Open Access Research Article
Contemporary Issues And Challenges Of Legal Regime On Victim Compensation In India
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Contemporary Issues And Challenges Of Legal Regime On Victim
Compensation In India
Authored By - Dr. Kumara. N.J
Assistant Professor of Law
Vidyavardhaka Law College,
Sheshadri Iyer Road, Mysuru,
Karnataka
ramkumara999@gmail.com
Abstract
Vide
variety of socio-economic problems causes crime and violence in all segment of
society across the globe and this indeed an hindrance to every peaceful society
in one hand and enlarge number of victims on the other side. Crime against the
individual and his property, crime against society and public property, crime
against the ecology, environment and it biodiversity are major areas in which
victimology has direct nexus. Various
factors of multifaceted human endeavors are main reason in rapid growth of
various crimes and victims like, child, adults, women, old age members. The
crime and violence is the result manmade acts. Hence victims are not born but
the result of either neglected or credible human action. Thus the scope of the
term victim and victimology has been in progress. Victim of crime and violence
has been contemporary global challenges and indeed, needs to be mitigated at
local, national and global level through an effective legal framework. The
culture of crime and violence has comprehensively been at peak at present
scenario and it not only causes risk to human life but also been causing great
harm to ecology of all corner of globe. Ongoing administration of criminal
justice system throughout the world needs to be strengthening to meet the needs
of peaceful and welfare state. The rights of an individual of every society
shall be protected. Stringent and proactive legal framework and its effective
enforceable initiatives should come into force. Thus, this research article
will made meaningful effort to enlighten on various facets of global dimensions
of victim and victim compensation approaches,
Keywords:
crime and violence, victims, criminal justice, rights, legal framework
Introduction
Administration
of criminal justice in 21st century is not only meant for imposing
sentences to criminals but it also has true statutory spirit for providing
adequate and appropriate justice to in protection of victims. Victimology as a
global trend has changed sentencing system due to development of victimalogical
approaches across the world. The term victim is not new one to our system. It
has been embedded with the culture of crime since time immemorial and is
multifaceted. There are categories of victims and all are victim of crime like
crime against men and women, crime against property of an individual, society
or public, crime against government, crime against environment etc. in all
these categories of crime men and women, group of individuals, largest public
society, biodiversity and environment becomes victims. Providing relief to the
victims through pecuniary damages and ensure their rehabilitation becomes the
judicial trend in India and also welfare of victims of crime has been
reflecting in various central and state legislative enactments but the vital
purpose of criminal justice has not been achieved yet. Victim of crime and
violence has been contemporary global challenges and indeed, needs to be
mitigated at local, national and global level through an effective legal
framework. Ongoing administration of criminal justice system throughout the
world needs to be strengthening to meet the needs of peaceful and welfare
state. Stringent and proactive legal framework and its effective enforceable
initiatives should come into force.
Who is victim?
Vide
variety of socio-economic problems causes’ crime and violence in all segment of
society across the globe and enlarge number of victims on the other side.
Various factors of multifaceted human endeavors are main reason in rapid growth
of various crimes and victims like, child, adults, women, old age members. The
crime and violence is the result manmade acts. Hence victims are not born but
the result of either neglected or credible human action. Thus the scope of the
term victim and victimology has been in progress. The culture of crime and
violence has comprehensively been at peak at present scenario and it not only
causes risk to human life but also been causing great harm to ecology of all
corner of globe. Thus, the scope of victim always depends on the nature and
extent of crime.
In
response to the United Nations Declaration of Basic Principles of Justice for
Victims of Crime and Abuse of Power 1985[1],
India made significant amendment to its Code of Criminal Procedure 1973 in 2008
and inserted and defined the term Victim under Sec 2(wa). Sec 2(wa) 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[2];
Before Victim Compensation Scheme
Before
the new victim compensation scheme provision come into force, Sec 357 of
Criminal Procedure Code is in force and it imposes an obligation on criminal
courts, and its appellate courts to award compensation to victims of various
crimes and their relatives including victims of fatal accidents, at the time of
awarding the sentence and fine, the amount of fine used to compensate the
victim. It operation is not effective to compare with present days. The
provision as follows…
357. Order to pay compensation.—
(1) When a Court imposes a sentence
of fine or a sentence (including a sentence of death) of which fine forms a
part, the Court may, when passing judgment, order the whole or any part of the
fine recovered to be applied—
(a) in defraying the expenses of
properly incurred in the prosecution;
(b) in the payment to any person of
compensation for any loss or injury caused by the offence, when compensation
is, in the opinion of the Court, recoverable by such person in a Civil Court;
(c) when any person is convicted of
any offence for having caused the death of another person or of having abetted
the commission of such an offence, in paying compensation to the persons who
are, under the Fatal Accidents Act, 1855 (13 of 1855), entitled to recover
damages from the person sentenced for the loss resulting to them from such
death;
(d) when any person is convicted of
any offence which includes theft, criminal misappropriation, criminal breach of
trust, or cheating, or of having dishonestly received or retained, or of having
voluntarily assisted in disposing of, stolen property knowing or having reason
to believe the same to be stolen, in compensating any bona fide purchaser of
such property for the loss of the same if such property is restored to the
possession of the person entitled thereto.
