CHAPTER-IV

Role of the Judiciary

In the modern era in the Indian criminal justice administration the idea of

victim compensation has been developed by two fold initiatives undertaken by the

Apex Court and various reports and recommendations of commissions and

committees. Among them the decisions of courts, particularly the Apex court of India

are the main source.1

In the criminal justice system compensation is provided either for injury

suffered, whether mental or physical, or for loss of life to victim or his

dependantwhich is derived from the enjoyment of lifeif such injury or loss would not

have been committed. This may be committed either by the government agencies or

an individual. There were a series of decisions handed down in the 1980’s and 1990’s

by the Supreme Court that seemed to recognise the special right of the victim to

compensation for harm suffered either at the hands of a private criminal or in the

course of criminal justice administration.2 Hence, compensation has been provided by

the judiciary in two ways, firstly, compensation by Government and secondly by way

of restitution.

A. Compensation in Cases of Victimization by State Agencies

The terminology ‘victimization by state agencies’ could be categorised as the

violation of fundamental rights contained in part III of the Constitution of India. Part

III of the Indian Constitution dealing with fundamental rights, weaves a “pattern of

1
Jyoti J. Mozika& Ms. MayurakhiSonowal, “Compensatory Justice under Indian Criminal Justice
Regime”, The Legal Analyst, Vol. VI, No. 1 & 2, 2016, pp. 58-67, p. 63.
2
JhalakKakkar&ShrutiOjha, “An Analysis of the Vanishing Point of Indian Victim Compensation
Law”, Journal of Indian Law and Society, Vol. 2: Monsoon, pp. 313-340, p. 332.

114
guarantee” on the basic structure of human rights and imposes negative obligations on

the State not to encroach on individual liberty in its various dimensions. But the

declaration of fundamental rights in the Constitution is meaningless unless there is

effective machinery for the enforcement of the rights. It is the remedy which makes

the right real. If there is no remedy, there is no right at all. The founding fathers of the

Constitution, therefore, provided for an effective remedy for the enforcement of these

rights under Article 32 of the Constitution, which itself is a fundamental right.3

However, out of these rights, the right to life and personal liberty is considered

as the most fundamental, as human rights can only attach to living beings, one might

expect the right to life itself to be primary, while none of the other rights would have

any worth or utility without it. Therefore, the Supreme Court through its unique

judicial activism, added to the fundamental right to life and personal liberty a variety

of positive directions.4 One significant impact of this new approach of the Supreme

Court through judicial activism has been that in case of violation of the fundamental

rights of the individual it has granted monetary compensation to one who might have

suffered unduly or illegally either by the commission or omission on the part of the

State agencies actions.5

3
Paramjit S. Jaswal&NishthaJaswal, “Public Accountability for Violation of Human Rights and
Judicial Activism in India: Some Observations”,(2002) 3 SCC (Jour), pp. 6-16, p. 6.
4
The Apex court in Maneka Gandhi v. Union of India, AIR (1978) SC 597 observed that-“right to life
and personal liberty also includes the right to live with dignity, free from exploitation.”
5
In Sri Lakshmi Agencies v. Government of Andhra Pradesh (AIR 1990 A.P. 504), the court explained
that: “it is only when the officers of the state do any act positively or fail to act as contemplated under
law leading to culpable inaction, that the state is liable to pay the damages, there should be a direct
nexus for the damages suffered on account of state action and if that is absent, Article 21 of the Indian
Constitution is totally inapplicable.”

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 The seed of compensation for the breach of this right implicit in Art.21 was

first sown in Khatriv. State of Bihar6, SantBirv. State of Bihar7and VeenaSethiv. State

of Bihar8. Among these,Khatriv. State of Bihar9, known as Bhagalpur case is the

earliest one where it was alleged that the police had blinded certain prisoners

depriving them of their right to life and liberty. The question posed before the Court

was whether a person who has been deprived of his right to life or personal liberty by

the State could be compensated by granting monetary relief. Here Bhagwati, J. (as he

then was) answered it in the affirmative by raising a counter thus:

“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.”10 The Court declared that it cannot remain a

helpless spectator of the violation of fundamental rights and tell the victim that it

cannot give him any relief.11

In SantBirv. State of Bihar12 the question of compensating the victim for the

lawlessness of the State was left open.

In VeenaSethiv. State of Bihar13the Court observed that the question would

still remain to be considered whether the petitioners are entitled to compensation from

6
AIR 1981 SC 627.
7
AIR 1982 SCC 131.
8
AIR 1983 SC 339.
9
Khatriv. State of Bihar(1981) 1 SCC 627, popularly known as Bhagalpur Blinding case was the first
case where the question of granting monetary compensation was considered by the Supreme Court.
10
Khatriv. State of Bihar (1981) 1 SCC 627.
11
Khatriv. State of Bihar (1981) 2 SCC 504.
12
SantBirv. State of Bihar AIR 1982 SCC 131.
13
VeenaSethiv. State of Bihar AIR 1983 SC 339.

116
the State Government for the contravention of the right guaranteed under Article 21 of

the Constitution.14

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 the right to life and

liberty against the lawlessness of the State but did not actually grant any

compensation to the victims.15 However, the seed which had been sown by the

judiciary in these cases, sprouted with such vigorous growth that it finally enabled the

Court itself to hold that State is liable to pay compensation. This dynamic move of the

Supreme Court resulted in the emergence of compensatory jurisprudence for the

violation of human rights through Rudul Shah.16The Court in Rudul Shah v. State of

Bihar17brought about pioneering 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.18 The Supreme Court in this case developing a new compensatory

jurisprudence observed:

“In the exercise of its jurisdiction under Article 32 the Supreme Court can

pass an order for the payment of money in the nature of compensation

consequential upon the deprivation of a fundamental right of life and personal

liberty of a petitioner.”19

14
G. Yethirajulu, “Article 32 And The Remedy Of Compensation”,(2004) 7 SCC (J), pp. 49-60, p. 50.
15
Ibid.
16
RudulSahv. State of Bihar (1983) 4 SCC 141.; MukulMudgal, “Comensation for Human Rights
Violations:The Dynamic Approach of the Indian Judiciary”, The Indian Advocate, Vol. XXXIV,2006,
pp. 97-115, p. 100
17
RudulSahv. State of Bihar(1983) 4 SCC 141.
18
MukulMudgal, “Comensation for Human Rights Violations:The Dynamic Approach of the Indian
Judiciary”, The Indian Advocate, Vol. XXXIV,2006, pp. 97-115, p. 100.
19
Supra note 17, at 142.

117
 “Article 21 which guarantees the right to life and personal liberty will be

denuded of its significant content if the powers of the Supreme Court were

limited to passing orders of release from illegal detention. One of the telling

ways in which the violation of that right can be reasonably prevented and due

compliance with the mandate of Article 21 secured is to mulct its violators in

the payment of monetary compensation. Administrative sclerosis leading to

flagrant infringements of fundamental rights cannot be corrected by any other

method open to the judiciary to adopt. The right to compensation is some

palliative for the unlawful acts of instrumentalities which act in the name of

public interest and which present for their protection the powers of the State

as a shield. Therefore, the State must repair the damage done by its officers to

the petitioners rights.”20

Thereafter, in a line of cases the judiciary has held that for infringement of this

indefeasible right guaranteed under the Constitution it is obligatory on the part of the

State to protect their interest and provide relief of monetary amends under the public

law against the wrong done due to breach of public duty. Giving superiority of this

right over State sovereign immunity, the Hon’ble Andhra Pradesh High Court in C.R.

Reddy v. State of Andhra Pradesh21 opined that personal liberty should be given

supremacy over sovereign immunity. When a person is deprived of his life or liberty,

otherwise than in accordance with the procedure established by law, it is no answer to

say that the act done by the employees of the State is in due discharge of their

sovereign function. The Court in later cases also opined the same view i.e. for

infringement of a fundamental right the principle of ‘Sovereign Immunity’ does not

20
Supra note 17, pp.147-148.
21
AIR 1989 AP 235.

118
apply and the state must be held liable for unlawful acts of its servants.22 The Court

declared in the case of B.C. Oraon v. State of Bihar23 that anyone deprived illegally of

his life or personal liberty can come before it and ask for compensation for violation

of his Fundamental Right under Article 21. Oraon as an undertrial prisoner was

detained in a lunatic asylum for six years after he had been certified as fit for

discharge. The Court awarded him Rs. 15,000/- as compensation.24The Court

observed that no amount could possibly compensate Oraon for living in a lunatic

asylum for six years.

In a number of cases, the Judiciary has given positive opinions towards

damages to the persons who have been detained illegally by the government, or for

torture/death by police on duty. In Sebastion M. Hongrayv. Union of

India25theSupreme Court issued a writ of Habeas Corpus requiring the Government of

India to physically produce two persons before it. These persons were taken to the

military camp by the jawans of the army. The Government failed to produce them

expressing its inability to do so. The Court found the explanation given by the

Government to be untenable and incorrect. The truth was that these persons had met

an unnatural death. In the circumstances, the Supreme Court, keeping in view the

torture, agony and mental oppression through which the wives of the persons in

22
NilabatiBeherav. State of Orissa AIR 1993 SC 1960, the Court held that, award of compensation in a
proceeding under Art. 32 by the Supreme Court, or by the High Court under Art. 32 “is a remedy
available in public law, based on strict liability for contravention of fundamental rights to which the
principle of sovereign immunity does not apply, even though it may be available as a defence in private
law in an action based on tort.”; Dhaman Joy Sharma v. State of Haryana AIR 1995 SC 1795, the
Court held that, “the right of personal liberty of a citizen is too precious and no one can be permitted to
interfere with it except in accordance with the procedure established by law. The State must be held
responsible for the unlawful acts of its officers and it must repair and damage to the citizen by its
officers.”, Consumer Education and Research Centre v. Union of India AIR 1995 SC 922, the Court
held that, “the defence of sovereign immunity is inapplicable and alien to the concept of guarantee of
Fundamental Rights.”
23
Decided on 12 Aug. 1983.
24
M.P. Jain, India Constitutional Law, LexisNexis, Haryana, 2015, p. 1154.
25
AIR 1984 SC 1026 (1984 Cr.L.J. 830)

