VICTIM’S RIGHT TO COMPENSATION

Anju Bala
1512
B.A. LL.B. (Hons.)

Submitted to: Dr. Fr. Peter Ladis F

Criminal Law – II

A Final draft made in partial fullfillment of the course Criminal

Law – II during the academic year 2017-18, semester IV

April 2018

Chanakya National law University, Meethapur, Patna, 800002

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 Declaration

I hereby declare that the work reported in the B.A. LL.B (Hons.) Project Report entitled
“Victims’s right to compensation” submitted at Chanakya National Law University,
Patna is an authentic record of my work carried out under the supervision of
Dr. Fr. Peter Ladis F . I have not submitted this work elsewhere for any other degree or
diploma. I am fully responsible for the contents of my Project Report.

(Signature of the Candidate)

ANJU BALA
1512
Chanakya National Law University, Patna
10/04/2018

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 ACKNOWLEDGEMENT

“INJUSTICE anywhere
Is a threat to
JUSTICE everywhere”
By- Martin Luther King

A project is a joint endeavour which is to be accomplished with utmost compassion, diligence

and with support of all. Gratitude is a noble response of one’s soul to kindness or help
generously rendered by another and its acknowledgement is the duty and joyance. I am
overwhelmed in all humbleness and greatfullness to acknowledge from the bottom of my
heart to all those who have helped me to put these ideas, well above the level of simplicity
and into something concrete effectively and moreover on time.
This project would not have been completed without combined effort of my revered
Criminal Law-II faculty Dr. Fr. Peter Ladis F. whose support and guidance was the
driving force to successfully complete this project. I express my heartfelt gratitude to him.
Thanks are also due to my parents, family, siblings, my dear friends and all those who helped
me in this project in any way. Last but not the least; I would like to express my sincere
gratitude to our Criminal law-I faculy for providing us with such a golden opportunity to
showcase our talents. It was truly an endeavour which enabled me to embark on a journey
which redefined my intelligentsia, induced my mind to discover the various events and
provisions which led to the development of law in India.
Moreover, thanks to all those who helped me in any way be it words, presence?
Encouragement or blessings...

- Anju Bala
-1512
- 4th Semester
- BA LL.B

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 TABLE OF CONTENTS
Acknowledgement……………………………………………………………………………

Table of Contents……………………………………………………………………….........4

Introduction…………………………………………...……………………………….…..…5

Aims andObjectives……………..……………………………………………………………5

Hypothesis…………………………………………………………………………………….5

ResearchMethodology…………………………………………………………………….…6

Sources of data collection……………………………………………………………………6

Limitations and scope of the study…..……………………………………………………..6

Chapterisation…………………………………………………………………………………

1. Who are victim’s?...…………………………………………………………………5

2. Overview of victim’s right…………….……………………………………………7

3. Constitutional validity of victim’s compensation…………………………………11

4. Victim’s right to compensation…….………………………………………………15

5. Conclusion Criticism and Suggestion ……………………………………….……21

Bibliography………………………………………………………………..………………27

-Books………………………………………………………………………………………..

-Websites…………………………………………………………………………………….

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Introduction :
Victim’s compensation has always been the weeping beggar at the door of criminal justice.
Although, it is an age old concept but its development on more scientific lines and also as
branch of criminology has begun since a few decades ago. Several countries have taken up
the different schemes of payment of compensation to their victims of crime. These are taken
through different legislative measures. In India as well there are different statutory provisions
in criminal justice under which the compensation can be awarded to the victim of crime, viz.
Fatal Accident Act, 1855, Probation of Offenders Act, 1958 and Code of Criminal Procedure,
1973.
In pursuance of the recommendations of Law Commission of India in its report 1 a
comprehensive provision for compensation to victims of crime has been inserted in section
357 of the Code of Criminal Procedure, 1973 (herein after Cr. P.C.). According to s. 357
subs.(1) and sub-s. (3), the court may award compensation to the victim of crime at the time
of passing judgment, if it considers appropriate in a particular case in the interest of justice.
These provisions make the trial courts and the appellate courts competent to award
compensation to the victims of crime only after trial and conviction of the accused. These
powers to award compensation are not subsidiary to other sentence, but it is in addition there
to.2 It is left to discretion of the court to decide in each case depending on its facts and
circumstances. However, the existing provisions of Code are not founding encouraging one.
Any compensation awarded under the cover of this Section at the end of normally protracted
trial spanning over an average of 8 to10 years is not immediately available to the victim as he
must await the appellate round to conclude. 3It is pertinent to note that the trial courts have
seldom used the powers conferred on them under s. 357, Cr. P.C., liberally. The provision for
payment of compensation has been in existence for a considerable period of time on the
statute book in this country. Even so, criminal courts have not, it appears, taken significant
note of the said provision or exercised the power vested in them thereunder. The Law

1
41st Report, Law Commission of India on Indian Penal Code,1860 (1969)
2 Gaur, K.D., Criminal Law and Criminology 851, Eastern Book Company, Lucknow, (2002)
3 Mundrathi, S., Law on Compensation- To Victims of Crime and Abuse of Power 182, Deep and Deep
Publications, New Delhi, (2007)
4 42nd report, Law Commission of India on Code of Criminal Procedure, 1898. para 3.17 (1971)
2

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Commission4 refers to this regrettable omission in the following words: “We have a fairly
comprehensive provision for payment of compensation to the injured party under section 545
of the Criminal Procedure Code. It is regrettable that our courts do not exercise their statutory
powers under this section as freely as liberally as could be desired. The section has, no doubt,
its limitations. Its application depends, in the first instance, on whether the court considers a
substantial fine as proper punishment for the offence. In the most serious cases, the court may
think that a heavy fine in addition to imprisonment for a long term is not justifiable,
especially when the public prosecutor ignores the plight of victim of the offence and does not
press for compensation on his behalf.”

