Sudhir Kumar Saxena, J.:— It is a case where appellant has been found guilty of causing grievous injuries to Haseen Abbas in an acid attack. He was sentenced to 10 years R.I under Sections 307/506 I.P.C in addition to total fine of Rs. 12,000/-. However, no compensation has been awarded under Section 357 of Cr. P.C
2. He has served out more than five years in jail. There is no possibility of appeal being heard in near future on account of large number of pendency. Perusal of record shows that re-analysis of evidence is needed. Consequently, in the circumstances of the case, I find it a fit case where appellant can be directed to be released on bail.
3. Appellant is directed to be released on bail on execution of bail bonds to the satisfaction of the court/CJM concerned. Copy of the bail bonds will be sent to this Court.
4. While appellant cries for bail having served more than half of the sentence awarded, what disturbs the mind of Court is sufferings of the victim. Victim Abbas has sustained serious burn injuries. He has assisted the court by appearing in court as witness but he got nothing from judicial administration. No compensation has been awarded by the trial court to the victim while convicting the appellant. More so because appellant is poor person having no means even to contest this case (this appeal has been filed as jail appeal). While appellant will be roaming after bail, victim is left to fend for himself with a scarred and charred body negotiating ridiculous, contemptuous or sympathetic looks. Victim has suffered 50% burn injury. His face, neck, upper abdomen, left hand and foot have been badly burnt.
5. It is high time victim of offence is also taken care of. Feeling of victory of justice lurking in his mind will be a subterfuge unless adequate steps for rehabilitation are taken. Remedial steps have to be taken for all acid victims because they endure those sufferings everyday for whole life and wrong done to them would haunt every time. Trial court should have come forward to help victim. Criminal justice system has to take care of both accused as well as victim.
6. So far as victim is concerned, Hon'ble Apex Court in the case of Laxmi v. Union of India reported in (2014) 13 SCC 743, has held that victim of acid attack is entitled to compensation. Section 357-B Cr. P.C specifically contemplates payment of compensation to victim of acid attack. This amount ought to have been determined by the court which has not been done. As such, victim with his corroded body is standing helpless facing puns, mocks and snides from people. His plight needs to be examined in some detail in the background of statutes.
7. Hon'ble Apex Court in the above case has chalked out a mechanism whereunder DLSA will work out the amount of compensation. Relevant paragraph of the order passed by a Bench of Apex Court, headed by Hon'ble Madan B. Lokur, J., is being reproduced below:
“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 after-care 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 with the above direction.”
8. State of U.P has also come out with a Scheme known as ‘Victim Compensation Scheme, 2014’ which, in fact, is in compliance of order passed by Apex Court. In this Scheme a maximum sum of Rs. 3,00,000/- (three lacs) is provided as compensation for victim of acid attack.
9. Under the Scheme, registration of F.I.R will give rise to a claim to compensation which, of course, will be determined according to mechanism provided in the Scheme. Thus, even if offence is committed before the date of launch of Scheme, if F.I.R is lodged and process of criminal justice administration is set in motion subsequent thereto, in appropriate cases victim will be entitled to compensation under the Scheme. Intention of Scheme is to compensate the victim who suffers on account of failure of State to provide protection.
10. State Government has allocated rupees two crores in ‘Victim Compensation Scheme, 2014’ for payment of compensation which has to be paid on the approval of the UPSLSA by DLSA. Assistant Account Officer Sri M.Y Ansari posted with UPSLSA and Sri S.N Agnihotri, Member Secretary have stated that there will not be delay in disbursement of amount of compensation.
11. Home Department of State Government has acted with due promptness and alacrity in complying with the directions of Apex Court and this court, which requires a note of appreciation.
12. Now that Scheme is there, money is available, can victim of this case be helped in the light of directive of Apex Court. Thus, questions to be considered are whether compensation to a victim can be granted by this court in appeal and that too at an interim stage. For examining these issues, little background and history of the law relating to compensation has to be looked into.
