TABLE OF CONTENTS

CHAPTER I .................................................................................................................................. 4
VICTIMOLOGY: AN INTRODUCTION ............................................................................. 4
1.1 Introduction ..................................................................................................................... 4
1.1.1 Victim of a crime ........................................................................................................ 4
1.2 Object of the Study ......................................................................................................... 5
1.3 Scope of the study............................................................................................................ 5
1.4 Research Methodology ................................................................................................... 6
1.5 Approaches and Victimization....................................................................................... 6
1.5.1 Psychological Victimization....................................................................................... 7
1.5.2. Physical Victimization .............................................................................................. 7
1.5.3. Social Victimization .................................................................................................. 7
CHAPTER II ................................................................................................................................. 9
HISTORICAL EVOLUTION OF COMPENSATION TO VICTIMS ............................... 9
2.1 Historical Evolution ........................................................................................................ 9
2.1.1 154th Law Commission Report ................................................................................. 10
2.1.2 Malimath Committee Recommendations (2003) ...................................................... 11
2.2 Victim Compensation in Foreign countries ................................................................ 12
2.2.1 In England ................................................................................................................ 12
2.2.2 In United States of America ..................................................................................... 12
2.2.3 UN General Assembly: Declaration on Basic Principles of Justice for Victims and
Abuse of Power, 1985 ....................................................................................................... 13
CHAPTER III ......................................................................................................................... 14
COMPENSATORY JURISPRUDENCE ............................................................................. 14
3.1 The Code of Criminal Procedure, 1973 ...................................................................... 14
3.1.1 Section 357 ............................................................................................................... 14
3.1.2 The Code of Criminal Procedure (Amendment) Act, 2008: Section 375A .............. 16
3.1.3. The Criminal Law (Amendment) Act, 2013 ............................................................ 19
3.2 The Probation of Offenders Act, 1958 ........................................................................ 19

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 3.3 The Motor Vehicles Act, 1988 ...................................................................................... 20
3.4 Interim Compensation to Victims ............................................................................... 22
CHAPTER IV.............................................................................................................................. 24
JUDICIAL TRENDS IN AWARDING VICTIM COMPENSATION .............................. 24
4.1 Delhi Domestic Working Women Forum v. Union of India and Ors ...................... 24
4.1.1. Scheme for the Rehabilitation for Victims of Rape, 2005 ....................................... 26
4.2 Baldev Singh v. State of Punjab................................................................................... 27
4.3 Bodhisattwa Gautham v. Subhra Chakraborthy ....................................................... 28
4.4 Chairman, Railway Board and Ors v. Mrs. Chandrima Das and Ors .................... 29
4.5 Vijayan v. Sadanandan K............................................................................................. 30
4.6 Meinam Ongbi Bina Devi v. State of Manipur........................................................... 31
4.7 Chaman v. The State (NCT of Delhi) .......................................................................... 32
4.8 Ankush Shivaji Gaikwad v. State of Maharashtra .................................................... 32
4.9 Suresh v. State of Haryana ........................................................................................... 33
CHAPTER V ........................................................................................................................... 35
CONCLUSION AND SUGGESTIONS ................................................................................ 35
REFERENCES

2
 TABLE OF CASES

 Ankush Shivaji Gaikwad v. State of Maharashtra AIR 2013 SC

2454……………………………………………………………………………..……29,33.

 Baldev Singh v. State of Punjab AIR 1996 SC 372 .......................................................... 24

 Bodhisathwa Gautam v. Sulthra Chakraborty (1996) 1SCC 490 ............................. 19, 25.

 Chairman, Railway Board and Ors v. Mrs. Chandrima Das and Ors AIR (2000) SC 988.

........................................................................................................................... 23, 26,28,36

 Chaman v. The State (NCT of Delhi) 2015(2)JCC1218 ................................................... 29

 Delhi Domestic Working Women Forum v. Union of India and Ors, (1995) 1 SCC 14 .. 21

 Govindaswamy and G. Kannan v. State of Tamil Nadu & Others 2013 (4) CTC 809 ..... 17

 Meinam Ongbi Bina Devi v. State of Manipur MANU/MN/0140/2014 .......................... 28

 Rajeswari Prasad v. R.B. Gupta AIR 1961 SC 19 ........................................................... 19

 Shyam Narain v. State, (NCT of Delhi) , (2013) 7 SCC 77 ............................................ 29

 State of Rajasthan v. Sanyam Lodha (2011) 13 SCC 262 ................................................ 16

 Suresh v. State of Haryana AIR 2015 SC 518 ................................................................. 30

 Vijayan v. Sadanandan K. 2009 CriLJ 2957 .................................................................... 27

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 CHAPTER I

VICTIMOLOGY: AN INTRODUCTION

1.1 Introduction

The word ‘victimology’ was coined in 1947 by a French lawyer, Benjamin Mendelsohn, later a
citizen of Israel, by deriving from a Latin world ‘victima’ and a Greek word ‘logos’.
Victimology is basically a study of crime from the point of view of the victim, of the persons
suffering from injury or destruction by the action of another person or a group of persons. In
times of yore, the victims of crime were paramount figures on the stage of the criminal setting.
There are references in Manumnriti, the Book of Exodus, and Homer’s Iliad to compensation
being paid to victims of criminal offences. Even in recent times, but before the Anglo-Saxon
system of criminal justice was introduced in Indian, the victim was not completely neglected.1

Victimology is the scientific study of victimization including the relationships between victims
and offenders, the interactions between victims and the criminal justice system that is, the police
and Courts, and corrections officials — and the connections between victims and other social
groups and institutions, such as the media, businesses, and social movements. Victimology is
however not restricted to the study of victims of crime alone but may cater to other forms of
human rights violations that are not necessarily crime. Victimology had now emerged as a
branch of criminology dealing exclusively with the victims of crime who need to be treated with
compassion and rendered compensation and assistance under the criminal justice system.2

1.1.1 Victim of a crime

In criminology and criminal saw, a victim of a crime is an identifiable person who has been
harmed individually and directly by the perpetrator, rather than merely the society as a whole.
However, this may not always be the case, as with victims of white collar crime, who may not be
clearly identifiable or directly linked to the crime. Victims of white collar crime are often denied
their status as victims by the social construction of the concept. Not all criminologists accept the
1
Rajan Vasu Nair, Victimology in India: Perspectives Beyond Frontiers, APH Publishing, 1995, p. 5.
2
Trehan Anil, Penology and Victimology: A perusal, Shreeram Law House, Chandigarh, 2011, p. 224..

4
concept of victimization or victimology. It also remains a controversial topic within women's
studies.3

The legal definition of term ‘victim’ followed by the Indian courts is provided under the Section
2 (wa) as inserted by The Code of Criminal Procedure (Amendment) Act, 2008 as:

‘victim’ 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 and the expression ‘victim’
includes his or her guardian or legal heir.

This definition is closer to the definition provided by the 1985 UN Declaration of the Basic
Principle of Justice for the Victims of Crime and Abuse of Power, except for the inclusion of
bystanders who assisted in preventing victimization, as ‘victims’. However, considering the
contemporary unfortunate status of crime victims in India, the inclusion of the definition of
‘victim’ should be hailed as a positive step in the recognition of victims’ rights.

1.2 Object of the Study

The object of the study is to analyze the various laws laid down regarding the compensation to
victims in India. It also aims at studying the extended approach given to compensation to victims
by the Supreme Court decisions. The law relating to victims in our country is still at a growing
stage and needs much care and attention. The victim’s needs should not be ignored and
punishment is not always the sole motive which can be achieved after an offence is committed.
Therefore, there stands a need to bring in the view of the compensation and rehabilitation of the
victim in need of such attention. The study aims at creating a focus towards the victim’s rights
towards the compensatory laws and when the same can be availed.

