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Victim Compensation Scheme: An Aspect of Modern Criminology

The compensation to victim of crime is a matter of concern, throughout the world the condition of the victims of crime is no better. For a quite, long time the victim was not the concern for traditional criminology. The function of compensation is straightforward compensation serves to right what would otherwise count as wrongful injuries to person or their property. It is true that the victim of any serious crime is not getting his due in whole world.

More than four decades back Krishna Iyer J speaking, It is weakness of our jurisprudence that victims of crime and the distress of their dependents of the victim do not attract the attention of law. In fact, the victim compensation is still the vanishing point of our criminal law. This is the deficiency in the system, which must be rectified by the legislature. In this paper attempt has been made to show compensatory rights of victim is not a vanishing point in modern criminology in India.

Wide Amplitude of Term Victim:
The victim protection jurisprudence developed in United Nations General Assembly (UNGA) 1985 by adopting a ‘Declaration of The Basic Principles of Justice for The Victims of Crime and Abuse of Power, which was ratified by a substantial number of countries including India, was a landmark in boosting the pro-victim movement. In which comprehensive definition of victim was given and it included, the immediate family members as well as it applied to everyone irrespective of race, religion, nationality, language, age, colour, cultural belief and also cover the protection programs for victims of crime and abuse of power.

First time the wide definition of victim recognised to aid them are unjustly subjected to loss, damage or injury. The Assembly affirmed the necessity of adopting national and international norms in order to secure universal and effective recognition of and respect for, the rights of victims of crimes and abuse of power.In India, the word "victim" is defined in Section 2(wa) by the Code of Criminal Procedure (Amendment) Act ,2008of the Criminal Procedure Code, 1973. The term "victim" means a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged and the expression "victim" includes his or her guardian or legal heir.

A victim of crime thus is a person who suffers any loss or injury as a result of the crime. Although the expression "any loss or injury" is an expansive expression, it appears that it has been used in the context of the person whose suffering is the direct and proximate result of the crime. The term ‘victim’ means the person whose suffering is the direct and proximate result of the crime and includes the person who is near and dear killed or whose property is destroyed.

Surely, that person's wife, children, or parents would also suffer some mental pain and anguish and may even suffer financially but, the real victim is that person, that is, the owner of the property destroyed. In the case of grievous hurt also, the victim would be the person on whom the hurt was inflicted although, there would be other family members, and friends who may also indirectly suffered the trauma. Victim is difficult to fix.

In Balasaheb Rangnath Khade v The State of Maharastra, on 27 April, 2012 )the court observed:
The criminal justice system has been designed with the State at the center stage. Law and order is the prime duty of the State. It fosters peace and prosperity. The rule of law is to prevail for a welfare State to prosper. The citizens in a welfare State are expected to have their basic human rights. These rights are often violated. The law and order is breached.

A citizen is harmed, injured or even killed as a result of the crime. He/she is a victim of an act termed an 'offence' in the criminal justice system. He/she seeks recourse to law and justice. Justice is given to him/her upon upholding the rule of law. It is denied to him/her upon any breach by the perpetrator of the violation or even by the defender of his rights - the State. The state of the victims in the discipline of victimology has gone far ahead in the west.

The victims have a right to speak and to be heard at all stages of the criminal prosecution bail, release, evidence, sentence and parole. The mischief that the State sought to remedy was the total neglect of the violation of human rights of victims {regarding compensation}. The State, in other words, sought to embark upon and to grant to the victims of crime their human rights. (Cr. Appeals 991, 992, 331 & 854/11)

The compensatory jurisprudence is based on crime is public wrong and sound principle of welfare state and Article 21 of Indian Constitution which lays down that no person shall be deprived of his life or personal liberty except according to the procedure established by law. Similarly, right to property is guaranteed in Article 300A of the Indian Constitution as a constitutional right. Here its development of compensatory rights may be seen under three heads as (A) Compensation Under Public Law; (B) Compensation Under Criminal Procedure Code, 1973; (C) Delhi Victim Compensation Scheme,2011.