(2) If the fine is imposed in a case
which is subject to appeal no such payment shall be made before the period
allowed for presenting the appeal has elapsed, or, if an appeal be presented,
before the decision of the appeal.
(3) When a Court imposes a sentence,
of which fine does not form a part, the Court may, when passing judgment, order
the accused person to pay, by way of compensation, such amount as may be
specified in the order to the person who has suffered any loss or injury by
reason of the act for which the accused person has been so sentenced.
(4) An order under this section may
also be made by an Appellate Court or by the High Court or Court of Session
when exercising its powers of revision.
(5) At the time of awarding
compensation in any subsequent civil suit relating to the same matter, the
Court shall take into account any sum paid or recovered as compensation under
this section[3].
Judicial Approaches and Victim Compensation
The
landmark case on victims compensatory relief was D. K. Basu v. State of West Bengal the Supreme Court made the
following observations “the monetary and pecuniary compensation is an
appropriate and indeed an defective and sometimes perhaps the only suitable
remedy for the redressal of the established infringement of the fundamental
right to life of a citizen by the public servants. The state is vicariously
liable to which the defense of sovereign immunity is not available and the
citizen must receive the amount of compensation from the state, which shall
have the right to be indemnified from the wrongdoer[4]”
In Delhi Democratic Working Women Forum v. Union of India[5]
case seven military jawans raped six village girls who were travelling by
train. The court directed the Central Government to pay Rs.10, 000/- to each
victim as compensation and ordered the names identity of victimized girls be
kept secret to save them from social stigma. The court also directed National
Women Commission to prepare rehabilitation scheme for such victims and
expressed the need for setting up of a
Criminal Injuries Compensation Board which should decide the quantum of
compensation to be paid to victims of rape after taking into consideration
their shock, suffering as well as loss of earning due to pregnancy and the
expenses of child birth, if caused as a result of rape.
In R. Gandhi v. Union of India the High
Court of Madras upheld the order of district collector in which the district
collector of Coimbatore had recommended that the State Government of shall pay
Rs.33, 19, 003 as compensation to the families of Sikhs and others who were
victims of arson and rioting in the wake of assassination of the farmer Prime
Minister of India, Shri Rajeev Gandhi. Justice S.A Kadar observed “legally and
morally by all cannons of fair play, by all principles of justice, equity and
good conscience, the State of Tamil Nadu is bound to pay compensation to
victims as assessed and recommended by the collector of Coimbatore[6]”
Victim Compensation Scheme
According
to Sec 357A which was amended, inserted and came into force in 2009 is a
comprehensive scheme for victim compensation and it imposes an obligation and
empowers the central and state governments, trial courts, states and district
legal service authorities, magistrates, police stations and hospitals to take
appropriate and active action under this scheme. Indeed, this is the
significant transformation in criminal justice. The scheme as follows…
357A. Victim compensation scheme.—
(1) 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.
(2) Whenever a recommendation is made by the Court
for compensation, the District Legal Service Authority or the State Legal
Service Authority, as the case may be, shall decide the quantum of compensation
to be awarded under the scheme referred to in sub-section (1).
(3) If the trial Court, at the conclusion of the
trial, is satisfied, that the compensation awarded under section 357 is not
adequate for such rehabilitation, or where the cases end in acquittal or
discharge and the victim has to be rehabilitated, it may make recommendation
for compensation.
(4) Where the offender is not traced or
identified, but the victim is identified, and where no trial takes place, the
victim or his dependents may make an application to the State or the District Legal
Services Authority for award of compensation.
(5) On receipt of such recommendations or on the
application under sub-section (4), the State or the District Legal Services
Authority shall, after due enquiry award adequate compensation by completing
the enquiry within two months.
