Compensation to Victims of Crime - Existing Laws and Flaws that Need Reform

Introduction In the whole process of Criminal Administration of justice, the offender remains the prima figure and the victim is completely forgotten. No body cares to see as to what happens to the victim after the committal of offence on him and the reporting of his victimization to the police. Rather the victim is faced with interrogations, delays, adjournments. Court appearances, harassment at (the hands of people, police and lawyers, loss of earnings, wastage of time and frustration etc.1 It is just few decades back that the criminologists/sociologists realized to concentrate their thought to a procedure to help and insure that the victim is compensated.2 So far as the idea of compensation to victims has been confined mostly in criminal cases.3 Recently the Supreme Court of India in some cases has granted compensation to victims of State excesses also by invoking Article 32 of the Constitution.  Victim Compensation-The Existing Legislations The existing provisions relating to compensation in criminal matters are mainly found in Sections 237, 250, 357 and 358 of the Code of Criminal Procedure, 1973, Section 5 of the Probation of Offenders Act, 1958. Section 32 of Cattle Tresspass Act and some other statutes apart from various other legislations.  Compensation to Victims Under Provisions of Cr.P.C. Section 357, Cr.P.C. provides rules for compensation in four classes of cases namely :4  Compensation for prosecution expenses Compensation to the victims. Compensation to dependents specified in Fatal Accidents Act, 1855, i.e. every such action or suit shall be for the benefit of the wife, husband, parent and child if any, of the person whose death shall have been so caused and shall be brought by and in the name of the executor, administrator or representative of the person deceased. compensation to victims from the amount of fine imposed. When a Court imposed 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 act for which the accused person has been so sentenced. 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. 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. Thus, for the first time Section 357(3). Cr.P.C. has not only recognised the philosophy of compensation simpliciter to the victims of crime even when no sentence of fine is imposed, but also added a new positive dimension to the idea of recompensating them.5 Prior to inclusion of this clause no compensation could be awarded unless a substantive sentence of fine was passed and then too this was limited only to the extent of the fine actually realised. It can be for any amount and not limited to the amount of fine imposed or recovered.  From the above-mentioned clauses it is evident that Section 358, Cr.P.C. in essence, empowers a Court to award compensation to any person for any ‘loss’ or ‘injury’ caused by an offence in those cases where ‘fine’ does or does not form part of the sentence imposed. But under sub-section (1) of Section 357, it can do so only out of the ‘fine’ imposed on and recovered from, the offender if such compensation, in its opinion, is recoverable in a Civil Court. The amount so awarded under this sub-section, obviously, cannot exceed that of the fine so imposed/recoverd as the underlying idea in directing such compensation is to collect the fine and pay it to the person who has suffered the loss, Sarwan Singh v. State of Punjab, AIR I978 SC 1525: 1978 Cri LJ 1598, while under sub-section (3), a Court is empowered to order a specified amount of compensation irrespective of the fact that the offence is punishable with fine or not and/or fine is actually imposed or not.  The victim under the existing law is totally at the mercy of the Court for the ward of compensation under Section 357 of Criminal Procedure Code, 1973. Further his chances of receiving compensation completely vanish when the offender is indigent having no capacity to pay the fine.  The Criminal Courts award of compensation is limited by considerations which govern the imposition of fine as punishment. It is to be noted that there is no requirement laid down by the Criminal Procedure Code that the prosecution should lead evidence in regard to the facts which are relevant in determining the amount of fine or the compensation to be paid. Most of the victims in our country are very poor and hardly ever an action for compensation instituted even when the offender is convicted by the Court thereby proving it beyond doubt that he has been guilty of conduct which entitled the victims to compensation.  Probation of Offenders Act and Compensation In its quest to re-establish offenders in the community and to reform and rehabilitate them without subjecting them to the deleterious effects of jail life. Probation of Offenders Act seeks to prevent the conversion of youthful offenders into abdurate criminals as a result of their association with hardened criminals of mature ages, it, accordingly empower a trial Court, in its discretion, to release an offender after due admonition and on probation of good conduct in suitable cases.6 The Act also enables the Court, directing release of an offender under Sections 3 and 4, in its discretion, to gram ‘reasonable compensation’ to any person for ‘loss or injury’ caused to him by commission of the offender and ‘costs’ of the proceedings. Sub-section (1) of Section 5 reads :  Power of Court to require released offender to pay compensation and costs :  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 : such compensation as the Court thinks reasonable for loss, injury caused to any person by the commission of the offence; and such costs of the proceedings an 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 costs in appropriate cases. 