On the the basis of the 154th Law Commission Report, by an amendment in 2009, Section 357A was added to the Code of Criminal Procedure, 1973 to make provision for compensation to victims of crime irrespective of the result of the criminal prosecution of the accused.
Previously compensation to the victim was recognized under Section 357 of CrPC, where if the sentence involved levy of fine, the Court could award compensation to the victim out of the fine amount as determined by the Court. Section 357A further expanded the scope of compensation to victims and made provision for compensation even in case of acquittal of the accused. Under Section 357A, all states in coordination with the Central Government are required to formulate a Victim Compensation Scheme for the State and the discretion to decide the quantum has been left to the State/District legal services authorities.
Courts have repeatedly reiterated, especially in cases of sexual offences against women and children, that a liberal approach ought to be adopted in recommending compensation. The following are the relevant judgments on the issue of victim compensation.
This case lays down the important proposition that a victim is entitled to compensation even when the case ends in acquittal.
Facts: After considering the evidence on record the trial Court convicted and sentenced the Appellants for kidnapping and murder and concealing evidence in conspiracy and by common intention. All the accused stand sentenced to undergo imprisonment for life and other lesser sentences which have been affirmed by the High Court. This appeal has been preferred against conviction and sentence of the Appellants under Sections 302 read with Sections 34, 364-A, 201 and 120-B of the Indian Penal Code.
Decision: In regard to awarding compensation the Court held that:
“12 . …………….The object and purpose of the provision (Section 357A) is to enable the Court to direct the State to pay compensation to the victim where the compensation under Section 357 was not adequate or where the case ended in acquittal or discharge and the victim was required to be rehabilitated. The provision was incorporated on the recommendation of 154th Report of Law Commission. It recognises compensation as one of the methods of protection of victims. ….. In Abdul Rashid v. State of Odisha and Ors. MANU/OR/0458/2013 : (2014) 1 ILR-CUT-202, … it was observed:
6. Question for consideration is whether the responsibility of the State ends merely by registering a case, conducting investigation and initiating prosecution and whether apart from taking these steps, the State has further responsibility to the victim. Further question is whether the Court has legal duty to award compensation irrespective of conviction or acquittal. When the State fails to identify the accused or fails to collect and present acceptable evidence to punish the guilty, the duty to give compensation remains. Victim of a crime or his kith and kin have legitimate expectation that the State will punish the guilty and compensate the victim. There are systemic or other failures responsible for crime remaining unpunished which need to be addressed by improvement in quality and integrity of those who deal with investigation and prosecution, apart from improvement of infrastructure but punishment of guilty is not the only step in providing justice to victim. Victim expects a mechanism for rehabilitative measures, including monetary compensation. Such compensation has been directed to be paid in public law remedy with reference to Article 21. In numerous cases, to do justice to the victims, the Hon’ble Supreme Court has directed payment of monetary compensation as well as rehabilitative settlement where State or other authorities failed to protect the life and liberty of victims. For example, Kewal Pati v. State of U.P. MANU/SC/0693/1995 : (1995) 3 SCC 600 (death of prisoner by co-prisoner), Supreme Court Legal Aid Committee v. State of Bihar MANU/SC/0604/1991 : (1991) 3 SCC 482 (failure to provide timely medical aid by jail authorities, Chairman, Rly. Board v. Chandrima Das MANU/SC/0046/2000 : (2000) 2 SCC 465 (rape of Bangladeshi national by Railway staff), Nilabati Behera v. State of Orissa MANU/SC/0307/1993 : (1993) 2 SCC 746 (Custodial death), Khatri (I) v. State of Bihar (1981) 1 SCC 623 (prisoners’ blinding by jail staff), Union Carbide Corporation v. Union of India MANU/SC/0042/1990 : (1989) 1 SCC 674 (gas leak victims).
7. Expanding scope of Article 21 is not limited to providing compensation when the State or its functionaries are guilty of an act of commission but also to rehabilitate the victim or his family where crime is committed by an individual without any role of the State or its functionary. Apart from the concept of compensating the victim by way of public law remedy in writ jurisdiction, need was felt for incorporation of a specific provision for compensation by courts irrespective of the result of criminal prosecution. Accordingly, Section 357A has been introduced in the Code of Criminal Procedure and a Scheme has been framed by the State of Odisha called ‘The Odisha Victim Compensation Scheme, 2012’. Compensation under the said Section is payable to victim of a crime in all cases irrespective of conviction or acquittal. The amount of compensation may be worked out at an appropriate forum in accordance with the said Scheme, but pending such steps being taken, interim compensation ought to be given at the earliest in any proceedings.
13. We are informed that 25 out of 29 State Governments have notified victim compensation schemes. The schemes specify maximum limit of compensation and subject to maximum limit, the discretion to decide the quantum has been left with the State/District legal authorities. It has been brought to our notice that even though almost a period of five years has expired since the enactment of Section 357A, the award of compensation has not become a rule and interim compensation, which is very important, is not being granted by the Courts. It has also been pointed out that the upper limit of compensation fixed by some of the States is arbitrarily low and is not in keeping with the object of the legislation.
14. We are of the view that it is the duty of the Courts, on taking cognizance of a criminal offence, to ascertain whether there is tangible material to show commission of crime, whether the victim is identifiable and whether the victim of crime needs immediate financial relief. On being satisfied on an application or on its own motion, the Court ought to direct grant of interim compensation, subject to final compensation being determined later. Such duty continues at every stage of a criminal case where compensation ought to be given and has not been given, irrespective of the application by the victim. At the stage of final hearing it is obligatory on the part of the Court to advert to the provision and record a finding whether a case for grant of compensation has been made out and, if so, who is entitled to compensation and how much. Award of such compensation can be interim. Gravity of offence and need of victim are some of the guiding factors to be kept in mind, apart from such other factors as may be found relevant in the facts and circumstances of an individual case. We are also of the view that there is need to consider upward revision in the scale for compensation and pending such consideration to adopt the scale notified by the State of Kerala in its scheme, unless the scale awarded by any other State or Union Territory is higher. The States of Andhra Pradesh, Madhya Pradesh, Meghalaya and Telangana are directed to notify their schemes within one month from receipt of a copy of this order. We also direct that a copy of this judgment be forwarded to National Judicial Academy so that all judicial officers in the country can be imparted requisite training to make the provision operative and meaningful.
15. In the present case, the impugned judgment shows that the de facto complainant, PW-2 Raman Anand, filed Criminal Revision No. 1477 of 2004 for compensation to the family members of deceased Devender Chopra and his son Abhishek Chopra. The same has been dismissed by the High Court without any reason. In fact even without such petition, the High Court ought to have awarded compensation. There is no reason as to why the victim family should not be awarded compensation Under Section 357-A by the State. Thus, we are of the view that the State of Haryana is liable to pay compensation to the family of the deceased. We determine the interim compensation payable for the two deaths to be rupees ten lacs, without prejudice to any other rights or remedies of the victim family in any other proceedings.
16. Accordingly, while dismissing the appeal, we direct that the widow of Devender Chopra, who is mother of deceased Abhishek Chopra representing the family of the victim be paid interim compensation of rupees ten lacs. It will be payable by the Haryana State Legal Services Authority within one month from receipt of a copy of this order. If the funds are not available for the purpose with the said authority, the State of Haryana will make such funds available within one month from the date of receipt of a copy of this judgment and the Legal Services Authority will disburse the compensation within one month thereafter.”