Aims and Objectives:- The researcher has found the following during the course of research

 The main objective of criminal justice system in any country is to protect the rights of
the individual and the state against intentional infringement of the basic norms of the
society by unscrupulous persons.
 The objective is sought to be achieved by ensuring that the accused is punished with
accordance with law, in the process of which every measure is taken to ensure the
rights of the accused is safeguarded.
 To understand monetary assistance in one way or the other always benefits the
victims in the mitigation of their sufferings.
 Accepting that there is no uniformity in the legal sysem in the country to address the
issue of compensation the victim’s of crime, it is expedient to discuss the legal
position in respect of compensation to the victims of the offence.

Hypothesis:- The researcher has presumed the following, the validity of which has been
tested in the course of research:
 The victim compensation scheme under Cr. P. C. does not provide remedy to the
victim.
 Fine and compensation do not have any nexus.

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Research Methedology:-

The researcher will rely on basically doctrinal and method of research. The study of research
is based on both primary and secondary sources of data collection. The major sources of data
collection of researcher will be different law books on Cr.P.C. and criminal law. The
researcher will also consult some academician & expert in criminal law (especially in
Cr.P.C.).

Sources of data collection

 Primary sources- Judgments of apex court, provisions of code of criminal
procedure, Statute, Precedent & other official document.
 Secondary sources- statement of judges, websites, articles, news paper, books,
journals etc.

Limitation and scope of the study

Due to lack of time, finance and lack of resources my research work is wholly based on
doctrinal method of research, my research work doesn’t rely on non-doctrinal research or
empirical research.

For further research this can be a means of doctrinal research.

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 Chapter 1 WHO ARE VICTIM’S?
“Victim” has been defined under section 2(wa) under Code Of Criminal Procedure. “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.5
A victim is defined as a person who has suffered physical or emotional harm, property
damage, or economic loss as a result of a crime. The rights are available to a victim who is in
Canada or who is a Canadian citizen or permanent resident.

The following people can exercise a victim’s rights if the victim is dead or not able to act on
his or her own behalf:

 A victim’s spouse
 A common law partner who has lived with the victim for at least one year prior to the
victim’s death
 A relative or dependant of the victim
 Anyone who has custody of the victim or of the victim’s dependant

A person who has been charged, convicted, or found not criminally responsible due to a
mental disorder for the offence that resulted in the victimization is not defined as a victim.
For example, if a parent has been charged with abuse of a child, that parent will not be
allowed to exercise the child victim’s rights or their own rights as a parent.

Although a victim of crime is not a party in criminal proceedings, they play a vital role in the
criminal justice process. Their testimony is a very important part of the prosecutor’s case
against the accused.6

Exercising rights:
Victims of crime are able to exercise their rights under the Canadian Victims Bill of Rights
while an offence is being investigated or prosecuted and while the offender is going through
the corrections or conditional release process.7

5
Sec 2(wa), CrPC criminal manual by Justice M. R. Mallick pg no. 07. Inserted by act 5 of 2009 (w.e.f. 31-12-
2009)
6
Who is a victim of crime http://www.justice.gc.ca/eng/cj-jp/victims-victimes/rights-droits/who-qui.html
retrieved at: 23:16, 10-04-2018.
7
ibid

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The offence committed against the victim must fall under the Criminal Code, the Youth
Criminal Justice Act, or the Crimes Against Humanity and War Crimes Act. The rights also
apply to some offences under the Controlled Drugs and Substances Act and parts of the
Immigration and Refugee Protection Act.8
The rights apply to offences which occur in Canada. They also apply if the offence is
investigated and prosecuted in Canada or if the offender is serving a sentence or conditional
release in Canada.
For cases in which an accused has been found unfit to stand trial or not criminally responsible
on account of mental disorder, the victim can exercise the rights while the accused is under
the jurisdiction of a court or a review board.

Implementation during investigations and court proceedings

Rights are to be applied in a reasonable manner so they do not interfere with police,
investigations, prosecutions or court proceedings nor endanger a person’s life and safety.

When rights are not respected

Victims have the right to make a complaint if they believe their rights have not been
respected by a federal department or agency. All federal departments and agencies that have
responsibilities under the Canadian Victim Bill of Rights need to provide a way for victims to
file complaints.9
Complaints against a provincial or territorial agency, like police or victim services, will be
addressed through the appropriate provincial or territorial laws.
Victimology is the study of victimization, including the psychological effects on victims,
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.10 Victimology is, however, not restricted to the study of
victims of crime alone but may include other forms of human rights violations.

8
Supranote 1
9
Supranote 2
10
Victimology https://en.wikipedia.org/wiki/Victimology retrieved at 11-04-2018, 00:47

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Victim of a crime
In criminology and criminal law, a victim of a crime is an identifiable person who has been
harmed individually and directly by the perpetrator, rather than by 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 crime against a particular individual. Victims
of white collar crime are often denied their status as victims by the social construction of the
concept (Croall, 2001). The concept also remains a controversial topic within women's
studies.11
The Supreme Court of the United States first recognized the rights of crime victims to make a
victim impact statement during the sentencing phase of a criminal trial in the case of Payne v.
Tennessee 501 U.S. 808 (1991).
A victim impact panel, which usually follows the victim impact statement, is a form of
community-based or restorative justice in which the crime victims (or relatives and friends of
deceased crime victims) meet with the defendant after conviction to tell the convict about
how the criminal activity affected them, in the hope of rehabilitation or deterrence.
Every crime produces a victim(s). The victims are generally considered as mere informants or
witnesses in criminal trials, assisting the state in its endeavor to punish offenders, are now
becoming the focal points of our criminal justice system. The criminal justice system is
basically meant to redress the victimization of these victims and to address the issues
surrounding him. However getting justice in Indian criminal justice system was never a bed
of roses for the victims of offence. 12 The last few decades however witnessed groundbreaking
reforms in the approach of legal systems nationally as well as internationally with reforms not
only in statutory laws but also even in judicial approach towards the victims of crime.
Victim compensation is one of the major aspects in reparation of the harm or injury caused to
the victim due to the commission of the crime. Monetary assistance in one-way or the other
always benefits the victims in the mitigation of their sufferings. The renaissance of the
prominence of victims in legal system is however a recent phenomenon.