13. Sri Jyotindra Mishra, Former Advocate General, Sri Anil K. Tripathi, Advocate have assisted the Court. Mr. Anil Kumar appeared for appellant. Sri Rishad Murtaza, learned Government Advocate has also candidly placed the entire law without being guided by the brief, he held for.
14. Section 357 Cr. P.C provides that trial court at the time of conclusion can grant compensation to the victim. Section 357 Cr. P.C is being reproduced herein below:
“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 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.”
15. Despite there being above provision, trial courts are reluctant to award compensation. Noticing this inhibition, Hon'ble Apex Court in the case of Hari Krishna and State of Haryana v. Sukhbir Singh [(1988) 4 SCC 551], has made following observations:—
“Section 357 of the Cr. P.C is an important provision but Courts have seldom invoked it. This Section of law empowers the Court to award compensation while passing judgment of conviction. In addition to conviction, the Court may order the accused to pay some amount by way of compensation to the victim who has suffered by the action of the accused. This power to award compensation is not ancillary to other sentences but is in addition thereto. It is a measure of responding appropriately to crime as well as reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes. It is indeed a step forward in our criminal justice system. We therefore recommend to all courts to exercise this power liberally so as to meet the ends of justice in a better way.”
(emphasis supplied)
16. Even this reminder did not evince any interest in the courts and apathy continued.
17. Matter was examined in great detail in the case of Smt. Nilabati Behera v. State of Orissa [(1993) 2 SCC 746]. This was a landmark judgment which evolved a theory of compensation for the constitutional torts. This case deals with the public and private law remedies for infringement of fundamental rights of the citizens. While on one hand, it deals with the dereliction of duty by a public servant, which contemplates action against the State under Article 32 and 226 of the Constitution of India, on the other hand, it emphasizes on the government's liability under the law of tort. This case indeed, draws a distinction between the liability of the State to pay compensation in cases where grave violation of fundamental rights is involved and the liability of the State arising in action for tort. This liability is based on the principle of public law and is governed by the principle of strict liability. Wherever there is an infringement of fundamental rights, ‘Act of State’ or sovereign immunity has not been held to be applicable as they are ‘constitutional torts’. The aim of awarding compensation to an individual aggrieved by the tort action by the officials' violation of constitution is to compensate for some of the individuals past injury and deter future deprivations of these rights. Persons' life and liberty is guaranteed by Article 21 of the Constitution of India as such, the State or the Officer responsible for infringement of the above Article is liable to pay compensation.
18. In fact, compensation is manifestation of exemplary damages against the State for the dereliction of duty on the part of State Officials which has led to violation of the fundamental rights of the victim. Hon'ble Apex Court in the above case, instead of relegating the petitioner to file an action for damages, considered and upheld petitioner's claim under Article 32 of the Constitution for damages for violation of the fundamental rights.
19. In the case of Baldev Singh v. State of Punjab [(1995) 6 SCC 593], Hon'ble Apex Court has held that order of compensation would be more appropriate instead of sentence of imprisonment. It has thus advanced the theory of compensation.
20. In the case of Vijayan v. Sadanandan K [(2009) 6 SCC 652], it was held that default in payment of compensation authorizes the Court to order a default sentence under Section 357(3) and Section 431 Cr. P.C read with Section 64 I.P.C
21. In a recent judgment given in the case of Ankush Shivaji Gaikwad v. State of Maharastra [(2013) 6 SCC 770], need to have a paradigm shift in the approach towards victims of crimes has been recommended. Relevant paras of the judgment are being reproduced below:
“The long line of judicial pronouncements of this Court recognised in no uncertain terms a paradigm shift in the approach towards victims of crimes who were held entitled to reparation, restitution or compensation for loss or injury suffered by them. This shift from retribution to restitution began in the mid 1960s and gained momentum in the decades that followed.
