NATIONAL LAW UNIVERSITY

(SESSION)

SUBJECT: CRIMINAL PROCEDURE CODE

Final Draft on

Victim Protection Program in India with special reference to

Remedies to Victims
ACKNOWLEDGEMET
 TABLE OF CONTENTS

INTRODUCTION.............................................................................................................1

HISTORY..........................................................................................................................2

COMPENSATION TO VICTIMS..................................................................................2

Committee Reforms...................................................................................................................4

INDIAN LEGAL FRAME WORK.................................................................................5

(I) Legislative Framework..........................................................................................................5

(II) Judicial Response.................................................................................................................6

COMPENSATION UNDER THE CONSTITUTION OF INDIA...............................7

ASSESSING THE ROLE OF LEGISLATURE AND JUDICIARY...........................8

REMEDIES TO VICTIMS..............................................................................................9

NEED FOR A BETTER APPROACH.........................................................................10

INTRODUCTION

The term "victim" means a person who has suffered any loss or injury caused by reason of
the act or omission for which the accused person has been charged and the expression
"victim" includes his or her guardian or legal their; 1 and the word compensation in literal
sense means a thing that compensates or is given to compensate (for); a counterbalancing
feature or factor; amends, recompense; spec. money given to compensate loss or injury, or for
requisitioned property.

When we talk about Compensation to the victims it means something given in recompense
i.e. equivalent rendered. It is to be noted that the whole purpose of compensation is to make
good the loss sustain by the victim or legal representative of the deceased. Generally when
we talk about compensation in the present context it only limits itself to monetary
compensation which is calculated on the basis of two head i.e. pecuniary loss and non-
pecuniary loss.

Victims have few legal rights to be informed, present and heard within the criminal justice
system. Victims do not have to be notified of court proceedings or of the arrest or release of
the defendant, they have no right to attend the trial or other proceedings, and they have no
right to make a statement to the court at sentencing or at other hearings. Moreover, victim
assistance programs are virtually non-existent.

The core rights for victims of crime include:

 The right to attend criminal justice proceedings;

 The right to apply for compensation;
 The right to be heard and participate in criminal justice proceedings;
 The right to be informed of proceedings and events in the criminal justice process, of
legal rights and remedies, and of available services;
 The right to protection from intimidation and harassment;
 The right to restitution from the offender;
 The right to prompt return of personal property seized as evidence;
 The right to a speedy trial; and
 The right to enforcement of these rights.
1
Section 2(wa), Code of Criminal Procedure, 1973.

1
HISTORY

The so-called system of compensation lies in the Middle Ages and reference about it can be
found in the Germanic common laws. The Germanic common laws were objectives:
compensation was determined by the effect of the wrongful act, and not by the offender’s
subjective guilt. The amount of compensation varied according to the nature of the crime and
the age, rank, sex and prestige of the injured party.

The law of Twelve Tables, under Roman Laws made the Provisions to pay double of the
stolen property and in case of property was found in the course of house-search, the accused
was to pay thrice the value of the property.2

It was only in the middle Ages that the concept of compensation and restitution were
recognized and temporarily merged in penal Law. Under common law, Compensation was
basic foundation of whole Criminal Justice System. The first International Symposium on
Victim ology, in 1973 in Jerusalem recommended that all nations should as a matter of
urgency give consideration to the establishment of a State system of compensation to victims
of crime.3

In the same way there are certain crimes that cannot be measured in terms of monetary
compensation especially where the victim has been raped that affects the victims more
psychologically than physically.

In India under Vedic Laws restitution and atonement was prescribed for offence. During the
Sutra period, the setting of compensation was treated as a royal right for murder the offender
was obliged by the King to compensate the relatives of the deceased of the King or both. The
Code of Criminal Procedure (Amendment) Act, 2009 has brought about changes in code.

COMPENSATION TO VICTIMS

Compensation to victims is an issue of considerable complexity. Compensation helps to

counter balance the victims suffering and loss. It helps to restore the victim’s place in the
community and his rights, which were injured or extinguished in the process of victimization.

2
Gurpreet Singh Randhawa, Victimology & Compensatory Jurisprudence, (Central Law
Publications, Allahabad 2011) 165.
3
Stephen Schafer, Introduction to Criminology, (Reston Publishing Company Inc, 1976) 153.