(A) Compensation Under Public Law:
The purpose of public law is not only to civilize public power but also to assure the citizen that they live under a legal system which aims to protect their interests and preserve their rights. Therefore, when the court moulds the relief by granting “compensation in proceedings under article 32 or 226 of the Constitution seeking enforcement or protection of fundamental rights 8, it does so under the public law by way of penalising the wrongdoer and fixing the liability for the public wrong on the State which has failed in its public duty to protect the fundamental rights of the citizen9.In P.P.M.Thangaiah v.The Government of T.N (29-09-2006 )

survey of the entire judgments of the Supreme Court as well as the other High Courts, on the question of award of compensation for 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 property of every citizen and if it 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 especially under Articles 14, 19 and 21 of the Constitution of India should have been 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.

(5) The Supreme Court or the High Court are entitled to render compensatory justice by awarding reasonable monetary compensation under Article 32 or 226 of the Constitution of India, for the 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 suo motu 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 strait-jacket formula for awarding the compensation under Article 226 of the Constitution of India.

The long line of judicial pronouncement while the assassination of the Prime Minister of the country Mrs. Indira Gandhi a riot took place in Coimbatore which resulted into loss of property of Sikh community members. The incident took place because of failure on part of the State government.

A writ petition was filed for compensation in R. Gandhi v. Union of India (11 May, 2010 )The High Court accepting the prayer of the petitioner that compensation must be given on the basis of actual loss suffered observed:
The maintenance of law and order is the primary duty of the State and under our Constitution it is a State subject and tops of the State List. No government worth the name can abdicate this function and put the life and liberty, the hearth and the home of the citizen in jeopardy.

The Madras High Court while holding that the unfortunate victims of arson and violence were entitled to seek reasonable compensation from the state of Tamil Nadu which failed in its duty to protect this constitutional and legal rights observed:
The member of Sikh community form an integral part of the Indian society, they have every right to settle down in Coimbatore and carry on their profession. They have the constitutional right to live and they cannot be deprived of their means of livelihood. Their right to protect is invoidable all these constitutional rights of Sikh and a few members of other communities have been flagrantly infringed by the inaction of the law enforcing authorities.

The fundamental rights are not mere brutum fulmen … … they are the throbbing aspiration and realities of civilized human life, they cannot be … dead letter … by the failure of the State to protect those rights.

In R. Gandhi case, the Madras High Court referred to Article 38 which enjoins on the state to promote the welfare of the people by securing and protecting the social order. Further, it took help of Article 19(1)(g), 21 and Article 300A of the Constitution and linked the right to property with life and liberty, and freedom of trade, occupation, profession. The court concluded that it was the duty of the government to protect these rights and the failure on the part of the government should result into compensation while must be reasonable keeps in view the actual loss suffered by the victims of said riot.

In M/s S Inderpuri General Store v. Union of India,14 a communal riot took place in January 1989 in the city of Jammu and the petitioner belonging to Sikh community suffered losses and prayed for the issuance of a direction to the respondent to pay compensation to the extent of losses actually suffered by them. It was found that the communal violence broke out due to the alleged active connivance of anti-national and anti-social elements resulting in injuries and deaths of the Hindu and Sikh members. The communal riots were alleged to have been engineered by anti-social elements and forces and member of other communities.

The respondent State initiated all measures to curb and prevent anti-national and anti-social activities. The government granted ex gratia relief in favour of those persons who lost their properties. A committee was constituted to assess suffered losses of property and were granted ex gratia relief upto a maximum of Rs. 25,000/ and it was already paid to the petitioner.