119
question had to pass, instead of imposing a fine on the Government for civil contempt

of the Court, required that “as a measure of exemplary costs as is permissible in such

cases,” the Government must pay Rs. 1,00,000/- to each of the aforesaid two

women.26 Hence the Supreme Court directed the respondent to pay Rs.1,00,000/- to

each of the wives of the missing persons. In Bhim Singh v. State of Jammu and

Kashmir27thepetitioner, an MLA of J & K Assembly was wrongfully detained by the

police while he was going to attend the Assembly session. He was not produced

before the Magistrate within the requisite period. As a consequence of this the

member was deprived of his constitutional right to attend the Assembly session. There

was no violation of fundamental right to personal liberty guaranteed under Article 21

of the Constitution. By the time the petition was decided by the Supreme Court Bhim

Singh had been released, but by way of consequential relief exemplary damages

amounting to Rs. 50,000/- were awarded to him. The Court expressed certain

sentiments which will be of enduring significance:

“If the personal liberty of the Member of the Legislative Assembly is to be

played with in this fashion, one can only wonder what may happen to lesser

mortals! Police Officers who are the custodians of law and order should have

greatest respect for the personal liberty of citizens and should not flout by

stopping to such bizarre acts of lawlessness. Custodians of law and order

should not become depredators of civil liberties. Their duty is to protect and

not to abduct.”28

26
Supra note 24.
27
AIR 1986 SC 494.
28
Bhim Singh v. State of Jammu and Kashmir,AIR 1986 SC 499.

120
 In the decisions from RudulSah to Bhim Singh the Court laid down no basis

for quantification of the amount of exemplary costs. And perhaps this was the reason

that the amount of monetary compensation varied in these cases. The discretion to

award monetary compensation for the gross violation of Article 21 was left to the

individual Judge who decided the case.29

In Peoples’ Union for Democratic Rights v. State of Bihar30 the court while

issuing direction to the government of Bihar laid down the working principle for the

payment of compensation to the victims of ruthless and unwarranted police firing. In

this case, about twenty-one persons including children, died and many more were

injured due to the unwarranted firing of the police. The Apex Court observed:

“Without prejudice to any just claim for compensation that may be advanced

by the relations of the victims who have died or by the injured persons

themselves, for every case of death compensation of Rs.20,000 and for every

injured person, compensation of Rs.5,000 shall be paid. Where some

compensation has already been paid, the same may be adjusted when the

amount now directed is being paid.”31

However, this working principle was subjected to many criticisms as it failed

to distinguish between a minor and major injury, but, it was a step ahead in the matter

of compensation to victims.32 Later, the Apex Court itself stated that, failure to grant

29
Supra note 3, 8.
30
AIR 1987 SC 355.
31
Peoples’ Union for Democratic Rights v. State of Bihar, AIR 1987 SC 356.
32
Without prejudice to any just claim for compensation that may be advanced by the relations of the
victims who have died or by the injured persons themselves, for every case of death compensation of
Rs.20,000/- and for every injured person compensation of Rs.5,000 shall be paid. Where some
compensation has already been paid, the same may be adjusted when the amount now directed is being
paid.

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uniform ex-gratia relief is not arbitrary or unconstitutional and the quantum may

depend on facts of each case.33

The legality or illegality of the detention was irrelevant when it was proved

that a person suffered as a result of police atrocities.34In Rajasthan KisanSangthan v.

State of Rajasthan and Ors35it was held that:

“it is now well settled that a person even during lawful detention is entitled to

be treated with dignity befitting any human being and the mere fact that he has

been detained lawfully does not mean that he can be subjected to ill-treatment,

much less any torturous beating. The right to be treated even during lawful

detention in a manner commensurate with human dignity is a well recognised

right under Article 21 of the Constitution, and if it is found that the police has

mal-treated any person in police custody which is not commensurate with

human dignity, he is at least entitled to monetary compensation for the

torturous act by the police.”36

R. Gandhi v. Union of India37can be considered as probably the first landmark

judgment in which the government has been ordered to pay compensation for State in

action. In this case, the High Court directed the State to pay Rs. 33,19,033/- as

compensation to the families of Sikhs and others in Coimbatore who were the victims

of arson and rioting in the wake of assassination of the former Prime Minister, Mrs.

Indira Gandhi. The Court held that the State had failed in its duty to protect the

constitutional and legal rights of these victims.

33
State of Rajasthan v.SanyamLodha, (2011) 13 SCC 262.
34
Supra note 3, p. 9.
35
(1988)1 RLW 514.
36
Rajasthan KisanSangthanv. State of Rajasthan and Ors, (1988)1 RLW 521.
37
AIR 1989 Mad 2015.

122
 Saheli, a Women’s Resource Centre through Ms. NaliniBhanotv.

Commissioner of Police, Delhi38, is yet another case where the Supreme Court once

again considered the question of granting compensation in case of police atrocities,

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. In this case, KamleshKumari, the tenant, was beaten up and molested

by S.H.O. of Police, and Naresh, son of Kamlesh, was brought to such bad conditions

that resulted in his death. The Supreme Court, relying upon the earlier cases relating

to government liability, directed the Delhi Administration to pay compensation to

KamleshKumari, a sum of Rs. 75,000 within a period of four weeks from the date of

Judgment.

In the State of Maharastrav. Ravikant S. Patil39the undertrial prisoner was

handcuffed and taken through the streets in a procession by the police during

investigation. The Court held that Article 21 was violated. However, the Court further

held that the police officer responsible for the act, acted only as an official and cannot

be made personally liable. The Court directed that compensation of Rs 10,000 be paid

by the State and authorities may, if consider necessary, hold an enquiry against the

police officer and then decide whether any further action is to be taken against him or

not.40

Another principal authority on police atrocity in which the court repeats its

view on the basis of earlier judgment41 in NilabatiBeherav. State of Orissa.42 This

38
AIR 1990 SC 513.
39
(1991) 2 SCC 313.
40
Supra note 3, p. 10.
41
Supra note 17.
42
(1993) 2 SCC 746. (J.S. Verma, A.S. Anand&Venkatachalaya JJ)

123
was a case where the son of the petitioner was taken in police custody from his home

and his dead body was later found with handcuffs and multiple injuries laying on a

railway track. The mother, the petitioner, alleged in her letter, which was treated as a

writ petition under Article 32 of the Constitution, that it was a case of custodial death

since her son died as a result of the multiple injuries inflicted on him while he was in

police custody and thereafter his dead body was thrown on the railway track. It was

prayed in the petition that award of compensation be made to her, for contravention of

the fundamental right to life guaranteed under Article 21 of the Constitution. On the

basis of evidence of medical doctor who conducted post-mortem examination and the

report of Forensic Science Laboratory the court concluded that the deceased had died

in the police custody on account of torture by the police.

It is worth mentioning that the deceased was aged 22 years and his monthly

income was between Rs. 1,200/- and 1,500/- and hence keeping regard to the age and

his monthly income the court directed the state to pay Rs. 1,50,000/- as compensation

to the deceased’s mother. The Court, however, clarified that this would not affect the

petitioner’s right to claim compensation in other proceedings in which case the

amount awarded by the Court would be adjusted and also concurred its view that-

“The Supreme Court is not helpless and the wide powers given to this court

by Art. 32, which itself is a fundamental right, imposes a constitutional

obligation on this court to forge such new tools, which may be necessary for

doing complete justice and enforcing the fundamental rights guaranteed in the

constitution. This enables the award of monetary compensation in appropriate

124
 cases, where that is the only mode of redress available. This power available

to this court under Art. 142 is also an enabling provisions in this behalf.”43

It is submitted that when the complainant is entitled to compensation for

violation of human rights or for physical or mental harassment, then an award of

exemplary costs/damages can serve a useful purpose in vindicating the strength of law

and promoting and protecting human rights. However, when the Court directs

payment of damages/compensation against the State, the ultimate sufferer is the

taxpayer, because it is the taxpayer’s money which is paid for the wrong of public

official. Therefore, it is suggested that the State should pay the complainant from the

public fund but recover the same from those who are responsible for such

unpardonable behavior.44Hence, in Pratul Kumar Sinha v. State of Bihar45, the Court

stated that if the State Government so desired it would be free to take action as it

considers necessary to recover the amount of compensation from the tortfeasors. In

this case the Court issued directions for the ex-gratia payment of Rs.25,000/- to the

families of the three deceased who died due to police atrocities. The Court in Arvind

Singh Baggav.State of U.P.46also opined that it will be open to the State to recover the

amount of compensation from the police officers who were liable for the violent

incident under the veil of uniform. This case is also concerned with police atrocities

where police officers subjected a married woman to physical, mental and

psychological torture calculated to create fright to make her submit to the demands of

the police and abandon her legal marriage. Her husband and family members were

43
NilabatiBeherav. State of Orissa, (1993) 2SCC 749.
44
Paramjit S. Jaswal, Human Rights and the Law, APH Publishing Corporation, New Delhi, 1996, p.
224.; also Surendra Kumar Pachauri, Prisoners and Human Rights, APH Publishing Corporation, New
Delhi, 1999, p. 46.
45
1994 Supp. (3) SCC 100.
46
(1994) 6 SCC 565

125
also tortured. The Court took serious note of the human rights violation and directed

the State to pay compensation to victims. The Court in Inder Singh v. State of

Punjab47 retained the same view and directed that the guilty persons should be

identified by the State and it should endeavour to recover the said amount, which is

the tax payers’ money. This case is also a very glaring example of custodial death of

seven persons by Punjab police. A Habeas Corpus petition was filed before the

Supreme Court of India in which the Court directed the CBI to conduct the

investigation. The Director, CBI reported that seven persons had been liquidated by

Punjab police. The Court, while expressing strong ‘disapprobation’ of the Punjab

police, awarded the compensation of Rs. 1,50,000/- within two weeks to the legal

representative of each victim killed. So these are some cases where a new concept of

“personal liability” of the police officials concerned for violating the human rights

was welcomed by the Indian judiciary on the path of protecting human rights of

people. The reason for the evolution of this new concept may be that, it could

conceive in the mind of the employee the fear that his employer (the Government)

may bring an indemnity action against him and may deter him from colluding with an

injured party.