Ancient History of Victim Compensation

The ancient Indian History is a witness to the fact that the victims of crimes have sufficient
provisions of restitution by way of compensation to injuries. Author of the book, “General
Principle of Hindu Jurisprudence” Dr. Priyanath Sen has observed-

11
Victim of a crime https://en.wikipedia.org/wiki/Victimology retrieved at 11-04-2018, at 00:47
12
ibid

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“It is, however, remarkable that in as much as it was concerned to be the duty of the King to
protect the property of his people, if the King could not restore the stolen articles or recover
their price for the owner by apprehending the thief, it was deemed to be his duty to pay the
price to the owner out of his own treasury, and in his turn he could recover the same from the
village officers who by reason of their negligence, were accountable for the thief’s escape.“13
Reparation or compensation as a form of punishment is found to be recognized from ancient
time in India. In ancient Hindu law, during Sutra period, awarding of compensation was
treated as a royal right. The law of Manu, requires the offender to pay compensation and pay
the expenses of cure in case of injuries to the sufferer and satisfaction to the owner where
goods were damaged. In all cases of cutting of a limb, wounding or fetching blood, the
assailant shall pay the expenses of a perfect cure or in his failure, both full damages and a
fine. It shows that the victim compensation was never an alien concept in the justice delivery
systems of the country. The edifice of the law in our present day legal system relating to the
victim compensation are provisions contained in the Criminal Procedure Code, 1973 and
various judgments of the Hon’ble Supreme Court. The question that arises for consideration
is that despite having laws for victim compensation are these laws being satisfactorily used
by those on who lies the duty of the execution of these laws and to give beneficial effects to
it. Answer is very infrequently. The reasons are many.14

Some more prominent are like the 12th century distinction of English law of wrongs into civil
wrongs and criminal wrongs which leads to misconception that the area of compensation is
something exclusively belonging to the domain of civil law and others less obvious like the
ignorance of those who can give effect to these benefactions. The present criminal justice
system is based on the assumption that the claims of a victim of crime are sufficiently
satisfied by the conviction of the perpetrator.15 It is a truth that in our present day adversarial
legal system between the state and the accused, the victim is not only neglected but is lost in
silence. The role of the victim is limited to report the offence and depose in the court on
behalf of prosecuting party, which is the State. That’s all. The Malimath Committee reflected
on the present criminal justice system that not only the victim’s right to compensation was
ignored except as token provision under the Criminal Procedure Code but also the right to
participate as the dominant stakeholder in criminal proceedings was taken away from him. He
13
Ancient history of victim compensation http://indianlawwatch.com/practice/law-relating-to-victim-
compensation/ retrieved at 11-04-2018 at 00:52
14
ibid
15
ibid

11 | P a g e
has no right to lead evidence, he cannot challenge the evidence through cross-examination of
witnesses nor can he advance arguments to influence decision-making.
“Section 357 of Cr. P.C. is an important provision but courts have seldom invoked it.16
Perhaps due to ignorance of the object of it, this Section of law empowers the court to award
compensation while passing judgment of convicting. In addition to conviction, the court may
order the accused to pay some amount by way of compensation to the victim, who has
suffered by the action of the accused.17 This power to award compensation is not ancillary do
other sentences but it is in addition crime as well as reconcealing 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 system.”
Besides that, compensatory jurisprudence has also emerged in the light of human
rights philosophy as a dynamic interpretation of Art. 21 of the Constitution. “There are a
large number of reported judgements of Supreme Court as well as High Courts which deal
with the problem of compensation under Arts. 32 and 226, for breach of public law duties,
negligent acts of officers of state, illegal detention, custodial death, rape, torture etc. and
creating a new right by way of interpretation of the constitution in human rights approach.
The courts have adopted these new measures for making the human rights as well as
constitutional rights meaningful, effective and have emerged as the champion of the weak,
poor and underprivileged people. The power of the constitutional courts is not only injunctive
in ambit, but it is also remedial in scope. Our judiciary is not legging behind in exercising
extraordinary constitutional jurisdiction and open a new humanistic compensatory
jurisprudence by awarding payment of compensation in appropriate cases not in all cases.18

16
(1981) 1 SCC 107; also followed in Ankush Shivaji Gaikwad v. State of Maharashtra, Criminal
Appeal no. 689 of 2013 decided on 11th April, 2018.Retrieved from: www.supremecourtofindia.com
17
The Criminal Amendment Act, 2008
18
Singh, Ravi Karan “Evolution of Compensatory Jurisprudence Through Writ Jurisdiction 30, Punjabi
University Law Journal, vol. III, (2018)

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 Chapter II OVERVIEW OF VICTIM’S RIGHT
Ancient History of Victim Compensation
The ancient Indian History is a witness to the fact that the victims of crimes have sufficient
provisions of restitution by way of compensation to injuries. Author of the book, “General
Principle of Hindu Jurisprudence” Dr. Priyanath Sen has observed-

“It is, however, remarkable that in as much as it was concerned to be the duty of the King to
protect the property of his people, if the King could not restore the stolen articles or recover
their price for the owner by apprehending the thief, it was deemed to be his duty to pay the
price to the owner out of his own treasury, and in his turn he could recover the same from the
village officers who by reason of their negligence, were accountable for the thief’s escape.“19

Reparation or compensation as a form of punishment is found to be recognized from ancient

time in India. In ancient Hindu law, during Sutra period, awarding of compensation was
treated as a royal right. The law of Manu, requires the offender to pay compensation and pay
the expenses of cure in case of injuries to the sufferer and satisfaction to the owner where
goods were damaged. In all cases of cutting of a limb, wounding or fetching blood, the
assailant shall pay the expenses of a perfect cure or in his failure, both full damages and a
fine. It shows that the victim compensation was never an alien concept in the justice delivery
systems of the country. 20The edifice of the law in our present day legal system relating to the
victim compensation are provisions contained in the Criminal Procedure Code, 1973 and
various judgments of the Hon’ble Supreme Court. The question that arises for consideration
is that despite having laws for victim compensation are these laws being satisfactorily used
by those on who lies the duty of the execution of these laws and to give beneficial effects to
it. Answer is very infrequently. The reasons are many.

