Compensation to victims of crime is an old concept. In primitive societies, the blood feud was compounded by extracting compensation in kind from the offending group. The chiefs, elders or kings imposed the punishment to prevent feuding within the same tribe. The modern compensatory jurisprudence to the victims of crime is prevalent in many countries. In India, there are statutory provisions of compensation besides the compensation being awarded by the judiciary under constitutional provisions.
Compensation to victims under Constitution
Article 14 and 21 of the Constitution of India protects the rights of a victim.
One of the most notable initiatives taken by the judiciary was the evolution of compensatory remedy through Article. 32 or 226/227.
However, the current available remedies are at courts discretion and there are no subsequent provisions for a speaking order. Calculation / Computation of the compensatory amount is well within the court’s jurisdiction.
The judiciary in India has been awarding compensation with the liberal interpretation of Articles 21 and 300A of the Constitution against the wrongful acts of law enforcing agencies being deliberate, malicious or wrongful omission by failure to maintain law and order to protect the life and property of the people.
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King can do no Wrong” and clearly stated in the case of Nilabati Behra v State of Orissa (AIR 1993), 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.
Rudal Sah v State of Bihar (AIR 1983) is the most celebrated case where the Hon’ble S.C. directed the state to pay compensation of Rs 35,000 to Rudal Sah who was kept in jail for 14 years even after his acquittal on the ground of insanity and held that it is violation of Article 21 done by the State of Bihar.
The case of Bhim Singh v State of J&K(1986) is another important case where Bhim Singh an MLA was arrested by the police only to prevent him to attended the Legislative Assembly, the Hon’ble Court not only entertained the writ petition of his wife but also awarded the compensation of Rs 50,000 to be paid by the state.
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On the issue of brutal use of force and misuse of authority by the police outside the police station case of SAHELI v Commissioner of Police (AIR 1990) is land mark where the son of Kamlesh Kumari died due to ill treatment by a S.I. of Delhi Police, the Hon’ble S.C. directed the Delhi Adm. to pay the compensation of Rs 75,000.
Compensation to victims under Statutory Provisions
The Code Of Criminal Procedure, 1973
Under Code of Criminal Procedure, Sections 250, 357, 357-A, 358 make the provisions for compensation. Section 250 makes the provision of compensation for accusation without reasonable cause.
Section 357: Order to Pay Compensation
Under Section 357, the Court may order to pay compensation out of the amount of fine imposed on the offender. The extent and application of Section 357 extend to any order in relation to compensation which is passed by the trial court, a court of the session or any appellant or High court while applying their revision jurisdiction. The Apex court is also empowered under this section to order compensation. The implementation of this Section is restricted in the application under four specific instances.
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These compensations can be claimed by the complainant to satisfy and meet the expenses that were incurred during prosecution. A person who has suffered damage or injury by the offence can also recover the amount in these competent courts. These courts are empowered to provide such compensations to the individual who is entitled to recover damages under the Fatal Accidents Act, where there has been a conviction in relation to causing death or abatement.
Section 357 also extends to cases where there has been injury done to a property. In such cases, courts can order compensation to the authentic purchaser of the property, which has been the subject of theft, criminal breach of trust, cheating, misappropriation or acquiring or retaining or disposing of the stolen property and which is ordered to be restored to the genuine owner. Section 357, Subsection empowers the court to order payment of compensation, even in cases where the punishment Section 357, Subsection mentioned does not comprise of payment of any fine.
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Section 357A: Victim Compensation Scheme
Under Section 357A, victim compensation scheme has been provided. In the 154th amendment, it was observed by the Law Commission that the earlier recommendations have not been considered or given effect by the government. In order to achieve the practical application of the previous provision of Section 357, an additional provision of Section 357A was added. Earlier in the absence of 357A, there was no duty towards the victim and compensation could be availed only after the accused was convicted.
Section 357A was formulated in the year 2009, where the Central and the State Governments made Victim Compensation Schemes (VCS). The scheme was in order to provide compensation to the victim and his/her dependents for the losses and damage caused by the offender; the responsibility to generate and sustain the fund is upon the State Government. In cases, where the Victim Compensation Scheme can be availed is when there is inadequate compensation paid by the accused or discharged of the accusations or offender not traceable or identifiable, in addition to compensation pay
This section is as follows:
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Victim compensation scheme.-(1) Every State Government in co-ordination with the Central Government shall prepare a scheme for providing 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.
(2) Whenever a recommendation is made by the Court for compensation, the District Legal Service Authority or the State Legal Service Authority, as the case may be, shall decide the quantum of compensation to be awarded under the scheme referred to in sub-section (1).
