Research material of respondent

1. Whether the amended Sections 354 and 375 of the Sindhian Penal Code, 1860, are violative of
Articles 14 and 15 of the Constitution of Sindhia?

No, Amended sections of 354 and 375 of sindhian penal code , 1860 are not violative of Article 14 and 15
of the sindhian constitution.

Sexual violence can happen to anyone, no matter what their gender, age or sexuality is. Research on
crimes against women is being done extensively across the world but the dug hole which has still not
been filled is that a handful number of people are aware of similar crimes being committed on men. The
word 'man' is gender-biased, denotes power, is embedded with masculine behaviour, appearance, and
control of emotion (it is generally believed that men have less emotions than women, although no
scientific evidence is available). It is a common belief and perception that separates male and female in
terms of expression of their feelings. It can be a matter of shame for men to disclose their suffering in a
men-dominated society, as it can be perceived as 'feminine behaviour'.

 Many people believe that sexual violence is limited to females. There is no doubt that crimes against
females are increasing expeditiously across the world, yet it remains true that crimes against men are
also committed. It is unjust that minimal attention is paid to the crimes committed on men or the
inequalities faced by them in the society.
Several people believe that men cannot be sexually harassed. For them, this act is so unusual that they
consider it a bluff.

In India, only a woman can be legally considered as a victim of sexual violence and at the same time, only
a man can be legally considered to be the perpetrator. In cases where a man is the victim is not
considered a crime under The Indian Penal Code, 1860.

Several countries like Denmark, United Kingdom and Australia have proposed and accepted gender-
neutral laws. It is startling, that despite these changes around the world, Indian Judiciary has continued
to rebuff the demand to introduce gender-neutral laws against sexual violence in India.

In India, Article 14 of our constitution guarantees 'Right to Equality'. This article, however, is frequently
violated because our legislation does not take in account the issues of sexual violence against men or the
fact that the laws which govern the punishments related to rape entirely exclude men. Contrarily,
children of all genders are covered under the 'Protection of Children from Sexual Offences Act, 2012.

The Penile Penetration Condition is justified on the basis that:

1. It is physically and biologically impossible for a woman to rape a man

2. It is a more serious offence to forcefully penetrate someone that to force someone to penetrate
you

3. Rape is a gendered crime

Impact On Women
The effect of sexual assault is not only psychological or emotional but also impacts upon physical, social,
interpersonal and financial domains. Research has shown that women who have been raped by their
husbands often develop anxiety and post-traumatic stress disorder. Studies show that sexual assault can
have severe effects in other domains of a woman's life including how she views her social reputation,
and the quality of her family and social relationships, how it impacts her functioning and decision-
making as well as their psychological status.

From the above mentioned arguments it is put forward that it is high time marital rape be recognized by
law makers as an offence under IPC. The fact that parties ae married should not allow men to take
advantage and rape their wives because the gravity of offence is equally grave as that of rape. Like the
many nations around the globe India too needs to recognize marital rape as a crime. Marital rape
infringes fundamental rights of women and harms their dignity and make their lives miserable them in
endless ways. Therefore, it should be made punishable.