1.3 Scope of the study

Since the topic “Emerging trends in Victimilogy: with special reference to victim compensation”
has a special focus on the victim compensation, the topic is divided in the following chapters.
Chapter one shall deal with the an general history and introduction to the word ‘victimology’ and

3
Trehan Anil, Penology and Victimology: A perusal, Shreeram Law House, Chandigarh, 2011, p. 224.

5
general definition and the meaning of the term ‘victim’ along with the different approaches and
types of victimization that the victim faces in any offence.

Chapter two, deals with the historical evolution of the victim compensation in India. It also deals
with foreign laws on victim compensation specifically emergence in England and America.

Chapter three shall deal with the compensatory jurisprudence under various laws in India.
Chapter four, deals with the analysis of the Supreme Court cases on victim compensation in
India.

The concluding Chapter talks about the various difficulties faced by the victim in the trial of the
offence and the effect of the compensatory provisions under the law.

1.4 Research Methodology

This research work is mainly a socio-legal Analysis. This study is based mainly on analysis of
the primary data and relationship between laws relating to victim compensation, application and
effect on the society. Descriptive method of research is used to gather information about the
present existing conditions. During data collection the choice and design of methods are
constantly modified, based on ongoing analysis. This study also employed qualitative research
method. Through this method, qualitative elements that do not have standard measures such as
behaviour, attitudes, opinions, and beliefs within the institutional domain are analysed. The
researcher also analysed Case Laws during the research.

1.5 Approaches and Victimization

In today’s world the position of victim is not very favouring one. Half of the cases go
unregistered or the accused is unidentified or absconds away. The police and the courts are not
sympathetic of those cases reported, only half are followed by arrest and prosecution, and out of
every 100 accused, only 3 go to jail. The reasons for cases not being reported to the police are
that the victims are usually tortured by excessive court trial or by police during the time case is

6
investigated. A crime causes immense psychological damage to the victim, and coupled with
humiliation and embarrassment.4

1.5.1 Psychological Victimization

Psychological victimization of the victim and its consequences can be understood in three phases
of crime: before, during and after the crime. The fear of crime being committed troubles all
people, it is a source of menial anxiety to the victim. Research on the fear of crime and on public
opinion, about crime shows that the very possibility of being victimised troubles many people.
Freedom from criminal victimization is a social good, much like any other social good of just
society. Rape affects all women whether or not they are actually victimized. Like in context of
rape cases, according to Griffin (1970) who verbalizes as following the experience of many
women: ‘I have never been free of the fear of rape. From a very early age I, like most women,
have thought of rape as part of my natural environment something to be feared and prayed
against like fire or lightning”. Women are under perpetual fear of being raped which induces a
continuing state of psychological stress in women due to which they resort to several safety
precautions which, in turn, seriously restrict their freedom, such as not moving alone, or avoiding
to go to certain places, or going out with certain men.

The terror of the criminal justice system, social stigma, and the physical injury, combine together
to cause psychological malaise beyond description.

1.5.2. Physical Victimization

In the process of occurring of the crime victim incurs a wide variety of physical injuries,
depending upon location and the extent of crime committed. The injuries from the physical
attacks are on various parts of the body, throat, neck, cheeks, thighs, legs, arms and face etc.

The victim’s large number of complicated physiological problems warrant mediate medicare.

1.5.3. Social Victimization

A crime when committed has several far-reaching implications both for the victim and for the
society. It is a social problem of great magnitude. On social plane, the threat of crime being

4
Akshaya kumar Ramanlal Desai, Violation of Democratic Rights in India, Volume 3, 1991, p. 99

7
committed serves as a weapon in the hands of criminals and the society. The time after a crime
has been committed is crucial as the victim faces social victimization through lengthy court
proceedings, the police torture and ransom demand, and the attitude of society towards the
victim.5

5
Veer Udai, Crimes against Women, Anmol Publications, New Delhi, 2004, pp. 150-153.

8
 CHAPTER II

HISTORICAL EVOLUTION OF COMPENSATION TO VICTIMS

2.1 Historical Evolution

The Indian subcontinent is one of the regions with an older history of victim rights. In ancient
India, victim offender mediation was a common aspect, based on revenge. Tribal courts ensured
justice to the victims of crime. Later, Manusmriti, was one of the oldest laws in the world, was
promulgated, and the rights of victims of crime were ensured. However, Manusmriti was
discriminatory in its legal provisions, because it posed different sets of punishments to people
based on the Vama system (caste hierarchy), which is a derogatory system. Also, Artha Shastra,
one of the oldest treatises on the state, includes references to provisions for funds for victim
compensation. The Tamil legend Thiruvalluvar in his famous couplets ‘Thirukurral’ emphasized
equal justice for everyone and provided verses for victim offender mediation. As mentioned
earlier, during the medieval period the Mughal Emperors provided justice to the victims of crime
based on Islamic Justice. Restitution was common during the Mughal period.6 Unfortunately,
when the British colonized India, the substantial and procedural laws created by them did not
consider the rights of victims of crime. Though India is still following the same laws provided by
the British, even after independence, some changes have been made in the substantial and
procedural laws over the years to provide solace to the victims of crime. The Indian constitution,
through parts III and IV, ensures victim’s right for justice and fair trial. The right is further
ensured through specific provisions of the criminal procedure code and other laws. Apart from
some provisions, the judiciary ensured the rights of victims of crimes by various landmark
judgments.

6
Vanfraechem Inge, Antony Pemberton, Felix Mukwiza Ndahinda, Justice for Victims: Perspectives on Rights,
Transition and Reconciliation, Routledge Publications, 2014, p. 71-72.

9
2.1.1 154th Law Commission Report

The 154th Law Commission Report on the Code of Criminal Procedure devoted an entire
chapter to 'Victimology' in which the growing emphasis on victim's rights in criminal trials
was discussed extensively as under:

1. 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.

9.1 The principles of victimology has foundations 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 (Article38). Article 41 mandates inter alia that
the State shall make effective provisions for "securing the right to public assistance in cases of
disablement and in other cases of undeserved want." So also Article 51Amakes it a
fundamental duty of every Indian citizen, inter alia 'to have compassion for living creatures'
and to 'develop humanism'. If emphatically interpreted and imaginatively expanded these
provisions can form the constitutional underpinnings for victimology.

9.2 However, in India the criminal law provides compensation to the victims and their
dependants only in a limited manner. Section 357 of the Code of Criminal Procedure
incorporates this concept to an extent and empowers the Criminal Courts to grant
compensation to the victims.

11. In India the principles of compensation to crime victims need to be reviewed and expanded
to cover all cases. The compensation should not be limited only to fines, penalties and

10
forfeitures realized. The State should accept the principle of providing assistance to victims
out of its own funds.7

2.1.2 Malimath Committee Recommendations (2003)

Even though a specific victim law is not available, some contemporary developments related to
the rights of victims provide hope to the victims of crime in India. Of these developments, the
Malimath committee recommendations (2003) are the most laudable. The Malimath Committee
especially has given extraordinary recommendations in the areas of victim participation in the
trial and investigation, and rights of the victims and victim compensation in line with the UN
declaration. Even though most of the recommendations were not implemented, some were,
especially in the criminal procedure amendment (2009). Based on some of the recommendations
of the Malimath Committee, the recommendations of the Law Commission of India and Supreme
Court Guidelines, the Criminal Procedure Code of India (CrPC) was amended and put into effect
on 31 December 2009. The most important component of the amendments is perhaps the
introduction of the definition of ‘victim’.

This is the first ever time any Indian law has had an appropriate definition of victim. Clause (w)
has been inserted in section 2 of the CrPC:

‘victim’ meaning 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.

This definition is closer to the definition provided by the 1985 UN Declaration of the Basic
Principle of Justice for the Victims of Crime and Abuse of Power, except for the inclusion of
bystanders who assisted in preventing victimization, as ‘victims’. However, considering the
contemporary unfortunate status of crime victims in India, the inclusion of the definition of
‘victim’ should be hailed as a positive step in the recognition of victims’ rights.

7
154th Law Commission Report, 1996.