Facts: The Petitioner had two minor daughters and one of her daughters had filed a complaint alleging that her father (the Petitioner’s husband) had sexually assaulted her, as well as having assaulted her younger sister. She also made allegations against her paternal grandfather. Pursuant to the aforesaid, an FIR was lodged under Sections 354 & 509 of the IPC read with Section 10 of the POCSO Act. Considering the facts and circumstances of the case, their poor financial condition and the trauma caused to them, the Trial Court recommended that an interim compensation of ₹50,000/- be paid to each of the victims under the Delhi Victims Compensation Scheme, 2015. Further, the Petitioner filed a second application seeking further interim compensation as per NALSA’s Compensation Scheme for Women Victims/Survivors of Sexual Assault/Other Crimes, 2018 which was rejected. An appeal was filed before the Delhi High Court impugning the order rejecting the application for interim compensation and also impugning an order dated 01.06.2019 passed by the learned ASJ, referring the Petitioner’s application for seeking further compensation to the DLSA.
Decision: The Hon’ble Court held that in view of the express provisions of Section 33(8) of the POCSO Act and Rule 7 of the Children from Sexual Offences Rules, 2012 (Rule 9 of the Protection of Children from Sexual Offences Rules, 2020 as is currently in force), the duty to award compensation in appropriate cases has been conferred on the Special Court and therefore, it is incumbent on the Special Court to pass necessary orders for compensation/interim compensation in appropriate cases. It is not open for the Special Court to delegate the said power and direct the concerned Legal Services Authority to examine any claim for compensation payable to a minor victim of an offence punishable under the POCSO Act.
In this view, the Hon’ble Court held that it found considerable merit in the contention that the learned ASJ could not have directed the petitioner’s application for further compensation to be considered by DLSA as it was incumbent upon the learned ASJ to examine the petitioner’s application for additional compensation to the victims and pass necessary orders, if the Trial Court found the application to be merited. Court also held that no special scheme for awarding compensation to victims under the POCSO Act has been framed as yet and therefore, NALSA’s Scheme is required to serve as a guideline for award of compensation to the victims under the POCSO Act.
The Hon’ble Court remanded the application for interim application of the Petitioner for being considered afresh to Learned ASJ after observing as follows:
“25. This Court is of the view that since there is no express bar which restricts the Special Courts to grant interim compensation only once, an application for further interim compensation can be considered by the Learned. ASJ, provided there are sufficient grounds for seeking further interim compensation. Needless to state that any further interim compensation awarded would also be liable to be adjusted with the compensation as awarded at the final stage as postulated in Sub-rule (1) of Rule 7 of the said Rules (and in Sub-rule (1) of Rule 9 of the Protection of Children from Sexual Offences Rules, 2020)
26. Having stated the above, it is also necessary to observe that an application for seeking further interim compensation cannot be premised on the ground that the order for payment of interim compensation passed in an earlier application is erroneous or inadequate. Such an application would be maintainable only if circumstances have subsequently arisen that were not in contemplation at the time when the special court had evaluated the requirement of interim compensation.
27. In view of the above, this Court finds no infirmity with the order dated 22.07.2019 passed by DLSA, holding that under the POCSO Act, the special court has the jurisdiction to award compensation to victims of offences punishable under the POCSO Act. However, as stated earlier, the impugned order dated 01.06.2019 passed by the learned ASJ, referring the petitioner’s application for further compensation, is without authority of law and is thus, set aside.”
Facts: A joint appeal had been preferred by the two appellants convicted by the learned Special Judge (POCSO), South Sikkim at Namchi in Sessions Trial (POCSO) Case No. 1 of 2016. The impugned judgment dated 26.07.2017 rendered the appellants guilty under section 5(g) of the Protection of Children from Sexual Offences Act, 2012 (for short ‘POCSO Act’) and under section 376D of the Indian Penal Code, 1860 (for short ‘the IPC). The appellants were sentenced to undergo rigorous imprisonment of twenty years under section 376D of the IPC and in view of section 42 of the POCSO Act, no separate sentence was imposed under section 5(g) thereof.
Decision: The Court upholding the judgment of conviction ordered compensation of Rs. 1,00,000 to be paid by the Sikkim State Legal Services Authority however, only upon due verification.
Facts: The appeal was directed against judgment and order of conviction dated 29-08-2015 and 31-08-2015 passed by the Learned Judge, Special Court cum Additional District Judge, 2nd Court, Balurghat, Dakshin Dinajpur, in Special. Trial. No. 09(12) 2014 in Special. Case. No. 29 of 2014, convicting the appellant under Sections 448/307 of the Indian Penal Code (in short the IPC) and under Sections 4/18 of the Protection of Children from Sexual Offences Act, (in short the POCSO Act).
Decision: The Court modified the sentence and fine awarded. However, it ordered that Rs. 50,000 out of the total fine amount, if realised, would be handed over to the victim girl as compensation.
Facts: A criminal appeal had been filed assailing conviction on charges of rape. However, the Court went ahead and framed guidelines with regard to provisions of victim compensation under law.
“89. This Court thus holds that:-
(i) The obligation of the criminal court to consider direction for payment of compensation under Section 357 Cr. PC (as indeed under other provision of law such as Section 5 of Probation of Offenders Act) is a matter of inquiry by the criminal court and the amount paid there-under is subject to recovery from the person found guilty for the offence the commission of which has been proved.
(ii) The Victim Compensation Fund set up by the State in terms of the Victim Compensation Scheme under Section 357A Cr. PC is at the disposal of Legal Services Authority and the criminal court in seisin of the case may only “make recommendation” to, but not “direct”, such authority to pay compensation to the victim (or his dependents) from such fund. In this view, the legal services authority before it decides to award compensation and disburses the amount must make proper inquiry to independently find whether a case is made out in law, and under the scheme, for such compensation to be paid guided, of course, by the evidence led at trial and conclusion of the court based thereupon.
(iii) Before making a recommendation under sub-Section (2) of Section 357A Cr. PC for compensation to be paid in a criminal case wherein a person has been found guilty of complicity in the crime which has been proved, the criminal court must make inquiry as to whether:
(a) The victim (or his dependents) had suffered “loss or injury as a result of the crime” and “require rehabilitation”;
(b) the compensation can be ordered to be paid under Section 357 Cr. PC by the convict;
(c) the compensation awarded under Section 357 Cr. PC is “not adequate” for “rehabilitation”;
(iv) If a criminal case ends in “acquittal” or “discharge” of the person arraigned as the accused, the criminal court may “make recommendation for compensation” if:
(a) the commission of the offence has been duly proved;
(b) the victim of such offence has been duly identified; and
(c) there is a case made out of “loss or injury as a result of the crime” suffered by such victim requiring “rehabilitation”.
(v). If the investigation into the crime which is alleged does not lead to the offender being “traced” or “identified”, the legal services authority may award “adequate compensation” but, before it does so, it must hold an enquiry and find, on the basis of “tangible material”, that:
(a) the crime was in fact committed;
(b) there is a victim duly identified who has “suffered loss or injury as a result of the crime” and requires “rehabilitation”.
(vi) The authorisation in law by virtue of sub-section (6) of Section 357A Cr. PC to arrange for “immediate first-aid facility or medical benefits” or “any other interim relief to be made available to the victim, on the certificate of police or the magistrate also necessarily requires due proof, on the basis of “tangible material”, of commission of an offence and it having resulted in loss or injury on which account the victim is in need of being helped “to alleviate the suffering
(vii) The payment of interim compensation under the Victim Compensation Scheme is “subject to final determination” of the right to receive compensation under the law and, therefore, it must be awarded and disbursed with appropriate riders to take care of the possibility of being recovered back in the event of it being ultimately concluded that the accusations were unfounded.
(viii). Unless the exigencies of the case so demand, compensation (whether interim or final) ought not be released by DSLSA in lump sum, care to be taken that the money meant for rehabilitation of the victim is not frittered away and also such that in the event of superior courts in hierarchy upturning the decision, the money if wrongly paid, can be recovered back and, for such purposes, the existing practice of DSLSA, as also ordained by various provisions of the Delhi Victim Compensation Scheme, 2018, to release the compensation in a phased manner should be scrupulously followed and ensured to be complied with by all concerned including the bankers of the authority and the beneficiary.