Interestingly the clock appears to have come full circle by the law makers and courts going back in a great measure to what was in ancient times common place. Harvard Law Review (1984) in an article on ‘Victim Restitution in Criminal Law Process: A Procedural Analysis’ sums up the historical perspective of the concept of restitution in the following words:
Far from being a novel approach to sentencing, restitution has been employed as a punitive sanction throughout history. In ancient societies, before the conceptual separation of civil and criminal law, it was standard practice to require an offender to reimburse the victim or his family for any loss caused by the offence. The primary purpose of such restitution was not to compensate the victim, but to protect the offender from violent retaliation by the victim or the community. It was a means by which the offender could buy back the peace he had broken. As the state gradually established a monopoly over the institution of punishment, and a division between civil and criminal law emerged, the victim's right to compensation was incorporated into civil law.”
22. The question is whether duty of the State ends merely by registering a case, conducting investigation and initiating prosecution. Does State have any further responsibility towards victim? Victim of crime or kith and kin have legitimate expectation that the State will punish the guilty and award compensation. Acquittal may take place for many number of reasons. Even in some cases, trial may not have commenced but victim is there, who expects a system for rehabilitation and compensation. That criminal law is not concerned with compensation no more holds the field, as there is feeling all over the world that Courts are neglecting the victims. The above mentioned judgments tend to change the scenario and Courts have shown sense of urgency and keenness in rehabilitation process. Recent Studies in criminology and penology would reveal that humanitarianism is permeating into penology and the Courts are expected to discharge their due roles.
23. In fact, the purpose of such restitution is not to compensate the victim but to protect the offender from violent retaliation by the victim or the community. When compensation is not fully available from the offender or other sources, the State should endeavor to provide financial compensation to the victims, who have suffered significant bodily injury needing physical or mental help, as a result of serious crimes to protect its subjects owing to failure of State.
24. In the case of Manohar Singh v. State of Rajasthan, [2015 (89) ACC 266 (SC)], Hon'ble Apex Court has observed that punishment to the accused is one aspect, determination of just compensation to the victim is the other. Just compensation to the victim has to be fixed having regard to the medical and other expenses, pain and suffering, loss of earning and other relevant factors, while under Section 357 Cr. P.C, financial capacity of the accused has to be kept in mind under Section 357-A Cr. P.C, compensation should be invoked out of the State funds to meet out the requirement of just compensation.
25. Since Section 357 Cr. P.C was not capable of taking care of all the victims of crime, as compensation could have been granted only on the conclusion of trial, legislature intervened and Section 357-A Cr. P.C was inserted on 31.12.2009 Said provision casts a duty upon the States to formulate a Victim Compensation Scheme. In 2013, Sections 357-B and 357-C Cr. P.C were added. Section 357-A, 357-B & 357-C Cr. P.C are being reproduced below:—
“[357-A. 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.”]
357-B. Compensation to be in addition to fine under Section 326-A or Section 376-D of Indian Penal Code. - The compensation payable by the State Government under section 357-A shall be in addition to the payment of fine to the victim under section 326-A or section 376-D of the Indian Penal Code (45 of 1860).
357-C. - 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 326-A, 376, 376-A, 376-B, 376-C, 376-D or section 376-E of the Indian Penal Code, and shall immediately inform the police of such incident.”
26. Section 357-A Cr. P.C was added on the recommendation of the Law Commission of India as need to rehabilitate the victim was gaining ground.
27. From the above discussion, it can be safely culled out that compensation to victim has become a rule, whether recourse is had to Section 357 or 357-A Cr. P.C Needless to say that Hon'ble Apex Court in the case of Ankush Shivaji Gaikwad (supra) has held that it is the duty of the court to apply its mind to the question of compensation in every case. Para 66 of the judgment is being reproduced below:
“66. To sum up: while the award or refusal of compensation in a particular case may be within the court's discretion, there exists a mandatory duty on the 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 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.”
28. Now the question is whether an appellate court can award compensation. Section 357(4) itself provides that order of compensation can be passed by an appellate court as well as revisional court. Moreover, appeal being continuation of trial, appellate court can exercise all the powers which are vested in the trial court.