11
2.2 Victim Compensation in Foreign countries

2.2.1 In England

England was perhaps the first to adopt a separate statutory scheme for victim compensation by
the State under the Criminal Injuries Compensation Scheme, 1964. Under the Criminal Justice
Act, 1972 the idea of payment of compensation by the offender was introduced.

Compensation payable by the offender was introduced in the Criminal Justice Act 1972 which
gave the Courts powers to make an ancillary order for compensation in addition to the main
penalty in cases where 'injury', loss, or damage' had resulted. The Criminal Justice Act 1982
made it possible for the first time to make a compensation order as the sole penalty. It also
required that in cases where fines and compensation orders were given together, the payment
of compensation should take priority over the fine. These developments signified a major shift
in penology thinking, reflecting the growing importance attached to restitution and reparation
over the more narrowly retributive aims of conventional punishment. The Criminal Justice Act
1982 furthered this shift. It required courts to consider the making of a compensation order in
every case of death, injury, loss or damage and, where such an order was not given, imposed a
duty on the court to give reasons for not doing so. It also extended the range of injuries
eligible for compensation. These new requirements mean that if the court fails to make a
compensation order it must furnish reasons. Where reasons are given, the victim may apply
for these to be subject to judicial review.8
The 1991 Criminal Justice Act contains a number of provisions which directly or indirectly
encourage an even greater role for compensation.

2.2.2 In United States of America

In the United States of America, the Victim and Witness Protection Act of 1982 authorizes a
federal court to award restitution by means of monetary compensation as a part of a convict's
sentence. Section 3553(a)(7) of Title 18 of the Act requires Courts to consider in every case
“the need to provide restitution to any victims of the offense”. Though it is not mandatory for

8
Maguire Mike, Rod Morgan, The Oxford Handbook of Criminology, Oxford University Press, 1994, p. 1237-1238.

12
the Court to award restitution in every case, the Act demands that the Court provide its reasons
for denying the same. Section 3553(c) of Title 18 of the Act states as follows:
If the court does not order restitution or orders only partial restitution, the court shall
include in the statement the reason thereof.

In order to be better equipped to decide the quantum of money to be paid in a restitution order,
the United States federal law requires that details such as the financial history of the offender,
the monetary loss caused to the victim by the offence, etc. be obtained during a Presentence
Investigation, which is carried out over a period of 5 weeks after an offender is convicted.

2.2.3 UN General Assembly: Declaration on Basic Principles of Justice for Victims and Abuse
of Power, 1985

UN General Assembly recognized the right of victims of crimes to receive compensation by

passing a resolution titled “Declaration on Basic Principles of Justice for Victims and Abuse of
Power, 1985”. The Resolution contained the following provisions on compensation:

“12. When compensation is not fully available from the offender or other
sources, States should endeavour to provide financial compensation to:
(a) Victims who have sustained significant bodily injury or impairment of physical or
mental health as a result of serious crimes;
(b) The family, in particular dependants of persons who have died or become physically
or mentally incapacitated as a result of such victimization.

13. The establishment, strengthening and expansion of national funds for compensation
to victims should be encouraged. Where appropriate, other funds may also be
established for this purpose, including in those cases where the State of which the
victim is a national is not in a position to compensate the victim for the harm.”

13
 CHAPTER III

COMPENSATORY JURISPRUDENCE

3.1 The Code of Criminal Procedure, 1973

3.1.1 Section 357

The Code of Criminal Procedure of 1973 which incorporated the changes proposed in the said
Bill of 1970 states in its Objects and Reasons that Section 357 was “intended to provide relief
to the proper sections of the community” and that the amended Code of Criminal Procedure
empowered the Court to order payment of compensation by the accused to the victims of
crimes “to a larger extent” than was previously permissible under the Code. Section 357 of the
present act reads as follows:
‘Section 357: Order to pay compensation
(1) When a Court imposes a sentence of fine or a sentence (including a sentence of death)
of which fine forms a part, the Court may, when passing judgment, order the whole or
any part of the fine recovered to be applied-
(a) in defraying the expenses properly incurred in the prosecution;
(b) in the payment to any person of compensation for any loss or injury caused by the
offence, when compensation is, in the opinion of the Court, recoverable by such person in
a Civil Court;
(c) when any person is convicted of any offence for having caused the death of another
person or of having abetted the commission of such an offence, in paying compensation
to the persons who are, under the Fatal Accidents Act, 1855 (13 of 1855 ), entitled to
recover damages from the person sentenced for the loss resulting to them from such
death;
(d) 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 same if such property is restored to the possession of
the person entitled thereto.
(2) If the fine is imposed in a case which is subject to appeal, no such payment shall be
made before the period allowed for presenting the appeal has elapsed, or, if an appeal be
presented, before the decision of the appeal.

14
 (3) When a Court imposes a sentence, of which fine does not form a part, the Court may,
when passing judgment, order the accused person to pay, by way of compensation, such
amount as may be specified in the order to the person who has suffered any loss or injury
by reason of the act for which the accused person has been so sentenced.
(4) An order under this section may also be made by an Appellate Court or by the High
Court or Court of Session when exercising its powers of revision.
(5) At the time of awarding compensation in any subsequent civil suit relating to the same
matter, the Court shall take into account any sum paid or recovered as compensation
under this section.’
The changes brought about by the introduction of Section 357 from the old act were as
follows:
(i) The word “substantial” was excluded.

(ii) A new Sub-section (3) was added which provides for payment
of compensation even in cases where the fine does not form part of the sentence
imposed.

(iii) Sub-section (4) was introduced which states that an order

awarding compensation may be made by an Appellate Court or by the High Court or
Court of Session when exercising its powers of revision.

Supreme Court in Bodhisattwa case, 1996, recognized the right of the victim for compensation:
Court referred previous judgment of Delhi Domestic Working Women’s Forum, case of 1994.
This decision recognizes the right of the victim for compensation by providing that it shall be
awarded by the Court on conviction of the offender subject to the finalization of Scheme by the
Central Government. If the Court trying an offence of rape has jurisdiction to award the
compensation at the final stage, there is no reason to deny to the Court the right to award interim
compensation which should also be provided in the Scheme. On the basis of principles set out in
the aforesaid decision in Delhi Domestic Working Women’s Forum, the jurisdiction to pay
interim compensation shall be treated to be part of the overall jurisdiction of the Courts trying the
offences of rape which, as pointed out above is an offence against basic human rights

15
3.1.2 The Code of Criminal Procedure (Amendment) Act, 2008: Section 375A

The Code of Criminal Procedure (Amendment) Act, 2008 (Act 5 of 2009) has added Section 357-
A, dealing with ‘Victim compensation scheme’, in the Cr.P.C. All State Governments, in co-
ordination with Central Government, are required to prepare a scheme for victim compensation.
On recommendation by the court for compensation, the district Legal Service Authority or the
State Legal Services Authority is mandated to decide the quantum of compensation to be
awarded under the scheme. A court is allowed to pass, at the conclusion of the trial, a
compensation order in favor of the crime victim when it is satisfied that the compensation
awarded under Section 357 of The Code of Criminal Procedure is not adequate for rehabilitation
of the victim or where the case ends in acquittal or discharge and the victim has to be
rehabilitated. There are also cases where no trial takes place because the offender cannot be
traced or identified, but the victim is identified.9

Though the 2008 amendments left Section 357 unchanged, they introduced
Section 357A under which the Court is empowered to direct the State to pay compensation to
the victim in such cases where “the compensation awarded Under Section 357 is not adequate
for such rehabilitation, or where the case ends in acquittal or discharge and the victim has 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. This provision was introduced due to the recommendations
made by the Law Commission of India in its 152nd and 154th Reports in 1994 and 1996
respectively.
In 2009, a new Section 357-A was introduced in the Code which casts a responsibility on the
State Governments to formulate schemes for compensation to the victims of crime in
coordination with the Central Government whereas, previously, Section 357ruled the field which
was not mandatory in nature and only the offender can be directed to pay compensation to the
victim under this section. Under the new Section 357-A, the onus is put on the District Legal
Services Authority or the State Legal Services Authority to determine the quantum
of compensation in each case. However, no rigid formula can be evolved as to have a uniform
amount, it should vary in facts and circumstances of each case. In State of Rajasthan v. Sanyam

9
Pillai P SA, Criminal Law, Lexis Nexis Butterworth Wardhwa, Nagpur, 2012, 11th ed., p. 714.

16
Lodha10, this Court held that the failure to grant uniform ex gratia relief is not arbitrary or
unconstitutional. It was held that the quantum may depend on facts of each case.