In CharanjitKaurv. Union of India48an Army Officer died while in service in

mysterious circumstances. On facts, authorities were found guilty of criminal

omissions and commissions resulting in great mental agony and physical and financial

hardship to the widow and children of the deceased. The Court granted to the

dependants rupees six lakhs as compensation and special family pension and children

47
AIR 1995.
48
(1994) 2 SCC 1.

126
allowance. KewalPativ. State of U.P.49 is another case where the Court has awarded

Rs. 1,00,000/- as compensation to the petitioner, the widow of a convict who was

killed in jail by a co-accused, while serving his sentence under Section 302 of Indian

Penal Code.

Rape is a crime against the most basic human right and violates the victim’s

most cherished fundamental right. It gives a serious blow to the victim’s womanhood

and also offends her self-esteem. Therefore, after analysing the issues pertaining to

rape victims, the apex court expanded its compensatory jurisprudence to the victims

of rape also. In Delhi Domestic Working Women’s Forum v. Union of India50the court

directed the Central Government to pay Rs. 10,000/- to each victim as compensation

and their name and identity be kept secret to save them from social stigma. The Apex

Court also directed the National Women Commission to prepare rehabilitation

schemes for such victims and expressed the necessity of setting up of a Criminal

Injury Board, which should decide the quantum of compensation to be paid to victims

of rape after taking into consideration the pain, suffering and shock as well as loss of

earnings due to pregnancy and the expenses of childbirth, if caused as a result of rape.

In this case, the court relied upon Art. 38(1) of the Constitution.51Later, exercising its

inherent power under Article 142 of the Constitution of India, the apex court in

BodhisattwaGautamv.SubhraChakraborty52case suomotu gave effect to the right of a

49
(1995) 3 SCC 600.
50
1996 SCC (1) 490.
51
Article 38 (1)- The State shall strive to promote the welfare of the people by securing and protecting
as effectively as it may a social order in which justice, social, economic and political, shall inform all
the institutions of the national life.
52
1996 SCC (1) 490.

127
rape victim to claim compensation from the offender for violation of her

constitutional right to live with human dignity. The court in this case53 noted that:

“Rape is a crime not only against the person of a woman (victim), it is a crime

against the entire society. It destroys the entire psychology of a woman and

pushes her into deep emotional crises. It is therefore, a most hated crime. It is

a crime against basic human rights and is also violative of the victim's most

cherished of the Fundamental Rights, namely, the Right to Life contained in

Article 21.”54

The Court directed the offender to pay the victim a sum of Rs. 1000 every

month as interim compensation during the pendency of the criminal trial and also to

pay arrears of compensation at the same rate from the date of the institution of the

complaint by the victim. The court further ruled that “compensation to the victim

under such conditions will be justified even when the accused was not

convicted.”55Although the case was not a case of rape, the Apex Court in this case,

compared the plight of the woman to that of a victim of rape.

The Supreme Court in yet another landmark judgment in D.K. Basuv. State of

West Bengal56clearly mentioned that it is not only the Supreme Court but the High

Courts also who have been empowered under Art. 226 of the Constitution of India to

grant compensation in case of infringement of a fundamental or a legal right. The

Supreme Court cleared the ground for the grant of compensation under Art. 226 in

53
This case was not a case of rape but the offence relating to marriage, causing miscarriage, cheating
etc.
54
BodhisattwaGautamv.SubhraChakraborty, (1996) 1 SCC 492.
55
Ibid., p. 503.
56
AIR 1997 SC 416.

128
situations where there was a failure of public duty on the part of the State. The

following passage from D.K. Basu case clarifies the legal proposition:

“Award of compensation for established infringement of the indefeasible

rights guaranteed under Article 21 of the Constitutions is remedy available in

public law since the purpose of public law is not only to civilise public power

but also to assure the citizens that they live under a legal system wherein their

rights and interests shall be protected and preserved. Grant of compensation

in proceedings under Article 32 or 226 of the Constitution of India for the

established violation or the fundamental rights guaranteed under Article 21, is

an exercise of the Courts under the public law jurisdiction for penalising the

wrong door and fixing the liability for the public wrong on the State which

failedin the discharge of its public duty to protect the fundamental rights of the

citizen………. .57The courts have the obligation to satisfy the social aspirations

of the citizens because the court and the law are for the people and expected

to respond to their aspirations. A Court of law cannot close its consciousness

and aliveness to stark realities. Mere punishment of the offender cannot give

much solace to the family of the victim - civil action for damage is a long

drawn and cumbersome judicial process. Monetary compensation for

redressal by the Court finding the infringement of the indefeasible right to life

of the citizen is, therefore, useful and at times perhaps the only effective

remedy to apply balm to the wounds of the family members of the deceased

victim who may have been the bread winner of the family.”58

57
D.K. Basuv. State of West Bengal,AIR 1997 SC 416, pp. 420-421.
58
Ibid, p. 421.

129
 In People’s Union for Civil Liberties v. Union of India59the Supreme Court

awarded compensation when certain persons picked up by the army disappeared. The

case arose under Art. 226 in the Gauhati High Court and came before the Supreme

Court by way of appeal. The Manipur Police killed two persons, alleged to be

terrorists, in a fake encounter. The Supreme Court held that this could not be done

even in a disturbed area. It violates Art. 21 as it is taking away life without

reasonable, fair and just procedure. The State cannot raise the defence of sovereign

immunity in such a situation. Accordingly, the Court awarded Rs. 1,00,000/ to the

family of each as compensation.

In D.G. & I.G. of Police v.PremSagar60on the direction of the High Court, the

Sessions Judge conducted an inquiry in which it was found that the detenu was

illegally detained by the police for a period of one month. Accepting the findings of

the Sessions Judge, the High Court awarded Rs 20,000 as compensation for violation

of his basic human right to life. This was approved by the Supreme Court. The

Gauhati High Court in AheibamOngbiLeihao Devi v. State of Manipur61awarded a

compensation of Rs 1,50,000/- to the victim's wife and his unmarried daughter. In this

case, the members of Manipur Rifles fired as many as 83 rounds and killed the driver

of a lone jeep who allegedly refused to halt on being ordered to do so.

Interestingly, a question arose before the Judiciary as to whether or not the

State is under an obligation to protect the life of persons who are not citizen? In

Chairman,Railway Board v.ChandrimaDass62 the Supreme Court ruled that relief

could be granted under Article 226 as there was violation of Fundamental Right under

59
AIR 1997 SC 1203.
60
(1999) 5 SCC 700.
61
1999 ACJ 594.
62
AIR 2000 SC 988.

130
Article 21 and not of an ordinary right. A foreigner can claim protection under Article

21 along with the Indian Citizens. In this case, the Apex Court asked the railways to

pay Rs 10,000,00/- as compensation for the infringement of right to life of the victim.

The compensation was actually awarded by the High Court of Calcutta as it was of

the opinion that the rape was committed at the building (Rail YatriNiwas) belonging

to the Railways and was perpetrated by the Railway employees. The concerned case is

related to gang rape of a Bangladeshi woman by some railway employees. Further,

the judiciary has even gone suomoto in exercising jurisdictions to do restorative and

rehabilitative justice to the rape victims. In Suo Moto v. State of Rajasthan63 the court

took suomoto cognizance of rape on a foreign lady tourist by reading regional

Newspapers. This judgment was sensitive from the point of victim justice. The

judgment makes independent mention of victimology and compensation. The

judgment refused the argument that since the victim was a foreign national, was not

entitled to any compensation. The victim was entitled to be treated with dignity and

protection of her person as per Art 21 of the Constitution, even though she was not a

citizen of the country.64The victim was awarded a compensation of Rs 3,000,00/- to

be provided by the State Government

Apart from these, the High Courts of different states of India from time to time

have been trying to provide certain principles to be followed to award compensation.

In Kamla Devi v. Government of NCT65a learned judge of the Delhi High Court while

63
RLW 2005 (2) Raj 1385.
64
Suo Moto v. State Of Rajasthan,RLW 2005 (2) Raj 1385 (para 42)-“The German tourist is not a
citizen of India, but she being a tourist, entitled to all the constitutional rights available to a citizen so
far as ‘right to life’ is concerned. She is entitled to be treated with dignity and is also entitled to the
protection of her person as guaranteed under Article 21 of the Constitution. As a national of another
country, she cannot be subjected to a treatment which is below dignity, nor could she be subjected to
physical violence at the hands of anybody.”, available at https://indiankanoon.org/doc/1058934/,
accessed on 23/8/2018 at 8.55 p.m.
65
114 (2004) DLT 57.

131
invoking the power under Art. 226 of the Constitution directed the government of

NCT of Delhi to pay compensation to the petitioner who was a victim of a bomb blast

due to a terrorist attack The learned single judge (BadarDurrez Ahmed J.) laid down

the following principles which would govern the award of compensation:66

The principles which emerge can be summarzied as follows:

1. Whenever an innocent citizen is killed as a result of a crime, particularly when

it is an act of terror or communal violence or a case of custodial death, the

State would have failed in its public duty to ensure the guarantee enshrined in

Article 21 of the Constitution.

2. The modern trend and the international norm is to focus on the victims of

crime (and their family) by, inter alia, ensuring that they are promptly

compensated by the State in adequate measure under a well-laid out Scheme.

3. In India, there is no such criminal scheme in place and the private law

remedies of damages and compensation are grossly inadequate. Legislation on

this aspect is not forthcoming.

4. In such a situation the High Court, in exercise of its powers under Article 226

of the Constitution can and ought to direct the State to compensate the victim

and/or his family.

5. The compensation to be awarded by the Courts, based on international norms

and previous decisions of the Supreme Court, comprises two parts:

(a) ‘Standard compensation’ or the so-called ‘conventional amount’ (or sum) for

non-pecuniary losses such as loss of consortium, loss of parent, pain and

suffering and loss of amenities; and

66
Supra note 18, p. 111.

132
(b) Compensation for pecuniary loss of dependency.

6. The ‘Standard compensation’ or the ‘conventional amount’ has to be revised

from time to time to counter inflation and the consequent erosion of the value

of the rupee. Keeping this in mind in case of death, the standard compensation

in 1996 is worked out at Rs. 9,77,000/-. This needs to be updated for

subsequent years on the basis of the Consumer Price Index for Industrial

Workers (CPI-IW) brought out by the Labour Bureau, Government of India.