Some more prominent are like the 12th century distinction of English law of wrongs into civil
wrongs and criminal wrongs which leads to misconception that the area of compensation is
something exclusively belonging to the domain of civil law and others less obvious like the
ignorance of those who can give effect to these benefactions. 21 The present criminal justice

19
Ancient history of victims compensation http://indianlawwatch.com/practice/law-relating-to-victim-
compensation/ retrieved at 16-04-2018, 19:00
20
ibid
21
ibid

13 | P a g e
system is based on the assumption that the claims of a victim of crime are sufficiently
satisfied by the conviction of the perpetrator. It is a truth that in our present day adversarial
legal system between the state and the accused, the victim is not only neglected but is lost in
silence. The role of the victim is limited to report the offence and depose in the court on
behalf of prosecuting party, which is the State. That’s all. The Malimath Committee reflected
on the present criminal justice system that not only the victim’s right to compensation was
ignored except as token provision under the Criminal Procedure Code but also the right to
participate as the dominant stakeholder in criminal proceedings was taken away from him. He
has no right to lead evidence, he cannot challenge the evidence through cross-examination of
witnesses nor can he advance arguments to influence decision-making.

 Ingredients
Section 357 Cr.PC: Order to pay compensation
(1)     In case of Conviction and Fine is part of Sentence to Accused

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-22

(a)     Expenses in Prosecution: In covering the expenses properly incurred in the  

prosecution;

(b)     Compensation to Victim: 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)     Compensation in case of Death: 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, the fine imposed may be used in paying   compensation to the persons who are
covered for relief 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)     Compensation of Victim in other Offense: 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

22
Ingredients of victims right to compensation http://indianlawwatch.com/practice/law-relating-to-victim-
compensation/ retrieved at 16-04-2018, 19:12

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 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)     Payment of Compensation subject to Appeal

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.

(3)     Sentences without Fine

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.

(ii)     The Court empowered to impose Compensation

The High Court or Court of Session or appellate court, when exercising its powers of revision
may also make an order under aforesaid section. 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.23

Section 357 read with Section 357A of the CrPC.

Under this provision 357 A Code of Criminal Procedure, the State is also liable to pay
compensation to the victims of crime apart from the accused under section 357 Code of
Criminal Procedure. There are many situations after the commission of the offences in which
the compensation can be awarded.24

o At the conclusion of the trial.

o Inadequate compensation
o Accused not traceable or no trial commenced

23
Supranote 3
24
Supranote 4

15 | P a g e
Earlier under section 357, the compensation was awarded only in the eventuality of the
conviction of the accused but now not only on conviction but also on acquittal or discharge of
the accused or in case of untraced status of the accused, compensation can be granted. This is
a positive development that takes into account practical reality of an already crumbling
criminal justice system, which is not in a position to bring to book all offenders. It means that
the new section 357 A Code of Criminal Procedure has substantially widened the scope of
compensating the victims of crimes.25

According to Fattah (1966),48 “the Victim may be specific such as physical or moral
person (Corporation, State, and Association) or non specific-and an abstraction.” Quinney
(1972) defines “The victim is a conception of reality as well as an object of events. All parties
involved in sequence of actions construct the reality of the situation. And in the larger social
contacts, we all engage in common sense construction of the crime, the criminal, and the
victims”49. Separovic (1975) states “We consider a victim as anything, physical or moral
person who suffers either as a result of ruthless design or accidentally. Accordingly we have
victim of crime or offence and victims of accidents.”50.Castro (1979) says “A Victim is a
variable of crime or is an accident producing factor for others and for him.”51 In wider
perspective defined by Roy Lambron (1983-84) “___ a person who has suffered physical or
mental injury or harm, mental loss or damage or other social disadvantage as result of
conduct. 26
1. In violation of national penal laws, or
2. deemed a crime under international laws; or
3. constructing a violation of internationally recognized human rights, norms, protecting life,
liberty and personal security; or
4. which otherwise amounts to “an abuse of power” by persons, who, by reason of their
position of power by authority derived from political, economic or social
power, whether they are public officials, agents or employees of the state or corporate
entities, are beyond the reach of the loss which;
5. although not prescribed by national or international law, causes physical, psychological or
economic harm as severe as that caused by abuses of power constituting a violation of
internationally recognized human rights norms and create needs in victims as serious as those
caused by violations of such norms” Thus the term ‘Victim’ means a person who has been
25
Inserted by The Code of Criminal Procedure (Amendment) Act, 2008, Received the assent of the
President on 7th January, 2009, Act Published in the Gazette Of India 9-1-2009, Part II Schedule 1
Extraordinarily P.1 (No.6).
26
Rai, H.S. “Compensation Jurisprudence and Victims of Crime” 334, Cr.L.J, (2004).

16 | P a g e
victimized by another person against whom legal action may be taken for compensation and
allied relief. Victim in relation to criminal justice administration means victims of rape,
victims of murder, victims of cheating, victims of criminal breach of trust etc. i.e. victims of
crime only. 53 In 2008, an amendment in Cr. P.C. s.2(wa)54 defines that “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 should cover wider area.27