It was submitted on behalf of the petitioner that their property was destroyed in the riot and the respondent authorities failed to provide them protection as is the mandate of the law and followed in our democratic, republic, socialist and secular State. The right of petitioner under Article 14, 19 and 21 of the Constitution. The respondent State argued that the petitioner had no fundamental legal or statutory rights in seeking compensation from the government.

The court rejected the arguments of the State and held that it was the duty of the State to provide safety and security in which the government failed. The right to life can be jeopardized by affecting the right to livelihood, the Supreme Court had observed in Olga Tellis v. Bombay Municipal Corporation,15 that the court while entertaining an application for enforcement of a fundamental right must look at the substance and nor form.

The High Court passing an order to pay compensation to the extent of loss suffered by the petitioner observed:
It cannot be denied that the maintenance of law and order is a duty of a responsible government who could not abdicate this function and allow the life and liberty of the citizen to jeopardy.

The High Court further observed:
As and when life and property … is taken away by any individual or organisation, a duty is cast upon the state representing the will of the people to compensate the victim by granting adequate compensation. The monarchial rule is to be distinguished from democratic set up to protect the life, liberty and property or its citizens. On their failure to protect life, liberty and property to the citizen, State is under the constitutional obligation to compensate the victims adequately.

In Bhajan Kaur v. Delhi Administration,  a writ petition was filed in Delhi High Court for paying compensation to the dependents of those killed in the riots after the assassination of Smt. Indira Gandhi as the State had a duty to protect the life of it citizens.

The Delhi High Court held that the expanded meaning attribute to Article 21 of the Constitution, it is the duty of the State to create a climate where member of the society belonging to different faiths, caste and creed live together and therefore the State has a duty to protect their life, liberty, dignity and worth of an individual which should not be jeopardized or endangered. If in any circumstances the state is not able to do so, then it cannot escape the liability to pay compensation to the family of the persons killed during the riots. The High Court directed the State government to pay a sum of Rs. 2 Lakhs with interest and also gave a general direction that the order should apply to similar cases also.

A writ petition was filed with a view to extend the application of the order passed by the Delhi High Court in Bhajan Kaur case to entire country and to redress the victim in S.S. Ahluwalia v. Union of India The Supreme Court agreed in principle that the Government should pay compensation to the family member of the persons killed in riot but it found difficult to extend the decision of Delhi High Court in Bhajan Kaur case to all States without making a detailed examination of the circumstances arising in each case. The Supreme Court directed various High Courts to deal with the matter as if the writ petitions were filed before it and assess the loss suffered in individual cases.

However, the Chhattisgarh High Court in Kehar Singh v. State of Chhatisgarh, extended the application of the direction issued by the Delhi High court in Bhajan Kaur case and held that it is just and proper that a sum of Rs. 2 lakh as compensation be awarded from the date of the incident with interest 9% per month adjusting the amount already paid to the dependents. From the above discussion it is quite clear that the maintenance of law and order is the function of the State and the failure on part of State may result into invocation of violation of fundamental rights.

The state may be directed to pay compensation for violation of fundamental right to life. In communal violence also such a provision of public law may be invoked and the state may be asked to pay compensation to the riot victims for the loss of life and property. Although the Central government in case of urgency announces ex-gratia to victims of crime. In this guidelines issued from time to time as in central scheme for Assistance to Civilian Victims of Terrorist, Communal and Naxal Violence, 2009.

In Hindustan Paper Corporation Ltd v. Anata Bhattachaya, the court restricted the public law remedy only to Article 21 ignoring the Article 300A as being constitutional right stated:
Public law remedy for the purpose of grant of compensation can be restored to only when the fundamental right of a citizen under Article 21 of the constitution is violated and not otherwise. it is not every violation of the provisions of the constitution or a statutes, which would enable the court to direct grant of compensation. The power of court of judicial review to grant compensation in public law remedy is limited. Thus the traditional distinction between ‘sovereign’ and ‘non-sovereign’ function of the State has gradually eroded.