7. Compensation for pecuniary loss of dependency is to be computed on the basis

of loss of earning for which the multiplier method is to be employed. The table

given in Schedule II of the MV Act, 1988 cannot be relied upon; however, the

appropriate multiplier can be taken therefrom. The multiplicand is the yearly

income of the deceased less the amount he would have spent upon himself.

This is calculated by dividing the family units- 2 for each adult member and 1

for each minor. The yearly income is then to be divided bythe total number of

units to get the value of each unit. The annual dependency loss is then

calculated by multiplying the value of each adult member. This becomes the

multiplicand and is multiplied by the appropriate multiplier to arrive at the

figure for compensation of pecuniary loss of dependency.

8. The total amount paid under 6 and 7 above is to be awarded by the Court

along with the simple interest thereon calculated on the basis of the inflation

rate based on the Consumer Prices as disclosed by the Government of India

for the period commencing from the date of death of the deceased till the date

of payment by the State.

9. The amount paid by the State as indicated above would be liable to be

adjudicated against any amount which may be awarded to the claimants by

133
 way of damages in a civil suit or compensation under the “Criminal Procedure

Code.”

The above decision has been reiterated in two recent judgments of Justice Bader

Durrez Ahmed in Ashok Sharma v. Union of India67and ShriKishanLal v. Govt. of

NCT of Delhi68. Applying the above principles laid down in the above decision, this

Court proceeded to determine the compensation payable in each of the cases.

In P. P. M. Thangaiahv. The Government of T. N.69after a survey of the entire

judgments of the Supreme Court as well as the other High Courts, on the question of

award of compensation for the violation of the fundamental rights, the following

principles were deduced by the Madras High Court:

“1. The constitutional mandate enjoins upon the State to protect the person

and the property of every citizen and if fails to discharge its duty, the State is

liable to pay the damages to the victims.

2. The failures or inactions on the part of the State which led to the violation

of the fundamental right more specially under Articles 14, 19 and 21 of the

Constitution of India should have direct nexus to the damage caused/suffered.

3. The State cannot claim defence of sovereign immunity in the guise of the

discharge of the sovereign functions in the constitutional remedy. It does not

clothe the State with right to violate the fundamental rights guaranteed under

part III subject to certain restrictions.

4. The State while undertaking commercial activity cannot plead the sovereign

immunity, in case of tortuous acts done by the employees of the State. It is only

vicariously liable.

67
Decision dated 2.7.2007 in W.P.(C) No. 1039/1999.
68
Decision dated 3.7.2007 in W.P.(C) No. 5072-73/2005.
69
2006-4-L.W. 560.

134
 5.The Supreme Court or the High Court are entitled to render compensatory

justice by awarding reasonable monetary compensation under Articles 32 or

226 of the Constitution of India, for injury – mental, physical, fiscal-suffered by

the individual for violation of fundamental rights guaranteed under the

Constitution. But, however, it must be conclusively established that the State

failed to take any positive action in protecting the fundamental rights of the

citizens.

6. It is not necessary that the victim should approach the Civil Court by

invoking common law remedy for claiming damages for violation of the

fundamental rights. The option is left to the victim to claim the damages by

invoking either the constitutional remedy or civil remedy. Since the

constitutional remedy is a public law remedy, the actual victim need not

approach the Court. The relief can also be awarded either by exercise of

suomotu power or in a public interest litigation case.

7. The quantum of compensation varies from case to case depending upon the

nature of loss suffered by the victim. There cannot be any straitjacket formula

for awarding compensation under Article 226 of the Constitution of India.”70

Apart from the above mentioned incidents, the Judiciary is playing an active

role in providing compensation to the acid victims. InSabanaKhatunv. The State of

West Bengal &Ors71although the offender of the incident was not a government

employee, but due to the lack of government’s response towards the victim’s request

for granting compensation, the writ jurisdiction of the Calcutta High Court was

invoked by the sufferer. The victim of the case claimed compensation for the injuries

70
P. P. M. Thangaiahv. The Government of T. N,2006-4-L.W. 572.
71
2014 SCC OnLine Cal 4937.

135
suffered by her by referring to the judgment of the Apex Court in Laxmiv. Union of

India72The Learned Counsel for the petitioner stated that lack of response from the

State Government was violation of the order of the Supreme Court and thus, it was

necessary that the High Court intervened in this matter. In this case the High Court of

West Bengal directed the Chief Secretary of the State of West Bengal “to pay a total

sum of Rs. 3 lakhs to the writ petitioner, an acid attack victim and out of the said

amount a sum of Rs. 1 lakh be paid within fifteen days from the date of

communication of this order and thereafter the balance amount be paid within two

months thereafter as prescribed by the Hon’ble Apex Court in its order passed in

connection with Laxmi v. Union of India”. Furthermore, on December 7, 2015, the

Supreme Court of India expressing its grave concern over state’s failure to implement

guidelines issued by the court in Laxmiv.Union of India73enhanced the compensation

given to the victims from Rs. 3 Lakh to Rs. 10 lakh while delivering a judgment in

ChanchalPaswan case74 who was an acid attack victim in Bihar.75 In this case the

Supreme Court of India ordered:

72
(2014) 4 SCC 427. In this case the Court laid down some important guidelines, which are listed
below:
1. Over the counter, sale of acid is completely prohibited, until and unless the seller maintains a
log/register recording the sale of acid which will contain the details of the person(s) to whom acid(s)
is/are sold and the quantity sold. The log/register shall contain the address of the person to whom it
sold.
2.No acids should be sold to a person who is below 18 years of age.Proper ID card issued by the
Government should be shown by the buyer at the time of purchasing the acid.
3.All the stock of acids should be declared by the seller with the concerned Sub-Divisional Magistrate
within a period of 15 days.If it is not declared, then the goods will be confiscated by the Sub-
Divisional Magistrate and a fine of Rs. 50,000/- will be imposed on him.
4.The acid victim should be given a compensation of atleast 3 lakhs from the concerned
State/Central Government as the after care and rehabilitation cost.Of this amount, a sum of Rs. 1 lakh
shall be paid to the victim within 15 days of occurrence of such incident to facilitate immediate medical
attention and the rest 2 lakhs must be given within two months as early as possible. - by
NargisYeasmeen, “Acid Attack in the Back Drop of India and Criminal Amendment Act, 2013”,
International Journal of Humanities and Social Science Invention, Vol. 4, Issue. 1, January, 2015, pp.
6-13, p. 11.
73
(2014) 4 SCC 427.
74
Parivartan Kendra v. Union of India (2016) 3 SCC 571.

136
 “We direct the concerned Government to compensate the victim Chanchal

to a tune of Rs.10 Lakhs, and in light of the Judgment given in Laxmi’s case

we direct the concerned State Government of Bihar to compensate the main

victim’s sister, Sonam to a tune of Rs. 3 Lakhs. Of the total amount of Rs.

13 Lakhs, a sum of Rs 5 lakhs shall be paid to the victim and her family within

a period of one month and the remaining sum of Rs. 8 lakhs shall be paid

to the victims within a period of three months from the date of this

order.”76

It is now well established that the Court, in appropriate cases, may order the

Government to pay compensation to the person whose right has been violated by the

Government officials.77

B. Compensation by Way of Restitution

Restitution refers to a sanction imposed by an official of the criminal justice

system in which an offender is required to make a service payment or monetary

payment or both to the victim of the crime.78 In short, restitution is concerned with

restoration to the victim by the offender himself. In so far as the Indian context is

concerned, there is no separate legislation dealing with the issue of restitution or for

that matter compensation. In fact, the term restitution in not very frequent in the

Indian laws. The courts in India seem to have been using the terms compensation for

75
Mohammad Qasim, “Acid Attack: a look at Afghanistan, India and Bangladesh”, European
Academic Research, Vol. V, Issue 7, October, 2017, pp. 2970-2983, p. 2978.
76
Supra note 73, p. 581.
77
KailashRai, The Constitutional Law of India, Central Law Publication, Allahabad, 2005, p. 243.
78
Burt Galawa, “Differences in Victim Compensation and Restitution”, Social Work, Vol. 24, No. 1,
January, 1979, pp. 57-58, p. 57.

137
both restitution and compensation to victims by the state.79[So far as the research

work is concerned, for convenience the researcher is using the term compensation

instead of restitution]

Despite the fact that there are some provisions existing in the Code of

Criminal Procedure, 1973 and Probation of Offenders Act, 1958 empowering the

Courts in India to compensate/restitute the loss suffered by crime victims, it is,

however, sad to note that these provisions invariably remain unpracticed in the

sentencing process. There are many reasons for this. But the most prominent one is

that of the criminal-oriented outlook of the criminal justice system which seldom

takes the perspective of victim in view. Besides, the developments in victimology

relating to assistance and welfare of victims have not really flown to the functioning

segments of judiciary. This situation mainly persists in the lower courts in India. It is

however, significant to note that for about the last two decades, the Supreme Court

and High Courts of India have been delivering judgments directing the payment of

compensation/restitution80through Sec. 357 of Cr. P. C. However, prior to Sec. 357 of

this Code, the Criminal Procedure Code of 1898 contained a provision of restitution in

the form of Section 545 which empowered a criminal court to order that the whole or

any part of the fine recovered from the accused would be applied in the payment of

compensation to any person for any loss or injury caused by the offender.81 Some of

the cases where the judiciary in India prior to freedom considered this section are

Emperor v. Corporal E. H. Morgan and Anr.82,BharasaNawv.Sukhdeo and Ors.83,

79
G. S. Bajpai, “Victim Assistance: Restitution and Compensation”, Victim in the Criminal Justice
Process, Uppal Publishing House, New Delhi, 1997, pp. 87-126, p. 98.
80
Ibid.p. 103.
81
S. Lalitha, “Compensation to Victims of Crime”, (1990)1 LW (JW) 5, pp. 5-10, p. 6.
82
Criminal Reference No. 40 of 1908. In this case it held that Clause (b) of Sec. 545 has been expressly
framed so as to provide for compensation being given in cases where it is recoverable under Act XIII

138
Emperor v.ChunilalBhagwanji84etc. Now the Criminal Procedure Code, 1898 has

been replaced by the Criminal Procedure Code, 1973 and section 357 of this new code

is implemented to provide compensation. It empowers the criminal court to order the

accused person to pay compensation to victims of crime even though the sentence is

not one of fine (or one of which fine forms part).