Men NGO

The term Rape is defined under section 375 of Indian Penal Code, 1860. It includes all forms of sexual
assault involving non-consensual intercourse with a woman. The Section 375 also have an exception.
Exception 2 exempt unwilling intercourse between a man and wife who is of age between fifteen to
eighteen years. But as per current law sexual intercourse without mutual consent after marital relations
are treated as criminal offense. Though India is one of thirty six countries that still have not declared
through law, marital rape as a criminal offense. In Independent Thought v. Union of India, the Supreme
Court through Justice Madan B. Lokur held ― the sexual intercourse between a man and his wife who is
between 15 and 18 years of age is rape.‖ Exception 2 to Section 375 creates an unnecessary and artificial
distinction between a married girl child and an unmarried girl child and has no rational nexus. The
artificial distinction is arbitrary and discriminatory and is definitely not in the interest of girl child. No
criminalization of marital rape is leading to the violation of the Right to Equality guaranteed under
Constitution of India. Article 14 of Indian Constitution ensures that ― the state shall not deny to any
person equality before law and equal protection of the law.‖ This Article in Constitution provides
protection of law to every person but the criminal law of India discriminates female victims who have
been raped by their own husbands and it violates the Constitutional provision. When IPC was drafted, a
married woman was not considered to be an independent entity , rather she was considered to be the
chattel of her husband. Therefore she did not has many rights as an independent legal entity. The
doctrine of merger of women’s identity with husband is the base idea of the exception 2 of Section 375.
The roots of this doctrine are found in British colonial rule in India. The exception to the IPC definition of
rape was drafted on the basis of English law (Victorian patriarchal norms) that did not recognize men and
women as equal. But times have changed and now Indian law treats husband and wife as separate and
independent legal entity. And to protect women from sexual harassment and violence ― The Protection
of women from Domestic violence Act 2005‖ and the ―Sexual Harassment of Women at Workplace
(Prevention, Prohibition and Redressal) Act 2013‖ are enacted by the Parliament. Exception 2 violates
Article 14 by discriminating married women by denying them equal protection from rape and
harassments. It also distinguish between married and unmarried women. In Budhan Chadhary v. State of
Bihar1 and State of West Bengal v. Anwer Ali Sarkar2 , the Hon’ble Supreme Court held that ―any
classification under Article 14 of the Constitution of India is subject to a reasonableness test that can be
passed only if the classification has some rational nexus to the objective.‖ The exception 2 exempt
husband from such is totally contradictory to objective. It is much more difficult for a married woman
then unmarried woman to escape out from abusive conditions because they are bound to, financially
and legally and it provides an opportunity to husband enter in a forceful sexual relation. Article 21 of the
Constitution of India provides Right to Life and Personal Liberty. It states that ―no person shall be
deprived of his life and personal liberty except according to procedure established by law.‖ The Article 21
has been interpreted in widest manner that it contains all the rights. The Hon’ble Supreme Court in
various cases like Maneka Gandhi v. Union of India3 , A.K. Gopalan v. Union of India4 , Kharak Singh v.
State of U.P.5 , etc. have expended the scope of Article 21. The Supreme Court has held that the term ―
life‖ under Article 21 is restricted to merely animal existence but it is much more than that. In justice K.S.
Puttuswamy (Retd.) v. Union of India, the Supreme Court recognized the right to privacy as a
fundamental right of all citizens and held that ―the right to privacy includes decisional privacy reflected
by an ability to make intimate decisions primarily consisting of one’s sexual or procreative nature and
decision in respect of intimate relations.‖ The courts in recent years have acknowledged the right to
abstain from forceful sexual intercourse and unwanted sexual activity by husband under right to life. The
Punjab and Haryana High Court in Surjit Singh Thind v. Kanwaljit Kaur6 , has held that allowing medical
examination of a woman for her virginity would amount to violation of her right to privacy and personal
liberty enshrined under Article 21. In the case of State of Karnataka v. Krishnappa7 , the Hon’ble
Supreme Court held that ―sexual violence intrusion of the right to privacy and sanctity of a female.‖ It
also held that ―non-consensual sexual intercourse amounts to physical and sexual violence.‖ But in its
another judgment the scope of 21 expended more. In Suchitra Srivastava v. chandigarh Administration8 ,
the Supreme Court has held that personal liberty in Article 21 includes the right to make reproductive
choice (to produce child or not to produce). The rulings of the cases do not differentiate between
married or unmarried women, it is not related to their marital status. In view of these women’s right to
privacy, dignity, and bodily integrity should be respected. Thus, it is a fundamental right of a woman to
have sexual relation with her husband and forced cohabitation is the violation of her fundamental right.
Exception 2 of Section 375 violates the provisions of Article 21. It infringes right to live with human
dignity, right to privacy, right to healthy life, right to choice of making sexual relations or to participate in
sexual activity. Due to the existence of exception 2 , law fails to deter husband from making forceful
sexual relations.

1 [2016] Cr. Mis. No. 10610 2 AIR [1952] p.p.75 3 AIR [1978] p.p.597 4 AIR [1950] p.p.27 5 AIR [1963]
p.p.1295 6 AIR [2003] P.P.353

The arguments against the Gender

Neutrality Bill, 2019
The offence of rape itself shows physicality in its definition which talks about the
dominance of a specific gender and the aggrieved has an injury to her stigma. If
these laws were made gender-neutral, then it would become difficult for the
judges to interpret a particular case and the probability of seeking justice
becomes less in number and a woman has to battle both social stigma and
social mindset. The following are few of the reasons why this bill is being
opposed to making the laws gender-neutral:
Female on male rape is far away from the reality
As advocate Agnes said, there are no instances where a man is raped by a
woman. The lack of female on male rape in the statistics and surveys depicts
that a country with no such issue needs any law in advance. 

Anal and oral penetration cannot be considered

rape
Most of the cases which include anal penetration are faced by children and
youngsters but for them, the POCSO Act has already been made gender-
neutral. Apart from that anal penetration is possible only if the offender is a
male and there is it provides no ground for a female to be an offender in this
situation.