29. In the case of Subhash Chandra v. S.M Agarwal, [1984 Criminal Law Journal 481], Hon'ble Apex Court in para 7, while interpreting the word ‘judicial proceeding’ holds appeal to be continuation of trial. Paragraph 7 of the judgment is being reproduced below:
“Bawa Gurcharan Singh, learned counsel for the petitioner, also invited our attention to Section 2(C)(ii) of Contempts of Courts Act wherein a publication which prejudices or interferes or tends to interfere with, the due course of any judicial proceedings, has been defined as criminal contempt. His contention that by using the words ‘judicial proceeding’ the Legislature has done away with the distinction between trial and appeal and has in its wisdom chosen to use the words. ‘judicial proceedings’ which are wider in sweep and which we (by) fair construction would mean even the appeal which is a continuation of the trial, to our mind appears to be well founded. It would thus be seen that respondent no. 1 went to the media to give interview in respect of a case which was pending trial before this court and the contents of the interview would show that it had not only a tendency and capacity to cause prejudice but it did make it difficult for the court to deal with the case in the manner which law and justice would require of it.”
30. While Section 357 Cr. P.C specifically refers to the trial court, appellate court and revisional court, Section 357-A(2) Cr. P.C refers only to ‘court’. The intention of legislature appears to aim at helping the victims whether trial has commenced or not or whether trial has resulted in acquittal or conviction. This departure manifests the intention of legislature that ‘court’ occurring in Section 357-A(2) includes Remand Magistrate, trial court, appellate court or revisional court.
31. The Idea, indeed, is to help the victim at whatever stage his plight is noticed either on the motion of victim (including kith and kin) or otherwise. What is sine qua non for Section 357-A Cr. P.C is a crime and a victim. These provisions have been enacted to ensure restoration, reparation and rehabilitation of the victim.
32. In these circumstances, giving the restricted meaning to the word ‘Court’ occurring in Section 357-A(2) Cr. P.C would tantamount to frustrate the purpose of the amendment as victim will remain victim, whether he/she is before the DLSA, SLSA, trial court or appellate court.
33. Hon'ble Apex Court in the case of Manohar Singh v. State of Rajasthan (supra) has given a clear hint, making Section 357-A Cr. P.C applicable. Relevant paragraph of the judgment is being reproduced below:
“We find that the Court of Sessions and the High Court have not fully focused on the need to compensate the victim which cannot be taken to be integral to just sentencing. Order of sentence in criminal case needs due application of mind. The court has to give attention not only to the nature of crime, prescribed sentence, mitigation and aggravating circumstances to strike just balance in needs of society and fairness to the accused, but also to keep in mind the need to give justice to victim of crime. In spite of legislative changes and decisions of this court, this aspect at times escapes attention. Rehabilitating victim is as important as punishing the accused. Victim's plight cannot be ignored even when a crime goes unpunished for want of adequate evidence.”
34. It is, thus, evident that appellate court can exercise the powers under Section 357 Cr. P.C as well as 357-A Cr. P.C, for ensuring rehabilitation of the victim.
35. This leads to another question whether the amendments made in the year 2013 and 2009 are retrospective in nature? Needless to say that the amendment is beneficial in nature. It considers the victim as a unit, which requires rehabilitation including first-aid facility, medical benefits and any other interim relief. The emphasis is on ‘alleviating the sufferings’ of the victim. Section 357-A Cr. P.C would apply even if the case results in an acquittal. Section 357-A Cr. P.C applies to a case where offenders are not traced or identified or compensation granted by the trial court under Section 357 Cr. P.C is inadequate or where trial resulted in acquittal. This provision refers to something that happened in past. It is, thus, obvious that date of offence has no connection with the benefits made available under the Scheme.
36. In the case of Bashir @ N.P Bashir v. State of Kerala [(2004) 3 SCC 609], the Supreme Court of India discussed the earlier judgments of Ratan Lal v. State of Punjab and T. Barai v. Henry and held as follows:
“10. In Ratan Lal v. State of Punjab it was unequivocally declared by this Court that an ex post facto criminal law, which only mollifies the rigor of law is not hit by Article 20(1) of the Constitution and that if a particular law makes provision to that effect, though retrospective in operation, it would still be valid.
