness among victims, complex and lengthy compensation process, inconsistency in award of compensation, inadequate funding by government, requirement of rehabilitation and support services in addition to monetary compensation and inclusion of marginalized and vulnerable victims into the system.
There is a need felt for introduction of legislations as in other States such as Canada, Australia, England, New Zealand, Northern Ireland and the USA providing for restitution by courts administering criminal justice. However, until comprehensive legislation is enacted, Victim Compensation Schemes in India should be treated as a broader institution beyond the scope of Section 357 or Section 357A. These schemes should encompass a program that harmonizes criminal provisions, civil remedies, rehabilitative support, the role of courts, and state accountability. The existing laws in India should be reformed and redesigned to align with international standards. Furthermore, victims should be actively engaged and involved, not just for the purpose of making recommendations, but also as active participants in reforming the compensation scheme into an inclusive process that empowers them.
The current procedure for obtaining compensation under most schemes is complex and inflexible, and it needs to be simplified. Requirements such as medical reports can cause delays in the disbursement of compensation, which may be urgently needed by the victim. Therefore, provisions for interim compensation should also be defined and included. Additionally, most schemes focus solely on the disbursement of compensation, neglecting the need for rehabilitative support and overlooking the psychological trauma endured by the victim. There should be an emphasis on providing psychological support and rehabilitative measures to help integrate the victim back into society. Coordination among various components of the justice system, including the courts, police, District Legal Services Authorities, and State Legal Services Authorities, should be streamlined in this regard. Each entity should inform and assist the victim in expeditiously obtaining compensation. Furthermore, the courts themselves should make recommendations for compensation when they deem such assistance necessary.
As the concept of victim compensation is still in its early stages of development in India, the approach of the courts needs to be more proactive and empathetic. Granting compensation should be given equal importance to the conviction and sentencing aspects. The courts should act as guardians of the needy, providing substantial assistance to victims from diverse backgrounds, particularly in terms of rehabilitation and restoration support. The courts should no longer adhere to the outdated approach of limiting victim support to monetary penalties imposed on the convict alone. It is important to adopt a liberal approach to award compensation to the victims and lay major emphasis on their social rehabilitation and reintegration.
[1] Suresh and Anr. Vs State of Haryana, (2015) 2 SCC 227
[2] State of Gujarat v. Hon’ble High Court of Gujarat, (1998) 7 SCC 392
[3] Bodhisattwa Gautam v. Subhra Chakraborty (Ms.), (1996) 1 SCC 490.
[4] Palaniappa Gounder v. State of Tamil Nadu, (1977) 2 SCC 634.
[5] Ashwani Gupta v. Govt. of India, 117 (2005) DLT 112.
[6] Karan v. State NCT of Delhi, 277 (2021) DLT 195 (FB).