27
ibid

17 | P a g e
Chapter III CONSTITUTIONAL VALIDITY OF VICTIM’S
COMPENSATION
Constititional framework
The Constitutional provisions as to Fundamental Rights especially Article 14 and 21 could be
widely interpreted so as to include rights of the victims of crime including right to
compensation. Similarly, the constitutional remedies151 for human rights violations, is
extensively applicable to the victims of crime. There are provisions in part IV of the
constitution in Directive principles of state Policy which could be liberally construed to cover
victims of crime entitling them the right to compensation. Art 38(1) provides that state shall
strive to promote welfare of the people by securing and protecting as effectively as it may a
social order in which social, economic and political shall inform all institutions of national
life. This provision if interpreted creatively is inclusive of victims rights. Similarly Art 39
which provides for policies to be followed by the state to secure economic justice and Art 40
which provide for equal justice is inclusive of victims rights to compensation. Article41 inter
alia states that state shall make effective provisions for “securing public assistance in the
“cases of disablement” and in the “case of undeserved want”. The expressions disablement
and other cases of undeserved want could be surely interpreted to include victims of crime
and hence is state is obliged to provide public assistance to victims by way of monetary
compensation apart from guaranteeing other rights to them. 28 These directives though non
justiciable, imposes obligation on the state to take positive action for the welfare of the
people. Moreover many of the Directives are elevated to the status of Fundamental Rights by
judicial decisions.154 Apart from these, as per Art 51-A of the constitution it is the
Fundamental duty of every citizen of India, “... to have compassion for living creatures” and
“to develop humanism29”. These provisions also could be creatively interpreted as to include
victims of crime.
The renaissance of the doctrine of natural rights in the form of human rights across the globe
is a great development in the jurisprudential field in the contemporary era. A host of
international covenants on human rights and the concern for effective implementation of
them are radical and revolutionary steps towards the guarantee of liberty, equality and justice.

28
Art 38(1) of the Constitution of India which provides that state shall strive to promote welfare of the people by
securing and protecting as effectively as it may a social order in which social, economic and political shall
inform all institutions of national life.
29
Art 32 and Art226 of the Constitution of India. In fact honourable Supreme Court has in several cases granted
compensation to the victims for human rights violations under public law remedy.

18 | P a g e
30
Though the concept is new, the content is not and these rights have been recognised since
ages and have become part of the constitutional mechanism of several countries. India
recognised these rights under Part III of the Constitution providing remedies for enforcement
of such rights. Article 32 of the Constitution of India reads as follows: "32. Remedies for
enforcement of rights conferred by this Part.-(1) The right to move the Supreme Court by
appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.
(2) The Supreme Court shall have power to issue directions or orders or writs, including writs
in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari,
whichever may be appropriate, for the enforcement of any of the rights conferred by this Part.
Article 32(1) provides for the right to move the Supreme Court by appropriate proceedings
for the enforcement of the fundamental rights. The Supreme Court under Article 32(2) is free
to devise any procedure for the enforcement of fundamental right and it has the power to
issue any process necessary in a given case. In view of this constitutional provision, the
Supreme Court may even give remedial assistance, which may include compensation in
"appropriate cases". A question regarding the awarding of monetary compensation through
writ jurisdiction was first raised before the Supreme Court in Khatri (II) v. State of Bihar1 In
this case, Bhagwati, J. observed: "Why should the court not be prepared to forge new tools
and devise new remedies for the purpose of vindicating the most precious of the precious
fundamental right to life and personal liberty."2 Regarding the liability of the State to pay
compensation for infringing Article 21, the Court answered in the affirmative saying that if it
were not so, Article 21 will be denuded of its significant content. The Court further observed
that where there are issues of the gravest constitutional importance involving as they do the
exploration of a new dimension of the right to life and personal liberty, it has to lay down the
correct implications of the constitutional right in Article 21 in the light of the dynamic
constitutional jurisprudence, which the Court is evolving. In Sant Bir v. State of Bihar3 the
question of compensating the victim of the lawlessness of the State was left open.

. In Veena Sethi v. State of Bihar4 also the Court observed that the question would still
remain to be considered whether the petitioners are entitled to compensation from the State
Government for the contravention of the right guaranteed under Article 21 of the
Constitution. In the light of the views expressed by the Court in the above cases it can be said
that the Court had shown its concern for the protection of right to life and liberty against the

30
Article 32 and remedy to the compensation http://www.supremecourtcases.com/index2.php?
option=com_content&itemid=5&do_pdf=1&id=272 retrieved at 16-04-2018

19 | P a g e
lawlessness of the State but did not actually grant any compensation to the victims. The seed
of compensation for the infraction of the rights implicit in rticle 21 was first sowed in
Khatri1, Sant Bir3 and Veena Sethi4, which sprouted with such a vigorous growth that it
finally enabled the Court to hold that the State is liable to pay compensation. This dynamic
move of the Supreme Court resulted in the emergence of compensatory The jurisprudence for
the violation of right to personal liberty through Rudul Sah
The Supreme Court of India in Rudul Sah v. State of Bihar31 brought about a revolutionary
breakthrough in human rights jurisprudence by granting monetary compensation to an
unfortunate victim of State lawlessness on the part of the Bihar Government for keeping him
in illegal detention for over 14 years after his acquittal of a murder charge. Till the
pronouncement made in the above case, the Supreme Court was hesitating to recognise the
principle of monetary compensation for violation of fundamental rights while acknowledging
the inadequacy of conventional judicial remedies in this type of cases. The concern of the
highest court to do justice rather than mechanically applying the law based on precedents is
reinforcing the credibility of the judiciary among the public, especially the helpless have-
nots.

Though there is no express provision for awarding compensation under Article 32 of the
Constitution of India, it is interesting to mention about the development of the law regarding
compensatory jurisprudence with reference to the experience in India and some other
countries. Article 5(5) of the European Convention for the Protection of Human Rights and
Fundamental Freedoms provides that "everyone who has been the victim of arrest or
detention in contravention of the provisions of this article shall have an enforceable right to
compensation". This right must be provided for within the national legal system, that is, a
remedy must be made available under the domestic law and enforceable in a domestic court.
The basic duty of the State is to ensure that a breach of Article 5 may be remedied by way of
compensation in the domestic legal system. Where, under the law of a State the Convention
forms part of the law of the land, there is less likelihood of difficulty in complying with this
paragraph, but where "transformation" or specific adaption is required constitutionally, and if
this has not occurred, a problem may arise. In the case of Brogan and others of 1988, the
detention of the applicants had been in conformity with British law but was ruled to have
breached the Convention provisions.

