“Victim compensation is indeed a new horizon in settling claims for losses incurred and quenching the thirst for retribution”
The article discusses the Concept Of Victim Compensation Under The Code Of Criminal Procedure. Protecting the rights and interest of the individual is the primary purpose of law. A victim of the offence can get compensation in India. We shall discuss procedure which needs to be followed for victim compensation in this article. The compensation has to be ordered by the court. Compensation can be sought through the procedure established by the court. Compensation is awarded for material as well as non-material damages. One of the principle aspects of victim support and assistance was compensation for injuries which was read as an integral part of “Right to life” by the Indian judiciary. Subsequently however the need to introduce the mechanism of statutory compensation led to the incorporation of section 357 A in the Code of Criminal Procedure 1973 making it obligatory for the state to provide compensation to the victims or dependents who have suffered loss or injury as a result of crimes.
The article discusses the Concept Of Victim Compensation Under The Code Of Criminal Procedure. Under the Indian Criminal Justice administration, an offence is presumed to be committed against the State even though it is actually committed against the aggrieved person or the victim. A victim of crime thus is a person who suffers any loss or injury as a result of the crime. Crime victim compensation should be a government program designed to reimburse victims of violent crime for their out-of-pocket expenses relating to the crime. Surviving or affected family members may also be eligible for limited compensation. Generally, victims apply to the compensation program of the state where they live or where the crime occurred. Compensation can be paid even when no one is arrested or convicted for the crime.
The compensatory jurisprudence is based on crime is public wrong and sound principle of welfare state and Article 21 of Indian Constitution which lays down that no person shall be deprived of his life or personal liberty except according to the procedure established by law.
Protection of rights and liberties against their intentional infringement should be the outright most important objective of a democratic government and their justice system. The judicial process and penal measures are the prime example of the means deployed by the State to attain these objectives. Those convicted are subjected to these penal processes justified as a form of social reform and a punitive measure. The term ‘poetic justice’ seems very handy at this point and the penal measure brings to an end the judicial process and starts the reform process concerning that particular instance of the disturbance caused to someone’s peace. A forgotten body seems to be the victim at this stage. In the past, they have been treated as mere by-products, of the crime committed, by the Indian Judicial system but recent reforms in procedure and the gradual move away from the traditional presumption that the greatest satisfaction that can be provided to the victim is the conviction of the accused has provided some hope to these dejected personalities. Even though the wrong cannot be undone, a solace must be provided by the state by ensuring just compensation is provided to the said victim.
WHAT IS VICTIM COMPENSATION?
Crime victim compensation is a direct reimbursement to or on behalf of a crime victim for a wide variety of crime-related expenses such as medical costs, mental health counseling, lost wages, and funeral and burial costs. The core rights for victims of crime also includes the right to compensation.
The compensation to victim of crime is a matter of concern, throughout the world the condition of the victims of crime is no better. For a quite, long time the victim was not the concern for traditional criminology. The function of compensation is straightforward compensation serves to right what would otherwise count as wrongful injuries to person or their property. It is true that the victim of any serious crime is not getting his due in whole world.
Compensation can be awarded for material and non-material damages suffered by the victim in the course of the crime in question. Courts also have the powers to provide litigation costs considering the growing lawyer costs today. Dependents of the victims are provided with compensation sometimes, for e.g. in the case of death of the victim, to provide some kind of solace in addition to bringing the death to justice. The court can also impose compensation in addition to a sentence where the penalty does not include a fine.
More than four decades back Krishna Iyer J speaking, It is weakness of our jurisprudence that victims of crime and the distress of their dependents of the victim do not attract the attention of law. In fact, the victim compensation is still the vanishing point of our criminal law. This is the deficiency in the system, which must be rectified by the legislature. In this paper attempt has been made to show compensatory rights of victim is not a vanishing point in modern criminology in India.
The Victim Compensation in India
In India, the trial court has been empowered to pass an order for payment of compensation from the accused to the victim besides the normal imprisonment and fine paid by him. Sections 357 and 357A specifically deal with the powers of the trial to grant compensation and costs to the victim.