Men don’t get pregnant

In a case law a boy who was performing fellatio on an elder boy who was known
for his petty crimes in that area. The father refused to file a case under the
POCSO Act because they didn’t have any forensic report nor they could get the
video. The father has said that “he neither lost a hymen nor will he get
pregnant, he is a man and not a sissy”.

Victimization of females is possible

There are chances that the offenders would easily set free rather than being put
behind the bars. When a woman approaches a court, she always steps in with a
mindset of how society will consider, how she is going to tackle all the situations
and how she will prove her innocence to everyone.

Practical aspects 
It was difficult to even when the rape laws were not gender-neutral and if at all
it is made, the sufferer would be females at most of the times. It is always
possible for the offender to question a woman even if she has not committed
anything. There are provisions according to which there is no arrest of the
women after sunset and before sunrise. Such provisions will be challenged
because of this decision.

Statistics
There are instances where every 1 out of 6 in the male’s population faces sexual
assault in America. John Kelly, who was a student of Tufts University was raped
by his former male partner and therefore he raised the issue before the United
States Congress on same-sex violence in 2014. In that case, it was questioned
whether, before Criminal (Amendment), 2013 Justice Jaspal quoted the
following passage from a California law review:

“Men who are sexually assaulted should have the same protection as female
victims, and women who sexually assault men or other women should be as
liable for conviction as conventional rapists”. In a survey conducted by the
Ministry of Women and Child Welfare in 2007, it came to their notice that
53.22% of children faced one or more form of sexual abuse. Out of that, the no.
of boys composed of 52.94%. 

Conclusion
When establishing a sexual crime to be gender-neutral, it implies that any
gender of the society can have easy access to justice and the discrimination of
any specific gender in respect of sexual crimes comes to an end. When
everyone is treated equally, it satisfies the very basic nature of the Constitution.
Isn’t this discrimination a challenge to the basic structure?

Hight court have already dismissed the petition on the grounds that it was not maintainable , not
covered by the operation of law , and there was no violation of he constitution as alleged by the NGO.

2. Whether the Jurisdictional Court is justified to levy pro tem compensation based on the facts
and proceed with the trial in view of the Constitution of Sindhia?