(ix). Unless the exceptional circumstances of the case so demand, the final compensation awarded by DSLSA in terms of the Victim Compensation Scheme under sub-Section (3) of Section 357 Cr. PC ought not be released by DSLSA unless and until the period allowed for bringing a challenge to the decision of the trial court (by appeal or a petition) has elapsed or if an appeal (or petition) be presented, before decision thereupon, it being incumbent on DSLSA to approach the superior hierarchal court to seek early release of compensation in case the prevalent circumstances concerning the victim so justify.
90. On the available facts, and in the circumstances, noted above, and, of course, in light of above conclusions, this court directs as under:-
(i) Delhi Victim Compensation Scheme, 2018 be appropriately modified and improved upon keeping in view, inter alia, the conclusions reached by this court as summarized above.
(ii) In addition to formal amendment of the Delhi Victim Compensation Scheme 2018, measures be taken by Member Secretary, DSLSA, amongst others, by issuing guidelines and holding sensitization programmes so that there is no abuse of the Victim Compensation Fund and such that it attains its intended objectives.
(iii) The Member Secretary, DSLSA shall formulate the standard operating procedure such that the decisions of the competent authorities to release the compensation in a phased manner is scrupulously complied with by all concerned – including bankers of the authority and the beneficiary – and there is proper accountability and follow-up.
(iv) The Member Secretary, DSLSA shall create a permanent mechanism for monitoring of the progress and result of investigation or trial of all such cases in which interim relief of compensation has been provided under the Victim Compensation Scheme such that:
(a). In the event of it being found by investigation or at trial that no offence was committed, the money paid to the victim can be recovered back.
(b). In the event of an accused being found guilty, and convicted, the money paid as compensation from the Victim Compensation Fund under Section 357A Cr. PC may be recovered from him.
(v). For ensuring that there is a possibility of the amount to be recovered back from the victim in the eventuality mentioned above, suitable safeguards in the form of appropriate documentation (undertaking, indemnity bond or such like other measures) shall be evolved and adopted by DSLSA for future use.
(vi). The data of 2017 has been referred to in this judgment only by way of illustration. The Member Secretary, DSLSA shall arrange for an appropriate scrutiny of all such past cases where interim compensation was awarded (including those of 2017 noted earlier) and take necessary measures for recovery in accordance with law of such amounts as have been wrongfully paid.
(vii). Such provisions of Delhi Victim Compensation Scheme, 2018 as permit recovery of the amount paid to the victim from the wrong-doer, lying dormant and in disuse, shall be enforced in accordance with law by legal services authority.”
Crl. A. No. 34 of 2017
Facts: The appellant here was accused and convicted of raping his two minor children.
Decision: The High Court upheld the conviction under POCSO as also ordering the payment of compensation as follows:
“30. Although, the learned Special Judge has convicted the appellant for commission of heinous offence of aggravated penetrative sexual assault and rape of his own daughter, i.e., elder victim (PW-6) and for sexual assault upon his other daughter, i.e., younger victim (PW-11), he has not granted any compensation to the minor victims. In the circumstances, considering that the minor victims were sexually violated by their own biological father at the tender age of fourteen and twelve; the trauma the victims must have and continues to undergo; that they are completely deprived of parental care as their mother has expired and the appellant would be serving the sentence imposed, we are of the considered view that the Sikkim State Legal Services Authority (for short ‘SSLSA’) should grant the elder victim (PW-6) and the younger victim (PW-11) compensation of an amount of Rs. 3,00,000/- (Rupees three lakhs) and Rs. 50,000/- (Rupees fifty thousand) respectively, as per the Sikkim Compensation to Victims or his Dependents Scheme, 2011 as amended. The said amounts shall be deposited in fixed deposit in the name of the minor victims, separately, payable on their attaining majority. If the minor victims do not have any bank account, the SSLSA shall render assistance to the minor victims to do so. For the said purpose, the SSLSA is further directed to identify the guardian of the minor victims and if no guardian has been appointed to take all such steps to assist the minor victims for the appointment of their guardian.”
Facts: A criminal appeal had been filed under provisions of the POCSO Act read with the IPC.
Decision: The appeal was dismissed and the conviction was upheld apart from the Court convicting the Appellant under Section 6/18 POCSO Act as well. With regard to the compensation, the High Court observed:
“26. In Laxmi V. Union of India and Ors. reported as MANU/SC/0756/2013 : (2014) 4 SCC 427, the Supreme Court while emphasizing the need for rehabilitation of the victims or their dependents held as under:-
“12. Section 357A came to be inserted in the Code of Criminal Procedure, 1973 by Act 5 of 2009 w.e.f. 31.12.2009. Inter alia, this Section provides for preparation of 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.
13. We are informed that pursuant to this provision, 17 States and 7 Union Territories have prepared “Victim Compensation Scheme” (for short “the Scheme”). As regards the victims of acid attacks, the compensation mentioned in the Scheme framed by these States and Union Territories is un-uniform. While the State of Bihar has provided for compensation of Rs. 25,000/- in such scheme, the State of Rajasthan has provided for Rs. 2 lakhs of compensation. In our view, the compensation provided in the Scheme by most of the States/Union Territories is inadequate. It cannot be overlooked that acid attack victims need to undergo a series of plastic surgeries and other corrective treatments. Having regard to this problem, learned Solicitor General suggested to us that the compensation by the States/Union Territories for acid attack victims must be enhanced to at least Rs. 3 lakhs as the after care and rehabilitation cost. The suggestion of learned Solicitor General is very fair.
14. We, accordingly, direct that the acid attack victims shall be paid compensation of at least Rs. 3 lakhs by the State Government/Union Territory concerned as the aftercare and rehabilitation cost. Of this amount, a sum of Rs. 1 lakh shall be paid to such victim within 15 days of occurrence of such incident (or being brought to the notice of the State Government/Union Territory) to facilitate immediate medical attention and expenses in this regard. The balance sum of Rs. 2 lakhs shall be paid as expeditiously as may be possible and positively within two months thereafter. The Chief Secretaries of the States and the Administrators of the Union Territories shall ensure compliance of the above direction.
15. The Chief Secretaries of the States and Administrators of the Union Territories shall take necessary steps in getting this order translated into vernacular and publicise the same appropriately for the information of public at large. List the matter on 3-12-2013.”
27. In exercise of powers conferred under Section 357A of Cr.P.C., 1973, the Lieutenant Governor of NCT of Delhi in coordination with the Central Government approved the Delhi Victim Compensation Scheme, 2015 for providing funds for the purpose of compensation to the victim or her dependents who have suffered loss or injury as a result of the crime and who require rehabilitation. The State, through Delhi State Legal Services Authority, is directed to provide compensation to the victim in accordance with the aforesaid Scheme within a period of two months from the date of passing of this judgment.”
Crl.A.(MD)No. 181 of 2018
Facts: An appeal was filed against an order of conviction passed against the appellant for the offence u/s 6 r/w 5(m) of the POCSO Act sentencing the accusd to life imprisonment as also payment of compensation, inter alia.
Decision: The Court upheld the conviction as also directing payment of compensation of Rs. 2,00,000/- (Rupees Two Lakhs only) which shall be deposited before the Court below and which shall be permitted to be withdrawn by the victim girl after she completes 21 years of age. The compensation amount shall be put in a fixed deposit, renewable once in three years and the interest shall also be accumulated so that at the time when it is withdrawn by the victim girl after she completes 21 years of age, she will get the amount along with accumulated interest.