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 the High Court cannot interfere unless it is of the view that such power has been exercised capriciously and unreasonably, Rajeswari Prasad v. R. B. Gupta, AIR 1961 Pat 19: 1961 (l)Cri LJ 144.  Instances of Award of Compensation in Criminal Cases At present our dynamic judiciary in the increasing crime scenario, being conscious of felt necessities of time, developed a victim compensating trend, See Prabhat Chandra Tripathy, “Criminal Victimisation of Weaker Sex and Failure of Protective Measures — An Analysis, published in 1996 Cri LJ (Jour) 37. To mention a few — In a dowry murder case, Punjab and Haryana High Court awarded Rs. 50,000/- as compensation to the parents of victim, Jasnal Singh v. State of Punjab, (Punjab and Haryana), 1984 Cri LJ 691 (P & H). Again, considering the plight of the victim woman, the Apex Court in a case for mud-slinging and character assassination of wife, convicted the husband under Section 498A of IPC and the husband was fined Rs. 1 lakh and 36 thousand to be paid to victim woman as compensation, Mukumda Martand Chatnis v. Madhuri, AIR 1992 SC 1804 : 1992 AIR SCW 2025.  In M. J. Cherian’s case, Gudalure M.J. Cherian v. Union of India, 1995 SCC (Cri) 925, the Supreme Court, directed the State of Uttar Pradesh to pay compensation of Rs. 2,50,000/- as compensation to each of the victims of rape.  In similar vein, the Apex Court in Kishan’s case, Harikishan and State of Haryana v. Sukbir, 1989 Cri LJ 116 : AIR 1988 SC 2127, awarded compensation of Rs. 50,000/- to the victim.  Again during pendency of Dowry cases, the Supreme Court ordered to pass interim order of maintenance for victims. 1992 (2) Crimes 742 (Patna): 1992 Cri LJ 2510, and in a recent serious rape case of Nuns, both the rape victims were ordered 2.5 lakhs victim compensation. The other affected Nuns who were assaulted and molested were also paid compensation of one lakh each.7  The Supreme Court in another sensational rape case. Naval Dubey’s case, 1992 AIR SCW 1480 at pp. 1496-97, the accused Medical Officer was convicted and imposed fine of Rs. 25,000/-was ordered to be paid as victim compensation.  Compensation to Victims and Indian Constitution It is the primary responsibility of the Stale which is committed to the welfare of its citizens to maintain law and order and also to ensure the safety and security of its members. For any injury whether physical or other caused to a citizen, due to the action or inaction on the part of the State, the State is answerable for the same. This is particularly the case with the Fundamental Rights, which are guaranteed under Part III of the Constitution. Fundamental Rights occupy a pride of place in our Constitution. Again of all the Fundamental Rights the right to life and personal liberty enshrined in Article 21 is the most precious, sacrosanct, inalienable and fundamental of all the fundamental rights of citizens.  In the modern age when the activities of the State have vastly increased and became multifarious, they have a deep impact on almost all facets of an individual’s life. Particularly, the cases of abuse of power by the machinery and agencies of State have become a common phenomena, some times seriously jeopardising the citizens Fundamental Rights.  Accordingly there is a need for the State not only to own liability for the tortious acts of its servants but also to compensate the victims of abuse of power by the State.  Though, there are legislative and constitutional safeguards against the abuse of power by the State, they are inadequate and need to be strengthened.  In some defined classes of cases, such as blinding cases, illegal detention of under trial prisoners, the State may take upon itself the responsibility of compensating the victims of crime.  Victim Compensation and Abuse of State Power Though there is no express provision in the Constitution of India for payment of compensation to the victims of abuse of power by the State, through its pragmatic judgments, the Supreme Court has imported into Article 21 of the Constitution which guarantees, personal liberty, a mandatory duty on the part of the State to pay compensation to the victims in appropriate cases who were denied the Fundamental Rights by the State machinery.  Recognizing the importance being given to the concept of compensation/exemplary costs to those persons whose right was violated by the State and its administration the Supreme Court has on various occasions awarded compensation, so as to make the right to life and personal liberty more effective, Rudal Shah v. State of Bihar, 1983 (2) SCC 141 : 1983 Cri LJ 1644 : AIR 1983 SC 1086, Devki Nandan Prasad v. State of Bihar, AIR 1983 SC 1134 : 1983 Lab IC 847, Sebastian M. Rangary v. Union of India, 1984 (3) SCC 82 : 1984 Cri LJ 830 : AIR 1984 SC 1026, Bhim Singh v. State of J & K, 1985 (4) SCC 677: (1986 Cri LJ 192 : AIR 1986 SC 494. The Supreme Court, while invoking Article 32 of the Constitution, has granted two types of monetary reliefs, namely. ‘Compensation’ and ‘Exemplary costs’. Though the idea of compensation to the victims is implicit in both the concepts yet exemplary costs are essentially in the nature of punitive damages.8 Exemplary costs serve as a measure of punishment to the State and at the same time a measure of damages to the victim for the wrong done to him by the Stale.  