A person commits a crime when the pleasure is more than the cost, which they pay in punishment, or
they would not do it.[1] Whenever a crime is committed, it creates three victims on three counts, the
society, the primary victim and the dependent of the victim. The society, as in the State, deploys statutes
such as Penal Code, 1860[2] (IPC) and Code of Criminal Procedure, 1973[3] (CrPC) to punish the
offenders. However, the actual victim who suffers loss because of the crime, has little to no say in the
prosecution, as the victims are left to the mercy of investigators and the public prosecutors. The society
gets its vengeance fulfilled through “deterrence,” by punishing the offenders, and making an
announcement that such actions would not be tolerated; and the victims get what is termed as justice.
This article would be dealing particularly with the offence of rape, to make a case for compensation to
victims, all through a speedy trial with proper safeguards for both the accused and the victim.   Why is
victim compensation important? The Criminal Justice System includes three broad fields of study:
Criminology (the scientific study of crime), Penology (the study of penal actions consequent to the
crime) and Victimology (a comparatively newer branch which centers around the measures such as
compensation, rehabilitation, and justice to the victim). The victim is a forgotten party, as the historical
evolution of the system, from private vengeance to State administered justice, has resulted in a criminal
justice process in which the victims play only a secondary role.[4] The modern day emergence of the
idea of compensation for victims of crime commenced only in the 1950s when it was pressed by the
British Magistrate and social reformer, Margery Fry.[5] It further took concrete shape when the United
Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power was
unanimously adopted by the General Assembly on 11-11-1985,  Clause 8 of which deals with
compensation to the victims of the crime.  Articles 41[6] and 51-A[7] of the Indian Constitution lay down
the duty of the State to secure “the right to public assistance in cases of disablement and in other cases
of undeserved want” and to “have compassion for living creatures” and “to develop humanism”
respectively. Justice Krishna Iyer, in Maru Ram v. Union of India,[8] said that victimology, a burgeoning
branch of humane criminal justice, must find fulfilment, not through barbarity but by compulsory
recoupment by the wrongdoer of the damage inflicted not by giving more pain to the offender but by
lessening the loss of the forlorn.[9] In 2003, the Justice Malimath Committee observed that, “victims of
crime are important players in criminal justice administration both as complainant/informant and as
witness for the police/prosecution. Despite the system being heavily dependent on the victim, criminal
justice has been concerned with the offender and his interests almost subordinating or disregarding the
interest of the victim. In civil law systems generally, the victims enjoyed better status than in
Administration of Criminal Justice.”[10] In Ankush Shivaji Gaikwad v. State of Maharashtra,[11] it has
been observed that: “The object and purpose of the provision is to enable the Court to direct the State
to pay compensation to the victim where the compensation under Section 357[12] was not adequate or
where the case ended in acquittal or discharge and the victim was required to be rehabilitated. Under
this provision, even if the accused is not tried but the victim needs to be rehabilitated, the victim may
request the State or District Legal Services Authority to award him/her compensation.” I. Victim
compensation regime The Law Commission of India observed that, “We have a fairly comprehensive
provision for payment of compensation to the injured party under Section 545 of the Criminal Procedure
Code, 1898. It is regrettable that our courts do not exercise their statutory powers under this section as
freely and as liberally as could be desired. The section has, no doubt, its limitations. Its application
depends, in the first instance, on whether the court considers a substantial fine as proper punishment
for the offence. In the most serious cases, the court may think that a heavy fine in addition to
imprisonment for a long term is not justifiable, especially when the public prosecutor ignores the plight
of the victim of the offence and does not press for compensation on his behalf.”[13] Later, taking note of
the insensitive attitude of subordinate courts, the Supreme Court in Hari Singh v. Sukhbir Singh,[14]
while directing the courts to exercise their powers liberally, observed that Section 357 is an important
provision but the courts have seldom invoked it, perhaps due to the ignorance of the object of it.
Thereafter, the debate gained momentum and Section 357-A CrPC was inserted into the CrPC, which
provides the State to frame a Victim Compensation Scheme. Compensation shall be paid to the victim
depending on the facts and circumstances of the case as per such scheme. Enquiry has to be held by the
State Legal Services Authority or the District Legal Services Authority, as the case may be. The law as it
stands today, has provisions relating to compensation of victims such as Sections 357, 357-A, 357-B, 357-
C, 358 and 359 of CrPC[15]. There is one more provision in Section 250 CrPC, 1973[16], wherein if the
prosecution is launched based on false accusation, and ultimately after trial, if the person is acquitted
and if the trial court finds that false case is foisted, then, the compensation is to be levied on the
complainant under Section 250 CrPC. In such matters, the alleged accused is the victim of the illegal
prosecution. Because of the guilt of the complainant/State, the accused has suffered. Even FIR attaches a
stigma in certain cases. Therefore, if an accusation is made without unreasonable cause and if the court
feels that a false case is launched, then the court may impose compensation under Section 250 CrPC.
Section 357 of the CrPC is an amalgamation of Sections 545 and 546 of the erstwhile Code of Criminal
Procedure, 1898, which was based on the recommendations of the Law Commission of India.[17] The
Supreme Court in Palaniappa Gounder v. State of T.N.,[18] observed that an order for compensation can
be passed under Section 357(1)(c) only when a Court imposes a sentence of fine or a sentence of which
fine forms a part. With the insertion of Sections 357-A[19] and 357-B,[20] the horizons of the victim
compensation regime stood broadened. Before this amendment, it was the duty of the accused to
compensate the victim after the conclusion of the trial, but the State had no duty to pay compensation
whatsoever.[21] The victim compensation scheme is retrospective in nature, if a crime was committed
before the scheme was implemented, the victim still cannot be denied compensation if it deserves the
compensation. A victim is granted compensation under Section 357-A because the fundamental right to
life is violated, and denial or delay of compensation would “continue such violation and perpetrate gross
inhumanity on the victim in question.”[22] In Ashwani Gupta v. Govt. of India,[23] the Delhi High Court
held that mere punishment of the offender cannot give much solace to the family of the victim. Since the
civil action for damages is a long drawn/cumbersome judicial process, the compensation of Section 357
would be a useful and effective remedy. In Rattan Singh v. State of Punjab,[24] Krishna Iyer J., held that it
is a weakness of our jurisprudence that the victims of the crime do not attract the attention of law. The
law in many jurisdictions particularly in continental countries recognises two types of rights of victims of
crime, firstly, the victim’s right to participate in criminal proceedings and secondly, the right to seek and
receive compensation from the criminal court for injuries. A three-Judge Bench of the Delhi High Court in
Karan v. State NCT of Delhi,[25] reiterated that there exists a mandatory duty on the Court to apply its
mind to the question of victim compensation under Section 357 of the CrPC in every criminal case. The
court is duty-bound to provide reasons, in every criminal case, based upon which it has exercised its
discretion in awarding or refusing the compensation. While observing that the quantum of the
compensation is to be determined by the courts, based on factors such as the gravity of the offence,
severity of mental and physical harm/injury suffered by the victim, damage/losses suffered by the
victims and the capacity of the accused to pay, the court laid down the following steps to be followed:
Post-conviction of the accused, the trial court shall direct the accused to file particulars of his income
and assets through an affidavit accompanied with supporting documents within 10 days. After the
conviction of the accused, the State shall file an affidavit disclosing the expenses incurred on the
prosecution within 30 days. On receiving the accused’s affidavit, the trial court shall send the copy of the
judgment and the affidavit to the Delhi State Legal Services Authority (DSLSA). The DSLSA shall then
conduct a summary inquiry to compute the loss suffered by the victim and the paying capacity of the
accused. It shall submit the victim impact report along with its recommendations within 30 days. The
DSLSA may request the assistance of the concerned SDM, SHO and/or the prosecution in this exercise.
The trial court shall then consider the victim impact report, considering the factors enumerated above,
hear the parties involved including the victim(s) and accordingly award compensation to the victim(s)
and cost of the prosecution to the State if the accused has the capacity to pay. The court shall direct the
accused to deposit the compensation with DSLSA whereupon DSLSA shall disburse the amount to the
victims according to their scheme. If the accused does not have the capacity to pay the compensation or
the compensation awarded against the accused is not adequate for rehabilitation of the victim, the court
shall invoke Section 357-A CrPC to recommend the case to the Delhi State Legal Services Authority for
award of compensation from the victim compensation fund under the Delhi, Victims Compensation
Scheme, 2018. In matters of appeal or revision where Section 357 has not been complied with, the
public prosecutor shall file an application seeking court’s direction for enforcing this procedure in
accordance with Section 357(4) of the CrPC.