It is noteworthy that for some of the scholars the first landmark judgment

where the judiciary upheld for providing compensation under section 357 of Cr. P. C.

is the case of PalaniappaGounderv. State of Tamil Nadu85. But an earlier decision of

a full bench of Punjab High Court in Surinder Singh v. The State86which is really a

landmark case in the history of the victim’s right to compensation never came to light.

Peculiarly this judgment was not reported in all important law reporters of the

country. It may be because they could not understand the importance of the judgment.

In this case, the court observed that it is desirable that the trial court in all appropriate

cases should consider the question of award of compensation at the time of passing

the sentence. The accused may be questioned and necessary evidence may be taken in

the matter relevant to the award of compensation. While a criminal court should not

convert itself into a civil court for the purpose of assessing compensation, the social

of 1855, and to the persons indicated in that Act, namely, the “wife, husband, parent and child, if any”
of the deceased., The Calcutta Weekly Notes, Vol. XIII, pp. 362-367, p. 367, available at
http://www.scconline.com, accessed on 27/03/2018 at 2.25 a.m.
83
AIR 1926 Cal 1054 : 1926 Cri LJ 1086. In this case it was established that notice should be given by
the court to the complainant in a case in which compensation has been given to the complainant.
84
(1942) 44 BOMLR 438.- Here the court decided that where a person, whether the complainant or
someone else, has been awarded compensation under Section 545 of the Criminal Procedure Code, he
ought to be served with notice of an appeal or revision application which may result in the order of
compensation being set aside.
85
(1977)2 SCC634; MurugesanSrinivasan and Jane Eyre Mathew, “Victims and the Criminal Justice
System in India: Need for a Paradigm Shift in the Justice System”, available at
http://citeseerx.ist.psu.edu/viewdoc/download?doi=10.1.1.429.8305&rep=rep1&type=pdf; L. D.
Dabhade and N. A. Qadri, “Present Scenario of Concept and Development of Victimology in India”,
International Journal of Researches in Social Science and Information Studies, Vol. II, Issue. 3, May,
2015, pp. 61-64, p. 63.
86
(1976) 78 P.L.R. 867.

139
purpose intended to be served by Section 357 should not be ignored and criminal

courts should brush aside the question of determination of compensation and proceed

on what appears to be an erroneous and unwarranted assumption that the award of

compensation is not the true concern of criminal law.87

In PalaniappaGounderv. State of Tamil Nadu88 the Supreme Court of India

with some modifications upheld the compensation to victim under Sec. 357 of Cr. P.

C. ordered by the Madras High Court. In this case the High Court after commuting the

sentence of death on the accused to one of life imprisonment, imposed fine of Rs.

20,000/- on the appellant and directed that out of the fine, a sum of Rs. 15,000/-

should be paid to the son and daughters of the deceased under Sec. 357 (1) (c) of the

Code of Criminal Procedure, 1973. This order came to be passed on an application

which was filed before the High Court under Sec. 482 of the Criminal Procedure

Code89by a son and two daughters of the deceased praying that the accused be asked

to pay them, as heirs of the deceased, compensation of a sum of Rs. 40,000/- for the

death of their father. Though the application was filed under Section 482 of the Code

of Criminal Procedure, 1973, but the Supreme Court while examining the special

leave petition of the appellant had not favoured invoking of such a power through the

inherent power of the High Court in view of existing statutory provisions under Sec.

357 of the Code of Criminal Procedure, 1973 and observed:

“If there is an express provision in a statute governing a particular subject-

matter, there is no scope for invoking or exercising the inherent powers of the
87
Janardan Kumar Tiwari, “Judicial Attitude Towards Justice of Victims”, Bharati Law Review, April-
June, 2014, pp. 49-76, p. 55.
88
(1977) 2 SCC 634.
89
Section 482 of the Code of Criminal Procedure, 1973-Saving of inherent powers of High Court:
Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make
such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the
process of any Court or otherwise to secure the ends of justice.

140
 court because the court ought to apply the provisions of statute. Hence, the

application made by the heirs of the deceased for compensation could not

have been made under Section 482 since Section 357 expressly confers powers

on the court to pass an order for payment of compensation.”90

Further, the court observed that the ultimate reason for imposition of fine is to

ensure its realization and not to ensure that the offender shall undergo the sentence in

case he is unable to pay the fine, but this is possible only if the fine is rationally

imposed subject to all the other factors.91The Supreme Court thus reduced the fine

amount from Rs. 20,000/- to a sum of Rs. 3000/- and directed that the amount

recovered shall be paid to the son and daughters of the deceased who had filed

petition in the High Court. This is a case wherein the Supreme Court reduced the

amount of fine and achieved a proper blending of offender rehabilitation and victim

compensation. The important point which emerged in the case was that the Supreme

Court upheld the order of compensation.92

Reiterating the above judgment, the Court in Sarwan Singh v. State of

Punjab93 considered that the object behind the imposition of fine is to collect it (fine)

and pay it to the person who has suffered the loss and if it is more than the accused

person’s capacity then the purpose will not be served. Thus the Court observed that:

90
PalaniappaGounderv. State of Tamil Nadu, (1977)2 SCC 636.
91
The High Court first considered what compensation ought to be awarded to the heirs of the deceased
and then imposed by way of fine an amount which was higher than the compensation because the
compensation has to come out of the amount of fine….. the primary object of imposing a fine is not to
ensure that the offender will undergo the sentence in default of payment of fine but to see that the fine
is realized, which can happen only when the fine is not unduly excessive having regard to all the
circumstances of the case, including the means of the offender., available at
https://indiankanoon.org/doc/662559/, accessed on 25/03/2018 at 2.20 a.m.
92
MurugesanSrinivasan& Jane Eyre Mathew, “Victims and the Criminal Justice System in India: Need for a Paradigm
Shift in the Justice System”, available at https://www.scribd.com/document/274926076/1450-66370702051S, accessed
on 14/02/2018 at 10.20 p.m.
93
(1978) 4 SCC111.

141
 “In awarding compensation it is necessary for the court to decide whether the

case is a 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 a

compensation has to be determined. In directing compensation, the object is to

collect the fine and pay it to the person who has suffered the loss. The purpose

will not be served if the accused is not able to pay the fine or compensation

for, imposing a default sentence for non-payment of fine would not achieve the

object. If the accused is in a position to pay the compensation to the injured or

his dependents to which they are entitled to, there could be no reason for the

Court not directing such compensation.”94

In this case, the deceased was murdered by his two brothers and their sons.

Both the trial Court and High Court convicted all the offenders under Section 302

read with Section 149 of the Indian Penal Code. The Apex Court set aside the

conviction under Section 302 read with Section 149 and found the appellant guilty

under Section 304 (1) read with Section 149 of the Indian Penal Code and sentenced

them to five years rigorous imprisonment with a fine of Rs. 3500/- each with the

direction that the same be paid as compensation to the widow of the deceased.95

In Guruswamyv. State of Tamil Nadu96the judiciary considered the question

whether a kin is eligible to receive compensation as a victim. In this case the accused

was convicted on a charge of murder. The victims were his father (1st deceased) and

brother (2nd deceased). While reducing the sentences, the Supreme Court held that the

offence was committed during a family quarrel and though the victims are the father

94
Sarwan Singh v. State of Punjab, (1978) 4 SCC 117-118.
95
“Compensatory Jurisprudence”, available at http://egyankosh.ac.in/bitstream/123456789/38912/1/
Unit-2.pdf, accessed on 07/04/2018 at 12.10 a.m.
96
(1979) 3 SCC 797.

142
and brother of the appellant, in the circumstances of the case, the extreme penalty

was not called for. The accused (appellant) had also been under sentence of death

for a period of six years. But in reducing the death sentence to imprisonment for life,

it was held that the widow (wife of 2nd deceased) and her minor children should be

compensated for the loss they have suffered by the death of her husband. The court

imposed a fine of Rs. 10,000/- on the appellant and ordered the same to be paid as

compensation to the dependants of the victim.

It is noteworthy that the Supreme Court in its earlier cases97 only emphasized

on one aspect, that is, compensation will be only payable in a case where fine is a part

of the sentence. But the Supreme Court was either ignorant or overlooked the other

aspect of Sec. 357 which empowers the court to award compensation even if the fine

is not a part of the sentence98i.e. under Sec. 357 (3).

The Court in a later case i.e. in Harikrishna and State of Haryana v.Sukhbir

Singh and other99recommended to all criminal courts to award compensation to

victims of offence against person, property and reputation under section 357 (3) of the

Code of Criminal Procedure.

In the instant case, two groups of persons during the course of a fight inflicted

injuries on each other. The accused, though armed with ballam (spear) and other

sharp-edged weapons used only the blunt side. All the seven accused were convicted

by the Additional Sessions Judge under section 307 and 325 read with section 148 and

149. When the case went to the High Court on appeal, it acquitted two accused

97
PalaniappaGounderv. State of Tamil Nadu,(1977)2 SCC 634, Sarwan Singh v. State of Punjab,
(1978) 4 SCC111.
98
Bharat B. Das, “Victim in the Criminal Justice System: A Study with Special Reference to
Compensation”, Indian Journal of Criminology, Vol. 29 (1 & 2), January & July, 2001, pp. 90-99, p.
94.
99
(1988) 4 SCC 551.

143
persons and other five accused were acquitted of the offences under section 307 read

with section 148 of the Indian Penal Code. The conviction under section 325 read

with section 149 was maintained. They were released on probation but each was

ordered to pay compensation of Rs. 2,500/- to one of the victims (Joginder Singh)

who was seriously injured.

On appeal to the Supreme Court, the appellant contended that the High Court

was too charitable to the accused. Since the accused had the intention to murder

Joginder Singh, he should not have been put on probation. The appellant complained

that Joginder Singh sustained permanent disability due to head injuries and the

amount of compensation was not adequate.100

On compensation to the victims of crime, the Supreme Court observed that

under section 357 (3), the court can award compensation in cases when no fine can be

levied. The Supreme Court observed that-

“It is an important provision but courts have seldom invoked it. Perhaps due

to ignorance of the object of it. It empowers the court to award compensation

to the victim while passing judgment of conviction. In addition to convictions

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. It may be noted

that this power of the court to award compensation is not ancillary to other

but it is in addition to that. 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

100
Supra note 97.

144
 approach to crime. It is indeed a step forward in our criminal justice system.