Clause (1) of Section 357 A deals with the preparation of a scheme for providing funds for the
purpose of compensation of victims or his/her dependents who have suffered loss or injury as a
result of the crime and who require rehabilitation. In this context of new provisions for the victim
assistance fund, it should be noted that in 1995 Tamil Nadu was the first state in India ever to
establish a ‘Victim Assistance Fund’, of 10 million (1 crore) rupees. The Victim Assistance Fund
is for the grant of financial assistance to the legal heir of the victims of murder and the victims of
grievous injury and rape.

Furthermore, a scheme for providing restorative justice to victims of rape through financial
assistance as well as support services has been formulated by the Ministry of Women and Child
Development, Government of India. Under this scheme, NGO’s are given funding to provide
assistance to victims of rape for an amount of 300,000 (3 lakhs) rupees.

Clause (2) states 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
decide the quantum of compensation to be awarded under the above-mentioned scheme.

In clause (3) the trial court has been empowered to make recommendations for compensation in
cases where either the quantum of compensation fixed by the Legal Services Authority is found
to be inadequate, or where the case ends in acquittal or discharge and the victim has to be
rehabilitated.

Clause (4) states that even when the offender is not traced or identified, but the victim is
identified, and when no trial takes place, the victim or his/her dependents may make an
application to the state or the District. Legal Services Authority for award of compensation.

Clause (5) says that on receipt of such recommendations or on the application under clause (4),
the state or the District Legal Services Authority shall, ages due enquiry, award adequate
compensation by completing the enquiry within two months.

10
State of Rajasthan v. Sanyam Lodha (2011) 13 SCC 262

17
Further, Clause (6) of the newly introduced section states that 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.

The High Court of Madras in Govindaswamy and G. Kannan v. State of Tamil Nadu &
Others11, held that if there is any scheme under Section 357(A) of Code of Criminal Procedure, it
would enable the criminal courts as well as the Legal Service Authorities to recommend any
payment of compensation as per the scheme. In the absence of any such scheme, the
Constitutional Court has the power under Article 226 for directing payment of compensation.
That was a case in which the petitioners had approached the High Court for compensation on the
allegation that daughter of the 1st petitioner was raped and murdered. The High Court held that
since there are several disputed questions of fact, the parties are to be relegated to the civil court.
However, relying upon Section 357(A), the High Court made the observation aforesaid.

The most significant amendment apart from the definition of ‘victim’ is Section 372, which
speaks of a general right to appeal and restricts the right to only those situations as provided for
in the CrPC or any other applicable law. This section now provides a victim a specific right of
appeal in the following circumstances: acquittal of the accused, conviction for a lesser offence
and inadequate compensation. A landmark judgment related to Section 372 provided by the
Bombay High Court strongly emphasized the amendment with a change in the provisions: ‘The
Bombay high court has ruled that such victims or their legal heirs do not require permission from
the court to file an appeal in order to challenge a trial court verdict’ (earlier the victim had to
seek permission from the court). In spite of the fact that a law on victims’ rights is not
promulgated, the CrPC amendments of 2009 arc a positive sign as this shows that the Indian
Criminal Justice system is trying to change its perception towards victims. However, the
discretion of judges in relation to compensation is still emphasized and there is no statutory right
for victim compensation. Still, the judiciary has to play a leading role in implementing these laws
in various forms of judgments and guidelines. The implementation of these laws has to be

11
Govindaswamy and G. Kannan v. State of Tamil Nadu & Others 2013 (4) CTC 809

18
regarded over a period of time. It is all too likely that if current judicial attitudes towards clime
victims do not change, the above amendments will become a farce.12

The amendments to the Code of Criminal Procedure brought about in 2008 focused heavily on
the rights of victims in a criminal trial, particularly in trials relating to sexual offences.

3.1.3. The Criminal Law (Amendment) Act, 2013

The Amendment, 2013 provides that after Section 357A of The Code of Criminal Procedure, the
following sections shall be inserted, namely:

Section 357B: The compensation payable by the State Government under Section 357A shall be
in addition to the payment of fine to the victim under Section 326A or Section 376D of the
Indian Penal Code, 45 of 1860.

Section 357C: All hospitals, public or private, whether run by the Central Government, the State
Government, local bodies or any other person, shall immediately, provide the first-aid or medical
treatment, free of cost, to the victims of any offence covered under Section 376A, 376, 376A,
376B, 376C, 376D or Section 376E of The Indian Penal Code, 45 of 1860 and shall immediately
inform the police of such incident.

The amended, 2013 Section 376D of IPC provides for levying of such amount of fine as shall be
just and reasonable to meet the medical expenses and rehabilitation of the victim. Further
provided that any fine imposed under this section shall be paid to the victim

3.2 The Probation of Offenders Act, 1958

The Probation of Offenders Act empowers a trial court, in its discretion, to release the offender
after due admonition and on probation of good conduct in certain offences. The Act also enables
the court, directing release of an offender under Sections 3 and 4, in its discretion, to grant
"reasonable compensation" to any person for loss or injury caused to him by commission of
offence and cost of the proceedings.

12
Inge Vanfraechem, Antony Pemberton, Felix Mukwiza Ndahinda, Justice for Victims: Perspectives on Rights,
Transition and Reconciliation, Routledge, 2014, p. 73-74

19
Sub-section (1) of Section 5 reads as follows:

“Power of the court to require released offender to pay compensation and costs - (1) The court
directing the release of an offender under Section 3 or 4 may, if it thinks fit, make at the same
time a further order directing him to pay:

(a) such compensation as the court thinks reasonable for loss or injury caused to any person by
commission of the offence; and

(b) such costs of the proceedings as the court thinks reasonable.

The provision undoubtedly empowers the court, releasing an offender after admonition or on
probation of good conduct to grant compensation and cost in appropriate cases. 13

Court held in the case of Rajeswari Prasad v. R.B. Gupta14 that:

“Phraseology of the section makes it amply clear that such a power vests only with the court
releasing an offender and is purely in its discretion. Even an appellate court or High Court cannot
interfere unless it is of the view that such power has been exercised capriciously and
unreasonably.”

3.3 The Motor Vehicles Act, 1988

After the advent of the rail and road transport, the Fatal Accidents Act of 1846 was introduced in
England and in case of death due to negligence the tortfeaser was made liable to pay
compensation to certain relatives. Over a period of time, the law further developed and the Fatal
Accidents Act was introduced in India in 1855. The Motor Vehicles Act, 1939 was enacted to
deal specifically with accidents arising out of the use of Motor Vehicles. The Motor Vehicles
Act, 1988 was enacted to consolidate and amend the law relating to accidents arising from motor
vehicles. When a law is enacted to consolidate and amend the law, the Legislature not only takes
into consideration the law as it was existing but also the law which was prevailing prior thereto.1
This Act further aims at regularizing the use of Motor Vehicles and to compensate victims who

13
Bharat Das Bhudans, Victims in the Criminal Justice System, APH Publishing, 1997, p. 74-75
14
Rajeswari Prasad v. R.B. Gupta AIR 1961 SC 19

20
are injured or died in accident and family members and dependants of the deceased victims. This
Act has been further amended in the year 1994.

It is well settled that in case of motor accident claims, an endeavor is made to put the claimants
in the pre-accidental position. The damages to be awarded are to be adequate in terms of money
so that the injured / claimants are put in the same position had they not suffered the loss on
account of wrong of the respondent, though, no amount of compensation can restore the loss of
limb or experience of pain or loss of life.

