The ancient Indian History is a witness to the fact that the victims of crimes have sufficient provisions of restitution by way of compensation to injuries. Author of the book, “General Principle of Hindu Jurisprudence” Dr. Priyanath Sen has observed-
“It is, however, remarkable that in as much as it was concerned to be the duty of the King to protect the property of his people, if the King could not restore the stolen articles or recover their price for the owner by apprehending the thief, it was deemed to be his duty to pay the price to the owner out of his own treasury, and in his turn he could recover the same from the village officers who by reason of their negligence, were accountable for the thief’s escape.“
Reparation or compensation as a form of punishment is found to be recognized from ancient time in India. In ancient Hindu law, during Sutra period, awarding of compensation was treated as a royal right. The law of Manu, requires the offender to pay compensation and pay the expenses of cure in case of injuries to the sufferer and satisfaction to the owner where goods were damaged. In all cases of cutting of a limb, wounding or fetching blood, the assailant shall pay the expenses of a perfect cure or in his failure, both full damages and a fine. It shows that the victim compensation was never an alien concept in the justice delivery systems of the country. The edifice of the law in our present day legal system relating to the victim compensation are provisions contained in the Criminal Procedure Code, 1973 and various judgments of the Hon’ble Supreme Court. The question that arises for consideration is that despite having laws for victim compensation are these laws being satisfactorily used by those on who lies the duty of the execution of these laws and to give beneficial effects to it. Answer is very infrequently. The reasons are many.
Some more prominent are like the 12th century distinction of English law of wrongs into civil wrongs and criminal wrongs which leads to misconception that the area of compensation is something exclusively belonging to the domain of civil law and others less obvious like the ignorance of those who can give effect to these benefactions. The present criminal justice system is based on the assumption that the claims of a victim of crime are sufficiently satisfied by the conviction of the perpetrator. It is a truth that in our present day adversarial legal system between the state and the accused, the victim is not only neglected but is lost in silence. The role of the victim is limited to report the offence and depose in the court on behalf of prosecuting party, which is the State. That’s all. The Malimath Committee reflected on the present criminal justice system that not only the victim’s right to compensation was ignored except as token provision under the Criminal Procedure Code but also the right to participate as the dominant stakeholder in criminal proceedings was taken away from him. He has no right to lead evidence, he cannot challenge the evidence through cross-examination of witnesses nor can he advance arguments to influence decision-making.
Any person, group, or entity who has suffered harm, injury or loss due to illegal activities of others. The harm may be economical, mental, or physical.
Thus any person who has suffered harm because of violation of criminal law is a victim.
A person will be considered as a victim even when the offender is not identified or prosecuted. Term victim also includes individuals who have suffered harm as a result of assisting victims in distress or to prevent victimization.
Not only the person who suffered loss or injury are the victim, but in some cases, the near and dear of victims (family members) are also the victims.
Yes. A victim of the offence can get compensation in India. But there is a procedure which needs to be followed. We will discuss the procedure at length in the later part of this article.
The compensation has to be ordered by the court. Compensation can be sought through the procedure established by the court. Compensation is awarded for material as well as non-material damages.
Material damages include medical expenses, loss of livelihood, etc. Non-material damages include pain, suffering, mental trauma, etc. In criminal cases, the victims can directly apply for the compensation, and it is the duty of the lawyer representing the victim to demand such compensation.
The provisions relating to compensation to victims of crime are contained in sections 357, 357(1), 357 (2), 357 (3), 357A, 358, 359 and 250 of the Code of Criminal Procedure, 1973.Constitution of India also provides for certain safeguards to the victim of crime. Article 14 and 21 of the Constitution supports the argument.
When an accused is proven guilty, and the court passes an order which contains a fine of any denomination, the court can order such fine or any part of it to be paid to the victim of crime. The fine imposed is utilised to compensate the victim of fine in the following ways.
This is the essential relief which a victim of a crime must get. Litigation costs in India are very arbitrary. The lawyer charges hefty amount. Getting justice at times adds to the burden of the victim itself. Instead of getting justice, the victim is trapped in the honeycomb of justice delivery system.
The court knows this fact and thus, compensate victim by providing them the expenses incurred during litigation.
