FACULTY OF LAW

JAMIA MILLIA ISLAMIA

CRIMINOLOGY, PENOLOGY & VICTIMOLOGY ASSIGNMENT

ANALYSING VICTIM COMPENSATION IN INDIA AND COMPARATIVE

ANALYSIS WITH INTERNATIONAL CRIMINAL LAW

PRESENTED TO:
AST. PROF. RASHEED CA

PRESENTED BY:
SHREY KUMAR GARG
B.A.LL.B.(Hons) SELF FINANCED
SEMESTER-V (2022-23)
ROLL NO. 57
STUDENT ID: 202004336
 ACKNOWLEDGEMENT

I would like to express my special thanks of gratitude to my mentor-teacher, Ast. Prof.

Rasheed CA, who gave me the golden opportunity to express my views on the topic
“Analysing victim compensation in India and comparative analysis with International
Criminal Law”.
Without his constant support, this project would have been a distant reality

I would also like to express my special thanks to the Dean of Faculty, Dr Eqbal Hussain for
their thorough counselling.

This work is an outcome of the unparalleled support that I have received from The Faculty of
Law, Jamia Millia Islamia University.

Thank You.

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 TABLE OF CONTENTS

S. TOPIC PAGE
NO. NUMBER

1. Introduction 3

2. History of Victim Compensation in India 3

3. Statutory provisions for victim compensation in India 3

4. Role of Judiciary in victim compensation 6

5. Victim compensation in International Criminal Law 7

9. Comparative analysis between Indian and 9

International Law for victim compensation

10. Bibliography 11

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 ANALYSING VICTIM COMPENSATION IN INDIA AND COMPARATIVE
ANALYSIS WITH INTERNATIONAL CRIMINAL LAW

INTRODUCTION

It is a settled principle that merely providing punishment to the offender neither fulfils the
needs and requirements of the victim nor does it establish peace and security in society.
Therefore, victim compensation jurisprudence is a broad umbrella for providing restorative
justice to the victims of crime who have suffered mental or physical agony, which includes
compensation, rehabilitation, counselling and treatment of the victims.
Due to the system's historical evolution from private retribution to state-mandated justice, the
victim is a forgotten party in the criminal justice system because they only have a minor role
to play. Therefore, to provide justice to the victims and cater to their views, it is necessary to
provide compensation to them.

HISTORY OF VICTIM COMPENSATION IN INDIA

154th Law Commission Report, 1996- The idea of compensation was put up as a well-
known kind of defence that provided the victim with instant assistance. According to the
report, in some circumstances, compensation may also be given to the victim's relatives. 1

Malimath Committee Recommendations, 2003- It recommended the establishment of the

Victim Compensation Fund. Further, it proposed that victim compensation is a State
obligation, whether the offender is apprehended or not, convicted or acquitted. This is to be
organised in separate legislation. Therefore, A Victim Compensation Fund can be created
under the victim compensation law and the assets confiscated in organised crimes can be
made part of the fund.2

STATUTORY PROVISIONS FOR VICTIM COMPENSATION IN INDIA

1. In CrPC- 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.
Under section 357, there are four situations where victims may be granted

1 Law Commission of India, “One hundred fifty-fourth Report on Criminal procedure Code”, (1996).
2 Government of India, “Committee on Reforms of Criminal Justice System” (Ministry of Home Affairs, 2003).

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 compensation i.e, in defraying the expenses properly incurred in the prosecution; or 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; or where compensation can be recovered under Fatal
Accidents Act, 1855 for the death caused; or bona fide purchaser to be restored with
his property in case of theft, criminal misappropriation, criminal breach of trust, or
cheating.3

Section 357 faced a lot of criticism because this section applies only when the accused
was convicted. There is no relief to the victim under section 357 if the accused is
acquitted. Also, victims will not get any compensation if there is no fine prescribed as
a punishment for the offence committed or if it is fine, the court did not impose it.

Keeping in mind the limitations of section 357, section 357A was enacted by way of
an amendment in 2009. Section 357A(1) states that 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. 4 Under this
section, victims may get compensation regardless of the conviction of the accused.
Also, victims may be granted.