Section 140 to Section 144 of the Motor Vehicles Act, 1988: These Sections provide for
compensation upto Rs. 50,000/- to the victim of a motor accident without any requirement to
prove any faulty, negligent or wrongful conduct on the part of the vehicle owner. Moreover, a
contributory negligence on the part of the victim is also immaterial.

Section 161, 162 and 163 enable the court to grant compensation in those hit and run cases where
accused is not traceable.

Section 163-A: Compensation under this section is payable on the basis of no fault liability. This
section makes special provisions as to payment of compensation on structured formula basis. In
case of death claimants must prove that they are legal heirs, the income and the age of deceased.
In injury cases, claimant must prove disability, if any, expenses of treatment etc. Increase in the
number of motor vehicles, poor maintenance of roads and negligence by drivers has led to
substantial increase in the road accidents resulting in death or injuries to victims. Prior to
insertion of Section 163-A in the Motor Vehicles Act, 1988 when the victim or his heirs
approached Motor Accident Claims Tribunals, they were required to prove negligence by the
driver of the offending vehicle in order to make the owner liable to pay compensation. This at
times was a daunting task for the heirs of the deceased who did not witness the accident. Even in
case of the injured victim she/he could hardly be expected to recall the exact manner in which
the accident occurred. Denial of compensation on the ground that negligence of the driver of the
vehicle was not established was highly unfair to the victim, particularly in a welfare State.
Realising this lacunae, Parliament passed the Motor Vehicles (Amendment) Act, 1994 (54 of
1994) inserting Section 163-A in the Motor Vehicles Act, 1988 with effect from November 14,
1994. The section provides for compensation on a structured-formula basis as indicated in a
tabular form in the Second Schedule forming part of the Act. In a claim for compensation under
this provision the claimant is not required to plead or establish that death or permanent

21
disablement was due to "any wrongful act or neglect or default of the owner of the vehicle". In
other words, the claimant is entitled to compensation in accordance with the Second Schedule on
the principle of no-fault liability. The figures of compensation indicated in a tabular form in the
Second Schedule show that the compensation awardable under Section 163-A of the Motor
Vehicles Act is quite substantial compared to compensation under Section 140 which is limited
to Rs 50,000 in case of death and Rs 25,000 in case of permanent disablement. For instance in
the case of death of a person aged 25 years whose annual income was Rs 12,000, the
compensation payable to the heirs as per the Second Schedule would work out to Rs 1,36,000.
Section 163-A is thus an innovative and laudable provision intended to provide for immediate
relief to the victims of motor accidents.15

3.4 Interim Compensation to Victims

In a landmark case of Bodhisathwa Gautam v. Subhra Chakraborty16 the Supreme Court on its
own awarded an interim compensation of Rs. 1000 per month to the victim of rape until her
charges of rape are decided by the trial court. The complainant Subhra Chakraborty was a
student of the Baptist College Kohima and the accused Sri Bodhisathwa was a lecturer in that
college. According to the FIR filed by the complainant, the accused not only induced the
complainant and cohabited with her, giving her a false assurance of marriage but also
fraudulently gave through a certain marriage ceremony with knowledge and thereby dishonestly
made the complainant to believe that she was a lawfully married if of the accused. Bodhisathwa
married the complainant before the God he worshipped by putting her vermilion on her forehead
and accepted her as his wife but later refused to recognize her as his life partner. The said
ceremony made the complainant to believe that she was a lawfully married wife of the accused.17

In Delhi Domestic Working Women Forum v. Union of India and Ors18, the Supreme Court
pointed out that compensation for victims shall be awarded by the court on conviction of the
offender and by the Criminal Injuries Compensation Board whether or not a conviction has taken
place. The Board will take into account pain, suffering and shock as well as loss of earnings due

15
Ramesh Vaghela, Compensation under Section 163-A of the Motor Vehicles Act, (2001) 6 SCC (Jour) 9.
16
Bodhisathwa Gautam v. Subhra Chakraborty (1996) 1SCC 490
17
T. S. N. Sastry, India and Human Rights: Reflections, Concept Publishing Company, 2005, p. 170-173
18
Delhi Domestic Working Women Forum v. Union of India and Ors (1995) 1 SCC 14

22
to pregnancy and the expenses of child birth if this occurred as a result of the rape. Interim
compensation may be awarded by the Court during pendency of the case, which should also be
provided in the scheme to be evolved by the Union of India.

23
 CHAPTER IV

JUDICIAL TRENDS IN AWARDING VICTIM COMPENSATION

Apart from the legislative framework regarding the compensation to the victims of the crime, the
judicial incentives have developed the concept to a new and higher level. The interpretation of
the statute to extend the fines for the compensation and rehabilitation of the victim was a
evolutionary step towards the victimization approach in the criminal justice system. The reaction
of the compensation boards, Rape Compensation Funds and Scheme were the advent of the
Judicial system of the country, exercising its vide powers.

The very first case in regard to the compensation of the victims was the Delhi Domestic Working
Women Forum’s case which laid down extensive guidelines for the trial and compensation to the
victims.

4.1 Delhi Domestic Working Women Forum v. Union of India and Ors, (1995) 1 SCC 14

In Delhi Domestic Working Women Forum v. Union of India and Ors19, an NGO working with
migrant domestic workers approached the Supreme Court in the matter of the rape of four tribal
girls in a train by army men. Noting the absence of restorative support to rape survivors, the
Court framed guidelines mandating provisioning of support services, legal aid, counselling,
rehabilitation and compensation to rape survivors - noting that rehabilitation and recovery were
essential parts of justice. They called for a compensation scheme and the establishment of a
Criminal Injuries Board to dispense compensation regardless of outcome of the rape trial and
assigned the responsibility to draft such a scheme to the National Commission for Women.
Although the CEDAW was not relied upon in this case, this judgment is important for
recognizing reparative aspects of gender justice in the context of sexual assault for the first time.
After several deliberations and draft schemes on compensation for rape victims, the government
has framed ‘Financial Assistance and Support Services to Victims of Rape - a scheme for

19
Delhi Domestic Working Women Forum v. Union of India and Ors (1995) 1 SCC 14.

24
restorative justice, 2011’ more than fifteen years after the Court’s guidelines. The scheme has
been approved by the central government, but is not yet functional as it is contingent on state
notification, creation of federated boards at the district and state levels, and resource allocation,
amongst other things.

In this landmark case, the Hon’ble Supreme Court observed that the defects in the present system
are:

“Firstly, complaints are handled roughly and are not given such attention as is warranted. The
victim, more often than not is humiliated by the police. The victims have invariably found rape
trials a traumatic experience. The experience of giving evidence in court has been negative and
destructive. The victims often say, they considered the ordeal to be even worse than the rape
itself. Undoubtedly, the court proceedings added to and prolonged the psychological stress they
had to suffer as a result of the rape itself.”

In view of this, the Court laid down the following guidelines for trial of rape cases:

1. The complainants of sexual assaults cases should be provided with legal representation, such a
person must be well acquainted with criminal justice. The victims advocate’s role should not be
only to explain her the nature of proceedings, to prepare her for the case and to assist her in the
police station and in court but to provide her with guidance as to how she might obtain help of a
different nature from other agencies, for example, mind consulting or medical assistance. It is
important to secure continuity of assistance by ensuring that the same person who looked after
the complainant’s interests in the police station represents her till the end of the case

2. Legal assistance will have to be provided at the police station since the victim of sexual assault
might very well be in a distress at the police station the guidance and support of a lawyer at this
stage would be of great help to her

3. The police should be under a duty to inform the victim of her right to representation before
any questions were asked of her and the police report should state that the victims was so
informed.

4. A list of advocates willing to act in these cases should be kept at the police station for victims
who did not have any particular lawyer in mind, or whose own lawyer is unavailable.

25
5. The advocate shall be appointed by the coot on application by the police at the earliest
convenient movement, but in order to ensure that victims were questioned without undue delay
Advocates would be authorized to act at the police station before leave of the Court was sought
or obtained.