31
Article 32 and remedy to the compensation http://www.supremecourtcases.com/index2.php?
option=com_content&itemid=5&do_pdf=1&id=272 retrieved at 16-04-2018

20 | P a g e
The Court rejected the UK Government's argument that "lawfulness" referred to in the text
applied only to domestic law. Thus compensation was payable, and failure to provide this as
of right resulted in a breach of the article.6 But even where the Convention is part of the law
of the land, the Human Rights Commission and Human Rights Court at Strasbourg have the
duty to consider the legal effect of incorporation to ensure that the practical result was indeed
to confer an effective right on individuals to compensation, a point made in the 1989 case of
Ciulla v. Italy7 Mere incorporation or replication may not thus suffice. Article 9(5) of the
International Covenant on Civil and Political Rights of 1966 indicates that an enforceable
right to compensation is not alien to the concept of enforcement of a guaranteed right. Article
9(5) reads as follows: "Anyone who has been the victim of unlawful arrest or detention shall
have an enforceable right to compensation." India adopted the Covenant with a reservation
regarding the enforceable right to compensation. The Declaration by the Government of India
dated 10-4-1979 in respect of Article 9(5) is as under: Declaration II.-With reference to
Article 9 of the International Covenant on Civil and Political Rights, the Government of the
Republic of India takes the position that the provisions of the article shall be so applied as to
be in consonance with the provisions of clauses (3) to (7) of Article 22 of the Constitution of
India. Further under the Indian legal system, there is no enforceable right to compensation for
persons claiming to be victims of unlawful arrest or detention against the State. 32

The Supreme Court of India in D.K. Basu8 made the following observation with reference to
the above Covenant: The Government of India at the time of its ratification of International
Covenant on Civil and Political Rights, in 1979 had made a specific reservation to the effect
that the Indian legal system does not recognise a right to compensation for victims of
unlawful arrest or detention and thus did not become a party to the Covenant. That
reservation, however, has now lost its relevance in view of the law laid down by this Court in
a number of cases awarding compensation for the infringement of the fundamental right to
life of a citizen.9 Article 32 of the Constitution of India confers power on the Supreme Court
to issue direction or order or writ, including writs in the nature of habeas corpus, mandamus,
prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement
of any of the rights conferred by Part III of the Constitution. The right to move the Supreme
Court by appropriate proceedings for the enforcement of the rights conferred by Part III is
"guaranteed", that is to say, the right to move the Supreme Court under Article 32 for the

32
Article 32 and remedy to the compensation http://www.supremecourtcases.com/index2.php?
option=com_content&itemid=5&do_pdf=1&id=272 retrieved at 16-04-2018

21 | P a g e
enforcement of any of the rights conferred by Part III of the Constitution is itself a
fundamental right. The approach of redressing the wrong by award of monetary
compensation against the State for its failure to protect the fundamental right of the citizen
has been adopted by the courts of Ireland, which has a written Constitution, guaranteeing
fundamental rights, but which also like the Indian Constitution contains no provision of
remedy of compensation for the infringement of those rights. That has, however, not
prevented the courts in Ireland from developing remedies, including the award of damages,
not only against individuals guilty of infringement, but also against the State itself. The
enlightening observations of the Chief Justice in State (at the prosecution of Quinn) v.
Ryan,10 deserve special notice.33 The learned Chief Justice said: The Practical Lawyer.
Eastern Book Company Generated: Monday, April 16, 2018 It was not the intention of the
Constitution in guaranteeing the fundamental rights of the citizen that these rights should be
set at naught or circumvented. The intention was that rights of substance were being assured
to the individual and that the courts were the custodians of those rights. As a necessary
corollary, it follows that no one can with impunity set these rights at naught or circumvent
them, and that the court's powers in this regard are as ample as the defence of the
Constitution requires.

Chapter IV VICTIM’S RIGHT TO COMPENSATION

Who is a victim of crime

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option=com_content&itemid=5&do_pdf=1&id=272 retrieved at 16-04-2018

22 | P a g e
  Any person, group, or entity who have suffered harm, injury or loss due to illegal
activities of others. The harm may be economical, mental, or physical.
 Thus any person who has suffered harm because of violation of criminal law is a
victim.
 A person will be considered as a victim even when the offender is not identified
or prosecuted.  Term victim also includes individuals who have suffered harm as a
result of assisting victims in distress or to prevent victimization.
 Not only the person who suffered loss or injury are the victim, but in some cases,
the near and dear of victims (family members) are also the victims.

Can a victim of crime get compensation in India

Yes. A victim of the offence can get compensation in India. But there is a procedure which
needs to be followed. We will discuss the procedure at length in the later part of this article.34

How can the compensation be sought

The compensation has to be ordered by the court. Compensation can be sought through the
procedure established by the court. Compensation is awarded for material as well as non-
material damages. Material damages include medical expenses, loss of livelihood, etc. Non-
material damages include pain, suffering, mental trauma,  etc. In criminal cases, the victims
can directly apply for the compensation, and it is the duty of the lawyer representing the
victim to demand such compensation.

Laws governing compensation of victims of crime in India

34
Compensation of victim of crime in India https://blog.ipleaders.in/compensation-victim-crime-india/
retrieved at 16-04-2018, 20:18

23 | P a g e
  The provisions relating to compensation to victims of crime are contained in
sections 357, 357(1), 357 (2), 357 (3), 357A, 358, 359 and 250 of the Code of
Criminal Procedure, 1973.
 Constitution of India also provides for certain safeguards to the victim of crime.
Article 14 and 21 of the Constitution supports the argument.35

Victim compensation under The Code of Criminal Procedure, 1973

When an accused is proven guilty, and the court passes an order which contains a fine of any
denomination, the court can order such fine or any part of it to be paid to the victim of crime.
The fine imposed is utilised to compensate the victim of fine in the following ways.

#1 Compensating for the expenses incurred during litigation (357 1 a)

 This is the essential relief which a victim of a crime must get. Litigation costs in
India are very arbitrary. The lawyer charges hefty amount. Getting justice at times
adds to the burden of the victim itself. Instead of getting justice, the victim is
trapped in the honeycomb of justice delivery system.
 The court knows this fact and thus, compensate victim by providing them the
expenses incurred during litigation.