Section 358- Compensation to persons groundlessly arrested- This section offers

compensation to anyone who unjustly suffered the consequences of an arrest. The
complainant and the arrest must be directly related for this clause to be applicable. In
the absence of any substantial grounds, the arrest must be brought about by a specific
piece of information. It has been mentioned that the Magistrate may award the victim
of such an incident compensation up to the amount of Rs. 1,000 for the same.5

Section 359- Order to pay costs in non-cognizable cases

Instances where a complaint for a non-cognizable offence has been submitted to a
court and the accused has been found guilty are covered in this section. According to
the section, the Court of Session, an appeal court, or the High Court may order the
3 The Code of Criminal procedure, 1973 (Act 2 of 1974), Section 357(1).
4 The Code of Criminal procedure, 1973 (Act 2 of 1974), Section 375A(1).
5 The Code of Criminal procedure, 1973 (Act 2 of 1974), Section 358(1)

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 payment of expenses when exercising their revision competence. The accused may be
required to pay the complainant's costs associated with the prosecution in full or in
part in addition to the punishment that is imposed by the court. Additionally, if the
accused does not make the payment, the court has the authority to sentence him to
imprisonment for a period of no longer than 30 days.6

2. Under The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities)

Act, 1989- Under this Act, compensation for victims is mandatory, apart from
numerous additional reliefs which depend upon the circumstances and sort of atrocity
perpetrated. Monetary compensation varying from Rs. 25,000 to 2,00,000 is decided
according to the seriousness of the offence.7

3. The Protection of Women from Domestic Violence Act, 2005- Section 22 states
that the Magistrate may, on an application being made by the aggrieved person, pass
an order directing the respondent to pay compensation and damages for the injuries,
including mental torture and emotional distress, caused by the acts of domestic
violence committed by that respondent.8
In Smt. Haimanti Mal v. The State of West Bengal,9 The Calcutta High Court awarded
a compensation of Rs. 1,00,000 for mental torture and emotional distress on the basis
of Section 22 of the Protection of Women from Domestic Violence Act, 2005.

4. The Maintenance and Welfare of Parents and Senior Citizens Act, 2007
This special law aims to safeguard seniors and prevent abuse and victimisation of any
type against them, a rising problem in many nations, including India. According to
this Act, the children or adult legal heirs have a responsibility to care for their parents
or senior citizens over the age of 60 who are unable to support themselves from their
own income in order to give them the chance to live a normal life. It gives the
Tribunal the authority to issue an order requiring the children or legal heirs to provide
a monthly allowance when they fail to provide for the older citizens.10

5. Probation of Offenders Act, 1958- Section 5(1) of the Probation of Offender Act,

6 The Code of Criminal procedure, 1973 (Act 2 of 1974), Section 359(1).

7 The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act (Act 33 of 1989), Section 16.
8 The Protection of Women From Domestic Violence Act (Act 43 of 2005), Section 22.
9 CRR 3907 of 2016.
10 The Maintenance and Welfare of Parents and Senior Citizens Act (Act 56 of 2007), Section 14.

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 1958, also includes a provision for compensatory redress to victims of crime.11
The section states that if a Court orders an offender’s release under Section 3 or
Section 4 of the Act, the court may also order the accused to pay the victim such
compensation as the court deems appropriate for the loss or injury caused to the latter,
as well as the expense of the proceedings.

6. Motor Vehicle Act, 1988- The victim of a vascular accident, or their legal
representative in the event of the victim's death, is entitled to compensation from the
offender under section 5 of the Motor Vehicle Act of 1988. However, nobody else has
any power over this case besides the court.12

7. Central Victim Compensation Scheme- The Ministry of Home Affairs launched

the Central Victim Compensation Scheme (effective August 2015), which doubled the
amount of compensation in cases of rape and sexual assaults. The minimum
compensation for the offences is as follows: rape and acid attack- 3 lakhs; physical
abuse of minor, death and disability (48% or above)- 2 lakhs; victims of human
trafficking and disability (40% to 80%)- 1 lakh etc.13

ROLE OF JUDICIARY IN VICTIM COMPENSATION

In Rudal Sah v. State of Bihar,14 More than 14 years were spent with the petitioner being
held against his will. The petitioner was released from detention after notices were given and
the petition was called for a hearing, according to information from the government. After
hearing from the parties, the Supreme Court decided it was appropriate to award a
compensation of Rs. 30.000/-.

In MC Mehta v. Union of India,15 The Supreme Court ruled that the power under Article 32
extends to corrective measures, including compensation, where basic rights have already
been violated in addition to preventive actions when such rights are breached or threatened to
be violated.

11 Probation of Offenders Act, 1958 (Act 20 of 1958), Section 5(1).

12 The Motor Vehicles Act (Act 59 of 1988), Section 5, 105, 140 and 161.
13 Central Victim Compensation Fund Scheme (CVCF) Guidelines, 2016, available at:
https://www.mha.gov.in/sites/default/files/CVCF_revised_27072017_0.PDF
14 AIR 1983 SC 1086.
15 AIR 1987 SC 965.