6. In all rape trials anonymity, (name not be disclosed), of the victim must be maintained, as far
as necessary.

7. It is necessary, having regard to the directive principles contained under Art. 38 (1) of the
Constitution to set a Criminal Injuries Compensation Board to protect rape victims who
frequently incur substantial loss, some, for example, are too terrorized to continue in
employment

8. Compensation for victims shall be awarded by the Court on conviction of the offender and by
the Criminal Injuries Compensation Board whether or not a conviction has taken place. The
Board will take into account pain, suffering and shock as well as the loss of earnings due to
pregnancy and childbirth if this accrued as a result of rape.

The court also directed the National Commission for Women (NCW) to formulate such a scheme
within six months from the date of judgment (i.e. October 19, 1994) and the Union of India to
examine it amd to take necessary steps for the implementation.20 The Supreme Court has also
resorted to public law remedies to compensate victims of rape.21

4.1.1. Scheme for the Rehabilitation for Victims of Rape, 2005

In India, pursuant to the Supreme Court directive in the Delhi Domestic Working Women’s
Forum case, the National Commission for Women drafted the Scheme for the Rehabilitation for
Victims of Rape, 2005. The scheme provided for the setting up of Criminal Injuries and
Rehabilitation Board at the District and State level and a National Criminal Injuries and
Rehabilitation Board. The scheme gives details about the constitution, functions and the
budgetary allocation of the Authorities constituted under it. It provides for compensating rape

20
KI Vibute, Victims of Rape and their right to live with Human dignity and to be Compensated: Legislative and
Judicial Responses in India, Journal of the Indian Law Institute, 1999, vol 41, p. 222.
21
Chairman, Railway Board and Ors v. Mrs. Chandrima Das and Ors AIR (2000) SC 988.

26
victims, irrespective of whether the perpetrator has been brought to justice. It provides for legal
aid and other measures that will help such victims. However, there is nothing suggestive of any
further thinking on these issues, or executive will to take the thought further.

4.2 Baldev Singh v. State of Punjab, AIR 1996 SC 372

In the case of Baldev Singh v. State of Punjab22, the appellants were found guilty of culpable
homicide of a family and awarded life imprisonment by the High Court. On appeal, the
Supreme Court observed that in appropriate cases, award of compensation to the victim served
better than the deterrent punishment to the offender. The two appellants were ordered to pay
Rs. 35,000 each to the widow of the deceased and her children and the sentence of life
imprisonment against the offender was reduced to the period if imprisonment already
undergone by them.

The court put forward that for the mitigation of the sentence of imprisonment and for applying
Section 357 of Cr.P.C. the following passage occurring in B.B. Mitra's CrPC - 18th Edition
(1995) at pages 1240 -1241 was relied on:

S. 357 (a) Scope -....The power of courts to award compensation to victims under
Sec. 357, is not ancillary to other sentences but is an addition thereto. It is a measure
of responding appropriately to crime as well as of reconciling the victim with the
offender. It is, to some extent, a constructive approach to crimes, a step forward in our
criminal justice system. Therefore, all courts are recommended to exercise this power
liberally so as to meet the ends of justice in a better way. Any such measure which
would give the victim succour is far better than a sentence by deterrence. Sub-section
(3) of Section 357 provides for ordering of payment by way of compensation to the
victim by the accused. It is an important provision and it must also be noted that power
to award compensation is not ancillary to other sentences but it is in addition
thereto.... In awarding compensation the court has to decide whether the case is fit one
in which compensation has to be awarded. If it is found that compensation should be
paid then the capacity of the accused to pay compensation has to be determined. It is
the duty of the court to take into account the nature of crime, the injury suffered, the
justness of the claim for compensation and other relevant circumstances in fixing the
amount of compensation.”

22
Baldev Singh v. State of Punjab AIR 1996 SC 372

27
4.3 Bodhisattwa Gautham v. Subhra Chakraborthy, AIR 1996 SC 922

The apex Court has come to the rescue of victims of sexual assault by holding that even interim
compensation may be awarded to a rape victim by a court during the pendency of criminal trial.
In a case from Kohima the accused, Bodhisattum Gautam, a lecturer, who had married his
student and later refused to recognise her as his life partner was asked to pay an interim
compensation of Rs. 1,000 per month to the victim until her charges of rape, cheating and other
criminal offences were decided by the court. The Court said, if it has the jurisdiction to award
compensation at the final stage there is no reason to deny to the court the right to award interim
compensation. The court held that rape is not only a crime against the person of a woman; it is a
crime against the entire society. It destroys the entire psychology of a woman and pushes her into
deep emotional crises.

While passing the order Justices Kuldip Singh and Saghir Ahmed said: “Unfortunately, a woman
in our country belongs to a class or group of society who are in a disadvantaged position on
account of several social barriers and impediments and have, therefore, been the victim of
tyranny at the hands of me, with whom they, fortunately, under constitution enjoy equal status”.

The Supreme Court held in this case23 that the man could be ordered under Article 31 to pay
‘maintenance’ to the woman until criminal charges of rape against him were decided. The Court
stated that ‘Fundamental Rights can be enforced even against private bodies and individuals’ and
the Court’s powers include the ability to award compensation. The Court extended the right to
life to include freedom from rape... and noted that a victim may receive compensation from an
offender on conviction in a criminal court.... The Court considered that this ought to be extended
to interim compensation as part of the overall jurisdiction of the courts trying offences of rape....
In contrast with most other decisions of the Court, this case of Gautam clearly applied the
fundamental rights to the actions of private individuals. This decision has probably been over-
ruled to the extent that there was no state involvement in the breach.

23
Bodhisattwa Gautham v. Subhra Chakraborthy AIR 1996 SC 922

28
4.4 Chairman, Railway Board and Ors v. Mrs. Chandrima Das and Ors, AIR (2000) SC
988

The issue of compensation for rape survivors arose again, in the case of Chairman, Railway
Board and Ors v. Mrs. Chandrima Das and Ors,24 which involved the question of compensation
by the state railways to a rape survivor, because the perpetrators were state employees and the
crime occurred on state property. The petitioner, a lawyer of the Calcutta High Court, sought
compensation for the survivor, a Bangladeshi national who was gang raped on Feb 26, 1998 by
employees of Railways by filing a writ petition under Article 226 of the Constitution. The High
Court awarded compensation, holding that the Railway Board was vicariously liable for the rapes
perpetrated by its employees in buildings belonging to the railways.

On appeal in the Supreme Court, the following questions arose - whether compensation could be
awarded for rape as a constitutional rather than a private remedy; whether fundamental rights
guaranteed by the Constitution could extend to a foreign national; and finally, whether the
railways were vicariously responsible for the private actions of its staff. The Court awarded
compensation, holding that the public law remedy for compensation was available for wrongs
done by government agents.

The apex Court held that when even though a foreign national, gang raped by the railway
employees in Railway Yatri Niwas, Calcutta, Union of India which runs the Railway as a
commercial activity vicariously liable to pay compensation to the victim for crime committed by
its employees.

The apex court further held that:

“…She was entitled to be treated with dignity and was also entitled to the protection of her
person as guaranteed under article 21 of the constitution. As a national of another country, she
could not be subjected to physical violence at the hands of the government employees who
outraged her modesty. The right available to her under Article 21 was thus violated.
Consequently, the state was under a constitution liability to pay compensation to her.”

24
Chairman, Railway Board and Ors v. Mrs. Chandrima Das and Ors AIR (2000) SC 988.

29
The Court also relied upon the UDHR and the Declaration on the Elimination of Violence
against Women 1993, as well as principles relating to the application and interpretation of
international law set out by several judicial colloquia, to uphold that fundamental rights,
particularly the right to life, vest in ‘persons’ regard-less of nationality, and not merely citizens -
to uphold the survivor’s right to compensation under the Constitution.