https://www.scconline.com/blog/post/2021/06/16/compensation-to-rape-victims/

Compensation for offences against women  Rape is one of the most heinous crimes against mankind, as
no other crime in itself includes all the costs i.e. transaction cost + social cost + psychological cost.[26] In
Bodhisattwa Gautam v. Subhra Chakraborty,[27] the Supreme Court reiterated that: “Rape is not only a
crime against the person of a woman (victim), it is a crime against the entire society. It destroys the
entire psychology of a woman and pushed her into deep emotional crises. It is only by her sheer will
power that she rehabilitates herself in the society which, on coming to know of the rape, looks down
upon her in derision and contempt. Rape is, therefore, the most hated crime. It is a crime against basic
human rights and is also violative of the victim’s most cherished of the fundamental rights, namely, the
right to life contained in Article 21[28].” The Criminal Law (Amendment) Act, 2013[29] was enacted to
address the inadequacy in law relating to sexual offences against women and children, which led to the
creation of the Nirbhaya Fund. The Central Government also set up the Central Victim Compensation
Fund Scheme vide the notification dated 14-10-2015, by the Ministry of Home Affairs.[30] However, last
year, it was reported that only 36 per cent of the Nirbhaya Fund had been utilised in the past seven
years, which speaks in volumes of the enforcement backdrops apropos India’s bureaucracy.[31]
Moreover, 99 per cent of the minor rape victims of sexual assault remained without any compensation.
[32] The Supreme Court in Nipun Saxena v. Union of India,[33] deemed it appropriate for National Legal
Services Authority (NALSA) to set up a Committee to prepare Model Rules for Victim Compensation for
sexual offences and acid attacks. Thereafter, the Committee finalised the Compensation Scheme for
Women Victims/Survivors of Sexual Assault/other Crimes — 2018.[34] As per the scheme, a victim of
gang rape would get a minimum compensation of Rs 5 lakhs and up to a maximum of Rs 10 lakhs.
Similarly, in case of rape and unnatural sexual assault, the victim would get a minimum of Rs 4 lakhs and
a maximum of Rs 7 lakhs. The victims of acid attacks, in case of disfigurement of face, would get a
minimum compensation of Rs 7 lakhs, while the upper limit would be Rs 8 lakhs. The court then
accepted the said scheme to be applicable across India, which remains the law of the land.[35]
Conclusion While considering the problem of penology the court should not overlook the plight of
victimology. Considering the victim compensation scheme under CrPC, along with the NALSA guidelines,
it appears that a court must order the specified amount of compensation for the victims of rape.  It is
submitted that the idea of a victim compensation scheme under the CrPC is complete and ideal on
principle, however, the courts have been assigned the greater duty to pass orders for compensation,
based on the facts and circumstances of a particular case. Once the order for compensation has been
passed, the duty shifts onto the bureaucracy, for grant of compensation to victims.

Can a victim of crime get compensation in India

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.