In Destruction of Public and Private Properties v. State of A.P., taking a serious note of various instances where there was large scale destruction of public and private properties in the name of agitations, bandhs and the like, the Supreme Court approved the that under the PDPP Act must be so amended as to incorporate a rebuttable presumption (after the prosecution established the two facets)that the accused is guilty of the offence and enabling the police officers to arrange videography of the activities damaging public property. In such cases (wherever a mass destruction to property take place) concerned High Court may suo moto action and set up a machinery to investigate the damage caused and to award compensation related thereto.

(B) Compensation Under Criminal Procedure Code, 1973:
In old Code of Criminal Procedure ,1898 contained a provision for restitution in the form of section 545. Now there is only one general law that govern the victims compensatory rights as mentioned in under Criminal Procedure Code, 1973 in Section 357. The Apex Court in Hari Kishan v. Sukhbir Singh high lighting the importance of Section 357(3) of the Criminal Procedure Code, 1973 says, Section 357 of Cr.P.C. 1973, is an important provision. This power to award compensation is not ancillary to other sentences but it is in addition thereto. It is a measure of responding appropriately to crime as well as reconciling the victim with the offender.

The courts have seldom invoked it. Section 357 has been detailed in five sub sections under sub section (1) of the S. 357, compensation could be directed to be paid only if the accused is punished with a sentence of fine or with some other sentence of which fine formed part; and secondly, it could be directed to be paid out of the amount of fine recovered. Consequently the amount of compensation could be in no case exceed the amount of fine; and the quantum of fine would again depend upon the limit up to which the fine was award able for the particular offence and also upon the extent to which the court had power to impose fine.

Further, sub section(2) provides that where the fine is imposed in a case which is subject to appeal, no such payment shall be made before the period allowed for presenting the appeal has elapsed, or, if an appeal be presented, before the decision of the appeal. In sub section (3) syas when a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment, order the accused person to pay, by way of compensation, such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced. According to sub section (3) compensation can be granted quite liberally and without any restriction.

The only limitation of subsection (3) is it would be awarded where sentence of fine is not imposed. If the sentence of fine is imposed, this section is not applicable. Under subsection (4) of 357 provides that an order under this section may also be made by an Appellate Court or by the High Court or Court of Session when exercising its powers of revision.

Subsection (5) of section 357 provides that at the time of awarding compensation in any subsequent civil suit relating to the same matter, the Court shall take into account any sum paid or recovered as compensation under this section. The applicability of this section is when by court the offence under is successfully proved.

It settled through the case laws 30 that compensation for murder , in murder cases the court are of the view that true justice will be rendered only when proper compensation is provided to the dependents of the deceased.

The amount of compensation awarded range from Rs. 10,000 to Rs. 1,00,000 depending upon the number of dependents’ of the deceased and capacity of the accused to pay the same. Section 357 have own limitation While passing an order under Section 357(3), it is imperative for the courts to look at the ability and the capacity of the accused to pay the same amount as has been laid down by the cases above, otherwise the very purpose of granting an order of compensation would stand defeated. It occurred in many cases then it was realized to shift this duty of compensation to state also by creation of Victim Compensation Scheme.

Evolution of Victim Compensation Scheme:
The universalistic views on criminal justice system emphasize on the norms collectively recognized and accepted by all of humanity33. The internationally accepted norms where under an individual's criminal act(s) is accountable are universally binding and applicable across national borders on the premise that crimes committed are not just against individual victims but also against mankind as a whole. The crime against an individual thus transcends and is taken as an assault on humanity itself. It is the concept of the humanity at large as a victim which has essentially characterized 'crimes' on universally- accepted principles.

The acceptability of this principle was the genesis of Criminal Justice System with State dominance and jurisdiction to investigate and adjudicate the 'crime'. For long, the criminal law had been viewed on a dimensional plane wherein the Courts were required to adjudicate between the accused and the State. The 'victim' - the de facto sufferer of a crime had no participation in the adjudicatory process and was made to sit outside the Court as a mute spectator.