(6) The State or the District Legal Services
Authority, as the case may be, to alleviate the suffering of the victim, may
order for immediate first-aid facility or medical benefits to be made available
free of cost on the certificate of the police officer not below the rank of the
officer in charge of the police station or a Magistrate of the area concerned,
or any other interim relief as the appropriate authority deems fit[7].
The
provision of Sec 357B was inserted into Criminal Procedure Code in 2013 and it
enables the state governments to provide compensation to victims of Acid attack
along with the fine imposed under Sec 326A of Indian Penal Code and such fine
should be used for expenses of medical treatment of victims. The provision as
follows…
357B. Compensation to be in addition to fine under section 326A or
section 376D of Indian Penal Code.—
The compensation payable by the State
Government under section 357A shall be in addition to the payment of fine to
the victim under section 326A or section 376D of the Indian Penal Code (45 of
1860).
The provision of Sec 326A has been
inserted in 2013 to Indian Penal Code 1860 and it empowers the courts to impose
the punishment along with the adequate fine which should be used for expenses
of medical treatment of victims of Acid attack. The provision as follows.
326A. Voluntarily causing grievous hurt by use of acid, etc.—
Whoever causes permanent or partial
damage or deformity to, or burns or maims or disfigures or disables, any part
or parts of the body of a person or causes grievous hurt by throwing acid on or
by administering acid to that person, or by using any other means with the
intention of causing or with the knowledge that he is likely to cause such
injury or hurt, shall be punished with imprisonment of either description for a
term which shall not be less than ten years but which may extend to
imprisonment for life, and with fine:
Provided that such fine shall be just
and reasonable to meet the medical expenses of the treatment of the victim:
Provided further that any fine imposed under this section shall be paid to the
victim[8].
376D. Gang rape.—
Where a woman is raped by one or more
persons constituting a group or acting in furtherance of a common intention,
each of those persons shall be deemed to have committed the offence of rape and
shall be punished with rigorous imprisonment for a term which shall not be less
than twenty years, but which may extend to life which shall mean imprisonment
for the remainder of that person's natural life, and with fine: Provided that
such fine shall be just and reasonable to meet the medical expenses and
rehabilitation of the victim: Provided further that any fine imposed under this
section shall be paid to the victim[9].
Provisions of Sec 376DA and 376DB are
inserted in 2018 through amendment to Indian Penal Code 1860 with the object to
impose an obligation on government, courts to provide compensation to victims
of rape under the age group of sixteen years to meet the medical expenses and
for rehabilitation of those victims.
376DA. Punishment for gang rape on woman under sixteen years of age.—
Where a woman under sixteen years of
age is raped by one or more persons constituting a group or acting in
furtherance of a common intention, each of those persons shall be deemed to
have committed the offence of rape and shall be punished with imprisonment for
life, which shall mean imprisonment for the remainder of that person's natural
life, and with fine: Provided that such fine shall be just and reasonable to
meet the medical expenses and rehabilitation of the victim: Provided further
that any fine imposed under this section shall be paid to the victim.
376DB. Punishment for gang rape on woman under twelve years of age.—
Where a woman under twelve years of
age is raped by one or more persons constituting a group or acting in
furtherance of a common intention, each of those persons shall be deemed to
have committed the offence of rape and shall be punished with imprisonment for
life, which shall mean imprisonment for the remainder of that person's natural
life, and with fine, or with death: Provided that such fine shall be just and
reasonable to meet the medical expenses and rehabilitation of the victim:
Provided further that any fine
imposed under this section shall be paid to the victim[10].
357C. Treatment of victims.—All hospitals, public or private, whether run by the
Central Government, the State Government, local bodies or any other person,
shall immediately, provide the first-aid or medical treatment, free of cost, to
the victims of any offence covered under section 326A, 376, 376A, 376B, 376C,
376D or section 376E of the Indian Penal Code (45 of 1860), and shall
immediately inform the police of such incident.
Sec
358 is the other provision of Criminal Procedure Code 1973 which empowers the
criminal courts to award compensation to the persons who are groundlessly
arrested. The provision as follows…
358. Compensation to persons groundlessly arrested.—
(1) Whenever any person causes a
police officer to arrest another person, if it appears to the Magistrate by
whom the case is heard that there was no sufficient ground for causing such
arrest, the Magistrate may award such compensation, not exceeding 3 [one
thousand rupees], to be paid by the person so causing the arrest to the person
so arrested, for his loss of time and expenses in the matter, as the Magistrate
thinks fit.
