HISTORY OF LEGISLATION ON VICTIM COMPENSATION
Updated: Dec 13, 2020
- Sakshi Bhanushali
Criminal legislation across the world has always discouraged the acts or omissions of the wrongdoers in a society and has served them with severe punishment. The initial focus of criminologists was only on the aspect of punishment, but now the focus is shifting towards victims who are getting nothing out of the criminal justice system. The victims have very few legal rights-the right to be informed, present and heard but do not have the right to be notified of the court proceedings or to make statements at the court hearings within the criminal justice system.
Compensation to victims is a matter of huge responsibility upon the judiciary branch of a government. When a wrongful act or an offence has been proven by an appropriate court, the victims or the suffered party gets relief from the court by a way of injunction, compensation, or specific performance. However, damages or compensation are given where there is a civil wrong and punishment is awarded to the offender in case of criminal wrong. However, there is no clear identification for the right of compensation to victims in criminal cases as well.
The function of compensation is to render justice to victims and their families as far as possible. Though, it is an agreed fact that the victims of serious crimes cannot be fairly compensated for the loss suffered by them in the whole world.
In criminal law the Courts adjudicate between the accused and the State, the ‘victim’ has no participation in the adjudicatory process. Through this article, the writer brings out the evolvement of victim compensation in India by highlighting the provisions of section 357A of the Criminal Procedure Code, 1973 (“CrPC”) in India.
HIGHLIGHTS OF SECTION 357 OF THE CrPC
Section 357 of the CrPC empowers the court to grant an order of compensation to the victim. Sub-section (1) of section 357 states that if a sentence of fine or a sentence including fine is imposed by the Court, the court may order the convicted individual to pay such fine, either wholly or partly, to the victim.
The aforementioned sub-section is applicable only in four instances. Firstly, the fine may be imposed to compensate the victim for prosecution expenses, or for the injury or loss suffered due to the offence, or those who are entitled under the Fatal Accidents Act, 1853 and to restore the possession of any person suffered loss through theft, criminal misappropriation, cheating, etc.
According to sub-section (3) of Section 357, when a court imposes a sentence, of which fine does not form a part, may when passing the judgement, order the accused person to pay specified amount to the person who has suffered any loss or injury by way of compensation for which the accused person has been so sentenced.
Both of these sub-sections can be interpreted as, sub-section (1) requires the imposition of a fine by the Court in order to compensate the victim whereas in sub-section (3) if a fine has not been imposed, the Court may order the accused to pay the suffered person, in way of compensation.
There are no provisions of the State to be liable if the Court is unable to impose a fine on the accused and compensate the victim.
In State of Madhya Pradesh v. Mangu @ Mangilal and others, it was explicitly held by the court that only the accused (if, convicted) may be ordered to pay compensation. The State cannot be ordered to pay compensation.
The court further added that the criminal court cannot seek to impose on the State any liability to maintain the dependants of the convicted person.
The 14th Law Commission in 1996 in its 154th Report on the Code of Criminal Procedure dedicated an entire chapter on Victimology. According to this report, the principles of victimology have their base in Indian constitutional jurisprudence. The provision on Fundamental Rights (Part III) and Directive Principles of State Policy (Part IV) form the bulwark for a new social order in which social and economic justice would blossom in the national life of the country (Art. 38).
However, the Report disappointedly states that the criminal law provides compensation to the victims and their dependants, only in a limited manner in India.
The General Assembly of the United Nations in its 96th plenary meeting on 29th November 1985, made a Declaration of the Basic Principles of Justice for Victims of Crime and Abuse of Power. It was recognised that millions of people around the world are victim of crime and the abuse of power. The right of these victims have not been adequately recognised. Further, their families, witnesses and other who aid them are unjustly subjected to loss, damage or injury. This Declaration has been described as “a kind of Magna Carta of the Rights of the Victims” worldwide.
The Declaration ratified by a considerable number of nations, including India, was a phenomenal move in the pro-victim shift in the adjudication process. The acceptability of this Declaration was for the betterment of the Criminal Justice System wherein the Courts adjudicate between the accused and State. The ‘victim’ – the de facto sufferer had no participation in the adjudicatory process in midst of dominance and jurisdiction of the State to investigate and adjudicate the ‘crime’.
EVOLVEMENT OF SECTION 357A
The word “victim” had been defined under section 2(wa) which means 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. It, also, includes the legal heir or guardian of the victim.
The definition of "victim", was inserted into The Code of Criminal Procedure through the Code of Criminal procedure (Amendment) Act, 2008 (Act No. 5 of 2009).
The Victim Compensation Scheme under section 357A of the CrPC was, too, inserted into the Code of Criminal Procedure through the CrPC Amendment Act, 2008. The Amendment was a welcome reform that reshaped the existing legal framework and bridged the gap that caused hindrance in the implementation of section 357 as the primary medium for victim compensation. The object of the Scheme is to reduce disparity in quantum of compensation amount notified by different States/UTs for victims of similar crimes.
The question regarding the inability of the State to convict the offender and its effect on the victim’s rights was also raised in the Malimath Committee Report. Nevertheless, the ambit of victim’s right to compensation has been widened through section 357A and allows for application for compensation where the trial has not taken place and when the State is unable to trace or identify the offender.
While deciding the issue of granting compensation to a victim of trafficking, a Single Judge Bench comprising of Rajashekhar Mantha, J., held that the victim was entitled compensation under West Bengal Victim Compensation Scheme 2017 read along with Section 357A CrPC. The High Court noted that the object and purpose of the Victim Compensation Scheme is, inter alia, that victim of a serious crime especially women, needs urgent and immediate attention and both physical and mental rehabilitation.
Further, it was observed that compensation is awarded under the scheme defined according to Section 357A as the fundamental rights of the victim under Article 21 (of the Constitution) have been in fact violated. Denial of compensation to such victim would continue such violation of fundamental rights and perpetrate gross inhumanity on the victim in question.
In Sanjeet Sandha v. State of Odisha, the High Court of Orissa at Cuttack observed, “A bare perusal Section 357 A of the Code of Criminal Procedure, 1973 makes it clear that 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 be saddled with the responsibility of deciding the quantum of compensation to be awarded under the scheme. The raison de'tre for such a reasoning is that if the Court comes across a fit case which shakes its conscience and if it opines that a citizen of the country has been let down by the State then as a measure of restitution as well as rehabilitation, it can order for appropriate compensation to be paid to the victim.”
The new system of compensation under criminal administration revolves around the concept of universal humanism. Section 357A in CrPC has paved way for a new chapter in the development of modern criminology towards victims. Under this provision, the victim has to be rehabilitated through a request to the State or District Legal Services Authority to award him/her with compensation. Now, the victim shall also be considered as the part of the criminal adjudication process.
Sakshi is a third year student at Pravin Gandhi College of Law, Mumbai.
 The Code of Criminal Procedure, 1973.  (1996) 1 ALT (Cri) (NRC 3) 5.  Pt. 6.1 of 154th law Commission Report.  Serina Mondal v. the State of West Bengal and Ors., 2018 SCC OnLine Cal 4238.  2020 SCC OnLine Ori 459.