#2 Compensation for loss or injury to be recovered by the civil court

 If the court is of the view that, the compensation sought is beyond the jurisdiction
of the court, the court itself orders the appropriate court to look into the matter.
 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.

35
ibid

24 | P a g e
#3 Compensation in case of death

 One might question the fact that, who is the victim where death has been caused?
As the victim is already dead, who should be compensated for the crime?
 It is the family of the victim. Think of the mental trauma they might have gone
through. Medical expenses incurred, expenses during last rites. What if the victim
who died was the sole bread earner of the family?
 The Court is well aware of such situation. Therefore, the legislature and the
judiciary tied their hands to do complete justice.36
 Victims are entitled to recover damages from the person sentenced for the loss
resulting to them from such death. When any person is convicted of any offence
for having caused the lives of another person or of having abetted the commission
of such a crime.

#4 Compensation of victim of crime in offences like theft, cheating, criminal breach of

trust, etc

In cases of crime such as theft, cheating, criminal breach of trust, criminal

misappropriation, the Court either tries for recovery of goods and in the case where

recovery is not possible court orders for compensation for the price of such goods.

The accused person in such case may be ordered by the court to pay a certain sum as
compensation to the victim of crime who suffered loss or injury. Indian legal system is victim
friendly. Victim’s rights are kept at the top of the priority list.

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

36
ibid

25 | P a g e
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.

VICTIM COMPENSATION SCHEME

In 2009, the central government gave directions to every state to prepare a scheme which has
to be in agreement with the center’s scheme for victim compensation. The primary purpose of
the scheme is to provide funds for the purpose of compensation to the victim or his
dependents who have suffered loss or injury as a result of the crime and who require
rehabilitation.37

Quantum of compensation under the scheme

It is the court which orders that the victim who suffered loss needs to get compensated. Under
the scheme, 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,  decides the
quantum of compensation to be awarded.

Compensation in cases where the accused is not found guilty or the culprits are not

traced

Where the cases end in acquittal or are discharged, and the victim has to be rehabilitated, the
court may make a recommendation for compensation.Where the offender is not traced or
identified, but the victim is identified, and where no trial takes place, the victim or his
dependents may make an application to the State or the District Legal Services Authority for
an award of compensation.

37
ibid

26 | P a g e
Who  is to provide compensation in the above case

 The State or the District Legal Services Authority shall, after due enquiry-award
adequate compensation by completing the inquiry within two months.
 Also, it is the duty of the State or the district legal service authority to provide an
immediate first-aid facility or medical benefits to the victim free of cost on the
certificate of the police.38

Treatment of victim of crime

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 the following of
the Indian Penal Code,

 376 (Rape)
 376A (intercourse by a man with his wife during separation)
 376 B (intercourse by a public servant with a woman in his custody), 376 C
(Intercourse by superintendent of jail or a remand home), 376 D (intercourse by
any member of the staff of a hospital with any woman in that hospital) of the
Indian Penal Code.
 376 C (Intercourse by superintendent of jail or a remand home),
 376 D (intercourse by any member of the staff of a hospital with any woman in
that hospital) of the Indian Penal Code

What to do in case of inadequate compensation

If the trial Court, at the conclusion of the hearing, is satisfied, that the compensation awarded
under section 357 is not adequate for such rehabilitation, or where the cases end in acquittal

38
ibid

27 | P a g e
or discharge and the victim has to be rehabilitated, it may make a recommendation for
compensation.

When is the compensation to be provided

 Along with the duty of the offender, it is the duty of the state too, to compensate
the victim. Compensation to the victim of crime can be provided:
 At the conclusion of the trial. That is on the orders of the court.
 When inadequate compensation is granted by the lower court to the victim of
crime, the Appellate Court might increase the compensation.
 Where accused is not traceable, it becomes the duty of the state to compensate the
victim of the crime.

CENTRAL VICTIM COMPENSATION FUND SCHEME

The Central government in 2015 formulated the CVCF scheme to compensate the
determined. Every state has their own guidelines which decide the procedure. An attempt has
been made by iPleaders to bring forth the procedure by examining different scheme of the
different states. This is a standard procedure which one might follow. To know the exact step
by step procedure, please see your state’s guidelines on Victim compensation fund.39

Step 1 Making an application before the District/State  Legal Service Authority

 An application can be made for temporary or final compensation. It can be filed

by the Victims or their dependents or the SHO of the area.
 The application must be submitted along with a copy of the First Information
Report (FIR), medical report, death certificate, if available, copy of judgment/
recommendation of court if the trial is over, to the State or District Legal Services
Authority
39
ibid

28 | P a g e
Step 2 The scrutiny stage.

District Legal Service Authority of every state first verify the content of the claim. Specific
loss, injury, rehabilitation is taken into consideration.

Step 3 Deciding the quantum of compensation to be given to victim of crime

The quantum of compensation to be granted is decided on the following factors,

 The gravity of the offence and the loss suffered by the victim.
 Medical expenditure incurred during treatment.
 Loss of livelihood as a result of injury or trauma.
 Whether the crime was a single isolated event (Example Theft) or whether it took
place over an extended period of time (Example multiple times, Rape with a
woman who has been locked in a house)
 Whether the victim became pregnant as a result of such offence.
 In the case of death, the age of deceased, his monthly income, the number of
dependents, life expectancy, future promotional/growth prospects etc.
 Or any other factor which the Legal Service Authority might deem fit.

Step 4 Method of disbursement of compensation

 The amount of compensation so awarded shall be disbursed by the respective

Legal Service Authority by depositing the same in a Nationalized Bank in the
joint or single name of the victim/dependent(s).40

 Out of the amount so deposited, 75% (seventy-five percent) of the same shall be
put in a fixed deposit for a minimum period of three years.