Facts: The Appellant was convicted of the offence under Sections 9(l), 9(m) and 9(n) punishable under Section 10 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter, POCSO Act, 2012) and under Section 354A(1)(i) of the Indian Penal Code, 1860 (hereinafter, IPC)
Decision: The Court observed that the order of conviction did not warrant interference except for compensation upon which it held:
“14. The Learned Trial Court had granted compensation of a sum of Rs. 1,00,000/- (Rupees one lakh) only, to the victim under the Sikkim Compensation to Victims or his Dependents Scheme, 2011. A perusal of the said Scheme of 2011 vide Notification No. 50/Home/2011, dated 24-06-2011, the Scheme makes no mention of compensation of Rs. 1,00,000/- (Rupees one lakh) only, for sexual assault and even for rape, the amount prescribed as compensation is Rs. 50,000/- (Rupees fifty thousand) only. The 2011 Scheme came to be amended in 2013 vide Notification No. 78/Home/2013 dated 03-12-2013 whereby compensation of Rs. 1,00,000/- (Rupees one lakh) only, was envisaged for victims of rape, but not for sexual assault. It is apposite to mention here that the offence was committed in the year 2017, by which time the Sikkim Compensation to Victims or his Dependents (Amendment) Schemes, 2016 was already in place vide Notification No. 66/Home/2016, dated 18-11-2016, Government of Sikkim. Thus, the order of the Learned Trial Court pertaining to compensation is set aside and in its stead in terms of the amended Scheme 2016 supra and on account of the finding of sexual assault of the victim, a sum of Rs. 50,000/- (Rupees fifty thousand) only, as prescribed therein is awarded to the victim as compensation. The Sikkim State Legal Services Authority (SSLSA) shall take necessary steps as required in this context. The entire compensation amount shall be deposited in a Nationalised Bank, in a Fixed Deposit, in the name of P.W. 1. The certificate of TDR shall be produced before the SSLSA by the victim’s guardian for perusal and verification. P.W. 1 shall be eligible to withdraw the amount when she attains the age of majority.”
Crl. A. 27(J) of 2016
Facts: The appeal from jail was preferred by the accused appellant, namely, Sri Nirod Phukan being aggrieved with the judgment dated 22.12.2015 whereby the learned Sessions Judge, Dibrugarh in POCSO Case No. 18/2014 arising out of GR Case No. 1723/2014 corresponding to Tengakhat Police Station Case No. 56/2014, convicted said appellant under Sections 6, read with Section 5(1) of the Protection of Children from Sexual Offences (POCSO) Act, 2012 sentencing him to undergo Rigorous Imprisonment for life with fine of Rs. 20,000/- and on realisation of said fine amount to pay the same to the victim.
Decision: The judgment of order and conviction was upheld. However, the Court ordered compensation was also to be awarded.
“28. We direct the State to pay victim compensation of Rs. 5.00 Lakhs to the petitioner under Section 357A of the Code of Civil Procedure, the Protection of Children from Sexual Offence Act, 2012 and Rule 7 of the Protection of Children from Sexual Offences Rules, 2012 as amended, where Rs. 3.5 Lakhs shall be kept under Fixed Deposit Scheme in the name of the minor victim for minimum of 5 (five) years and remaining amount of Rs. 1.5 Lakhs shall be kept in the Bank Account of the victim with any Nationalised Bank. The said amount shall be paid by the District Legal Services Authority, Dibrugarh through the Special Judge/Sessions Judge, Dibrugarh on proper identification of the victim and on obtaining necessary acknowledgment from her. Such payment of victim compensation to the victim in the present case, as directed above by us, shall include any such amount of compensation that has already been paid to her, in terms of the impugned judgment dated 22.12.2015 of the learned Sessions Judge, Dibrugarh.”
Facts: The Court was dealing with an appeal where the appellant was assailing the Trial Court’s order where he had been convicted for the offence of aggravated penetrative sexual assault on victim, who is a minor boy aged 4 years, which is punishable under Section 6 of the POCSO Act and for the offence punishable under Section 377 IPC.
Decision: The Court upheld the conviction and sentence holding:
“47. We may note that the learned ASJ has invoked the provision of Section 357 Cr.P.C., and directed that out of the fine realized from the appellant, a sum of Rs. 20,000/- be given to the victim through his mother by way of compensation. Additionally, further compensation of Rs. 4 lakhs has been granted in favour of the victim under Section 33(8) of the POCSO Act, 2012 read with Rule 7(2) of the POCSO Rules, 2012. Having regard to the nature of the crime and the tender age of the victim, we are of the opinion that the compensation amount awarded by the trial court ought to be enhanced under the Delhi Victims Compensation Scheme, 2015. A copy of this order shall be forwarded forthwith to the Secretary, DSLSA for passing appropriate orders.”
State of Chhattisgarh v. Budharu Ram Meravi and Ors., MANU/CG/0244/2019 [Chhattisgarh High Court, Single Judge]
Facts: In this petition, the compensation awarded was challenged by the State Government on the grounds that the Court should only have made recommendation under Section 357 of the Cr.P.C. for payment of compensation and only after acceptance of recommendation, compensation if any should have been made payable to the rape victim.
Decision: The Court upheld the compensation awarded by the Ld. Special Judge.
“7. A conjoint reading of sub-section (8) of Section 33 of the POCSO Act and Rule 7 of the Rules of 2012 would show that the Special Judge (POCSO) is empowered to direct payment of compensation to the victim/child for physical or mental trauma which he or she has suffered for immediate rehabilitation of such victim and that award of compensation is in addition to the punishment that is ultimately imposed upon the accused and the compensation awarded by the Special Judge is to be paid by the State Government from the Victim Compensation Fund or other scheme or fund established under the provisions of Section 357-A of the Cr.P.C.
10. As such with effect from 02.10.2018, for the rape victim, NALSA Compensation Scheme will be applicable w.e.f. 02.10.2018 till the rules are finalized by Central Government and in that scheme, for victim of gang rape minimum compensation has been prescribed as five lacs and upper compensation limit has been prescribed as ` 10,00,000/-.
11. In view of above-stated legal position, Special Judge has power and jurisdiction to award compensation under Section 33(8) of the POCSO Act and rules made thereunder, and thus, it cannot be held that learned Special Judge while convicting the accused for offence under Section 376(2)(g) of IPC read with Section 6 of the POCSO Act has no power and jurisdiction to award compensation to the rape victim, as such the award of compensation to the extent of ` 1,00,000/- to the gang rape victim is on lower side. The State of Chhattisgarh in exercise of power conferred under Section 357-A of the Cr.P.C. by notification dated 03.08.2011 has framed scheme for providing a fund for the purpose of compensation to the victim or dependents, who have suffered loss or injury as a result of crime. Schedule-IV of said scheme serial No. 4 as amended vide notification dated 26.10.2013 relates to rape victim (minor) and compensation to be granted is three lacs; whereas learned Special Judge has awarded only one lac, though no appeal has been filed by rape victim or her parents. Looking to the object sought to be achieved, while granting compensation to rape victim in exercise of jurisdiction under Section 482 the Cr.P.C., to secure the ends of justice, I deem it appropriate to award two lacs more making it at par with the scheme (three lacs total) in vogue at the time of judgment. However, I hope and trust, the Special Courts dealing with offences under the POCSO Act will grant compensation to the rape victim as per NALSA Compensation Scheme as directed by the Hon’ble Supreme Court in Nipun Saxena (supra).
12. The petition under Section 482 the Cr.P.C. is disposed of with the above-stated direction. The balance amount of two lacs will be paid to the rape victim, who has now become major, within two months, by the State Government.”