The ethos of criminal justice dispensation to prevent and punish 'crime' would surreptitiously turn its back on the 'victim' of such crime whose cries went unnoticed for centuries in the long corridors of the conventional apparatus. Various international Declarations, domestic legislations and Courts across the world recognized the 'victim' and they voiced together for his right of representation, compensation and assistance. The Malimath Committee also affirm pro-victim movements.

The 154th Law Commission Report on the CrPC devoted an entire chapter to 'Victimology' in which the growing emphasis on victim's rights in criminal trials was discussed extensively as under:
Increasingly the attention of criminologists, penologists and reformers of criminal justice system has been directed to victimology, control of victimization and protection of victims of crimes. Crimes often entail substantive harms to people and not merely symbolic harm to the social order. Consequently the needs and rights of victims of crime should receive priority attention in the total response to crime. One recognized method of protection of victims is compensation to victims of crime. The needs of victims and their family are extensive and varied.

Further observed,
The principles of victimology has foundations in Indian constitutional jurisprudence. The provision on Fundamental Rights (Part III) and Directive Principles of State Policy (Part IV) form the bulwark for a new social order in which social and economic justice would blossom in the national life of the country (Art. 38). Art. 41 mandates inter alia that the State shall make effective provisions for "securing the right to public assistance in cases of disablement and in other cases of undeserved want." So also Article 51-A makes it a fundamental duty of every Indian citizen, inter alia 'to have compassion for living creatures' and to 'develop humanism'. If emphatically interpreted and imaginatively expanded these provisions can form the constitutional underpinnings for victimology.

In India the principles of compensation to crime victims need to be reviewed and expanded to cover all cases. The compensation should not be limited only to fines, penalties and forfeitures realized. The State should accept the principle of providing assistance to victims out of its own funds..."

In background of above efforts, The concept of 'Victim Compensation Scheme' has get birth by Section 357A which inter alia provides that "every State Government in co-ordination with the Central Government shall prepare a scheme for providing funds for the purpose of compensation to the victim or his dependents who have suffered loss or injury as a result of the crime and who, require rehabilitation"35.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.

Section 357A(2) provides on recommendation of court for compensation the district legal service authority or the state legal service authority, as the case may be, shall decide the quantum of compensation to be awarded under the scheme provided for section 357A subsection (1). Section 357A
(4) provides the rights to victim to proceed for compensation.

According to this subsection where the offender is not traced or identified, but the victim is identified, and where no trial takes place, the victim or his dependents may make an application to the state or the district legal service authority for award of compensation.

On getting the application by victim the authority will conduct an enquiry within two months regarding adequate compensation. Sub section 6 of 357A of the Code of Criminal Procedure explain the duty of the State Or District Legal Service Authority as the case be, to alleviate the suffering of victim, a order for immediate first aid facility or medical benefits to be made available free of cost on the certificate of the police officer not below the rank of the officer in charge of the police station or a magistrate of the area concerned, or any other interim relief as the appropriate authority deems fits [Section 357A(6)].

(C) Delhi Victims Compensation Scheme,2011.Government of National Capital Territory of Delhi  approve the following Scheme for the purpose of providing compensation to the victims or their dependent(s) who have suffered loss ‘Delhi Victims Compensation Scheme, 2011. Clause 3 of this scheme provides, Victims Compensation Fund, There shall be a Fund, namely, the Victim Compensation Fund from which the amount of compensation, as decided by the Delhi Legal Services Authority, shall be paid to the victims and their dependent(s) who have suffered loss or injury or require rehabilitation as a result of the crime or require rehabilitation.