11. In T. Barai v. Henry Ah Hoe this view was reiterated and it was emphasized that if an amending Act reduces the punishment for an offence, there is no reason why the accused should not have the benefit of such reduced punishment. Relying on Craies on Statute law (7th Edn. Pp. 387-88), this Court (AIR at p. 157, para 22) said: (SCC p. 9, para 22)
The rule of beneficial construction requires that even ex post facto law of such a type should be applied to mitigate the rigour of the law. The principle is based both on sound reason and common sense.”
37. All the statutes must be interpreted as prospective unless declared retrospective specifically by the statute or by a necessary intendment. Construction which promotes the purpose of legislation should be preferred to a literal construction. Any construction which results in injustice has to be avoided.
38. Moreover, in the case of Suresh v. State of Haryana (supra), Hon'ble Apex Court underlined the object of Section 357-A Cr. P.C as under:
“The object and purpose of Section 357-A Cr. P.C is to enable the court to direct the state to pay compensation to the victim where the compensation under Section 357 Cr. P.C is not adequate or where the cases ended in acquittal or discharge and the victim is required to be rehabilitated.”
39. In view of the above, it is found that Section 357-A Cr. P.C is retrospective contemplating compensation in the cases pending on or before 31.12.2009 and appellate court is competent to grant compensation under Section 357-A Cr. P.C
40. Next question is whether compensation can be awarded at the interim stage. Section 357 Cr. P.C contemplates an award of compensation at the conclusion of trial. This power has been given to appellate court and revisional court also under Section 357(4) Cr. P.C It is vehemently submitted by Sri Anil Tripathi that settled principle of law is that if an authority has the power to pass a final order, it also has power to pass interim or such other order necessary for effective exercise of power, unless specifically prohibited, Section 357(2) Cr. P.C places a restriction. In the High Court appeals ordinarily take more than ten years for decision. Can rehabilitation of victim, wait for such a long period? Can the agony of the victim be left to continue for such a long period without genuine redressal? Would not rehabilitation, if it comes at all, become meaningless after such a long lapse of time? Would it not lead to psychological frustration for hapless victim? Medical treatment, restoration or rehabilitation are the immediate requirements. If a victim is made to wait for 20-30 years for rehabilitation, purpose of the Scheme would vanish as all the appeals cannot be disposed of expeditiously.
41. Under Section 357-A Cr. P.C, payment of compensation is not dependent upon financial capacity of the accused. Of course, under Section 357 Cr. P.C, it is a relevant consideration. Section 357-A(6) enables State or District Legal Services Authority to provide such interim relief as deemed fit, for ‘alleviating the sufferings’ of victim. Key word ‘alleviating the suffering’ occurs in the provision and therefore provision is to be interpreted keeping in mind the above objectives. Provision seeks to help the victim recover in the aftermath of the crime and ensure that victim does not have to wait till the end of the judicial proceedings to receive the amount of compensation.
42. It is settled ever since the formation of modern State that security of persons and property of the people is an essential function of the State. Hon'ble Apex Court in its judgment in Shailesh Jasvantbhai v. State of Gujrat reported in [(2006) 2 SCC 359] said that “the law regulates social interests, arbitrates conflicting claims and demands. Security of persons and property of the people is an essential function of the State.” But when the State fails to protect the person or property of its people, whose guardian it actually is, then it must come forward to compensate the hapless victim so as to alleviate his/her sufferings. The process to compensate for ‘alleviating the suffering’ must ensue from the moment the State's failure has occurred first, that is, when the violation of a person's rights has occurred and criminal prosecution got initiated and this is, indeed, the reason because of which the concept of ‘interim compensation’ came into being. The needs and rights of the unfortunate victim of crime should receive attention on priority in the overall response to crime. One recognized method of protection of victims is, indeed, compensation to victims of crime. Although, the needs of victims and their family are extensive and varied but interim compensation might come as a strong bullwork of social and economic justice which is a pious aspiration of our constitutional jurisprudence and aspiring egalitarian society.
43. In the case of Suresh v. State of Haryana [(2015) 2 SCC 227], following important observations have been made by the Hon'ble Apex Court:—
“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 Cr. P.C 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.”