(2) In such cases, if more persons
than one are arrested, the Magistrate may, in like manner, award to each of
them such compensation, not exceeding 3 [one thousand rupees], as such
Magistrate thinks fit.
(3) All compensation awarded under
this section may be recovered as if it were a fine, and, if it cannot be so recovered,
the person by whom it is payable shall be sentenced to simple imprisonment for
such term not exceeding thirty days as the Magistrate directs, unless such sum
is sooner paid.
Victim Compensation Scheme in Karnataka
Sec
357(1) of Criminal Procedure Code mandates all states to prepare a scheme in
co-ordination with the Central government for providing funds for the purpose
of compensation to the victims or their dependents who have suffered a loss or
injury as a result of crime and to provide rehabilitation. In exercise of this
powers conferred by Sec 357A of Code of Criminal Procedure, 1973, the
government of Karnataka frames the scheme in 2011 called Karnataka Victim
Compensation Scheme, 2011, for providing the funds for the purpose of
compensation to victims or their dependents who have suffered lass or injury as
a result of the crime and to provide rehabilitation to victims.
According to Sec 2(e) “Victim” means
a person who himself has suffered loss or injury as a result of crime and
require rehabilitation and includes his dependents who have suffered loss or
injury as a result of crime and who require rehabilitation.
Victim Compensation Fund
Sec 3. Victim Compensation Fund:
(1) There shall be a fund called Victim
Compensation Fund.
(2) There shall be credited to the said fund,
(i)
All
grants, subventions, donations and gifts made by the Central Government, State
government, any local authority or anybody, whether incorporated or not or any
person.
(ii)
All
other sums received by or on behalf of the victims compensation from any source
whatsoever.
(3) Except as otherwise directed by the
state government all money credited to the fund shall be invested in any
Scheduled Bank or in the State Government Treasury.
Sec 4. Application of the Victim Compensation Fund:
The found shall be applied for
carrying out the purpose of the scheme.
Sec 5. Grant by the state government: the State
Government may every year make a grant to the fund of a sum equivalent to the
expenses of the previous or probable expenditure requested by the Sate Legal
Service Authority.
Sec 6. Eligibility for compensation:
A victim shall be eligible for the
grant of compensation if,
(1) The offender is not traced or
identified, but the victim is identified, and where no trial takes place, such
victim may also apply for grant of compensation under sub sec (4) of Sec 357A
of the Act
(2) The victim/claimant report the crime
to the officer-in-charge of the police station within 48 hours of the
occurrence or any senior police officer or executive magistrate or judicial
magistrate of the area;
Provided that the
District Legal Service Authority, if satisfied, for the reasons to be recorded
in writing, may condone the delay in reporting.
(3) the victim/claimant shall co-operate
with the police and prosecution during the investigation and trial of the
case.
Sec 7 deals on procedure
for grant of compensation, Sec 8, order to be placed on record, Sec 9
limitation: Sec 10 Appeal
Schedule of the Victim Compensation Scheme[11]:
|
Sl. No
|
Particulars of loss or Injury due
to Crime
|
Maximum Limit of Quantum of
Compensation
|
|
1
|
Loss of Life
a) 40 years age or below
b) 40 years to 60 years
c) 60 years and above
|
Rs. 3.00 Lacs to the next of kin
Rs. 2.00 Lacs to the next of kin
Rs. 1.00 Lacs to the next of kin
|
|
|
Note: in case of death of a victim,
expenses incurred for medical treatment, before the death, up to a maximum of
Rs. 25,000/- and a maximum of Rs. 20,000/- may be given as funeral expenses,
to the next kin of the victim in case of victim’s death.