2
United States Senator Mike Mansfield in introducing a bill in the senate to compensate the
victims of crime said: “The point has been reached where we must give consideration to the
victims of crime- to the one who suffers because of crime. For him, society has failed
miserably…Society has an obligation; when the society is not sufficient to prevent a person
from being victimized, society then has the obligation to compensate the victim for that
failure of protection”4

Supporters of victim compensation believe that since the state has the power and right of
punishment and rehabilitation of the criminal, it should also take up the responsibility of
looking after the victim. Thus victim compensation must be a priority in each state and an
effective scheme to compensate should contain the following elements5:

 A compensation plan must be based on the conclusion that the government

that has failed in its responsibility of protecting its citizens from crime.

 Compensation must be available to all victims of crime.

 All expenses incurred by the victim such as medical bills and loss of wages
etc. must be covered.

 The compensation plan must provide for a speedy system of compensation.

The Indian criminal law system does not provide for payment of compensation to victim of a
crime for any ‘loss’ or ‘injury’- physical, mental or psychological - caused to the victim by
the offender. The Law Commission of India felt that it was ‘unwise’ to create a legal right in
favour of the victim to avoid mixing up of civil and criminal proceedings, confusion of issues
and prolongation of trial. It also could not see ‘great advantage’ in providing for ‘payment of
compensation to the victim of the offence as an additional punishment. It favoured payment
of compensation out of fine imposed on the offender.6

Section 357 of CrPC, empowers a criminal court, in its discretion, to award compensation to
any person for any loss or injury caused by an offence in those cases where ‘fine’ does or
does not form a part of the sentence imposed. Further Section 421 empowers the criminal
court passing a sentence of fine, in its discretion, to recover this amount by attachment and
sale of any movable property of the offender and/or as arrears of land revenue from his

4
V.V Devasia, Perspectives in Victimology, (1996 Cochin University Law Review) 236.
5
ibid at 237
6
 K.I Vibhute, Victims of Rape and Their Rights: Legislative and Judicial Responses in India,(1999 Cochin
University Law Review) 42.

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movable or immovable property or both. However the court is not empowered to adopt either
of the methods when the offender has undergone the whole of the imprisonment awarded in
default of payment of the fine except for special reasons to be recorded in writing or where it
has made an order for payment of expenses or compensation out of the fine imposed under
Section 357. Compensation to victims is also available under Section 5 of the Probation of
Offenders Act, 1958. However in practice the courts have not paid much attention to this
provision and the application of this section to pay compensation to victims has been
extremely rare.

It is thus evident that the legislative response to compensating victims of crime is not
impressive. The legislative scheme of award and payment of compensation to victims of
crime neither makes it mandatory for the courts to compensate the victims nor creates any
legal right to be compensated in favour of the victims. It entirely leaves it to the will of the
court to compensate victims.

It is to be noted that courts in India have hardly invoked their statutory powers to compensate
victims. The Law Commission of India has not only admitted the fact that courts in India are
‘not particularly liberal’ in utilizing these provisions but also observed that “it is regrettable
our courts do not exercise their statutory powers under this Section as freely and liberally as
could be desired”.7

The Supreme Court observed: “Section 357 is an important provision but courts have seldom
invoked it… It empowers the court to award compensation to victims 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 action of the accused. It may be
noted that this power of courts to award compensation is not ancillary to other sentences but
it is in addition thereto. This power was intended to do something to reassure the victim that
he or she is not forgotten in the criminal justice system.”8

Thus the courts should follow the dictum of the Supreme Court and award compensation to
victims whenever necessary in order to protect the victim and to ensure that he can play an
effective role in the criminal justice system.

7
 K.I Vibhute, Victims of Rape and Their Rights: Legislative and Judicial Responses in India,(1999 Cochin
University Law Review) 42.
8
Hari Kishan and State of Haryana v. Sukhbir Singh, AIR 1988 SC 2127.