How can the compensation be sought

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.

Laws governing compensation of victims of crime

in India
 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.

Victim compensation under The Code of Criminal Procedure,

1973
 WHERE CONVICTION AND FINE IS PART OF
THE SENTENCE
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.

COMPENSATION WHERE FINE IS NOT A PART OF THE SENTENCE

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.

VICTIM COMPENSATION SCHEME

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.

Quantum of compensation under the scheme

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.

1. Right to compensation

A new provision has been introduced as Section 357A of Code of Criminal Procedure, which states the
victim compensation scheme. The Supreme Court has laid this provision down for framing a scheme for
compensation with Nipun Saxena vs Union of India[9]. Keeping this in mind, National Legal Services
Authority made the rules for compensation scheme for women victims.

The final scheme has been introduced on 11-05-2018 in the Supreme Court and the scheme is accepted
by the Supreme Court and ordered all the states and union territories to apply the scheme. According to
this scheme, a minimum of 4 Lakh Rupees and a Maximum of up to 7 Lakh Rupees shall be provided to
the victim as compensation. If, the court finds that the amount provided as compensation to the victim is
inadequate then, the court may increase the amount according to the situation.
It is stated by the Calcutta High Court in the case of Serina Mondal Alias Piyada vs. The State of West
Bengal and Ors[10] compensation provided under Section 357A is provided to protect the fundamental
right of a person. Also, in the case of Manohar Singh vs State of Rajasthan and Ors[11] Supreme Court
said that compensation can be given even if crime goes unpunished for want of adequate evidence.

Compensatory relief to victims The legislative framework regarding compensatory relief to victims of
crime in India may be traced to the Code of Criminal Procedure. The Probation of Offenders Act. 1958
and the Motor Vehicles Act, 1988 also contain provisions for award of compensation to victims of crime.
Besides these legislations. the constitutional scheme for compensatory victims is to be found in the form
of decisions of the Supreme Court while interpreting fundamental rights or directive principles of State
Policy or Articles 32, 136 and 142. when the Court may direct payment of compensation to victim's of
crime. Compensatory Provisions in Cr.P.C. Sub-sections ( l) and (3) of Section 357 of Cr.P.C. vest power in
the trial court to award compensation to victim of crime whereas similar power is conferred to the
appellant and revisional court under sub-section (4). The Court may appropriate the whole or any
portion of fine recorded from the offender to be paid as compensation to the victim of crime. The
compensation ordered to be paid under Section 357( I) may be for costs. damage or injury suffered or
loss caused due to death or monetary loss incurred due to theft or destruction of property etc. Sub-
section (3) further empowers the court, in its discretion, to order the accused to pay compensation to
victim of his crime. even though no fine has been imposed on him. It is significant to note that a new
Section 357-A has been inserted by Cr.P.C. (Amendment) Act. 2008 (5 of 2009) with effect from
December 31, 2009, which envisages 'Victim Compensation Scheme.' The section reads as under :- "357-
A. Victim Compensation Scheme.--{!) Every State Government in coordination 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 recommendation is made by the Court for compensation, the District Legal
Services Authority or the State Legal 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 ~f trial. is satisfied, that the compensation awarded under Section 357 1s n~t adequate
for . such rehabilitation. or where the cases end in acquittal ?r discharge and t~e victim has to be
rehabilitated, it may make recommendation for compensation. (4) Where the offender is not traced or
_id~ntified,_ 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 officer-in-charge
of the police station or a Magistrate of the area concerned, or any other interim relief as the appropriate
authority may deem fit." The scheme contained in the section is indeed a progressive measure to
ameliorate the woes of crime victims and providing them restorative relief. The Code also provides
compensatory relief to victims of unlawful arrest or detention by police without sufficient cause.' Where
an accused is convicted of a non-cognizable offence on a complaint, the court may order him to pay costs
to the complainant or in default, suffer simple imprisonment for a period not exceeding thirty days.2 In
case of recovery of amount of fine, of which, the whole or a part has to be paid as compensation to the
victim, the court may order attachment or sale of movable property of the offender for its recovery as
arrears of land revenue, if necessary.

Compensation as a Constitutional Right

According to the view of the liberal world, respect for human rights also mean, providing adequate relief
if those human rights are violated. The right of compensation for the violation of fundamental rights is
derived from the rights that were violated. As a matter of fact, it is inherent in them, for example, a
person’s right over his body, makes the other duty bound and forbids him to attack or injure without any
justification. Moreover, this right over one’s body also gives him the right to compensation if he’s
attacked unjustifiably, in order to help the him recover mentally and physically. Compensation is both
acknowledgement of the violated right and an attempt to reimburse for the damage.