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In Suresh v. State of Haryana,16 The Supreme Court ruled that courts must determine
whether there is physical evidence of a crime's commission if the victim can be located and
whether the victim of the crime needs immediate financial assistance. The court should
instruct the award of interim compensation upon satisfaction of an application or on its own
initiative, with the understanding that the full compensation will be decided later. Aside from
other elements that may be relevant in the specific facts and circumstances of a case, it is
important to keep in mind the seriousness of the offence and the needs of the victim.

In Nipun Saxena v. Union of India,17 Pursuant to Supreme Court directions NALSA drafted
the Grant of Compensation to Women Victims/Survivors of Sexual Assault/Other Crimes-
2018.

Important features of the Scheme:

(i) Woman victims are eligible for compensation from multiple schemes.
(ii) Online application for compensation.
(iii) The enquiry is to be completed within 60 days.
(iv) In the Acid Attack case, and in all other deserving cases, the Secretary DLSA is to grant
interim compensation.

The Supreme Court subsequently ruled that until the Central Government finalises the Rules,
the NALSA Compensation Scheme for Women/Victims shall serve as a guideline to the
Special Courts for the award of compensation to victims of child sexual abuse under Rule 7.

In Re Alarming Rise in the Number of Reported Child Rape Incidents,18 The Supreme
Court demanded reports from the States and UT regarding the payment of compensation,
including interim compensation to victims of crime, and awarded the rape victim
compensation in the amount of Rs 25,00,000 (Rupees Twenty Five Lakhs Only).

VICTIM COMPENSATION IN INTERNATIONAL CRIMINAL LAW

Unlike the Indian criminal legal system, the international criminal legal system, The Rome
State of International Criminal Court, 1998, provides for a separate victims’ representation
(Counsel for the victims) for proper victim representation. That is, victims can directly put

16 (2015) 2 SCC 22.

17 (2020) 18 SCC 499.
18 Re, 2019 SCC OnLine SC 1845, Suo Motu Writ (Crl.) No. 1/2019.

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thier viewpoints in front of the judges. Article 68(3) 19 of the ICC Statute read with rule 90 of
the ICC Rules of Procedure and Evidence provides that victims may appoint common legal
representation if there is no conflict of interest among them and such representation does not
prejudice the rights of the accused and a free and impartial trial.

The International Criminal Court’s victim participation governance is a product of a broader

movement seeking to achieve restorative, rather than rigorously retributive, justice. 20
Proponents of restorative justice contend that to achieve justice, punishing the guilty is truly
insufficient.21 Rather, it's also necessary to allow victims to participate in the proceedings and
compensate victims for their injuries.22 Proponents believe that participation provides victims
with a sense of closure, empowerment, and healing.23

Article 75(2) of the ICC Statute provides that “The Court may make an order directly
against a convicted person specifying appropriate reparations to, or in respect of, victims,
including restitution, compensation and rehabilitation”.24

The purpose of such legal representation and reparations to the victims provided under the
ICC Statute is that the consideration should be given to the specificity of each group of
victims; their distinct or conflicting interests, 25 their views; their local traditions 26 and any
other factors that may be appropriate so that justice could be done to the victims and they do
not become mere spectators to the ICC criminal proceedings.

Trust Fund for Victims- In accordance with article 79 of the Rome Statute, it was
established by the Assembly of States Parties in 2004. The Fund's goal is to assist and carry
out initiatives that deal with the harms brought on by genocide, crimes against humanity, war
crimes, and aggression. After an accused individual is found guilty, the court may order that
person to make restitution to the victims of the offences for which they were found guilty.

19 Rome Statute of The International Criminal Court (A/CONF.183/9 of 17 July 1998), Article 68(3).
20 Prosecutor v. Ruto, et al., Case No. ICC-01/09-01/11- 243, Proposal for the common legal representation of
victims , ¶ 4 (Aug. 1, 2011).
21 Christine Van den Wyngaert, Victims Before International Criminal Courts: Some Views and Concerns of
an ICC Trial Judge, 44 Case W. Res. J. Int’l L. 475, 480 (2012) [hereinafter Van den Wyngaert].
22 Ibid.
23 Prosecutor v. Lubanga, Case No. ICC-01/04-01/06-1562, Decision on the application by 3 victims to
participate in the proceedings, ¶ 45 (Dec. 18, 2008).
24 Rome Statute of The International Criminal Court (A/CONF.183/9 of 17 July 1998), Article 75(2)
25 Regulation 112, Regulations of the Registry, available at:
https://www.icc-cpi.int/sites/default/files/Publications/Regulations-of-the-Registry.pdf
26 Regulation 79, Regulations of the Court, available at:
https://www.icc-cpi.int/sites/default/files/Publications/Regulations-of-the-Court.pdf