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COMMITTEE REFORMS

The Government constituted the Committee on Reforms of Criminal Justice System in

2000 to consider measures for revamping the criminal justice system. One of the objectives
of the committee was to suggest ways and means of developing synergy among the judiciary
by protecting the innocent and the victim and by punishing unsparingly the guilty and the
criminal. The committee observed that “Victims do not get at present the legal rights and
protection they deserve to play their just role in criminal proceedings which tend to result in
disinterestedness in the proceedings and consequent distortions in the criminal justice
administration”. The report has also highlighted how the Supreme Court and the High Courts
in India have evolved the practice of awarding compensatory remedies not only in terms of
money but also in terms of other appropriate reliefs and remedies.

INDIAN LEGAL FRAME WORK

The Indian position regarding compensation to victim of crime can be studied under two
heads or rather must be studied under two heads in order to get complete picture.

(I) LEGISLATIVE FRAMEWORK

The legislative framework in India regarding compensation to victim of crime can be trace
through two legislations i.e. Code of Criminal Procedure, 1973 and Probation of Offenders
Act.

Under the provisions of CrPC, the power to award compensation is vested under section 357.
The plain reading of the section shows that sub-section (1) and (3) vests power on the trail
court to award compensation and sub-section (4) gives power even to appellant or revision
court to order for compensation. Sub section (1) empowers the courts to appropriate the
whole or any portion of fine recovered for the purpose mentioned in the clauses to the sub
section, under which Clause (b) is most important and of our use.

It demands that claim of compensation must be accompanied by following conditions:

1. Loss or injury suffered.

2. Loss or injury must be caused by the offence.
3. Such person can recover the compensation in a civil court.

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Section 421 provides for means to recover the fine by attachment and sale of movable
property of the offender and also from both movable and immovable as arrears of land
revenue. Section 431 empowers the courts to recover any money (other than fine) payable by
virtue of any order made under as if it were fine if method for its recovery is not expressly
provided.

Under the Probation of Offenders Act, section 5 empowers the trial court to order for
compensation. The plain reading of this section clearly shows that the power in case of this
Act vests only with the trail court and non-else.

(II) JUDICIAL RESPONSE

There exist plethora of cases where the compensation has been awarded by the Supreme
Court to the victims of the crime in the lower courts even some times High Courts.

In Prabhu Prasad Sah v State of Bihar,9 the Court observed that although requirements of
social justice demands the imposition of heavy fine but taking in to consideration the
condition of the accused was awarded fine of Rs. 3000 to be paid by him to the children of
the deceased.

In another case of Palaniappa Gounder v State of Tamil Nadu,10 the Supreme Court
following the same view as of earlier observed that: “The first concern of the Court, after
recording an order of conviction, ought to determine the proper sentence to pass. The
sentence must be proportionate to the nature of the offence and the sentence, including the
sentence of fine, must be unduly excessive.”

In Sarwan Sing v State of Punjab,11 the Supreme Court laid down, in exhaustive manner,
that what all should be taken in to account while imposing fine or compensation. The Court
observed that: “The object of the section therefore, is to provide compensation payable to the
persons who are entitled to recover damage from the person sentenced even though fine does
not form part of the sentence. Though the court is only to pay compensation out of the fine
that would be imposed under the law, but by virtue of section 357(3) when a Court imposes a
sentence, of which fine does not form a part, the Court may direct the accused to pay
compensation.” In awarding compensation, it is necessary for the court to decide whether the

9
Prabhu Prasad Sah vs. State of Bihar, AIR 1977 SC 704.
10
Palaniappa Gounder vs. State of Tamil Nadu, AIR 1977 SC 1323.
11
Sarwan Singh vs. State of Punjab, AIR 1957 SC 637.

6
case is a fit one in which compensation has to be awarded. If it is found that compensation
should be paid, then the capacity of the accused to pay compensation has to be determined.

It is the duty of the court to take into account the nature of the crime, the injury suffered, the
justness of the claim for compensation, the capacity of the accused to pay and other relevant
circumstances in fixing the amount of fine or compensation.

In Harikishan and State of Haryana v Sukhbir Singh,12 the Court repeated its firm
understanding once again in following words, “The payment by way of compensation must,
however, be reasonable. What is reasonable may depend upon the facts and circumstances of
each case. The quantum of compensation may be determined by taking into account the
nature of crime, the justness of claim by the victim and the ability of accused to pay. If there
are more than one accused they may be asked to pay in equal terms unless their capacity to
pay varies considerably. The payment may also vary depending upon the acts of each
accused. Reasonable period for payment of compensation, if necessary by instalments, may
also be given. The court may enforce the order by imposing sentence in default.”