We therefore recommended to all courts to exercise this power liberally so as

to meet the ends of justice in a better way”.101

The Supreme Court further, on the quantum of restitution, issued certain

guidelines. The payment by way of restitution must be reasonable and should depend

upon the facts and circumstances of each case. The quantum of restitution may be

determined by taking into account the nature of crime, the justness of claim by the

victim and the ability of the accused to pay. If there is more than one accused, they

may be asked to pay in equal terms unless their capacity to pay varies considerably.

The payment may also vary depending upon acts of each accused. Reasonable period

of payment of restitution, if necessary, by installments, may also be given.102

The court in the above case pointed out that the victim (Joginder Singh) was

unfortunate and observed further that-

“His power of speech has been permanently impaired… The lifelong disability

of the victim ought not to be by-passed by the court. He must be made to feel

the court and accused have taken care of him. Any such measure which would

give him succour is far better than a sentence of deterrence.”103

The Supreme Court awarded compensation of Rs. 50,000/- as against the low

figure of Rs. 2,500/- accorded by the High Court, to Joginder Singh with due regard to

all fact and circumstances.

101
Harikrishna and State of Haryanav.Sukhbir Singh and other, (1988) 4 SCC 558.
102
G. S. Bajpai, Victim in the Criminal Justice Process, Uppal Publishing House, New Delhi, 1997, p.
105.
103
Supra note 100.

145
 This is a land mark case where the Supreme Court of India has not only

enhanced the quantum of restitution to the victim awarded by the High Court in a just

and reasonable manner104 but also issued a directive to all the courts in India to make

use of the provisions of restitution liberally with a set of guidelines to decide the

amount of restitution to the victim.

However, the progressive judgment of Supreme Court in Harikrishan and

another v.Sukhbir Singh and others to compensate victims of crime under section 357

(3) of the Cr. P. C. was not allowed by court in its latter judgments BrijLalv.Prem

Chand105, State of U. P. v.Jodh Singh106 etc.107 In these cases the court awarded

compensation to the victims of crime out of fine amount (i.e. under section 357(1) Cr.

P. C.). In these cases, the Apex Court was more compassionate towards the accused

rather than the victim.

Baldev Singh v. State of Punjab108isa case where the Apex Court followed the

judgment of Harikrishan.109It was held that Baldev Singh is an unfortunate victim of

property dispute between the father and the son. The unfortunate act of the accused

amounted to the offender under section 299 read with 304 part-II of the Indian Penal

104
Because in this case the accused were capable and willing to bear the additional burden. Mr. Lalit,the
learned counsel said that his clients are willing to pay any amount determined by this Court. This was
opined by the Supreme Court in Sarwan Singh v. State of Punjab, AIR 1978 SC 1525, that-“if the
accused is in a position to pay the compensation to the injured or his dependents to which they are
entitled to, there could be no reason for the court not directing such compensation.”
105
1989 AIR 1661, 1989 SCR (2) 61. In this case the Court held that-“ Taking all factors into
consideration, we think that the ends of justice would be met if we substitute the sentence awarded to
the accused with the sentence of imprisonment for the period already undergone by him and enhance
the sentence of fine from Rs.500 to Rs.20,000 with a direction that out of the fine amount, if paid, a sum
of Rs. 18,000 should be paid to the father of Veena Rani for bringing up Veena Rani’s minor son
Manish.”
106
(1989) 3 SCC 465. In this case the court held that-“Out of the fine amount, imposed on A-2 to A-6 for
the conviction under Section 304 Part II read with Section 34 I.P.C, if collected, we direct 75% of the
fine amount to be given in equal shares i.e. 371/2% each to the heirs of Jairam Singh and Nathu Singh
respectively. Out of the fine amount collected for the conviction under Section 326 read with Section 34
I.P.C. we direct 75% of the amount to be given to PW-1 Jagdish Singh.”
107
Supra note 2, 329.
108
(1995) 6 SCC 593.
109
Supra note 100, p. 551.

146
Code. The court held that the widow and the children of the deceased are the sufferer

and they should not be forgotten. Considering the nature of crime and the fact that the

accused are near relations and capable of paying, the court considered it as a fit case,

in which section 357 (3) Cr. P. C. can be invoked. The court reduced the sentence to

the period already under gone and ordered for compensation of Rs. 35,000/- to be paid

by each accused to the widow and children.110In Balrajv. State of U. P.111, appellant

was convicted under section 302 IPC for committing murder of four persons and

injuring some other members of his elder brother’s family. In this case the court

reducing the sentence of death to imprisonment of life holding that “we further direct

that the appellant shall pay Rs. 10,000/- by way of compensation as it is a fit case for

compensation as she is left without any support of a family”.

In State of Punjab v.Gurmej Singh112 the accused murdered three persons and

injured others for an issue related to money exchange among the brothers. The

accused was convicted under s. 302. IPC and sentenced to death by the trial court with

a fine of rupees 5000/- for each murder. The High Court commuted the death sentence

into life imprisonment. The State of Punjab filed an appeal against the High Court’s

decision. It also raised the plea of compensation under Sec. 357 (3), Cr.P.C to the

daughter of one of the deceased. The Apex Court upheld the High Court decision but

rejected the argument of compensation and held that no compensation under Sec. 357

(3), Cr.P.C can be awarded when sentence of fine is ordered. The Apex Court

however enhanced the amount of fine from Rs. 5000/- to Rs. 20000/- on each count

to be paid to the daughter of the deceased.

110
Supra note 97, p. 95.
111
(1994) 4 SCC 29.
112
(2002) 6 SCC 663.

147
 Regarding the opinion of capacity to pay compensation by the offender under

section 357 of Cr. P. C. the Apex Court in Rachhpal Singh v. State of Punjab113held

that, based on the records and materials, since the appellant were reasonably affluent,

they possessed the capacity to pay at least Rs. 1,00,000/- per head as compensation.

Thus, the Apex Court modified the order of the High Court and compensation amount

which was to be paid was reduced from Rs. 2,00,000/- each to Rs. 1,00,000/- each.

Moreover, it held that, it is open to the court to award compensation to the victim and

his family. In Mangilalv. State of Madhya Pradesh114the Supreme Court observed that

the power to award compensation to victims under section 357 was not ancillary to

any other power. The distinction that exists between sub-sections 357 (1) and 357 (3)

is that section 357 (3), even in the absence of imposition of fine, unlike section 357

(1) empowers the court to direct payment of compensation.

In BipinBihariv. State of Madhya Pradesh115the Supreme Courton the question

of awarding compensation referred to the case Bhaskaranv.

SankaranVaidhyanBalan,116where the Apex Court, while considering the scope of

section 357 (3) Cr. P. C. laid down that Magistrate could not restrict its power while

awarding compensation under section 357 (3), since this provision was not subject to

any limitation and thus the Magistrate could use provision to award any amount of

compensation but also held that at the time of fixing the amount of compensation,

reasonability of the amount of compensation should also be considered.

113
2002 Cr L J 3540 SC.
114
AIR 2004 SC 1280.
115
2005 Cr L J 2048 MP.
116
(1999) 7 SCC 510.

148
 Regarding the application of Section 357 on economic offences, the Supreme

Court has given its opinion in Dilip S. Dahanukarv.Kotak Mahindra Co. Ltd.117 In

this case after finding a company guilty under section 138 of the Negotiable

Instruments Act, 1881 [hereinafter referred to as NI Act] and its chairman under

section 138 read with section 141 of the NI Act, the trial court fined the company for

rupees 25,000/- and ordered its chairman to pay Rs. 15,00,000/- as compensation to

the complainant under Sec. 357 (3) of Cr.P.C. The accused filed an appeal but the

Appellate Court while admitting the appeal, directed them to deposit a sum of rupees

five lakhs each within four weeks. A writ petition was filed by the appellant in the

High Court of Bombay questioning the validity of the said order of first appellate

court on the ground that it violates Sec. 357 (2), Cr.P.C. The petition was dismissed

by the High Court. The accused filed an appeal in the Supreme Court arguing that by

virtue of Sec. 357 (2) Cr.P.C., the amount of fine and compensation should be

suspended. The defendant contended that Sec. 357 (2), Cr.P.C. has no application on

compensation granted under Sec. 357 (3), Cr.P.C. as Sec. 357 (2) Cr.P.C. refers only

to fine. The Supreme Court rejected this argument and ruled that as the compensation

under Sec. 357 (3), Cr.P.C. can be directed to be recovered as fine, there is no reason

to exclude it from the purview of Sec. 357 (2), Cr.P.C. 118

The apex court also discussed the issue concerning the reasonableness of

amount of compensation under Sec. 357 (3), Cr.P.C. Allowing the appeal, the Apex

Court held the amount of compensation as unreasonable. It observed that as there is

no ceiling on the amount of compensation under Sec. 357 (3), Cr.P.C, the courts

117
(2007) 6 SCC 528.
118
Rajesh Suman, “Compensation to Victims: A Study With Special Reference to S. 357 of the Code
of Criminal Procedure, 1973”, Compendium on Compensatory Relief to the Victims of Crime in
Criminal Justice System, Jharkhand State Legal Services Authority, Ranchi, 2016,pp. 55-69, p. 64.