(emphasis mine)
44. Case of State of Madhya Pradesh v. Mehtab [(2015) 5 SCC 197] is a case where offence was committed in the year 1997 and court has awarded a sum of Rs. 3,00,000/- as interim compensation under Section 357-A Cr. P.C Relevant para of the judgment is being reproduced below:
“The order of the High Court can be upheld only with the modification that the accused will pay compensation of Rs. 2 lakhs to the heirs of the deceased within six months. In default, he will undergo RI for six months. The compensation of Rs. 2 lakhs is being fixed having regard to the limited financial resources of the accused but the said compensation may not be adequate for the heirs of the deceased. In the interest of justice, interim compensation of Rs. 3 lacs is also awarded under Section 357A Cr. P.C payable out of the funds available to be made available by State of M.P In case the accused does not pay the compensation awarded, the State of M.P will pay the entire amount of compensation of Rs. 5 lakhs.”
45. It is thus manifest that statute has recognized the right of an interim relief to a victim. How this right is to be bestowed has to be seen from the provision itself which states that DLSA or State Level Authority would award the compensation on the recommendation of the court. Since power has been given to DLSA/SLSA which are manned by Judges, chances of misuse of power or arbitrariness are minimum. As held earlier, court includes the appellate court. As such, appellate court can also recommend payment of interim compensation to the victim.
46. From the above, it is manifest that legislature enabled the court to order interim compensation, either on the application or on its own motion, which will of course, be subject to final compensation being determined later on.
47. Hon'ble Apex Court has specifically clarified that compensation can be awarded at an interim stage and gravity of offence and need of victim will be some of the guiding factors. In fact, in the year 1996 itself, Hon'ble Apex Court in the case of Bodhi Satwa Gautam v. Subra Chaturvedi [(1996) 1 SCC 490] had recognized the jurisdiction of the courts to pay interim compensation as part of overall jurisdiction. Relevant para of the judgment is being reproduced below:
“When the court trying an offence of rape has jurisdiction to award the compensation at the final stage, there is no reason to deny to the court the right to award interim compensation which also be provided in the scheme for rape victims to be evolved by the Union of India pursuant to directions of the Supreme Court in Delhi Domestic Working Women Forum case. On the basis of principles set out in that decision the jurisdiction to pay interim compensation shall be treated to be part of over all jurisdiction of the courts trying the offences of rape which, is an offence against basic women rights as also the fundamental right of principal liberty of life. Besides the Supreme Court has the inherent jurisdiction to pass any order it considers fit and proper in the interest of justice or to do complete justice between the parties.”
48. The above discussion may be summarized as under:
1) Every victim of crime is entitled to compensation, which will be granted on the application of the victim or on the recommendation of the court.
2) The ‘court’ occurring in Section 357-A(2) Cr. P.C includes the trial court, appellate court or revisional court.
3) Section 357-A Cr. P.C is retrospective in nature and therefore, date of offence has no relevance, so far as applicability of provision is concerned, subject to other conditions being fulfilled.
4) So far as right of victim to get compensation is concerned, compensation can be recommended by trial court, appellate court as well as revisional court under Section 357-A Cr. P.C
5) Interim compensation can also be ordered during pendency of the trial, appeal or revision under Section 357-A Cr. P.C
6) Compensation will be payable as per the terms of Scheme framed under Section 357-A Cr. P.C
7) It is the duty of every court to consider the question of awarding the compensation, and for awarding or refusing court is supposed to record reasons. Application of mind to such a question is duty of the court. Gravity of the offence and need of the victim would be some of the guiding factors. Rehabilitation of victim in order to alleviate his/her suffering would be the principle area to be concentrated upon by the DLSA or SLSA.