Nipun Saxena and Ors. v. Union of India & Ors, 2019 (2) SCC 703 [Supreme Court of India, 2 Judge Bench]
In this case, the Supreme Court accepted the directions of the Calcutta High Court in the case of Bijoy v. State of West Bengal MANU/WB/0140/2017 : 2017 CriLJ 3893:
“9. The Special Court upon receipt of information as to commission of any offence under the Act by registration of FIR shall on his own or on the application of the victim make enquiry as to the immediate needs of the child for relief or rehabilitation and upon giving an opportunity of hearing to the State and other affected parties including the victim pass appropriate order for interim compensation and/or rehabilitation of the child. In conclusion of proceeding, whether the Accused is convicted or not, or in cases where the Accused has not been traced or had absconded, the Special Court being satisfied that the victim had suffered loss or injury due to commission of the offence shall award just and reasonable compensation in favour of the victim. The quantum of the compensation shall be fixed taking into consideration the loss and injury suffered by the victim and other related factors as laid down in Rule 7(3) of the Protection of Children from Sexual Offences Rules, 2012 and shall not be restricted to the minimum amounts prescribed in the Victim Compensation Fund. The interim/final compensation shall be paid either from the Victim Compensation Fund or any other special scheme/fund established Under Section 357A of the Code of Criminal Procedure, 1973 (sic) or any other law for the time being in force through the State Legal Services Authorities or the District Services Authority in whose hands the Fund is entrusted. If the Court declines to pass interim or final compensation in the instant case it shall record its reasons for not doing so. The interim compensation, so paid, shall be adjusted with final compensation, if any, awarded by the Special Court in conclusion of trial in terms of Section 33(8) of the Act.”
Facts: This is an appeal against the judgment dated 16th January 2015 passed by finding the Appellant guilty of the offence under Section 5(m) POCSO Act punishable under Section 6 POCSO Act. The Appellant was charged with having committed aggravated penetrative sexual assault upon the victim (PW-6) aged 6 years thereby committing the aforementioned offence
Decision: The Court upheld the order of conviction and sentence. With regard to the compensation, it observed as follows:
“27. However, as regards compensation to the victim, the Court is of the view that this was a case where the highest possible compensation, i.e. Rs. 5 lakhs, ought to be awarded considering the tender age of the victim at the time of commission of the offence. The Court accordingly directs that the compensation amount payable to the victim should be enhanced to Rs. 5 lakhs and that the additional sum be now paid to the victim under the Victim Compensation’s Scheme in terms of Section 357A Cr.P.C., not later than eight weeks from today.”
Facts: The appeal was directed against the judgment and order dated 14.05.2015 and 15.05.2015 passed by the learned Additional Sessions Judge, 2nd Court-cum-Special Court under POCSO Act, Barasat, North 24 Parganas in Special case No. 16/14 arising out of Sessions trial case No. 07(02)2014 convicting the appellant for commission of offence punishable under sections 376(2)(f)(N) of the Indian Penal Code and under sections 4 and 6 of the Protection of Children from Sexual Offences Act, 2012
Decision: Upholding the order of conviction, with regard to the compensation, the Court awarded compensation in addition to the compensation awarded earlier as follows:
“31. Postscript, I note that the minor victims aged around 9/10 years had been subjected to penetrative sexual assault and/or rape by their teacher that is the appellant. A horrible crime of abhorrent proportions befell on their young lives causing severe trauma and agony. Under such circumstances, I consider it fit to award compensation to the minor victims at the instance of the State in discharge of its sovereign duty to protect and preserve bodily integrity and dignity of every citizen particularly minor girls. Such compensation shall be payable in addition to meagre compensation directed by the trial court under section 357(3) Cr.P.C.
32. Accordingly, I direct the State of West Bengal to pay a compensation to the tune of Rs. 3 lakhs to each of the victims for the agony and trauma suffered by them due to the perpetration of such horrible crime and the said money shall be paid to the legal guardians of the victims through the State Legal Services Authority within 30 days from date. State shall also provide for free psychiatric and psychological counseling to the victims, if necessary, by specialized consultants attached to any teaching hospital or private medical institution of repute in terms of section 357C Cr.P.C. so that the invisible marks of trauma be erased from their psyche.”
Facts: In this case, the Trial Court had initially ordered the fine amount to be deposited in the Sikkim Compensation to Victims Scheme.
Decision: The Court upheld the finding and conviction handed out to the Appellant as follows:
“29. It is further noticed that the learned Trial Court has failed to make any order for payment of compensation to the victim as is wont. We thus invoke the provisions of the Sikkim Compensation to Victims or his Dependents Schemes, 2011, as amended in 2016. In terms of the said Scheme, a sum of Rs. 3,00,000/- (Rupees three lakhs) only, is awarded as compensation to the minor victim and shall be made over by the Sikkim State Legal Services Authority.
The Court held that “The purpose of Section 357 of the Code of Criminal Procedure, 1973 has thus been clearly elucidated. A bare perusal of the provision reveal that it does not envisage payment of the fine amount to any fund. It is either to be paid to the prosecution for defraying the expenses incurred by it or to any person as compensation for loss or injury caused by the offence and recoverable in a Civil Court or the Court may order that the accused pay such compensation to the person who has suffered loss or injury by the act of the accused. Consequently, the Order requiring the fine amount of Rs. 20,000/- (Rupees twenty thousand) only, to be deposited in the fund for the Sikkim Compensation to Victims is set aside and it is hereby ordered that the said amount be made over to the victim.
31. Consequently, a sum of Rs. 2,00,000/- (Rupees two lakhs) only, from the compensation of Rs. 3,00,000/- (Rupees three lakhs) only, and a sum of Rs. 20,000/- (Rupees twenty thousand) only, granted to the victim as hereinabove, shall be deposited in a fixed deposit with a Nationalised Bank in the name of the minor till she attains majority, while a sum of Rs. 1,00,000/- (Rupees one lakh) only, shall be utilised as deemed necessary for the rehabilitation/treatment of the child.”
Eera through Manjula Krippendorf v. State (Govt. of NCT of Delhi) and Ors., 2017 (15) SCC 133 [Supreme Court of India, 2 Judge Bench]
Facts: The Supreme Court was dealing with special leave petition arising from orders of conviction passed.
Decision: The Supreme Court interpreted Section 357A of the Code of Criminal Procedure as follows:
“On a perusal of the aforesaid provision, it is quite vivid that when Court makes a recommendation for compensation, the District Legal Services Authority or the State Legal Services Authority is required to decide the quantum of compensation to be awarded under the Scheme prepared by the State Government in coordination with the Central Government. The State/District Legal Services Authority has to conduct an inquiry and award the adequate compensation by completing the inquiry. Had the Accused been alive, the trial would have taken place in a Court of Session as provided under the Code of Criminal Procedure. As the Accused has died and the victim is certified to be a mentally disabled person and is fighting the lis for some time to come within the purview of the POCSO Act wherein the trial is held in a different manner and the provisions relating to the compensation are different, I direct that the State Legal Services Authority, Delhi shall award the compensation keeping in view the Scheme framed by the Delhi Government. As regards the quantum, I am of the convinced opinion that it is a fit case where the victim should be granted the maximum compensation as envisaged under the Scheme. I clarify that it is so directed regard being had to the special features of the case.”
Facts: The appeal was directed against the judgment and order dated July 26, 2016 and July 27, 2016 passed by the Learned Additional District & Sessions Judge, 2nd Court, Krishanagar, Nadia in Sessions Trial No. II(XII) of 2015 corresponding to Sessions Case No. 04(09) of 2015 convicting the appellant for commission of offence punishable under Section 8 of the Protection of Children from Sexual Offences Act, 2012 and sentencing him to suffer rigorous imprisonment for 5 years and to pay a fine of Rs. 5,000/- in default to undergo further rigorous imprisonment for three months more has been assailed.
Decision: The Court upheld the appeal. On the point of compensation, it held as follows:
“32. I find that the trial Judge has not addressed himself to the issue of grant of compensation to the victim in the instant case. Grant of compensation to a victim in a prosecution under the POCSO Act is adumbrated in section 33(8) of the said Act read with Rule 7 of the Protection of Children from Sexual Offences Rules, 2012 (hereinafter referred to as ‘the Rules’). Section 33(8) of the Act reads as follows:-
“Section 33(8).– In appropriate cases, the Special Court may, in addition to the punishment, direct payment of such compensation as may be prescribed to the child for any physical or mental trauma caused to him or for immediate rehabilitation of such child.”