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Reparations might take the form of monetary compensation, the return of property,
rehabilitation, medical assistance, victims' care centres, or purely symbolic actions like
memorials.27

COMPARATIVE ANALYSIS BETWEEN INDIAN AND INTERNATIONAL LAW

FOR VICTIM COMPENSATION
There are both pros and cons to the international as well as the Indian Criminal System when
it comes to providing compensation and reparations to the victims of the crime.

In the ICC Proceedings, there are three counsels, the 3rd one representing the victims.
Whereas, in India, victims do not participate in the proceedings. The Law Commission felt it
'unwise' to create a legal right in favour of the victim to join in the criminal proceedings as a
third party to avoid mixing up civil and criminal proceedings, confusion of issues and
prolongation of the trial.28

One of the progressive and appreciable aspects of victim compensation is that under section
357A, victims may be compensated regardless of the conviction of the accused. Whereas, in
the International Criminal Legal System, the court may award reparations to the victims only
after the accused is convicted.

On a deeper analysis and comparison, the Indian system deserves a centralised fund for
victim representation. Currently, State governments, along with the Central government
prepare schemes for victim compensation and there are various states which do not provide
victim compensation. IPC and CrPC both are central legislations. Therefore, in order to
maintain uniformity and avoid confusion, there should be a common centralised victim
scheme just like there is a Trust Fund for Victims at the international level. There are no
separate national schemes when it comes to ICC.

CONCLUSION
The victim compensation scheme provided under section 357A of CrPC is a welcome step
provided if there is a common central victim fund just like Trust Fund for Victims at the
international level. This will result in proper systematic and uniform disbursement of
compensation to the victims. The major problem in the implementation of victim
compensation schemes is the serious lack of awareness. The victims availing compensation

27 Trust Fund for Victims, available at: https://www.icc-cpi.int/tfv

28 Law Commission of India, “Forty-second Report on Indian Penal Code” 52 (1971).

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under the scheme are nowhere close to the incidents of crime being reported every year. On
the other hand, the courts need to act actively when it comes to providing compensation to
victims.

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 BIBLIOGRAPHY

PRIMARY SOURCES

A. STATUTES

● The Code of Criminal procedure, 1973 (Act 2 of 1974).

● The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act
(Act 33 of 1989).
● The Protection of Women From Domestic Violence Act (Act 43 of 2005).
● The Maintenance and Welfare of Parents and Senior Citizens Act (Act 56 of
2007).
● Probation of Offenders Act, 1958 (Act 20 of 1958).
● The Motor Vehicles Act (Act 59 of 1988).
● Central Victim Compensation Fund Scheme (CVCF) Guidelines, 2016.
● Rome Statute of The International Criminal Court (A/CONF.183/9 of 17 July
1998).

B. CASES

● Smt. Haimanti Mal v. The State of West Bengal, CRR 3907 of 2016.
● Rudal Sah v. State of Bihar, AIR 1983 SC 1086.
● MC Mehta v. Union of India, AIR 1987 SC 965.
● Suresh v. State of Haryana, (2015) 2 SCC 22.
● Nipun Saxena v. Union of India, (2020) 18 SCC 499.
● Re Alarming Rise in the Number of Reported Child Rape Incidents, Re, 2019
SCC OnLine SC 1845, Suo Motu Writ (Crl.) No. 1/2019.
● Prosecutor v. Ruto, et al., Case No. ICC-01/09-01/11- 243.

SECONDARY SOURCES

A. REPORTS

● Law Commission of India, “One hundred fifty-fourth Report on Criminal

procedure Code”, (1996).

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 ● Government of India, “Committee on Reforms of Criminal Justice System”
(Ministry of Home Affairs, 2003).
● Law Commission of India, “Forty-second Report on Indian Penal Code”
(1971).

B. WEBSITES
● https://www.icc-cpi.int/tfv
● https://www.icc-cpi.int/sites/default/files/Publications/Regulations-of-the-
Registry.pdf
● https://www.icc-cpi.int/sites/default/files/Publications/Regulations-of-the-
Court.pdf
● https://www.mha.gov.in/sites/default/files/CVCF_revised_27072017_0.PDF

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