However such compensation to victims can be awarded only when substantive sentence is imposed of which fine forms a part, and not in cases of acquittal.
Laws governing compensation of victims of crime in India
The provisions relating to compensation to victims of crime are contained in sections 357, 357(1), 357 (2), 357 (3), 357A, 358, 359 and 250 of the Code of Criminal Procedure, 1973.
Constitution of India also provides for certain safeguards to the victim of crime. Article 14 and 21 of the Constitution supports the argument.
When is the compensation to be provided
Along with the duty of the offender, it is the duty of the state too, to compensate the victim. Compensation to the victim of crime can be provided:
At the conclusion of the trial. That is on the orders of the court.
When inadequate compensation is granted by the lower court to the victim of crime, the Appellate Court might increase the compensation.
Where accused is not traceable, it becomes the duty of the state to compensate the victim of the crime.
History and Development of Victim Compensation in India
The history of penal law in India can be traced to the times of colonisation and the era of British rule. The very first trace of restitution in Indian law can be found in sub-clause (1)(b) of Section 545 in the Code of Criminal Procedure of 1898, which provided that courts may direct: “payment to any person of compensation for any loss or injury caused by the offence, when substantial compensation is, in the opinion of the court, recoverable by such person in a civil court”.
VICTIM COMPENSATION UNDER CrPC, 1974
According to Section 357 of the Code, if a court passes any sentence that includes a payment of fine, the court may order that the fine be used for any of the following purposes:
To defray any expenses incurred by the victim towards the prosecution of the accused.
To pay any compensation to the victim for any loss or injury caused to the victim by the offence and as decided by the court. The fine amount can be used to pay such compensation and later can be recovered from the accused itself.
In case of any death caused due to the act of the offender and the family of the victims are entitled to damages or compensation under the Motor Vehicle Act, 1988, the court may order for the utilization of fine amount towards the payment of such compensation.
When any person is convicted of any offence which includes theft, criminal misappropriation, criminal breach of trust, or cheating, or of having dishonestly received or retained, or of having voluntarily assisted in disposing of, stolen property knowing or having reason to believe the same to be stolen, in compensating any bona fide purchaser of such property for the loss of the the same if such property is restored to the possession of the person entitled thereto.
“The victims have a right to get justice, to remedy the harm suffered as a result of crime. This right is different from and independent of the right to retribution, responsibility of which has been assumed by the state in a society governed by rule of law. But if the state fails in discharging this responsibility the state must still provide a mechanism to ensure that the victim’s right to be compensation for his injury is not ignored or defeated.
The 154th Law Commission Report on the CrPC devoted an entire chapter to ‘Victimology’ in which the growing emphasis on victim’s rights in criminal trials was discussed extensively as under:
Increasingly the attention of criminologists, penologists and reformers of criminal justice system has been directed to victimology, control of victimization and protection of victims of crimes. Crimes often entail substantive harms to people and not merely symbolic harm to the social order. Consequently the needs and rights of victims of crime should receive priority attention in the total response to crime. One recognized method of protection of victims is compensation to victims of crime. The needs of victims and their family are extensive and varied.
VICTIM COMPENSATION SCHEMe
In 2009, the central government gave directions to every state to prepare a scheme which has to be in agreement with the center’s scheme for victim compensation. The primary purpose of the scheme is to provide funds for the purpose of compensation to the victim or his dependents who have suffered loss or injury as a result of the crime and who require rehabilitation. The Central government in 2015 formulated the CVCF scheme to compensate the determined. Every state has their own guidelines which decide the procedure.
Their exist plethora of cases where the compensation has been awarded by the Supreme Court to the victims of the crime which not only present the heart full moments but also exposed the sorry state of affairs that has been prevalent in the lower courts even some times High Courts.
Role of the Government The theory of State responsibility pins the blame of crime on the State as having failed to protect the public against crime. It propounds that compensation is therefore a consequence of such failure. Although modern jurisprudence accounts for individual deviance as being no fault of the State, it supports the factum that the State must assist the vulnerable as a matter of public policy.