33. Rule 7 of the Rules is as under:-
“Rule 7. Compensation.– (1) The Special Court may, in appropriate cases, on its own or on an application filed by or on behalf of the child, pass an order for interim compensation to meet the immediate needs of the child for relief or rehabilitation at any stage after registration of the First Information Report. Such interim compensation paid to the child shall be adjusted against the final compensation, if any.
(2) The Special Court may, on its own or on an application filed by or on behalf of the victim, recommend the award of compensation where the accused is convicted, or where the case ends in acquittal or discharge, or the accused is not traced or identified, and in the opinion of the Special Court the child has suffered loss or injury as a result of that offence.
(3) Where the Special Court, under sub-section (8) of Section 33 of the Act read with sub-sections (2) and (3) of section 357A of the Code of Criminal Procedure, makes a direction for the award of compensation to the victim, it shall take into account all relevant factors relating to the loss or injury caused to the victim, including the following:-
(i) type of abuse, gravity of the offence and the severity of the mental or physical harm or injury suffered by the child;
(ii) the expenditure incurred or likely to be incurred on his medical treatment for physical and/or mental health;
(iii) loss of educational opportunity as a consequence of the offence, including absence from school due to mental trauma, bodily injury, medical treatment, investigation and trial of the offence, or any other reason;
(iv) loss of employment as a result of the offence, including absence from place of employment due to mental trauma, bodily injury, medical treatment, investigation and trial of the offence, or any other reason;
(v) the relationship of the child to the offender, if any;
(vi) whether the abuse was a single isolated incidence or whether the abuse took place over a period of time;
(vii) whether the child became pregnant as a result of the offence;
(viii) whether the child contracted a sexually transmitted disease (STD) as a result of the offence;
(ix) whether the child contracted human immunodeficiency virus (HIV) as a result of the offence;
(x) any disability suffered by the child as a result of the offence;
(xi) financial condition of the child against whom the offence has been committed so as to determine his need for rehabilitation;
(xii) any other factor that the Special Court may consider to be relevant.
(4) The compensation awarded by the Special Court is to be paid by the State Government from the Victims Compensation Fund or other scheme or fund established by it for the purposes of compensating and rehabilitating victims under section 357A of the Code of Criminal Procedure or any other laws for the time being in force, or, where such fund or scheme does not exist, by the State Government.
(5) The State Government shall pay the compensation ordered by the Special Court within 30 days of receipt of such order.
(6) Nothing in these rules shall prevent a child or his parent or guardian or any other person in whom the child has trust and confidence from submitting an application for seeking relief under any other rules or scheme of the Central Government or State Government.”
34. Compensation envisaged under the aforesaid provision of law may be awarded by the Special Court at the interim stage also for immediate relief and rehabilitation of a child victim in light of the parameters laid down under Sub-Rule (3) of Rule 7 of the aforesaid Rules. Such compensation payable by the State is independent of the compensation which may be directed to be paid by the convict upon conviction in terms of Section 357(2) and (3) of the Code. The philosophy of awarding compensation by the State is in the nature of a reparation to the victim of crime on its failure to discharge its sovereign duty to protect and preserve sanctity and safety of the individual from the ravages of such crime. I am informed that a Victim Compensation Fund has been notified by the State under Section 357A Cr.P.C., which, inter alia, prescribes the minimum amount of compensation that may be awarded for various offences/injuries in the following manner as set in the schedule of the notifications:-
35. The aforesaid scheme is, therefore, lays down the minimum limit for award of compensation in cases of offences relating to rape, sexual assault (excluding rape), physical abuse of minor etc. It also provides for a hike of 50% of the amount of compensation if the victim is below 14 years of age. Although offences under POCSO are not specifically mentioned in the Schedule, the cognate nature of offences of penetrative sexual assault or aggravated penetrative sexual assault punishable under Sections 4 & 6 of POCSO when compared with rape and that of sexual assault with sections 6 & 8 of POCSO, prompts me to hold that the duty of the State to award compensation to victims under the aforesaid Fund would extend to such offences also. The Special Court, therefore, while dealing with such offences may make orders of interim or final compensation to victim from the Fund made available by the State. It is further clarified that a conjoint reading of the Section 33(8) of the Act along with Rule 7 of the Rules made it amply clear that the power of the Special Court to award interim/final compensation is not restricted to the terms of the Victim Compensation Fund promulgated by the State but empowers the Court to award such reasonable and just amount as may be determined by it in the facts of the case in the light of the parameters laid down in Rule 7(3) of the aforesaid Rules to provide succour to a child victim. Upon orders being passed by the Special Court relating to such compensation the State Government shall pay the compensation so ordered by the Special Court within 30 days of the receipt of the order by itself or through the State Legal Services Authority or the District Legal Services Authority in whose hands the Victim Compensation Fund may be entrusted. It is also made clear that it shall be open to the Special Court in appropriate cases to grant compensation over and above the limit proposed under the scheme inasmuch as the scheme merely lays down the minimum limits of such compensation and does not provide for a upper limit which is left open to the judicial discretion of the Court to be determined in the light of the parameters laid down in Rule 7(3) of the aforesaid Rules.
36. In view of the aforesaid discussion and in the factual backdrop of the case particularly the nature and extent of injury and trauma caused to the victim by the sexual assault perpetrated upon her and her age, that is, 11 years, I award compensation to tune of Rs. 75,000/- to the victim which shall be payable by the State through the State Legal Services Authority to the parents of the victim, that is, P.W.2 and 3, for the mental and physical trauma suffered by her due to the crime committed on her within one month from date.”
“21. Coming to the issue of compensation I find that the trial Court had failed and/or neglected to address herself in the matter. The trial Court has also failed to screen the identity of the victim and has disclosed her name and identity in the body of the judgment in violation of section 33(7) of the Act. I have laid down the parameters relating to compensation and/or other guidelines in the matter of dealing with cases under POCSO Act in C.R.A. No. 663 of 2016. Such guidelines shall be construed to be a part of this judgment also. In the instant case, although the appellant has been convicted under section 8 of the POCSO Act, the victim, a 8 years old child, had suffered injuries in her private parts and the case nearly borders on penetrative sexual assault. In view of the gravity of the offence, the injuries suffered by the victim and the mental trauma arising therefrom, I am of the opinion that a just and fair compensation to the tune of Rs. 1.5 lakhs may be awarded to her and shall be payable to the victim through her legal guardian PW 2 by the State through the State Legal Services Authority within 30 days from date.”
Facts: The appellant stood convicted and was aggrieved by judgment dated 15th October, 2015 (in Sessions Case No. 163/2013) on the charge with the gravamen of he having assaulted and committed forcible sexual intercourse with his less-than-14 years’ old stepdaughter making her pregnant with his child and subjecting her to criminal intimidation.
Decision: The Court examined the provisions of compensation under the Cr.P.C. and the POCSO Act and Rules and observed as under:
“104. Seen against the above position of law on the subject, we are of the opinion that the learned trial judge has erred while dealing with the issue of compensation in the case at hand. It appears that he considered it permissible, and wrongly so, for compensation to be ordered by directing an amount to be paid separately under Section 33(8) of the POCSO Act read with Rule 7(2) of the POCSO Rules, on one hand, and by award of another amount under Section 357A Cr.P.C. read with rules 7(3) and (4) of POCSO Rules, on the other. Sub-Rule (2) of Rule 7 of the POCSO Rules is to be read with Section 33(8) of the POCSO Act. Sub-Rules (3) and (4) of Rule 7 only provide the guidance for enforcing what can be recommended as the award of compensation under sub-Rule (2) of Rule 7, read with Section 33(8). In terms of sub-Rule (4) of Rule 7, the obligation to pay the amount eventually ordered is the responsibility of the State Government by appropriate drawal from the Victim Compensation Fund (if, as and when) notified under Section 357A Cr.P.C. Thus, separate awards of ` 13 Lakhs and ` 2 Lakhs ordered to be paid as compensation by the trial judge are not correct application of the law.