COMPENSATION UNDER THE CONSTITUTION OF INDIA

Article 21 of the Constitution of India guarantees the fundamental right to life and liberty to
any person in India and by interpretation of this right the Supreme Court of India has
developed a compensatory jurisprudence keeping in view of criminological thinking to pay
attention not only to the accused, but also to the victims.

The process of recognition of right of a person to claim compensation for illegal detention
was started from the case of Rudal Shah v State of Bihar.13 Here, the petitioner was detained
illegally in Ranchi Jail in Bihar for 14 years after his acquittal by the court. The Supreme
Court recognizing the petitioner’s right to claim compensation for illegal detention by writ
petition under Article 21 awarded a total sum of Rs. 35000 by way of compensation. In
delivering the judgment Chief Justice of India Y.V Chandrachud observed: “Article 21 which
guarantees the right to life and liberty will be denuded of its significance content if the power
of this Court were limited to passing orders of relief from illegal detention. One of the telling
ways in which the violation of this right can be reasonably prevented and due compliance

12
Harikishan and State of Haryana vs. Sukhbir Singh, AIR 1988 SC 2127.
13
Rudal Shah v. State of Bihar, AIR 1983 SC 1086.

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with the mandate of Article 21 secured is to mulct its violation in the payment of monetary
compensation.”

In Sebastian M. Hongray v. Union of India,14 two women filed a writ of habeas corpus to
produce their husbands who were missing and alleged to have been murdered. The authorities
failed produce them, the Supreme Court directed respondents to pay Rs One Lakh to each of
the wives of missing persons.

The initial hesitation of the courts to recognize the government’s liability in discharge of
sovereign function as held in Kasturi Lal v. State of UP15 has now been overruled. The
Supreme Court has started granting compensation for any loss or injury caused to the victims
due to the negligence of government or its servants or agents.

ASSESSING THE ROLE OF LEGISLATURE AND JUDICIARY

There exists no doubt that Code of Criminal Procedure provided for the compensation to
victim. The most important attack on the present legislative framework lies on the desertion
given to the courts i.e. it depends upon them to grant compensation and absence of recording
any reason when they abstain them self from grating compensation.

Another criticism of the present legislative framework lies in the absence of right of victim to
claim compensation. Critics argue for the absence of any institutional scheme under the
present legislative framework that has now become the important part of victim - Crime
relationship in countries of southern hemisphere such as USA, UK, New Zealand, France etc.
The laxity on the part of Indian legislature is so much so that India has not made any
legislation to give compensation to victim of crime when accused is acquitted despite of its
obligation under various International Covenants.

In this regard in the case of Delhi Domestic Working Forum v UOI16 has shown its concern
stating that “It is necessary, having regard to the Directive Principles contained under
Article 38(1) of the Constitution of India to set up Criminal Injuries Compensation Board.
Compensation for victims shall be awarded by the court on conviction of the offender and by
the Criminal Injuries Compensation Board whether or not a conviction has taken place. The

14
Sebastian M. Hongray v. Union of India, AIR 1984 SC 1026.
15
Kasturi Lal v. State of UP, AIR 1965 SC 1039.
16
Delhi Domestic Working Forum vs. UO, (1995) 1 SCC 14.

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Board will take into account pain, suffering and shock as well as loss of earnings due to
pregnancy and the expenses of child birth if this occurred as a result.”

State of Gujarat v Hon'ble High Court of Gujarat 17 is relevant where following was stated,
“Section 357 of the Criminal Procedure Code, 1973 provides some reliefs to the victims as
the court is empowered to direct payment of compensation to any person for any loss or
injury caused by the offence. But in practice the said provision has not proved to be of much
effectiveness. Many persons who are sentenced to long term imprisonment do not pay the
compensation and instead they choose to continue in jail in default thereof. It is only when
fine alone is the sentence that the convicts invariably choose to remit the fine. But those are
cases in which the harm inflicted on the victims would have been far less serious. Thus the
restorative and reparative theories are not translated into real benefits to the victims.”