4.5 Vijayan v. Sadanandan K., 2009 CriLJ 2957

In the case of Vijayan v. Sadanandan K.,25Special Leave Petition was filed challenging the
Judgment of the High Court contending that the High Court erred in imposing default sentence
on non-payment of compensation. The trial court convicted the Petitioner and sentenced him to
undergo Simple Imprisonment for one year and to pay compensation of Rs. 8,25,000 to the
Respondent and in default to undergo simple imprisonment for a further period of six months.
As the High Court had upheld the same, the Special Leave was filed. The Supreme Court
rejecting the contention of the Petitioner, held that:

“20. Section 357 Cr.P.C. bears the heading "Order To Pay Compensation". It includes
in Sub-section (1) the power of the Court to utilize a portion of the fine imposed for the
purpose of compensating any person for any loss or injury caused by the offence. In
addition, Sub-section (3) provides that when a sentence is imposed by the Court, of
which fine does not form a part, the Court may, while passing judgment, order the
accused person to pay by way of compensation such amount as may be specified in the
order to the person who suffers any loss or injury by reason of the act for which the
accused person has been so sentenced. It is true that the said provision does not
include the power to impose a default sentence, but read with Section 431 Cr.P.C. the
said difficulty can be overcome by the Magistrate imposing the sentence.

21. The provisions of Sections 357(3) and 431 Cr.P.C. (Money ordered to be paid
recoverable as fine), when read with Section 64 IPC (Sentence of imprisonment for
non- payment of fine), empower the Court, while making an order for payment of
compensation, to also include a default sentence in case of non-payment of the same.
The observations made by this Court in Hari Singh's case (supra) are as important
today as they were when they were made and if, recourse can only be had to
Section 421 Cr.P.C. for enforcing the same, the very object of Sub-section (3) of
Section 357 would be frustrated and the relief contemplated therein would be rendered
somewhat illusory.

25
Vijayan v. Sadanandan K. 2009 CriLJ 2957

30
 23. Having regard to the views expressed hereinabove, we hold that while awarding
compensation under Section 357(3) Cr.P.C., the Court is within its jurisdiction to add
a default sentence of imprisonment as was held in Hari Singh's case (supra).”

4.6 Meinam Ongbi Bina Devi v. State of Manipur26

The present petition was filed seeking for a direction for payment of compensation of 10(ten)
lakhs on account of the petitioner prosecutrix being raped by a personnel of the 12 Assam
Rifles at Mantripukhri on 6.10.2001. The court placed reliance on the decided cases of SC
stating that it is now well settled that the public law remedies have been also extended to the
realm of tort and the Court can award compensation to petitioners who suffer personal injuries
amounting to tortuous acts at the hand of officers of the Government as has been held by the
Hon'ble Supreme Court in Chairman, Railway Board and Others v. Chandrima Das and
Ors.27, In the said case, the Supreme Court held that rape is an offence which is violative of
the fundamental right of a person guaranteed under Article 21 of the Constitution as observed
in Bodhisattwa Gautam v. Subhra Chakraborty28, where the Supreme Court observed as
follows:-
"Rape is a crime not only against the person of a woman, it is a crime against the entire
society. It destroys the entire psychology of a woman and pushes her into deep emotional
crisis. Rape is, therefore, the most hated crime. It is a crime against basic human rights and is
violative of the victim's most cherished right, namely, right to life which includes right to live
with human dignity contained in Article 21."
In the present case, the rape was committed by an employee of the Union of India though the
accused employee might have been not on duty, but on unauthorised leave, as claimed by the
respondent authorities. Nevertheless, he remained in active service and under roll of the Assam
Rifles and while being posted in Manipur. The Respondent authorities are liable to
pay compensation to the petitioner as discussed above, the next issue that arises for consideration
is to the quantum of compensation that may be granted to the petitioner.

26
Meinam Ongbi Bina Devi v. State of Manipur MANU/MN/0140/2014
27
Chairman, Railway Board and Ors v. Mrs. Chandrima Das and Ors AIR (2000) SC 988.
28
Bodhisattwa Gautam v. Subhra Chakraborty (1996) 1 SCC 490

31
4.7 Chaman v. The State (NCT of Delhi)29

In the instant case a brutal rape of three and a half year old child was reported by the accused in a
Jhuggi by bolting the door from inside after luring her in the same. Reliance was placed on the
observations made by Hon'ble Supreme Court in Shyam Narain v. State30, (NCT of Delhi),
which was also a case of a brutal rape of 8 years old girl. Wherein this Court, speaking about the
concept of sentence, has laid down that it is the duty of every court to award proper sentence
having regard to the nature of the offence and the manner in which it was executed or committed.
The sentencing courts are expected to consider all relevant facts and circumstances bearing on
the question of sentence and proceed to impose a sentence commensurate with the gravity of the
offence.

4.8 Ankush Shivaji Gaikwad v. State of Maharashtra, AIR 2013 SC 2454

In the case of Ankush Shivaji Gaikwad v. State of Maharashtra31, the court allowed the appeal
and convicted the accused for the offence of culpable homicide not amounting to murder
punishable Under Section 304 Part II Indian Penal Code instead of Section 302 Indian Penal
Code and sentenced to undergo rigorous imprisonment for a period of five years. The court
retreated that “we regret to say that the trial Court and the High Court appear to have remained
oblivious to the provisions of Section 357 Code of Criminal Procedure.”

In the instant case, the Supreme Court emphasized that victim is not to be forgotten in criminal
justice system and Section 357 Cr.P.C. should be read as imposing mandatory duty on the Court
to apply its mind to the question of awarding compensation in every case.

The matter of awarding compensation to victims under section 357 was reviewed by the Hon'ble
Supreme Court with reference to development in law and it was observed:

“While the award or refusal of compensation in a particular case may be within the
Court's discretion, there exists a mandatory duty on the Court to apply its mind to the
question in every criminal case. Application of mind to the question is best disclosed by
recording reasons for awarding/refusing compensation. It is axiomatic that for any

29
Chaman v. The State (NCT of Delhi) 2015(2)JCC1218
30
Shyam Narain v. State30 (NCT of Delhi) , (2013) 7 SCC 77
31
Ankush Shivaji Gaikwad v. State of Maharashtra AIR 2013 SC 2454

32
 exercise involving application of mind, the Court ought to have the necessary material
which it would evaluate to arrive at a fair and reasonable conclusion. It is also beyond
dispute that the occasion to consider the question of award of compensation would
logically arise only after the court records a conviction of the accused. Capacity of the
accused to pay which constitutes an important aspect of any order Under
Section 357 Code of Criminal Procedure would involve a certain enquiry albeit summary
unless of course the facts as emerging in the course of the trial are so clear that the court
considers it unnecessary to do so. Such an enquiry can precede an order on sentence to
enable the court to take a view, both on the question of sentence and compensation that it
may in its wisdom decide to award to the victim or his/her family.
67. Coming then to the case at hand, we regret to say that the trial Court and the High
Court appear to have remained oblivious to the provisions of Section 357 Code of
Criminal Procedure. The judgments under appeal betray ignorance of the Courts below
about the statutory provisions and the duty cast upon the Courts. Remand at this distant
point of time does not appear to be a good option either. This may not be a happy situation
but having regard to the facts and the circumstances of the case and the time lag since the
offence was committed, we conclude this chapter in the hope that the courts remain careful
in future.”

4.9 Suresh v. State of Haryana, AIR 2015 SC 518

In the case of Suresh v. State of Haryana,32 when the High Court confirmed Trial Court's order
convicting Appellants-Accused for kidnapping and murder and concealing evidence in
conspiracy and by common intention an appeal to the apex court was filed in the form of the
present case. The question which arose before the court was whether there was applicability of
Section 357A of Code, 1973 providing for compensation by State to Victims of crime? Various
judgments of the apex court (Ankush Shivaji Gaikwad v. State of Maharashtra; Chairman,
Railway Board v. Chandrima Das; Delhi Domestic Working Women's Forum v. Union of India
and Ors.; Hari Krishan and State of Haryana v. Sikhbir Singh; Nilabati Behera v. State of
Orissa; Savitri v. Govind Singh Rawat) were relied on and historical evolutions cited.