(3) If the trial court, at the conclusion of the trial, is satisfied, that the compensation awarded under Section 357 is not adequate for such rehabilitation, or where the cases end in acquittal or discharge and the victim has to be rehabilitated, it may make recommendation for
compensation.
(4) Where the offender is not traced or identified, but the victim is identified, and where no trial takes place, the victim or his dependents may make an application to the State or the District Legal Services Authority for award of compensation.
(5) On receipt of such recommendations or on the application under sub-section (4), the State or the District Legal Services Authority shall, after due enquiry award adequate compensation by completing the enquiry within two months.
(6) The State or the District Legal Services Authority, as the case may be, to alleviate the suffering of the victim, may order for immediate first-aid facility or medical benefits to be made available free of cost on the certificate of the police officer not below the rank of the officer-in-charge of the police station or a Magistrate of the area concerned, or any other interim relief as the appropriate authority deems fit.
Section 358: Compensation to persons groundlessly arrested
This section provides for compensation to any individual, who without any reason has become a victim of an arrest. In order to apply this section, there needs to exist a direct connection between the complainant and the arrest. The arrest must be caused by a certain piece of information in the absence of any sufficient ground. It has been stated that in such a situation, the Magistrate may provide compensation to the extent of Rs 1,000 to the individual who has been the victim for the same.
Section 359: Order to pay costs in non-cognizable cases
This section deals with situations where there exists a complaint for a non-cognizable offence, made to a court and the accused is convicted. The section propounds that the Court of Session, an appellant court or High Court while applying their revision jurisdiction can order for payment of costs. In addition to the penalty imposed, the court can also order the accused to pay in whole or in part, to the complainant, the cost incurred during the prosecution. The court along with this also possesses the power to sentence the accused to imprisonment for a time span not more than 30 days in cases where he fails to make the payment.
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The Protection of Women from Domestic Violence Act, 2005
The Protection of Women from Domestic Violence Act, 2005 has been a massive success in relation to the revolution of women rights, towards victims who were suffering from domestic violence after 16 years of struggle. The definition of domestic violence includes physical, sexual, verbal and emotional abuse.
The aspect of trauma arising out of physical abuse in the absence of any medical reports was addressed and compensated for, in the recent case of Smt. Haimanti Mal v. The State of West Bengal (2019). The Calcutta High Court awarded a compensation of Rs. 1,00,000 for mental torture and emotional distress on the basis of Section 22 of the Protection of Women from Domestic Violence Act, 2005.
The unique feature of this Act is that the victim can get continued access to the facilities or resources which the victim is entitled to use or enjoy as a result of an existence of a domestic relationship, which would be inclusive of the access to the shared householder. The police officer or magistrate who acquires the complaint has an obligation to inform the victim about her right to obtain a protection order or order of monetary relief, custody order, residence order, compensation order or more than one such order. This Act deals with the protection of the rights of the women which is guaranteed under the constitution.
The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989
This Act is formulated to eradicate the atrocities against the members of the Scheduled Castes and Scheduled Tribes. Under this Act, compensation of victim is mandatory, apart from several other reliefs which depend upon the condition and kind of atrocity caused. Monetary compensation varying from Rs. 25,000 to 2,00,000 is determined according to the severity of the offence.
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The Maintenance and Welfare of Parents and Senior Citizens Act, 2007
This unique law is targeted towards the protection of elders and the prevention of any kind of elder abuse and victimization, which is a growing concern in many countries including India. Under this Act, there is a duty instilled among the children or adult legal heirs for maintaining their parents, or senior citizens above the age of 60 years, who are incompetent to maintain themselves from their own earnings, in order to allow them to lead a normal life. In cases where the children or legal heirs disregard to maintain the senior citizen, it gives the power to the Tribunal to pass an order to ask the children or legal heirs to supply monthly allowance.
Compensation under Probation of Offenders Act, 1958
The Probation of Offender Act, 1958 also contains provision for compensatory relief to Victim of crime under Section 5(1) of the Act. The Section provides that the court directing the release of an offender under Section 3 or Section 4 of the Act, may if it deems fit, further direct the accused to pay such compensation to the victim, as the court think reasonable for the loss or injury caused to the latter, as also the cost of the proceedings.
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The Motor Vehicles Act, 1988
The Motor Vehicles Act, 1988 vide Section 140 also makes the provision for compensation in certain cases on the principle of no fault. The provisions of compensation has also been made under the National Environment Tribunals Act, 1995, Section 3 relates to pay compensation on the principle of no-fault liability.