The Law Commission of India in its 41st report clearly stated that our courts are not liberal in
utilizing these provisions and went to the extent of saying that it is regrettable that our courts
do not exercise their statutory powers under this section as freely and liberally as they could
desire. However in this regard it is to be noted that the attempt of Courts clearly show that
they are championing the cause of victim even in the given set up but still looking to the
problem as a whole, inherent weakness on the legislative framework as well as laxity on the
part of court has made the proper functioning of whole concept a distant dream in strict sense.

REMEDIES TO VICTIMS

The present Code of Criminal Procedure does not recognize the right of the victim to take
part in the prosecution of the cases instituted on the basis of police report. The victim is
merely a witness. He has no right to prefer appeal against the order of acquittal of the
accused. The state reserves the discretion not to prefer appeal and also to withdraw from the
prosecution even in the case of heinous offences. The state exercises this discretion without
even consulting the victim. This discretion vested in the state is often misused on political
considerations. Thus, the victim becomes the victim of the criminal justice system also when
politically motivated investigating and prosecuting agencies show lack of interest or apathy in
the matter of investigation or prosecution on extraneous considerations.

17
State of Gujarat v Hon'ble High Court of Gujarat, AIR 1998 SC 1345.

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The procedural law should be suitably amended to allow victims to participate in every stage
of the criminal justice system. The Code of Criminal Procedure can be amended to make
salutary provision for participation of the victim during the stage of investigation and trial of
the criminal cases instituted on the basis of a police report. The government may consider the
proposal of giving free legal aid to the victims during the stage of investigation and trial of
criminal cases instituted by the state. By way of amendment to the CrPC, rights can be
conferred on the victims to engage lawyers of their choice, whose opinion will prevail over
the opinion of the public prosecutor in case of conflict and also to prefer appeal against the
order of acquittal of the accused.

NEED FOR A BETTER APPROACH

1. In the present Indian society, courts are giving maximum stress on victim
compensation as per the provisions under section 357(a) of CrPC. Such compensation
basically means financial compensation to the victim. In a case where the statute prescribes
substantive imprisonment or fine or both, there the court is at liberty to award substantive
sentence & direct the accused to pay compensation to the victim. As fine and compensation
cannot run together, so while imposing fine as a statutory requirement, there the court can
direct that if the fine will be realized then it shall be given to the victim in the form of
compensation.

2. The Session’s court has no limitation while imposing fine. So keeping in mind
the injury caused to the victim, the Court can impose a sentence of fine. If such fine is paid,
then it shall be given to the victim as a token of compensation.

3. If the accused does not pay the fine or the compensation then in default he has
to undergo further imprisonment. In other words a convict, if suffers default sentence by not
making payment of the fine imposed or the compensation awarded, still then he cannot avoid
making payment of the imposed fine or compensation awarded.

4. The state is expected to meet monetary compensation of the victim, because in

certain cases the accused has no means or minimum means to meet the fine imposed by the
court. The poverty of the accused cannot be an impediment for the victim to get compensated
as it is a legal right of the victim. To make the victim compensation scheme approachable to
the victim, sufficient fund be allocated to each court. So that on the date of judgment the

10
victim shall receive the compensation sum in the form of a cheque issued by the said court.
As a result she shall not again run to different authorities to receive the compensation.

5. If the victim compensation will be made easier then there is a probability that
fake cases may be registered to receive compensation from the state. But in a developing
country like India, more risk will have to be taken for the benefit of the society as a whole.
Law cannot make the genuine victims suffer at the cost of few fake victims. If the state is
making payment for custodial violence being vicariously liable, then why the state shall not
make payment by way of compensation to the victims.

6. If compensation to the victim becomes a statutory right and it will be easily

available to the victim then each victim shall be careful to his allegation and shall be vigilant
during trial regarding the improvement made with respect to his allegation. By this, without
any special effort either from the state or from the court the victim will participate in the
proceeding voluntarily and actively. If the victim will be vigilant in the proceeding then the
prosecutor cannot conduct the case casually. As a result the rate of conviction will be high,
which ultimately inspires confidence of the public on courts. It will dissuade others to
commit crime.

7. Protection of the victims' rights is a vital factor. It was not that much guarded
by our code. If an amendment is made and the statement of the victim before police, if not in
all the cases, but in certain cases like allegation relating to rape and grievous injury, will be
treated as a substantive piece of evidence, then the accused may not make an attempt to
threaten the victim before she being examined in the court.

11