In Hari Krishan and State of Haryana v. Sikhbir Singh AIR 1998 SC 2127, referring to
provisions for compensation, the Hon'ble Supreme Court observed:

10. This power was intended to do something to reassure the victim that he or she is not
forgotten in the criminal justice system. It is a measure of responding appropriately to
crime as well of reconciling the victim with the offender. It is, to some extent, a
constructive approach to crimes. It is indeed a step forward in our criminal justice

32
Suresh v. State of Haryana AIR 2015 SC 518

33
 system. We, therefore, recommend to all Courts to exercise this power liberally so as to
meet the ends of justice in a better way.
The court in the instant case held that:
14. We are of the view that it is the duty of the Courts, on taking cognizance of a criminal
offence, to ascertain whether there is tangible material to show commission of crime,
whether the victim is identifiable and whether the victim of crime needs immediate
financial relief. On being satisfied on an application or on its own motion, the Court
ought to direct grant of interim compensation, subject to final compensation being
determined later. Such duty continues at every stage of a criminal case where
compensation ought to be given and has not been given, irrespective of the application by
the victim. At the stage of final hearing it is obligatory on the part of the Court to advert
to the provision and record a finding whether a case for grant of compensation has been
made out and, if so, who is entitled to compensation and how much. Award of such
compensation can be interim. Gravity of offence and need of victim are some of the
guiding factors to be kept in mind, apart from such other factors as may be found
relevant in the facts and circumstances of an individual case. We are also of the view that
there is need to consider upward revision in the scale for compensation and pending such
consideration to adopt the scale notified by the State of Kerala in its scheme, unless the
scale awarded by any other State or Union Territory is higher. The States of Andhra
Pradesh, Madhya Pradesh, Meghalaya and Telangana are directed to notify their
schemes within one month from receipt of a copy of this order.
Thus, the court was of the view that the State of Haryana is liable to pay compensation to the
family of the deceased. The court determined the interim compensation payable for the two
deaths to be rupees ten lacs, without prejudice to any other rights or remedies of the victim
family in any other proceedings. It will be payable by the Haryana State Legal Services
Authority within one month.

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 CHAPTER V

CONCLUSION AND SUGGESTIONS

Recently the interests of victims have gained a prominence in both media and political rhetoric.
Some argue that in media and political discussion usually has usually been associated with a call
for greater law and order. Some argue that in media and political discussion and in policy
changes, the interest of victim has been hijacked to serve the needs of media entertainment and
political power. It is thus necessary to ask how many of the changes which are claimed to be in
the interests of victims actually serve those interest. To respond to such a question some
assumption about the needs, interest or desires of victims have to be made. Here it is assumed
that victims wish to be afforded dignity and have assurances that their lives will not be blighted
by victimisation in the future. They may also wish to see the perpetrator dealt with. With this in
mind, a number of new initiatives and suggested changes will be considered.

Victims are now the integral part of criminological study. Their importance in the Criminal
Justice System is increasing, but they still lack basic powers and rights or interest which will be
legally protected within that system. It is important that the study of victim does not take over
from the study of the criminal, and so allow the criminal to escape culpability and social
condemnation. If the needs of victims must be kept in the perspective, they must also be taken
more seriously by those in authorities, not least because without their co-operation the system
quite literally could not operate.

It appears that Courts do not appear to be adequately sensitized towards the Scheme, due to
which cases in which compensation has been awarded are very few. Although now there stands
formalized law for the compensation of the victims of rape still there are very few cases in which
the compensation is actually being satisfactorily being given to the victim.

The lower courts must follow the judgment in the famous case of Ankush Shivaji Gaikwad v.
State of Maharashtra33, which retreated that:

33
Ankush Shivaji Gaikwad v. State of Maharashtra AIR 2013 SC 2454

35
“While the award or refusal of compensation in a particular case may be within the Court's
discretion, there exists a mandatory duty on the Court to apply its mind to the question in every
criminal case. Application of mind to the question is best disclosed by recording reasons for
awarding/refusing compensation”

The whole purpose of these provisions is to accommodate the interests of the victims in the
criminal justice system. Sometimes the situation becomes such that there is no purpose is served
by keeping a person behind bars. Instead directing the accused to pay an amount of
compensation to the victim or affected party can ensure delivery of total justice. Therefore, this
grant of compensation is sometimes in lieu of sending a person behind bars or in addition to a
very light sentence of imprisonment. Hence on default of payment of this compensation, there
must be a just recourse. Not imposing a sentence of imprisonment would mean allowing the
accused to get away without paying the compensation and imposing another fine would be
impractical as it would mean imposing a fine upon another fine and therefore would not ensure
proper enforcement of the order of compensation. Therefore, the compensation is not in lieu of
the imprisonment to the accused but is recourse to rehabilitate the victim for the heinous crime
committed by the accused.

Another aspect to the concept of compensation to victim is that such a recourse must be granted
to the victim as soon as possible. As it has been rightly said that, “Justice delayed is justice
denied”. The low reporting rate of the cases would suffer if the justice in the courts is delayed
beyond a reasonable time. The psychological effect on the victim gains a irreparable loss if
justice is delayed.

It is further suggested that the approach of the victims to the police must be handled with
concern and not merely as a means of extorting money. In addition, they would direct the police
to act more as counselors rather than policemen while dealing with such cases. Studies have
shown that at least 60 per cent of the cases go unreported as the woman faces humiliation.

The inclusion of counselling centres and more police men would ensure that cases are not hushed
and a majority of the incidents are reported to the police. Every police station would also be
required to have at least one woman police constable of officer on duty at all times for offences
against women. Although the new reforms would make it mandatory to have more than five all

36
women police stations in each city apart from having two in every district, what is meant to be
seen is how far the same is implemented.

Another aspect is the punishment for the offence, which must be deterrent enough for the persons
committing such drastic offence. It must be such that conscious of the doer must be shaken for
once before even thinking of committing an offence.

The last and the foremost point is the awareness in the society regarding the nature, punishment
and the taboo attached to the offence which makes it difficult for the victim to survive in the
society. The attitude of the society towards the victim needs a drastic change. The society must
look at the victim as equal and not as socially, physically and sexually disregarded. The need of
the hour is focusing the upgrading of the victim along with the focus on the accused.

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 Trehan Anil, Penology and Victimology: A perusal, Shreeram Law House, Chandigarh,

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 Bharat Bhudas Das, Victims in the Criminal Justice System, APH Publishing, 1997.

 Singh Devinder, Human Rights: Women and Law, Allahabad Law Agency, Haryana,

2005.

 Shah Giriraj, Crime Against women and Police, Anmol Publications, New Delhi, Vol. 2,

2000.

 Vanfraechem Inge, Antony Pemberton, Felix Mukwiza Ndahinda, Justice for

Victims: Perspectives on Rights, Transition and Reconciliation, Routledge, 2014.

 Gaur K.D., The Indian Penal Code, Universal Law Publishing, New Delhi, 2013.

 Vibute KI, Victims of Rape and their right to live with Human dignity and to be

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Institute, 1999, vol 41

 Maguire Mike, Rod Morgan, The Oxford Handbook of Criminology, Oxford University

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 Pillai P SA, Criminal Law, LexisNexis Butterworth Wardhwa, Nagpur, 11th ed.

 Kelkar R.V., Criminal Procedure, Eastern Book Company, Lucknow, 2012.

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 T. S. N Sastry, India and Human Rights: Reflections, Concept Publishing Company,

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 Maier Shana L, Rape, Victims, and Investigations: Experiences and Perceptions of Law

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 Shobha Saxena Crimes against women and protective laws, Deep and Deep publications,

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 Lata Suman , Anjani Kant, Child and the Law, APH Publishing, 2007.

 Veer Udai, Crime against Women, Anmol Publications Pvt. Ltd., New Delhi, 2004.

 Rajan Vasu Nair, Victimology in India: Perspectives Beyond Frontiers, APH Publishing,

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