The major break through in the field of victimology jurisprudence came in Rudal Shah v. State of Bihar, AIR 1983 SC 1086 : 1983 Cri LJ 1644 : AIR 1983 SC 1086, when the Supreme Court of India granted monetary compensation amounting to Rs. 35,000/- to an ordinary citizen against the lawless act of Bihar Government which kept him under illegal detention for more than 14 years after his acquittal. This is the first judicial concern to repair the damage done by the officers of the Slate to the victimized citizens.9 The Apex Court for the first time deviated from the traditional approach of applying the law mechanically based on precedents and brought the law closer to life by reinforcing the legitimacy and credibility of the Court particularly amongst the weaker sections of the people.10  In Sebastian M. Hongary v. Union of India, AIR 1984 SC 1026 : 1984 Cri LJ 830, the Court awarded an exemplary costs to the tune of rupees one lakh each to the two wives of the missing persons, and in Bhim Singh v. State of Jammu and Kashmir, 1985 (4) SCC 677 : 1986 Cri LJ 192: AIR 1986 SC 494, Court awarded compensation for Rs. 50,000/- for the Governments highhandedness and illegal detention. The Supreme Court in A. S. Mittal v. State of Uttar Pradesh, AIR 1989 SC 1570, broadened the scope of Article 32 and granted compensation to the tune of Rs. 5000/- to each of the victims by way of interim relief on humanitarian consideration.  In another Writ Petition under Article 32 of the Constitution in Saheli, A Women’s Resource Centre through Ms. Nalini Bhanot v. Commissioner of Police, Delhi, AIR 1990 SC 513, the Supreme Court awarded compensation amounting to Rs. 75,000/- to the mother of the victim for the death of a nine year old child because of beating and assault by Police officer.  Thus the interpretation of Article 32 of the Constitution as to give compensation to the victim in case of State law lessness/highhandedness/excess has given a new dimension to jurisprudence of victimology in India.  Victim Compensation Laws-An Evaluation From the above discussion, it becomes amply clear that, Section 357, Cr.P.C. and Section 5 of Probation of Offenders Act, are the basic laws governing the payment of compensation to the victims of crime. But these provisions leave it entirely to the discretion of the Courts to invoke them in respect of grant of compensation to victims of an offence or defray costs of the proceedings, which therefore, depend upon their will.  Further, there is lack of a comprehensive machinery to realise the amount of compensation and/or costs ordered in favour of the injured party if the offender refuses to pay the fine imposed and thereby compensation and/or costs of the proceedings.  Courts in India have rarely resorted to Section 5, of Probation of Offenders Act, to direct the offender to pay reasonable compensation for loss or injury caused by commission of the offence and costs of the proceedings.11  It is, thus, evident that the fragmented legal framework providing for compensation by an offender to his victims for loss suffered or injury caused by commission of the offence is inadequate. It neither mandates the Courts to compensate the victims nor creates any legal right in their favour. It is entirely left to their discretion whether to,  compensate victims of crime; and initiate and move legal machinery to recover the fine, out of which compensation is ordered, or the specified amount of compensation from the offender to pay it lo the victims of the offence. The whole scheme of award and payment of compensation in India thus solely depends upon the sweet will of the Courts.
 Suggestions In order to make victim compensation laws more realistic and meaningful in doing justice lo the victims the following suggestions are made.  The existing provisions in Criminal Procedure Code concerning the compensation to victims and confenring discretionary power on the Court should be converted to mandatory provisions, requiring lo pay compensation in all suitable cases. A comprehensive scheme for payment of compensation by offender, as well as by Stale, based on sound and certain legal premise should be evolved. The compensation to the victims of crime should be a State responsibility and for implementing this welfare measure an appropriate body should be set up. A victim of an offence should be legally allowed to intervene in the criminal proceedings against the offender to claim compensation for loss or injury. Judicial administrative mechanism should be established and strengthened where necessary to enable victims to obtain redress through formal or informal procedures that are expeditious, fair, inexpensive and accessible. Victims should be informed of their rights in seeking redress through such mechanisms. Separate Administrative Tribunals or Boards to be designated as ‘CRIMINAL COMPENSATION TRIBUNAL/BOARD; with District Judge as Chairman and Doctor and a Social worker as members should be set up with jurisdiction exclusively to take up the cases of victim compensation.

Author Name: Dr. M. Sammaiah