In India, to fill the gap in the fundamental right to compensation, the apex court has found the monetary
way to expiate the abuse of the human rights. The Supreme Court in Rudal Shah v. State of Bihar, for the
very first time laid down the principle that compensation can be given in the cases where any
fundamental right of an individual has been injured and that the higher courts have the authority to do
so by using the writ jurisdiction and evolved the principle of compensatory jurisprudence.

Rudal Shah v. State of Bihar

The facts involve the petitioner who was even after being acquitted by the Court of Sessions, Bihar on
June 3, 1968, was released from the jail only on October 16, 1982, that is after more than 14 years. The
petitioner thus filed the writ of habeas corpus on the grounds that his detention was illegal and
unlawful. He had also asked from the courts for certain additional reliefs like rehabilitation,
reimbursements for medical expenses, and compensation for the unlawful confinement.

Furthermore, the reply given by the Jailor’s affidavit stated that the petitioner was acquitted but not
released since he was of unsound mind when the order for his acquittal was passed. But, this affidavit by
the jailor disclosed no data on the basis of which he was adjudged insane, or about any specific
measures are taken to cure his illness. Moreover, what was even more important to note was that,
whether or not it took 14 years to cure his mental imbalance. It is also to be taken into account that,
there was no medical opinion produced to support the fact that he was medically insane, and that no jail
record showing as to what kind of medical treatment he was being given, existed.

The Supreme Court elaborately discusses the question as to whether or not an order for the payment of
money can be passed by the Supreme Court under the Writ Jurisdiction on the consequential
deprivation of a fundamental right. Justice Chandrachud said, “Article 21 which guarantees the right to
life and liberty will be denuded of its significant content if the power of this Court were limited to
passing orders to release from illegal detention. One of the telling ways in which the violation of that
right can reasonably be prevented and due compliance with the mandate of Article 21 secured, is to
mulct its violators in the payment of monetary compensation. Administrative sclerosis leading to flagrant
infringements of fundamental rights cannot be corrected by any other method open to the judiciary to
adopt. The right to compensation is some palliative for the unlawful acts of instrumentalities which act
in the name of public interest and which present for their protection the powers of the State as a shield.”

Therefore, the Supreme Court clearly condemned the State authorities for its actions and had ordered
for a compensation of Rs. 30,000/-.
The decision of Rudal Shah was important in two aspects:

1.   That violation of a fundamental right can lead to a civil liability;

2.   It also formulates the bases for a theory of liability.

The decision focused extreme concern to protect and presents the fundamental right of a citizen than
the sovereign and non-sovereign dichotomy.

According to the court, the compensation was in the nature of a palliative, i.e., comforting to the victim,
in order to give better meaning to article 21.

Development Post Rudal Shah’s Case

After the pronouncement of the Rudal Shah’s case, another case of Sebastian Hongray v. Union of
India came up before the Supreme Court of India, wherein, the State failed to reproduce two persons
missing from the army custody. The Courts ordered for the respondents to pay Rs. 1 lac each to the
wives of the two missing persons. This was followed by the case of Bhim Singh v. State of J & K. In this
case, the Court opined that it could set right a wrong complained of in respect of his arrest and violation
of his rights by awarding compensation. It deviated from the rule as laid in the above two cases of Rudal
Shah and Sebastian Hongray, i.e., of the rule of Habeas Corpus being remedial, and thereby made it
punitive. It forms both, a mixture of palliative compensation and exemplary costs.

In yet another case, Saheli v. Commissioner of Police, the reasons for the award of compensation was
being expounded. The State was held liable for the death of a nine-year-old child by Police assault
beating. The Court said that an action for damages lies for bodily harm, including battery, assault, false
imprisonment, physical injuries and death, since damages represented a solatium for mental pain,
distress, indignity, loss of liberty and death.

Furthermore, the Supreme Court in the case of Nilabati Behera v. State of Orissa gave the
jurisprudential reasoning behind the award of damages in cases of violations of fundamental rights. The
petitioner was awarded compensation for the death of her son in the police custody. The Court held
that, the principle of sovereign immunity does not apply to the public law remedies under Article 32 and
Art 226, and said that, “a claim in public law for compensation for contravention of human rights and
fundamental freedoms, the protection remedy for enforcement and protection of such rights and such a
claim based on strict liability made by taking recourse to constitutional remedy provided for the
implementation of fundamental right is separate from and in addition to the remedy in private law
damages for tort.”

In M.C. Mehta v. Kamal Nath, the SC held that it has power under Article 32 to award compensation to
the victims of the pollution.