105. Besides the above, there are other difficulties with the dispensation ordered by the trial court on the question of compensation. Though it ordered ` 13 Lakhs to be paid as compensation to the victim under Section 33(8) of the POCSO Act read with Rule 7(2) of the POCSO Rules, there is nothing indicated in the proceedings recorded or the order passed as to on which basis the said figure had been computed. The amount seems to have been picked up by the learned trial judge just from the air. There was absolutely no inquiry to gather the necessary material or evaluate to reach a reasonable conclusion. This is not a correct approach to adopt. Having ordered such amount of money to be paid as compensation and from out of the said amount ` 12 Lakhs to be kept apart in fixed deposit for the benefit of the child born to the prosecutrix on account of the pregnancy resulting from the offence of rape, the trial judge directed the case file to be consigned to the record room. There is no arrangement made in the impugned order as to who would be responsible for recovery of the said amount of money and/or by what mode. If the intent was for the amount of such compensation to be realized from the appellant, there is no inquiry or consideration as to whether the appellant had the capacity or resources to pay such an amount of money as compensation.
106. It is well settled that the amount ordered to be paid as compensation in a criminal case may be realized as fine. [see K.A. Abbas H.S.A. v. Sabu Joseph MANU/SC/0373/2010 : (2010) 6 SCC 230]. Further, the default in payment of the amount of compensation may also be visited by imprisonment in default. [see R. Mohan v. A.K. Vijaya Kumar MANU/SC/0520/2012 : (2012) 8 SCC 721].
107. Under the criminal jurisprudence, the trial court is also the executing court. It is its obligation to take all directions it lawfully passes to the logical conclusion subject, of course, to the modification or inhibition, if any, ordered by the appellate or revisional courts. For such purposes, it must keep its proceedings open and not generally expect, as seems to be the case here, an “execution” application to be moved.
108. The direction for payment of ` 13 Lakhs as compensation in the first part of the order on the subject quoted earlier, in the given facts and circumstances, turns out to be merely a promise on paper – nothing more and nothing less – no arrangement having been made for its enforcement. This dispensation, being unreasoned, must resultantly be vacated and we hereby so order.
109. No inquiry regarding means of the offender or ability to compensate has been held and so meaningful order for enhancing fine to be paid to victim under S. 357(1) Cr.P.C. is not possible. No order directing offender to pay compensation under Section 33(8) of POCSO to child victim is also possible on the record in the present case. The consideration of an award of compensation under section 33(8) of POCSO has to be confined, therefore, to the Scheme under rule 7(4) of the POCSO Rules.
110. In the above facts and circumstances, the road to award an appropriate amount of compensation to the victim in the case at hand, in terms of the provisions contained in the POCSO Act and the rules framed there under, leads us eventually to search for remedy in the Victim Compensation Scheme and Victim Compensation Fund under Section 357A Cr.P.C. Though we are informed that the Delhi State Legal Services Authority (DSLSA) has taken certain steps in conjunction with the concerned authorities in the Government of National Capital Territory of Delhi to improve upon the Delhi Scheme of 2011 (in which context the draft of Delhi Victims Compensation Scheme, 2015 seems to be presently under consideration), the compensation in the case at hand has to be considered and granted within the constraints of the existing scheme of 2011.
111. As noted earlier, the learned trial court has recommended, under the Delhi scheme of 2011, an amount of ` 2 Lakhs to be paid to be prosecutrix as compensation by DSLSA, it being the “minimum limit”. We notice that in the case of loss or injury arising out of the offence of rape, the maximum amount of compensation that can be recommended to be paid by the legal services authority under the said Delhi Scheme of 2011 is ` 3 Lakhs. We find no reasons set out in the order of the learned trial judge as to why he opted for the minimum amount of ` 2 Lakhs to be paid under the said scheme. Since we are vacating the directions of the trial judge for the amount of ` 13 Lakhs to be paid as compensation separately (out of which ` 1 Lakh was to go to the victim prosecutrix), there is an added reason why the compensation ordered under Section 357A Cr.P.C. be enhanced.
112. As noticed above, the Delhi Victims Compensation Scheme 2011 was notified by the Government of NCT of Delhi on 02.02.2012. The Protection of Children from Sexual Offences Act, 2012 came into force on 14.11.2012. Obviously, the said special law having come on the statute book subsequently, there was no provision made in the said scheme for the child victims of sexual offences. The Protection of Children from Sexual Offences Rules, 2012 were simultaneously prepared and notified by the Central Government so as to be brought into force on 14.11.2012.
113. As noted above, Delhi State Legal Services Authority has initiated certain steps to improve upon the Delhi Scheme of 2011. From the draft of Delhi Victims Compensation Scheme 2015, which was shown to us, we find that the concerns of child victims are proposed to be addressed by permitting the compensation amount to be “increased by upto 50% more than specified”. For the offence of rape, the upper limit of compensation is proposed to be enhanced to ` 5 Lakhs. Thus, it is expected that once the draft scheme of 2015 is finally accepted and enforced, the compensation in such cases as at hand for the offence of rape may be awardable, in case of child victims, to the extent of ` 7.5 Lakhs.
114. We find that there is a complete vacuum in the consideration of compensation so far as the sexual offence resulting in the birth of a child. Such a child is clearly a victim of the act of the offender and entitled to compensation independent of the amount of compensation paid to his/her mother. Such award would require to include amount towards his/her maintenance and support.
115. The fact, however, remains that the Delhi Scheme of 2011, as presently in force, does not actually take care of the responsibility of the State in terms of Section 33(8) of the POCSO Act read with Rule 7 of the POCSO Rules and Section 357A Cr.P.C. vis-à-vis child victims of sexual offences. In other words, as on date, neither a Victims Compensation Scheme nor a Victims Compensation Fund exists in Delhi for purposes of child victims of sexual offences. This is a vacuum within the scenario envisaged in Rule 7(4) of the POCSO Rules quoted earlier. While we note that the improved scheme would take care of vacuum in the provision for child victims, there is no inhibition before us in awarding a suitable amount of compensation for the prosecutrix in the case at hand, without feeling strait-jacketed by the Delhi Scheme of 2011.
116. As observed earlier, the learned trial judge did not hold any inquiry to gather further material for fair and reasonable compensation to be evaluated. It is too late in the day for such inquiry to be now held. Given the value of money, the amount of ` 3 Lakhs which is the maximum permissible under the Delhi Scheme of 2011, even if disbursed, would hardly suffice for the prosecutrix for total recompense and rehabilitation.
117. The background of the family, as noted by us in the initial part of this judgment, shows the prosecutrix has been leading a socially disadvantaged life, her mother making the two ends meet by working as a maid-servant in several households. Given the nature of loss, pain and suffering which she undoubtedly would have undergone, we find this to be a fit case where the State must pay compensation for the minimum sum of ` 7.5 Lakhs (which would be the compensation awardable under the proposed scheme of 2015, as and when brought in force). We recommend accordingly for appropriate award and the provision to be made by Delhi State Legal Services Authority. The amount of ` 2 Lakhs awarded as compensation by the trial court, if paid, of course, would be suitably adjusted.