|
|
|
2
|
Loss of any Limb or part of body
resulting 80% or above handicap due to any crime including Acid Attack
|
Rs. 3.00 Lacs
|
|
3
|
Loss of any limb or part of body
resulting 40% and below 80% handicap due to any crime including Acid Attack
|
Rs. 2.00 Lacs
|
|
4
|
Loss of any limb or part of body
resulting below 40% handicap due to any crime including Acid Attack
|
Rs. 1.00 lacs
|
|
5
|
Rape of Minor
|
Rs. 3.00 lacs
|
|
6
|
Rape of other than Minor
|
Rs. 1.5 lacs
|
|
7
|
(a) Rehabilitation necessitated due to
damage to the house etc, 80% or more
(b) Rehabilitation necessitated due to
damage to the house etc, less than 80%
|
Rs. 50,000/-
Rs. 25.000/-
|
|
8
|
Grievous injury other than injuries
mentioned above
|
Rs.20,000/-
|
|
9
|
Women and child victims in cases
like human trafficking who themselves or their dependents have suffered
separation, dislocation and disturbance
|
Rs.1.00 lac
|
As
per the Karnataka State legal Service Authority report of 2019-2020 contains
statement of payment made by KSLSA under Victim Compensation Scheme that,
Rs.10, 15, 48, 225 used to provide compensation to 469 victims of various
crimes across the state. Different victims of crimes as identified by KSLSA for
compensation as are follows… Murder of women, murder of men, rape on minor,
Murder of their Son/Husband, Rape, Attempt to Murder on Men, Injury to Men and
Women, Suicide of Men & Women, Abduct of Minor, Attempt Rape on Minor,
Sexual Harassment on Minor, Rape and Pregnant of Minor, Sexual Abuse on Minor,
Men 75% Disability, Grievous Injury on Men and Women, Women Loss of Vision, Men
Handicap, Rape and Murder of Minot, Rape and Robbery, Sexual Assault on Minor,
Sexual Assault on Minor & for the baby born to her, Murder of his Daughter,
Death of Sister and Brother-in-law, Death of Men due to acid attack, Women Burn
Injuries, Human Trafficking of Women, Attempt to Suicide, Rape on Minor
Mentally Retarded, Murder of his Wife, Sexual Intercourse on Boy, Suicide of
Minor Girl, Mental Harassment on Minor, Unnatural Sex with Minor boy and
Murdered[12].
Recent
past the division bench of Karnataka High Court headed by Chief Justice Ritu
Raj Awasti directed to government of Karnataka to release at the earliest Rs. 7
Crore to Karnataka State Legal Service Authority to effectively implement and
maintain Victim Compensation Scheme in the state[13].
Role of National Commission for Women:
National
Commission for Women in its letter to Madhya Pradesh DGP on the ghastly crime
in which a tribal women was set on fire over land dispute in Guna District of
Madhya Pradesh, describing the crime as ghastly in nature and extremely
shameful and said “the audacity of the criminals to commit such horrific crime
in a broad daylight shows police is not doing their work efficiently. Therefore,
you are required immediately direct the police officer concerned to arrest all
the accused and file an FIR against them under the provisions of Indian Penal
Code along with other relevant provisions of law. The victims must be provided
with the best medical treatment facility free of cost[14].”
The
Commission come across through the one of the news report that, the victim and
her husband had given an application seeking protection from the accused men on
June 6 but no action was taken on their request, and hence, the Commission said
further that, stringent action should be taken against erring police officer
who failed to take the swift cognizance of the matter, if the allegations
leveled are found to be true. The victim is entitled for the compensation under
the Victim Compensation Scheme as per Sec 357-A of Code of Criminal Procedure,
for the injury/loss suffered by her. The action taken must be appraised to the
Commission within five days[15].
Conclusion
The
Victim Compensation Scheme 2011 is one of important and significant scheme with
respect to victim compensation. Still there is lack of awareness to members of
our society about this scheme. Victims are still left out from the benefits of
the scheme due to non-reporting of criminal cases. Even in reported cases also
victims are not aware of these benefits and been suffering. The object,
purpose, letter of spirit and fruit of the scheme should reach eligible
individuals. The responsible judicial institutions, state governments, district
and state legal service authorities and concerned stakeholders should take
meaningful initiatives to educate the society through awareness programs
[1] Prof. N.V. Paranjape, Criminology
& Penology with Victimology, Pg No 740, 16th Edn, CLP 2016
[2] Criminal Procedure code, 973
[3] Criminal Procedure code, 1973
[4] AIR 1997 SC 610
[5] (1994) 4 SCALE 608
[6] (2004) Cri.L.J. 510 (Mad)
[7] Ibid
[8] Indian Penal Code, 1860
[9] Ibid
[10]Indian Penal Code 1860- Ins. by Act
22 of 2018, s. 6 (w.e.f. 21-4-2018).
[11] Modified Karnataka Victim
Compensation Scheme 2013
[12] Karnataka State Legal Service
Authority, Bengaluru, 2019-2020 statement on victim compensation
[13] Times of India-Jan 29, 2022, 13.09
IST
[14]
https://www.freepressjournal.in/bhopal/ghastly-and-shameless-ncw-on-tribal-woman-set-on-fire-in-mp
[15] Ibid
Article Information
Contemporary Issues And Challenges Of Legal Regime On Victim Compensation In India
Authors: Dr. Kumara. N.J
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/01/25
- Volume 2
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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