Relying on the three major judgements of Rudal Shah, Sebastian Hongray, and Bhim Singh, the Andhra
Pradesh High Court stated that Kasturi Lai’s Case has no application where there is a deprivation of life or
personal liberty. The Andhra Pradesh High Court noted down the recommendations of the Law
Commission first report for statutory recognizing the liability of the State.

This case opened a new outlook for individual action against the State as Article 300 has been held not
to be an exception to Article 21.
Compensation Under Code of Criminal Procedure, 1973

The Code of Criminal Procedure (hereinafter referred to as CrPC) initially provided for the compensation
to victims of crime under sections 357, to be given by the accused. With due course of time, the Courts
in India realized that, in punishing the offender, it ignored the victim. It was only in the year 2008 when
the CrPC was amended to impose a liability on the State for such compensations, based on the
recommendations of the Malimath Committee. It stated that compensation should be provided to the
victim, as not only as a token of relief but also as part of the substantial remedy. It justified it on the
grounds that it is the political, economic, and social institutions of the State that generates crime by
poverty, discrimination, unemployment and insecurity, and therefore made it obligatory for the State to
provide victim compensation in all serious crimes, whether the offender is convicted or acquitted.

What is the Scope of S. 357 CrPC? What are its limitations?

The Scope of S. 357 was explained by the Supreme Court in Sawarn Singh v. State of Punjab. The Court
said that the aim of section S. 357 is to give compensation to the victim or to their kin, even when fine
does not form part of the sentence. But, in providing this compensation, it is necessary for the court to
keep the following things in mind:

1.   Nature of Injury Caused

The Supreme Court in Madan Lal v. State of HP invoked this provision, where the accused caused
disfigurement of the face of the victim. In yet another case, it held that while reducing the sentence of
death to imprisonment for life in a case of serious nature, the widow and her children were
compensated for the loss they have suffered.

2.   The capacity of the Offender to pay

In a number of cases, the Supreme Court has held that the power of the Courts to award compensation,
should be just and reasonable. In Dilip S. Dahanukar v. Kotak Mahindra Co. Ltd. and Anr., the Court said
that “the amount of compensation sought to be imposed, thus, must be reasonable and not arbitrary.”
The Court in this case also suggested, for issuing a summary enquiry, to judge the capacity of the
accused to pay the compensation.

3.   Application of Mind

1. 357 of CrPC, confers a heavy duty on the Judges to apply its mind to the question of
compensation in every criminal case, or else it becomes a dead letter. In Maya Devi (Dead) and
Ors. v. Raj Kumari Batra, the Courts have held that “Application of mind brings reasonableness
not only to the exercise of power but to the ultimate conclusion also. Application of mind, in
turn, is best demonstrated by disclosure of mind. And disclosure is best demonstrated by
recording reasons in support of the order or conclusion.” Even though, awarding or refusing
compensation might be in the Court’s discretion there exists a mandatory duty on the Court to
apply his mind on the question in every criminal case.

Any person means all humans and companies. But citizen only means Indians
3. evidence issue

Hearsay evidence
Hearsay evidence refers to evidence which the witness has neither personally
seen nor heard. It is just reported by the witness and considered to be very
weak evidence. In other words, it refers to something that others have said or
heard. There are no set standards to receive such evidence provided it has
reasonable credibility and nexus. In the absence of such credibility and nexus, it
is difficult and dangerous to act upon such evidence. Thus, such a piece of
evidence cannot be used if its credibility is not assured and questioned.

Such evidence is often rejected as they are considered to be irrelevant. They

are inadmissible because the witness has neither personally seen nor heard.
The witness has not perceived the evidence through his senses but has come to
know about it through the third person.

Balram Prasad Agrawal vs The State Of Bihar & Ors

In this case, a young married woman named Kiran Devi, daughter of the
appellant-complainant, who is alleged to have been murdered by the
respondent-accused or to have been forced to commit suicide by falling in a well
situated on the backside of the house of the accused. It was said that the
information obtained from their neighbours was completely hearsay evidence,
however, the respondents were convicted on the basis of hearsay evidence.
It was stated in this case that the evidence of a statement made to a witness
who is not himself called as a witness may or may not be hearsay, following are
the possible situations:

 It is hearsay and inadmissible when the object of the evidence is to

establish the truth of what is contained in the statement. 
 It is not hearsay and is admissible when it is proposed to establish by
the evidence, not the truth of the statement but the fact that it was
made.
The fact that the statement was made quite apart from its truth is relevant in
considering the mental state and conduct of the witness or a person in whose
presence these statements were made.