149
should grant it in a judicious manner. It said that ordinarily the court should grant a

lesser amount than what can be granted by a civil court.119 It records thus:

“If a fine is to be imposed under the Act, the amount of which in the opinion of

the Parliament would be more than sufficient to compensate the complainant;

can it be said, that an unreasonable amount should be directed to be paid by

the Court while exercising its power under sub-section (3) of s. 357? The

answer thereto must be rendered in the negative. Sub- section (5) of s. 357

also provides for some guidelines. Ordinarily, it should be lesser than the

amount which can be granted by a Civil Court upon appreciation of the

evidence brought before it for losses which might have reasonably been

suffered by the plaintiff. Jurisdiction of the Civil Court, in this behalf, for

realization of the amount in question must also be borne in mind. A criminal

case is not a substitution for a civil suit, far less execution of a decree which

may be passed.”120

The Supreme Court here also questioned the practice of awarding

compensation under section 357 (3), Cr.P.C. in economic offences like those under

the NI Act as it can be done through the substantive provision of section 138 of the NI

Act read with section 357 (1), Cr.P.C.. But the Court here does not seem to be

appreciative of awarding compensation through s. 357 (3) Cr.P.C. in economic

offences like those under the NI Act and that could be one of the reasons that it

reacted sharply against the award of an exorbitant amount of rupees fifteen lakhs as

compensation by the trial court in this case.121

119
Ibid.
120
Dilip S. Dahanukarv.Kotak Mahindra Co. Ltd, (2007) 6 SCC 545.
121
Supra note 117.

150
 In Manjappav. State of Karnataka122the judiciary in its different jurisdictions

imposed compensation to the offender and retained victimological approach on its

part. In this case the appellate Court was of the view that it was a fit case to reduce

sentence of simple imprisonment from one year to six months. The appellate Court

also directed the accused to pay compensation of Rs. 3,000/-to the complainant who

had sustained grievous injuries, independently of what the trial court awarded. The

sentence of fine and compensation passed by the trial court was confirmed. The

appellant filed a revision petition in the High Court challenging the order of the court

of sessions.

The High Court confirmed the order of conviction. The High Court also partly

allowed the revision by reducing sentence and ordering the appellant to undergo

simple imprisonment for one month and to pay a fine of Rs. 1,000/-in addition to what

was ordered by the courts below. The appellant then approached the Supreme Court

against the order passed by the High Court.

The Judges of the Supreme Court in their order stated that-

“keeping in view all the facts and circumstances, in our opinion, ends of

justice would be met, if we order that the substantive sentence which the

appellant has already undergone is held sufficient. We are also of the view

that it would be appropriate if over and above the amount which the appellant

herein has paid towards fine and also compensation to the injured victim, the

122
(2010) 9 SCC 334.

151
 appellant is ordered to pay an additional amount of Rs.10,000/-to the

complainant by way of compensation.”123

Considering the word “may” used in section 357 of Cr. P. C. the Apex Court

referring to its decision in Smt. Bachahan Devi and Anr. v. Nagar Nigam, Gorakhpur

and Anr124stated that, although‘may’ at a glance does not suggest any mandatory duty

cast upon a Court but for positive benefit this word should be interpreted as a

compulsory force. It observed:

“...It is well-settled that the use of word ‘may’ in a statutory provision would

not by itself show that the provision is directory in nature. In some cases, the

legislature may use the word ‘may’ as a matter of pure conventional courtesy

and yet intend a mandatory force. In order, therefore, to interpret the legal

import of the word ‘may’, the court has to consider various factors, namely,

the object and the scheme of the Act, the context and the background against

which the words have been used, the purpose and the advantages sought to be

achieved by the use of this word, and the like. It is equally well-settled that

where the word ‘may’ involves a discretion coupled with an obligation or

where it confers a positive benefit to a general class of subjects in a utility Act,

or where the court advances a remedy and suppresses the mischief, or where

giving the words directory significance would defeat the very object of the Act,

the word ‘may’ should be interpreted to convey a mandatory force...”125

123
Para 15 (Manjappav. State of Karnataka), available at http://indiankanoon.org/doc/1961388,
accessed on 6/01/2019 at 11.45 a.m.
124
(2008) 12 SCC 372.
125
Smt. Bachahan Devi and Anr. v. Nagar Nigam, Gorakhpur and Anr, (2008) 12 SCC 374.

152
 In Manish Jalanv. State of Karnataka126 the Supreme Court observed that-

“the end of justice would be met if the sentence of imprisonment is reduced to

the period already undergone but in addition thereto, the appellant should be

directed to pay an amount of Rs. 1,00,000/- to the mother of the deceased by

way of compensation.”127

In this case, following the judgment of its own128 the Apex Court stated that

Courts have not made use of the provisions regarding award of compensation to the

victims as often as they ought to be. The relevant portion of the said judgment is

reproduced hereunder:-

“Though a comprehensive provision enabling the court to direct payment of

compensation has been in existence all through but the experience has shown

that the provision has rarely attracted the attention of the courts. Time and

again the courts have been reminded that the provision is aimed at serving the

social purpose and should be exercised liberally yet the results are not very

heartening.”129

On the question of the mode of realizing compensation under Section 357 (3)

the Court in Vijaganv.Sadanandan130 referring to its decision in

EttappadanAhammedkutty @ Kunhappuv. E.P. Abdullakoya @

KunhiBappu&Anr.131stated that-

126
(2008) 8 SCC 225.
127
Manish Jalanv. State of Karnataka,(2008) 8 SCC 231-232.
128
Supra note 100, p. 551.
129
Supra note 126, p. 230.
130
(2009) 6 SCC 652.
131
(2009) 6 SCC 660.

153
 “If the compensation directed to be paid by the Court in exercise of its

jurisdiction under sub-section (3) of Section 357 Cr.P.C. is not deposited, the

same can be realised as fine in terms of Section 421 of the Code.” 132

In the above mentioned two cases133, the judiciary gave two counter judgments

compensating on the part of the offender under Section 357 (3) of the Cr.P.C., 1973.

In the previous one134 where the question was raised before the judiciary for the first

time, the Court did not impose a default sentence for it.135 But later, in

Vijaganv.Sadanandan136the Court changed its position and stated that the judiciary is

empowered within its jurisdiction to add a default sentence of imprisonment.137 The

Court in this case while discussing the issue, referred to Sections 431 of Cr.P.C, 1973

and 64 of Indian Penal Code, 1860. In this case although the Court appreciated that

Section 357 (3) of Cr.P.C., 1973 does not include the power of the Court to impose a

default sentence for non-payment of compensation but after reading with section 431

of Cr.P.C., 1973 (money ordered to be paid recoverable as fine)138 makes it clear that

132
Ibid.
133
EttappadanAhammedkutty @ Kunhappuv. E.P. Abdullakoya @ KunhiBappu&Anr.,(2009) 6 SCC
660 and Vijaganv.Sadanandan,(2009) 6 SCC 652.
134
EttappadanAhammedkutty @ Kunhappuv. E.P. Abdullakoya @ KunhiBappu&Anr., (2009) 6 SCC
660.
135
The Supreme Court in EttappadanAhammedkutty @ Kunhappuv. E.P. Abdullakoya @
KunhiBappu&Anr, (2009) 6 SCC 660 held that, “compensation can be directed to be paid both in
terms of sub-section (1) of Section 357 of the Code of Criminal Procedure as also sub-section (3)
thereof. However, while exercising jurisdiction under sub-section (3) of Section 357, no direction can
be issued that in default to pay the amount of compensation, the accused shall suffer simple
imprisonment. Such an order could have been passed only in terms of sub-section (1) of Section 357…..
We are, therefore, of the opinion that that part of the impugned order whereby and whereunder the
appellant has been directed to undergo imprisonment for a period of one month, in the event of default
to pay compensation under sub-section (3) of Section 357, is set aside. Rest of the order of the High
Court is upheld.”
136
(2009) 6 SCC 652.
137
Vijaganv.Sadanandan,(2009) 6 SCC 652.
138
Section 431 of the Code of Criminal Procedure, 1973 states- Any money (other than a fine) payable
by virtue of any order made under this Code, and the method of recovery of which is not otherwise
expressly provided for, shall be recoverable as if it were a fine: Provided that section 421 shall, in its
application to an order under section 359, by virtue of this section, be construed as if in the proviso to
sub- section (1) of section 421, after the words and figures “under section 357”, the words and figures

154
any money other than a fine payable on account of an order passed under the code

shall be recoverable as if it were a fine. The Court again referred to section 64 of the

Indian Penal Code, 1860139 and makes it clear that while imposing a sentence of fine,

the Court would be competent to include a default sentence to ensure payment of the

same. Thus the Court deduced that,

“the provisions of sections 357 (3) and 431 of the Cr.P.C., 1973, when read

with section 64 of the Indian Penal Code, 1860, empowers the Court, while

making an order for payment of compensation, it also include a default

sentence in case of non-payment of the same. Therefore, while awarding

compensation under section 357 (3) of the Cr.P.C.,1973 the Court is within its

jurisdiction to add a default sentence of imprisonment.”140

Supporting this judgment the Court in Manohar Singh v. State of Rajasthan141

held that-

“In the present case, in the absence of any evidence about the medical

expenses, loss of earning etc. and the financial capacity of the accused, we are

of the view that the appellant needs to be paid a sum of Rs.50,000/- as

compensation under Section 357(3) within two months by the surviving

“or an order for payment of costs under section 359” had been inserted, E.- Suspension, remission and
commutation of sentences.
139
Section 64 of the Indian Penal Code, 1860 state that- In every case, of an offence punishable with
imprisonment as well as fine, in which the offender is sentenced to a fine, whether with or without
imprisonment, and in every case of an offence punishable with imprisonment or fine, or with fine only,
in which the offender is sentenced to a fine, it shall be competent to the Court which sentences such
offender to direct by the sentence that, in default of payment of the fine, the offender shall suffer
imprisonment for a certain term, in which imprisonment shall be in excess of any other imprisonment
to which he may have been sentenced or to which he may be liable under a commutation of a sentence.
140
Supra note 136, p. 659.
141
2015 (3) SCC 449.

155
 respondents. In default the surviving-respondents will undergo rigorous

imprisonment for three months.”142

In K.A. Abbas H.S.A. v.Sabu Joseph143, the Supreme Court again noted that

Section 357 Cr.P.C. is an important provision but the Courts have seldom invoked it,

perhaps due to the ignorance of the object of it. The relevant portion of the said

judgment is reproduced hereunder-

“In this case, we are not concerned with sub-section (1). We are concerned

only with sub-section (3). It is an important provision but the courts have

seldom invoked it. Perhaps due to ignorance of the object of it. It empowers

the court to award compensation to victims while passing judgment of

conviction. 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. It may be noted that this power of the courts to award

compensation is not ancillary to other sentences but it is in addition thereto.

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 as 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 system. We, therefore, recommend to all the

courts to exercise this power liberally so as to meet the ends of justice in a

better way.”144

142
Manohar Singh v. State of Rajasthan, 2015 (3) SCC 460.
143
(2010) 6 SCC 230.
144
K.A. Abbas H.S.A. v.Sabu Joseph, (2010) 6 SCC 236.