40
ibid

29 | P a g e
  The remaining 25% (twenty-five percent) shall be available for utilization and
initial expenses by the victim/dependent(s), as the case may be.
 In the case of a minor, 80% of the amount of compensation so awarded, shall be
deposited in the fixed deposit account and shall be drawn only on attainment of
the age of majority, but not before three years of the deposit

The amount of compensation will increase by 50% if the victim is below 14 years of age

30 | P a g e
Where to complain when the compensation is released by the authority, but the same
has not reached in the hands of the victim

 This is an unforeseen situation which can further worsen the

condition of the victim.
 Where the funds are released, but the allotted fund has not
reached to the victim, it is preferred to go in person to the
District/Legal Service Authority and complain the same. The Legal
Service Authority might ask you to inquiry the same with the bank
authorities. Do as advised by the Legal Service Authority.
 District/Legal Service Authority is designed to help the people,
and they are performing their duty well. But if the issue is not
redressed yet, there is no other option left than to fight another
legal battle.41
 It is advised to file a writ petition in the High Court under Article
226 of the Indian Constitution.

Conclusion and Suggestion

41
ibid

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Victim’s compensation has always been the weeping beggar at the door of criminal justice.
Although, it is an age old concept but its development on more scientific lines and also as
branch of criminology has begun since a few decades ago. Several countries have taken up
the different schemes of payment of compensation to their victims of crime. These are taken
through different legislative measures. In India as well there are different statutory provisions
in criminal justice under which the compensation can be awarded to the victim of crime, viz.
Fatal Accident Act, 1855, Probation of Offenders Act, 1958 and Code of Criminal Procedure,
1973.
A victim impact panel, which usually follows the victim impact statement, is a form of
community-based or restorative justice in which the crime victims (or relatives and friends of
deceased crime victims) meet with the defendant after conviction to tell the convict about
how the criminal activity affected them, in the hope of rehabilitation or deterrence.
Every crime produces a victim(s). The victims are generally considered as mere informants or
witnesses in criminal trials, assisting the state in its endeavor to punish offenders, are now
becoming the focal points of our criminal justice system. The criminal justice system is
basically meant to redress the victimization of these victims and to address the issues
surrounding him. However getting justice in Indian criminal justice system was never a bed
of roses for the victims of offence. The last few decades however witnessed groundbreaking
reforms in the approach of legal systems nationally as well as internationally with reforms not
only in statutory laws but also even in judicial approach towards the victims of crime.
Victim compensation is one of the major aspects in reparation of the harm or injury caused to
the victim due to the commission of the crime. Monetary assistance in one-way or the other
always benefits the victims in the mitigation of their sufferings. The renaissance of the
prominence of victims in legal system is however a recent phenomenon.

According to Fattah (1966),“the Victim may be specific such as physical or moral

person (Corporation, State, and Association) or non specific-and an abstraction.” Quinney
(1972) defines “The victim is a conception of reality as well as an object of events. All parties
involved in sequence of actions construct the reality of the situation. And in the larger social
contacts, we all engage in common sense construction of the crime, the criminal, and the
victims”49. Separovic (1975) states “We consider a victim as anything, physical or moral
person who suffers either as a result of ruthless design or accidentally. Accordingly we have
victim of crime or offence and victims of accidents.”50.Castro (1979) says “A Victim is a

32 | P a g e
variable of crime or is an accident producing factor for others and for him.”51 In wider
perspective defined by Roy Lambron (1983-84) “___ a person who has suffered physical or
mental injury or harm, mental loss or damage or other social disadvantage as result of
conduct.
The Court rejected the UK Government's argument that "lawfulness" referred to in the text
applied only to domestic law. Thus compensation was payable, and failure to provide this as
of right resulted in a breach of the article.6 But even where the Convention is part of the law
of the land, the Human Rights Commission and Human Rights Court at Strasbourg have the
duty to consider the legal effect of incorporation to ensure that the practical result was indeed
to confer an effective right on individuals to compensation, a point made in the 1989 case of
Ciulla v. Italy7 Mere incorporation or replication may not thus suffice. Article 9(5) of the
International Covenant on Civil and Political Rights of 1966 indicates that an enforceable
right to compensation is not alien to the concept of enforcement of a guaranteed right. Article
9(5) reads as follows: "Anyone who has been the victim of unlawful arrest or detention shall
have an enforceable right to compensation." India adopted the Covenant with a reservation
regarding the enforceable right to compensation. The Declaration by the Government of India
dated 10-4-1979 in respect of Article 9(5) is as under: Declaration II.-With reference to
Article 9 of the International Covenant on Civil and Political Rights, the Government of the
Republic of India takes the position that the provisions of the article shall be so applied as to
be in consonance with the provisions of clauses (3) to (7) of Article 22 of the Constitution of
India. Further under the Indian legal system, there is no enforceable right to compensation for
persons claiming to be victims of unlawful arrest or detention against the State

The compensation has to be ordered by the court. Compensation can be sought through the
procedure established by the court. Compensation is awarded for material as well as non-
material damages. Material damages include medical expenses, loss of livelihood, etc. Non-
material damages include pain, suffering, mental trauma,  etc. In criminal cases, the victims
can directly apply for the compensation, and it is the duty of the lawyer representing the
victim to demand such compensation.

Bibliography

33 | P a g e
Websites
 http://indianlawwatch.com/practice/law-relating-to-victim-compensation/

 http://devgan.in/criminal_procedure_code/section/357A/

 https://indiankanoon.org/search/?formInput=victim%20compensation%20scheme

 http://ijldai.thelawbrigade.com/wp-content/uploads/2016/01/AnusreeA

 http://victimsofcrime.org/our-programs/dna-resource-center/untested-sexual-assault-
kits/victims'-rights-and-sexual-assault-kits/right-to-apply-for-compensation

 https://www.mpicc.de/en/forschung/forschungsarbeit/kriminologie/archiv/victim_righ
ts.html

 https://lawschoolnotes.wordpress.com/2016/10/04/a-brief-study-of-concepts-of-
victimology-and-rights-of-victims-under-indian-law/

34 | P a g e