If the court is of the view that, the compensation sought is beyond the jurisdiction of the court, the court itself orders the appropriate court to look into the matter.
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.
One might question the fact that, who is the victim where death has been caused? As the victim is already dead, who should be compensated for the crime?
It is the family of the victim. Think of the mental trauma they might have gone through. Medical expenses incurred expenses during last rites. What if the victim who died was the sole bread earner of the family?
The Court is well aware of such situation. Therefore, the legislature and the judiciary tied their hands to do complete justice.
Victims are entitled to recover damages from the person sentenced for the loss resulting to them from such death. When any person is convicted of any offence for having caused the lives of another person or of having abetted the commission of such a crime.
In cases of crime such as theft, cheating, criminal breach of trust, criminal misappropriation, the Court either tries for recovery of goods and in the case where recovery is not possible court orders for compensation for the price of such goods.
The accused person in such case may be ordered by the court to pay a certain sum as compensation to the victim of crime who suffered loss or injury. Indian legal system is victim friendly. Victim’s rights are kept at the top of the priority list.
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.
In 2009, the central government gave directions to every state to prepare a scheme which has to be in agreement with the center’s scheme for victim compensation. The primary purpose of the scheme is to provide 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.
It is the court which orders that the victim who suffered loss needs to get compensated. Under the scheme, 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, decides the quantum of compensation to be awarded.
Compensation in cases where the accused is not found guilty or the culprits are not traced. Where the cases end in acquittal or are discharged, and the victim has to be rehabilitated, the court may make a recommendation for compensation.
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 an award of compensation.
The State or the District Legal Services Authority shall, after due enquiry-award adequate compensation by completing the inquiry within two months.
Also, it is the duty of the State or the district legal service authority to provide an immediate first-aid facility or medical benefits to the victim free of cost on the certificate of the police.
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 the following of the Indian Penal Code,
If the trial Court, at the conclusion of the hearing, 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 a recommendation for compensation.
Along with the duty of the offender, it is the duty of the state too, to compensate the victim. Compensation to the victim of crime can be provided at the conclusion of the trial. That is on the orders of the court.
When inadequate compensation is granted by the lower court to the victim of crime, the Appellate Court might increase the compensation.
Where accused is not traceable, it becomes the duty of the state to compensate the victim of the crime.
The Central government in 2015 formulated the CVCF scheme to compensate the determined. Every state has its own guidelines which decide the procedure.
But below is the standard procedure:
Step 1: Making an application before the District/State Legal Service Authority
An application can be made for temporary or final compensation. It can be filed by the Victims or their dependents or the SHO of the area.
The application must be submitted along with a copy of the First Information Report (FIR), medical report, death certificate, if available, copy of judgment/ recommendation of court if the trial is over, to the State or District Legal Services Authority
Step 2: The scrutiny stage
District Legal Service Authority of every state first verifies the content of the claim. Specific loss, injury, rehabilitation is taken into consideration.
Step 3: Deciding the quantum of compensation to be given to victim of crime
The quantum of compensation to be granted is decided on the following factors,
Step 4: Method of disbursement of compensation
The amount of compensation so awarded shall be disbursed by the respective Legal Service Authority by depositing the same in a Nationalized Bank in the joint or single name of the victim/dependent(s).
Out of the amount so deposited, 75% (seventy-five percent) of the same shall be put in a fixed deposit for a minimum period of three years.
The remaining 25% (twenty-five percent) shall be available for utilization and initial expenses by the victim/dependent(s), as the case may be.
In the case of a minor, 80% of the amount of compensation so awarded, shall be deposited in the fixed deposit account and shall be drawn only on attainment of the age of majority, but not before three years of the deposit.
This is an unforeseen situation which can further worsen the condition of the victim.
Where the funds are released, but the allotted fund has not reached to the victim, it is preferred to go in person to the District/Legal Service Authority and complain the same. The Legal Service Authority might ask you to inquiry the same with the bank authorities. Do as advised by the Legal Service Authority.
District/Legal Service Authority is designed to help the people, and they are performing their duty well. But if the issue is not redressed yet, there is no other option left than to fight another legal battle.
It is advised to file a writ petition in the High Court under Article 226 of the Indian Constitution.