156
 In Roy Fernandesv. State of Goa145the Supreme Court again observed that the

Criminal Courts do not appear to have taken significant note of Section 357 Cr.P.C. or

exercised the power vested in them thereunder. The relevant portion of the said

judgment is thus:

“The provision of payment of compensation has been in existence for a

considerable period of time on the statute book in this country. Even so, the

criminal Courts have not, it appears, taken significant note of the said

provision or exercised the power vested in them thereunder.”146

In AnkushShivajiGaikwadv. State of Maharashtra147the Supreme Court again

noted with despair that Section 357 Cr.P.C. has been consistently ignored by the

Courts despite series of pronouncements to that effect. The Supreme Court held that

Section 357 Cr.P.C. is mandatory and has to be applied in every criminal case and the

Courts are required to record reasons for such application. According to the Court, in

awarding or refusing compensation, the judiciary should apply its mind and if it does

not consider its mandate to apply its mind the entire provision would be rendered a

dead letter. Further, the Court considered that it will be the best proof of application

of mind for awarding or denying compensation when the court discloses the record of

reasons for such award or denial. The Court observed that:

“The only other aspect that needs to be examined is whether any

compensation be awarded against the appellant and in favour of the bereaved

family under Section 357 of the Code of Criminal Procedure, 1973. This

aspect arises very often and has been a subject- matter of several

145
(2012) 3 SCC 221.
146
Roy Fernandesv. State of Goa, (2012) 3 SCC 235.
147
(2013) 6 SCC 770.

157
 pronouncements of this Court. The same may require some elaboration to

place in bold relief certain aspects that need to be addressed by the courts but

have despite the decisions of this Court remained obscure and neglected by

the courts at different levels in this country.148

It appears to us that the provision confers a power coupled with a duty on the

courts to apply its mind to the question of awarding compensation in every

criminal case. We say so because in the background and context in which it

was introduced, the power to award compensation was intended to reassure

the victim that he or she is not forgotten in the criminal justice system. The

victim would remain forgotten in the criminal justice system if despite the

legislature having gone so far as to enact specific provisions relating to victim

compensation, courts choose to ignore the provisions altogether and do not

even apply their mind to the question of compensation. It follows that unless

Section 357 is read to confer an obligation on the courts to apply their mind to

the question of compensation, it would defeat the very object behind the

introduction of the provision.149

Section 357 Cr.P.C. confers a duty on the court to apply its mind to the

question of compensation in every criminal case. It necessarily follows that the

court must disclose that it has applied its mind to this question in every

criminal case.150

To sum up: 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

148
AnkushShivajiGaikwadv. State of Maharashtra,(2013) 6 SCC 783.
149
Ibid, p. 793.
150
Id. p. 795.

158
 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 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 CrPC 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”151

In para 68 of the said judgment, the Supreme Court directed the copy of this

judgment be forwarded to the Registrars of all the High Courts for circulation among

Judges handling criminal trials and hearing appeals.152

C. Judicial Attitude Towards Compensation under Section 357A of Cr. P. C.

1973

As far as Sec 357 A of the Cr. P C. is concerned, though it was incorporated in

2009, it is only very recently that the Supreme Court has begun to intervene.

Supporting section 357 A, the Apex Court stated that-

151
Id. p. 797.
152
“Sentencing Policy, Victimology and compensation to the victims.”, available at
http://mja.gov.in/Site/Upload/GR/Workshop%20Paper_sentencing%20victimology%20-%20uday%
20b%20shukla.pdf, accessed on 1/04/2018 at 12.05 a.m.

159
 “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.”153

In Re: Indian woman says gang raped on orders of village court published in

Business and financial news dated 23-01-2014154 the Hon’ble apex court Suo Moto

took action based on news item and directed the District judge to inspect the place and

give a report. The court held that the victim had suffered due to failure on the part of

the state to protect her. Though her lost prestige and honour could not be regained, the

monetary compensation could be of some solace. The Court held that by virtue of Sec.

357A the State Governments have a responsibility to formulate the schemes for

compensation of the victim which is mandatory in nature. It is for the District or the

State Legal Services Authority to determine the quantum of compensation in each

case, though no rigid formula has been evolved in this regard. In this case, the court

awarded a compensation of Rs. 5,00,000/- as interim compensation under Sec. 357

A.155

153
Supra note 147, p. 770.
154
AIR 2014 SC 2816.
155
Anusree A, “Right to Compensation of Victims of Crime in India: Need for a Comprehensive
Legislation”,International Journal for Legal Developments and Allied Issues, Vol. 2, Issue. 1, pp. 35-
56, p. 52.

160
 It is noteworthy that after the implementation of Sec. 357A of Cr. P. C. 1973

almost all the States and Union Territories of India formulated ‘Victim Compensation

Scheme’(VCS) in their respective places. The VCS of States and Union Territories

have laid down their own eligibility criteria for grant of compensation, procedure for

grant of compensation, limitation period for filing claims for grant of compensation

etc.. These schemes also provided the amount of compensation to be paid for a

particular kind of injury or loss. But unfortunately there was no uniformity in these

schemes. Therefore the Judiciary by its judgments has directed to follow a standard

pattern to provide compensation in these schemes. Regarding victims of acid attack in

Laxmiv. Union of India156 the Supreme Court held that, a uniform compensation of Rs

3,00,000/- must be paid by all states and union territories to the victims, of which 1

lakh should be paid immediately within 15 days and remaining Rs. 2,00,000/- should

be paid within 2 months as expeditiously as possible. The apex court even stated that

compensation must be provided to the victim irrespective of the outcome of the

prosecution. In this case the court awarded interim compensation to the father of the

victim under Sec 357A.157 Further, in Tekan Alias Tekramv. State of Madhya Pradesh

(Now Chattisgarh)158 it was observed that on perusal of the VCS of different States

and the Union Territories, it is clear that no uniform practice is being followed in

providing compensation to the rape victim for the offence and for her rehabilitation. It

also observed that the States and UTs should consider and formulate a uniform

scheme specifically for the rape victims in the light of the scheme framed in the State

of Goa which has decided to give compensation up to Rs 10,00,000/-.

156
(2014) 4 SCC 427.
157
Supra note 154, p. 53.
158
(2016) 4 SCC 461.

161
 Promoting the position of victim, the Supreme Court in State of Himachal

Pradishv. Ram Pal159enhancedthe amount of compensation paid to the victim from

Rs. 40,000/- to Rs. 1,00,000/- and also directed the State of Himachal Pradesh to pay

interim compensation of Rs.3,00,000/-. Further the Court directed that in case the

respondent fails to pay any part of the compensation, that part of compensation will

also be paid by the State under section 357A from the funds available under the

Victim Compensation Scheme framed under the said section so that the heirs of the

victim get total sum of Rs. 4,00,000/- towards compensation.

A landmark decision under Sec 357A in Suresh v. State of

Haryana160wherethe Supreme Court awarded an interim compensation under Sec 357

A, and directed the state to pay an amount of Rs 10,00,000/- to the family of the

victims who had been abducted and murdered. The Court held that the High Court

ought to have awarded the compensation even without an application from the

dependants. The apex court lamented that though several years had passed since the

enactment of Sec. 357A the award of compensation has not become a rule and interim

compensation was not being granted by courts.161 The court gave the following

directions:

“1. It is the duty of the court, on taking cognizance of a criminal offence , to

ascertain whether there is tangible material which showed the commission of

the crime, whether the victim was identifiable and whether the victim of crime

require immediate financial relief.

159
(2015) 11 SCC 584.
160
2015 Cri L J 661.
161
Supra note 156.

162
 2. On being satisfied, either on application or suomoto, the court ought to

direct the grant of interim compensation, subject to the final determination of

compensation at a later stage. This duty continues at every stage of criminal

case, where compensation ought to be given but not given, irrespective of the

application by the victim.

3. At the stage of final hearing , it is obligatory on the part of the court to

advert to the provision and record a finding as to whether a case for grant of

compensation had been made, if so who is entitled to compensation and how

much.

4. Award of the compensation can be interim.

5. Gravity of the offence and need of victim are to be the guiding factors, apart

from other factors which are relevant to the facts and circumstances of the

case.

6. There is also a need to consider upper revision in the scale of

compensation. Pending such hike, scale notified by the state of Kerala162

under the scheme may be adopted unless the scale awarded by any other state

or Union Territory is higher.”163

162
Victim compensation scheme was notified by Govt. of Kerala in February 2014. Some amendments
were made to it in July 2014. Under the scheme, rape victims will be entitled to a compensation of up
to Rs.3 lakh, while sexual assault victims and minors subjected to physical abuse will get a maximum
of Rs.50,000/-.The compensation for dowry-related violence can go up to Rs.2 lakh, while the amount
for acid attack victims ranges from Rs.1 lakh to Rs.3 lakh depending on the degree of disfigurement.
The compensation for death due to crime is Rs.5 lakh, that for culpable homicide not amounting to
murder is Rs.3 lakh, and for causing death by negligence Rs.2 lakh. Permanently disabled victims (80
per cent or more) will get a maximum of Rs.3 lakh, while those with partial disability (40 to 80 per
cent) will get up to Rs.1 lakh. The compensation for burns victims ranges from Rs.20,000/- to Rs.2
lakh depending on the severity, while that for fractures and dislocations and loss of fertility is up to
Rs.1.5 lakh. The scheme envisages an additional compensation of Rs.1 lakh for rehabilitation of
victims. It is proposed that fund would be created for the scheme with budget support, Corporate Social
Responsibility (CSR) contributions from public and private undertakings, and donations from the
public., available at http://www.thehindu.com/todays-paper/tp-national/tp-kerala/compensation-
scheme-for-victims-of-crime/article6172117.ece, accessed on 1/04/2018 at 1.05 a.m.
163
Suresh v. State of Haryana, (2015) 2 SCC 229.

163
The court also directed the states of Andhra Pradesh, Telengana, Madhya Pradesh and

Meghalaya to notify the scheme within one month from the date of receipt of the copy

of the order. The court also directed that a copy of the judgment be forwarded to the

National Judicial Academy so that all judicial officers in the country can be imparted

with the requisite knowledge so as to make the provision operative and meaningful.164

164
Supra note 154, p. 54.

164