118. We are informed that with no Victims Compensation Fund having yet been established by the Government of NCT of Delhi, Delhi State Legal Services Authority has been arranging the payment of compensation under Section 357A Cr.P.C. with the help of funds periodically transferred to it by the Government of NCT of Delhi under directions of this court in the public interest litigation (In re: Court on its own motion) referred to earlier. We are further informed that Delhi State Legal Services Authority has also been maintaining a separate account, on its own initiative, pending creation of Victims Compensation Fund by the State Government, collecting therein the amount of costs or fines imposed by various courts which fund is also routinely tapped for compensation to be paid. Should Delhi State Legal Services Authority find it difficult to pay the compensation ordered by us in the case at hand from the funds transferred to it by the Government of NCT of Delhi, it would have the liberty to utilize the funds collected by it on its own initiative as referred to above.
119. In order to ensure that the amount of money reaching the hands of the prosecutrix at very young age is not frittered away, we direct that the sum to be released to her now shall be put in interest bearing fixed deposit receipt in a nationalized bank of her choice in her name for a period of ten years with right to draw periodic interest.
120. For reasons set out earlier, we are unable to uphold the direction about the amount of ` 13 Lakhs to be paid as compensation over and above what has been ordered under Section 357A Cr.P.C. Noticeably, the said amount included an amount of ` 12 Lakhs, which was to be preserved as a corpus in a fixed deposit receipt in the name of the child born on account of the offence of rape to the prosecutrix. It seems to have escaped the notice of the learned trial judge passing the order on sentence that the said child, after its birth on 10.02.2014, has already been given away in adoption. This is what was stated in the court by the prosecutrix (PW-2) during her deposition and by her mother (PW-3), both recorded on 28.04.2014. Given the concerns of privacy and confidentiality and given the possible repercussions such order might entail impacting the future welfare of the individuals involved, we do not consider it appropriate to uphold such directions in the case at hand vis-à-vis the child born to the prosecutrix and consequently set aside the same as well, though reserving a right unto the adoptive parents of the said child to approach the legal services authority for compensation in its favour should they feel it necessary to claim on its behalf.
121. We direct that the learned trial judge shall call for a report from the DSLSA with regard to the proper compliance by payment of compensation under Section 357A Cr.P.C. to the victim prosecutrix and issue further directions, as may be required in accordance with law. Further, it shall also take all necessary steps under the law to endeavour to recover the fine and for the amount thereby realized to be paid to the victim as compensation in terms of direction given by us under Section 357(1)(b) Cr.P.C. We, however, must add a word of caution that such recovery shall not be enforced by attachment or sale of any of such assets of the appellant as are in use or enjoyment of the prosecutrix or her mother.”
Ankush Shivaji Gaikwad v. State of Maharashtra, 2013 (6) SCC 770 [Supreme Court of India, 2 Judge Bench]
Facts: This appeal arises out of a judgment and order dated 24th August, 2010 passed by the High Court of Judicature at Bombay, Aurangabad Bench, whereby Criminal Appeal No. 359 of 2008 filed by the Appellant and two others has been dismissed in so far as the Appellant is concerned and allowed qua the remaining two, thereby upholding the Appellant’s conviction for the offence of murder punishable under Section 302 of the Indian Penal Code and the sentence of imprisonment for life with a fine of Rs. 2,000/- awarded to him. In default of payment of fine the Appellant has been sentenced to undergo a further imprisonment for a period of three months. On the event of a scuffle between the deceased and the accused persons in the course whereof, accused Nos. 2 and 3 beat the deceased with fist and kicks, the Appellant hit the deceased with the iron pipe on the head. On account of the injury inflicted upon him, the deceased fell to the ground whereupon all the three accused persons ran away from the spot and the deceased was rushed to hospital. The eye-witness, deceased’s wife P.W. 1-Mangalbai filed a complaint at the Police Station, Omerga on 5th February, 2006 on the basis whereby Crime No. 25 of 2006 under Sections 326, 504 and 323 read with Section 34 of the Indian Penal Code was registered by the police. When deceased eventually succumbed to his injuries on 7th February, 2006 whereupon Section 302 read with Section 34 of the Indian Penal Code was added to the case.
Decision: On the question of compensation the Court held that:
“62. 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 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 Code of Criminal Procedure 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.
63. Coming then to the case at hand, we regret to say that the trial Court and the High Court appear to have remained oblivious to the provisions of Section 357 Code of Criminal Procedure. The judgments under appeal betray ignorance of the Courts below about the statutory provisions and the duty cast upon the Courts. Remand at this distant point of time does not appear to be a good option either. This may not be a happy situation but having regard to the facts and the circumstances of the case and the time lag since the offence was committed, we conclude this chapter in the hope that the courts remain careful in future.
64. In the result, we allow this appeal but only to the extent that instead of Section 302 Indian Penal Code the Appellant shall stand convicted for the offence of culpable homicide not amounting to murder punishable Under Section 304 Part II Indian Penal Code and sentenced to undergo rigorous imprisonment for a period of five years. The fine imposed upon the Appellant and the default sentence awarded to him shall remain unaltered. The appeal is disposed of in the above terms in modification of the order passed by the Courts below.”
The Minor Through Guardian Zareen v. State (Govt Of Nct Of Delhi) [Delhi High Court, Division Bench]
Facts: The facts of the case are that the accused persons abducted the minor, took him to a jungle located behind the school premises, attacked him and committed a brutal sexual assault upon him. They took turns in attacking him, assaulting him through penile penetration, and penetrating him with a stick. On 25.08.2014 and one of the accused was found guilty for commission of the offences punishable under Section 323, 377, 363 read with 120-B of the Indian Penal Code, and Section 4 of the POCSO Act and in September 2014, an application under Section 357A of the Code of Criminal Procedure, 1973, was filed before the Juvenile Justice Board for the grant of compensation to the minor. The Juvenile Justice Board, passed an order dated 28.11.2014, directing the State to pay the minor a sum of Rs. 50,000/- as victim compensation in terms of Rules 3 and 5, read with Entry 7, i.e., under the head of “Victim of Human Trafficking, Child Abuse and Kidnapping” in the impugned schedule, read with Section 357A of the Code of Criminal Procedure. The petitioner has filed the present writ petition seeking enhancement and grant of fair compensation.
Decision: The High Court of Delhi determined that two questions arise for consideration before this Court. First, whether there was any restriction upon the trial court while granting compensation to the petitioner. The second question is whether adequate compensation has been granted in the facts of the present case.
The Court held that:
“19. Reading of Section 357 (A) of the Code of Criminal Procedure would show that the legislature in its wisdom has referred to a victim or its dependants who has suffered a loss or injury as a result of crime and who require rehabilitation.
20. The definition under Section 357 (A) is very wide and would in fact even cover cases which are covered under The Protection of Children from Sexual Offences Act, 2012 but then the reading of Section 33 of the Act would show that the power has been given to the Special Court to grant compensation and there is no outer limit which has been fixed while granting the compensation.
21. Since in the present case, only Rs. 50,000/- has been granted, the counsel had approached this Court for enhancement.
22. During the pendency of this writ petition, we had directed the petitioner to file a subsequent affidavit which would enable the court to ascertain the loss suffered by the victim and to enable the court to grant compensation. Rule 7 of POCSO Rules provides the factors which are to be taken into consideration while awarding the compensation. Rule 7 has been reproduced hereinabove. One of the prime factors to be considered is the gravity of the offence. In this case, the gravity of the offence can be ascertained from the fact that the victim was 13 years of age at the time when the offence took place. He was studying in Class-9. He was called outside the classroom by force by 4 students of Class – 9, 11 and 12 who abducted the boy, took him to a jungle and thereafter attacked him and he was brutally sexually assaulted and penetrating with a stick. The petitioner not only suffered physically but also mentally. He was forced to change his school and his family was also traumatised.
23. In view of the facts and circumstances of the present case, compensation granted to the victim is enhanced to Rs. 3,00,000/- (total). The petition stands disposed of.”