Clause 4 details regarding Eligibility for Compensation.- The victim or his/her dependent(s) shall be eligible for the grant of compensation after satisfying the criteria Clause 5 says Procedure for grant of compensation.-
(i) Wherever, a recommendation is made by the court for compensation under sub-sections (2) and (3) of section 357A of the Code, or an application is made by any victim or his/her dependent(s), under sub-section 4 of section 357A of the Code, 1973 to the Delhi Legal Services Authority, it shall examine the case and verify the contents of the claim with regard to the loss or injury or rehabilitation as a result of the crime and may also call for any other relevant information necessary for consideration of the claim from the concerned.

(ii) The inquiry as contemplated under sub-section(5) of section 357A of the Code, 1973 shall be completed expeditiously and the period in no case shall exceed beyond sixty days from the receipt of the claim/petition.

(iii) After consideration of the matter, the Delhi Legal Services Authority, upon its satisfaction, shall decide the quantum of compensation to be awarded to the victim or his/her dependent (s) on the basis of loss or injury or requirement for rehabilitation, medical expenses to be incurred on treatment and such incidental charges, such as funeral expenses etc. On basis of above scheme the High Court of Delhi has in State V. Jaihind, where the court direct that the state shall pay to the victim the sum of rs.3,00,000 as victim compensation in term of rule 3 and 5 read with entry 2 to the schedule to Delhi Victim Compensation Scheme ,2011 read with section 357A.

In public law remedy, court recognized shift from retribution to restitution and compensation may payable by the state. Section 357 of CrPC provides the idea of payment of compensation by the offender. In development of modern criminology towards victim rights has been expended in substantive and procedural laws by inserting section 166B In Indian Penal Code,1860 and Section 357A in Code of Criminal Procedure 1973 have devised new tools to promote a right based remedy. Under this provision, victim needs to be rehabilitated, the victim may request the State or District Legal Services Authority to award him/her compensation.

The court has visualized the awards of compensation as an important methodology not only to redress the violation but also as deterrent. The government needs to clear the concept of omission of government officials especially police.

The issues (like term victim, amount of compensation) that are gray area in the getting of compensation has been flagged should be appropriately solved by judiciary because the .problem of this nature should not be allowed to dampen the spirit of the compensatory jurisprudence. In order to better restitution of victims, the other states law requires to prepare a blue print of victim compensation like Delhi Victim Compensation Scheme.

The days are over where dominance of state had only liability to make a trial and punish the accused, victim should also consider as the part of criminal administration through the glasses of human rights. By this new version of criminal justice system emerge having component of universal humanism. Victim compensations is basic human right which is also recognized in modern criminology. The recognition of the victim as a person with compensatory rights ,is a major break with the past.

Articles on Victim Compensation in India:

Compensation to the Victim of Crime: Assessing Legislative Frame Work and Role of Indian Courts
Compensatory Jurisprudence
Uncivilized And Heartless Crime: SC Enhances Compensation To Acid Attack Victim
Victims Rights in India
An analysis of law relating to Accident Claims in India
Compensation: A Ray of Hope
Role of Indian Judiciary in Protecting Victims Rights
Legal Pronouncements for Compensation under Section 166 of the Motor Vehicles Act, 1988
Remedy of Compensation under Article 32
Gender Sensitization and Rehabilitation of Rape Victims
Category-wise Analysis of Awarded Cases related to compensation to the Bhopal Gas Victims
Basic Principles of Victims of Crime with including the challenges and current scenario in India
Can Victims Claim Compensation?
Speed Break To Section 304-A of IPC
Rights of Accused Far Outweigh That of Victims, Need Some Balancing So That Criminal Proceedings Are Fair To Both
Victims, victimization and victimology
Quantum of damages in Tort Law
Rehabilitation of Trafficked Children in India: Socio and Legal framework
Legal Aspects of the Bhopal Gas Tragedy
Compensatory Jurisprudence In India
Role of Decisions Law In Developing Concept of Compensatory Jurisprudence
Vitriolage - The Brutalization of Human Body
Trafficking in Women and Children - An ounce of prevention is worth a pound of cure

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