49. From the above discussion, it is manifest that under Section 357 Cr. P.C whereby trial court or appellate court were capable to give compensation out of amount of fine or otherwise to the victim at the conclusion of the trial or appeal as the case may be, there has been a departure in this scheme of compensation with the intervention of the legislature which has brought in place Section 357-A Cr. P.C to take care of the victims whether trial has commenced or not, accused are identified or not or whether trial has resulted in acquittal. Power under Section 357-A can also be exercised when it is found that compensation awarded by the trial court is inadequate. Thus, this provision provides for additional mechanism to take care of the victim irrespective of identity of the offender or pendency of judicial proceeding. This has been done to ensure the dignity of individual (victim) contemplated in Preamble as well as Article 38 and 41 of the Constitution of India. This newly added provision has to be interpreted in the light of these provisions.
50. Discussion made above, shows that under Section 357-A Cr. P.C, trial court, appellate court or revisional court can order compensation either on its own motion or on the application of victim. This can be done even during the pendency of trial, appeal or revision and courts are not supposed to wait till conclusion of proceeding as victim is not supposed to wait for medical aid, rehabilitation, restoration till decision of trial/appeal which may take more than 20 years. Interim compensation can also be granted in accordance with the Scheme, 2014 which provides for granting of interim compensation which will be in consonance with Section 357-A Cr. P.C as well as decisions of Hon'ble Apex Court.
51. Power to grant interim compensation can be exercised in the same manner as it is exercisable while ordering final compensation. Moreover, Section 357(2) Cr. P.C places embargo on the compensation which was to be paid out of the fine imposed under Section 357(1) of Cr. P.C Compensation payable under Section 357-A Cr. P.C is altogether different although adjustable at the final stage. Thus, it can be safely held that appropriate appellate court at any interim stage, including stage of granting bail, can direct payment of compensation.
52. In future, such amount will be placed at the disposal of UPSLSA after necessary grant from legislature, so as to create a corpus with a view to meet the growing number of claims.
53. Since statutory Scheme in Uttar Pradesh has come into place, DLSA/SLSA would consider application in the light of Scheme which provides for compensation only in respect of certain specified offences, offences under the POCSO Act have been included in Schedule by means of amendment in pursuance of directions of this Court but certain offences still remained beyond its purview which require attention of the State Government i.e offences relating to property and person i.e offences under Sections 436, 377, 326 I.P.C etc. State Government is directed to consider the inclusion of other offences also within the ambit of the Scheme so that there remains no ambiguity although these offences are referable to ‘loss or injury’ occurring in the scheme.
54. Member Secretary, SLSA would impress upon the State Government for rationalizing the payment of compensation so far as acid attacks are concerned as directed by Hon'ble Apex Court in W.P (Crl.) No. 129 of 2006 (Laxmi v. Union of India) in its order (relating to amount of compensation to be made available to each victim of acid attack). Scheme 2014 provides for maximum three lacs to victim of acid attack contrary to dictate of Apex Court.
55. With the advent of Victim Compensation Scheme, 2014, DLSA/SLSA will be flooded with claims for compensation. All the DLSAs do not have full time Secretaries. To fully effectuate the Scheme and keeping in view the time limit prescribed by the Scheme itself and Hon'ble Apex Court in the case of Laxmi Devi (supra) need to have full time Secretary in DLSAs has become imminent. Civil Judge (Senior Division) who works as Secretary DLSA is already preoccupied with judicial work, being holder of parent court, Member Secretary, SLSA will take up the matter with the State Govt. for creation of posts of full time Secretaries in all the DLSAs of State. State Government would do well to act with all promptness for ensuring success of its Scheme.
56. Submission of Sri Anil Tripathi that State Government should be authorized to recover the amount of compensation from the offender is although attractive but is left upon to the wisdom of legislature for consideration. DLSAs and SLSA would ensure that claims are not collusive, fake or fictitious. So far as instant case is concerned, having considered the F.I.R, injury report and other material especially the poor condition of accused, Court directs DLSA, Lucknow to recommend payment of Rs. 3,00,000/- (three lacs) as compensation to Haseen Abbas, victim, enabling UPSLSA to pass order for payment of compensation.
57. Copy of this order be sent to Registrar General, Principal Secretary Home, Principal Secretary Law, Senior Registrar Lucknow Bench and Member Secretary UPSLSA for compliance.
Comments