Under Indian Constitution
The principle of payment of compensation to the victim of crime was evolved by Hon’ble S.C. on the ground that it is duty of the welfare state to protect the fundamental rights of the citizens not only against the actions of its agencies but is also responsible for hardships on the victims on the grounds of humanitarianism and obligation of social welfare, duty to protect it’s subject, equitable Justice etc . It is to be noted that compensation by the State for the action of it’s official was evolved by the Hon’ble Court against the doctrine of English law: “King can do no Wrong” and clearly sated in the case of Nilabati Behra v State of Orissa that doctrine of sovereign immunity is only applicable in the case of tortuous act of government servant and not where there is violation of fundamental rights and hence in a way stated that in criminal matters (of course if there is violation of fundamental rights) this doctrine is not applicable.
CASE LAWS :
The Supreme Court of India, in the case of Maru Ram v. Union of India, stated the following and summed up what was needed at the time:
“A victim of crime cannot be a ‘forgotten man’ in the criminal justice system. It is he who has suffered the most. His family is ruined particularly in the case of death and other bodily injury. This is apart from factors like loss of reputation, humiliation, etc. An honor which is lost or life which is snuffed out cannot be recompensed but then monetary compensation will at least provide some solace”.
In Balasaheb Rangnath Khade v The State of Maharastra, the court observed:
The criminal justice system has been designed with the State at the center stage. Law and order is the prime duty of the State. It fosters peace and prosperity. The rule of law is to prevail for a welfare State to prosper. The citizens in a welfare State are expected to have their basic human rights. These rights are often violated. The law and order is breached.
In Bhajan Kaur v. Delhi Administration, a writ petition was filed in Delhi High Court for paying compensation to the dependents of those killed in the riots after the assassination of Smt. Indira Gandhi as the State had a duty to protect the life of it citizens.
The Delhi High Court held that the expanded meaning attribute to Article 21 of the Constitution, it is the duty of the State to create a climate where member of the society belonging to different faiths, caste and creed live together and therefore the State has a duty to protect their life, liberty, dignity and worth of an individual which should not be jeopardized or endangered. If in any circumstances the state is not able to do so, then it cannot escape the liability to pay compensation to the family of the persons killed during the riots. The High Court directed the State government to pay a sum of Rs. 2 Lacs with interest and also gave a general direction that the order should apply to similar cases also.
In the case of Nilabati Behra v State of Orissa, where the son of petitioner was arrested by the police and next morning his body was found laying down with several injuries on the railway track, the Hon’ble S.C. awarded the compensation of Rs 1,50,000 that is to be paid by the State.
In public law remedy, court recognized shift from retribution to restitution and compensation may payable by the state. Section 357 of CrPC provides the idea of payment of compensation by the offender. The compensation to the victims of crime should be State responsibility and for implementing this welfare measure the District and the State Legal Service Authority need to be prompt. The court has visualized the awards of compensation as an important methodology not only to redress the violation but also as deterrent. The government needs to clear the concept of omission of government officials especially police. Victim compensations is basic human right which is also recognized in modern criminology. The recognition of the victim as a person with compensatory rights, is a major break with the past.
Victim compensation as a concept in India is still nascent and shy to continuous development. While the courts no longer subscribe to the archaic approach of limiting victim support to monetary penalty imposed on the convict, there is much momentum to be gained so as to adequately assist victims from various backgrounds.
All the intervention by the courts suggests that the legislature has not done a proper job in explaining the concept in a clear and proper manner which needs addressing. How much a victim should be paid and the techniques used for it seem very ambiguous as it may cover loss due to permanent or temporary disability, agony, effect on earnings, doctor expenses etc. The issue of inflated and false claims seems to be missing again which makes the calculation even more difficult. A grassroots level mechanism needs developing in unambiguous terms which deal with all rights relating to the calculation. It has been suggested that it is high time a proper and comprehensive legislation is drafted that is straight to the point and accessible in terms of the language to the general public to remove all the obscurity in a case law dominated provision which might become a bit complicated for a layman to follow.
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