About the Author
The author of this article is Alexy Joy. She’s an editor of LJRF VOICE.
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.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(IPC) and Code of Criminal Procedure, 1973 (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 Victim Compensation is 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. 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. 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 41and 51-A 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( 1980 AIR 2147, 1981 SCR (1)1196 ),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.
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.” In Ankush Shivaji Gaikwad v. State of Maharashtra( 2013 (4) ABR 648, 2013 (IX) AD (SC) 294) 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 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.
NALSA’s Compensation Scheme for Women Victims/Survivors of Sexual Assault/other Crimes – 2018
Background
Hon’ble Supreme Court of India in Nipun Saxena Vs.Union of India opined that “it would be appropriate if NALSA sets up a Committee of about 4 or 5 persons who can prepare Model Rules for Victim Compensation for sexual offences and acid attacks taking into account the submissions made by the learned Amicus. The learned Amicus as well as the learned Solicitor General have offered to assist the Committee as and when required. The Chairperson or the nominee of the Chairperson of the National Commission for Women should be associated with the Committee.”
Women Victims Compensations Fund
By virtue of section 3,(1)There shall be a Fund, namely, the Women Victims Compensation Fund from which the amount of compensation, as decided by the State Legal Services Authority or District LegalServices Authority, shall be paid to the women victim or her dependent(s) who have suffered loss or injury as a result of an offence and who require rehabilitation.(2)The ‘Women Victims Compensation Fund’ shall comprise the following:(a) Contribution received from CVCF Scheme, 2015.(b) Budgetary allocation in the shape of Grants-in-aid to SLSA for which necessaryprovision shall be made in the Annual Budget by the Government;(c) Any cost amount ordered by Civil/Criminal Tribunal to be deposited in this Fund.(d) Amount of compensation recovered from the wrong doer/accused under clause 14 ofthe Scheme.(e) Donations/contributions from International/ National/ Philanthropist/ CharitableInstitutions/ Organizations and individuals permitted by State or CentralGovernment.(0 Contributions from companies under CSR (Corporate Social Responsibility)(3)The said Fund shall be operated by the State Legal Services Authority (SLSA).
Eligibility for Compensation
By virtue of section 4,A woman victim or her dependent (s) as the case may be, shall be eligible for grant of compensation from multiple schemes applicable to her. However, the compensation received by her in the other schemes with regard to Section 357-B Cr.P.C., shall be taken into account while deciding the quantum in the such subsequent application.
Procedure For Making Application Before the SLSA OR DLSA-Mandatory Reporting of FIRs:
SHOSP/DCP shall mandatorily share sofv/hard copy of FIR immediately after its registration with State Legal Services Authority/District Legal Services Authority qua commission of offences covered in this Scheme which include Sections 326A,354A to 354D, 376A to 376E, 304B, 498A (in case of physical injury covered in this Schedule),so that the SLSA/DLSA can, in deserving cases, may suo-moto initiate preliminary verification of facts for the purpose of grant of interim compensation.An application for the award of interim/ final compensation can be filed by the Victim and/or her Dependents or the SH0 of the area before concerned SLSA or DLSA. It shall be submitted in Form ‘T along with a copy of the First Information Report (FIR) or eriminal complaint of which cognizance is taken by the Court and if available Medical Report, Death Certificate,wherever applicable, copy of judgment recommendation of court if the trial is over.
Place oF Filing Of Application
The application/recommendation for compensation can be moved either before the State Legal Services Authority or the concerned District Legal Services Authority or it can be filed online on a portal which shall be created by all State Legal Services Authorities. The Secretary of the respective DLSA shall decide the application/ recommendation moved before him/her as per the scheme.Explanation: In case of acid attack victim the deciding authority shall be Criminal Injury compensation Board as directed by Hon’ble Supreme Cout in Laxmi vs. Union of India W.P.CRML 129/2006 order dated 10.04.2015 which includes Ld. District & Sessions Judge, DM, SP, Civil Surgeon/CMO of the district.
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.” Later, taking note of the insensitive attitude of subordinate courts, the Supreme Court in Hari Singh v. Sukhbir Singh, (1988 AIR 2127) 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. There is one more provision in Section 250 CrPC, 1973, 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.The Supreme Court in Palaniappa Gounder v. State of T.N( 1977 AIR 1323) 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 and 357-B,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.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.” In Ashwani Gupta v. Govt. of India( I (2005) ACC 361) 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,(1980 AIR 84) 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(27- May 2016), 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.
