Compensation to the Victims of Crime under Criminal Law

Compensation to the Victims of Crime under Criminal Law

Author-Chaitanya Sharma, National Forensics Sciences University, Delhi 

INTRODUCTION

Providing compensation to the victim is a very important aspect of any criminal justice system. Especially in India where there is a very high crime rate requires significant attention from the legislature as well as from the judiciary to take appropriate actions. Victims who go through with the crime suffer from physical as well as mental injury. To alleviate their sufferings victim compensation is provided to them with a sense of justice and make them assure that they will get speedy justice. In this article firstly we will go through who is a victim under the scheme of victim compensation then legal provisions dealing with victim compensation, and hurdles in getting compensation after this we will dive into the recent developments going on in the victim compensation scheme and what is the mechanism framed for getting compensation and finally, we will conclude.

Keywords: Victim Compensation, Code of Criminal Procedure, Victim, Accused, Criminal Justice System

Who Qualifies as a Victim of Crime?

Any person, group, or entity that has suffered harm, which can be of any type including mental, physical, economic, or other. The beauty of the Indian legal system is that it considers victims to those people also whose perpetrators are absconding or not yet prosecuted. If someone is dead as a result of a crime the family members of the deceased will be regarded as the victims and they will be provided all the facilities which are provided to the victim itself.

A victim can be defined as “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 heir”[1]

Another definition of victim is as follows “Persons who individually or collectively have suffered harm including physical and mental injury emotional suffering, economic loss or substantial impairment of their fundamental rights through acts or omissions that are violation of criminal law”[2]

Legal Provisions Dealing with Victim Compensation:

Constitutional laws:

  • Article 14: “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.”[3]
  • Article 21: “No person shall be deprived of his life or personal liberty except according to procedure established by law.”[4]

Criminal Procedure Code,1973:

  • Section 357: “When a Court imposes a sentence of fine or a sentence (including a sentence of death) of which fine forms a part, the Court may, when passing judgment, order the whole or any part of the fine recovered to be applied—

(a) in defraying the expenses of properly incurred in the prosecution;

(b) in the payment to any person of compensation for any loss or injury caused by the offence, when compensation is, in the opinion of the Court, recoverable by such person in a Civil Court;

(c) when any person is convicted of any offence for having caused the death of another person or of having abetted the commission of such an offence, in paying compensation to the persons who are, under the Fatal Accidents Act, 1855 (13 of 1855), entitled to recover damages from the person sentenced for the loss resulting to them from such death;

(d) when any person is convicted of any offence which includes theft, criminal misappropriation, criminal breach of trust, or cheating, or of having dishonestly received or retained, or of having voluntarily assisted in disposing of, stolen property knowing or having reason to believe the same to be stolen, in compensating any bona fide purchaser of such property for the loss of the same if such property is restored to the possession of the person entitled thereto.”[5]

  • Section 357A: “Every State Government in co-ordination with the Central Government shall prepare a scheme for providing funds for the purpose of compensation to the victim or his dependents who have suffered loss or injury as a result of the crime and who require rehabilitation.”[6]
  • Section 358: “(1) Whenever any person causes a police officer to arrest another person, if it appears to the Magistrate by whom the case is heard that there was no sufficient ground for causing such arrest, the Magistrate may award such compensation, not exceeding 1[one thousand rupees], to be paid by the person so causing the arrest to the person so arrested, for his loss of time and expenses in the matter, as the Magistrate thinks fit.”

(2) In such cases, if more persons than one is arrested, the Magistrate may, in like manner, award to each of them such compensation, not exceeding 1 [one thousand rupees], as such Magistrate thinks fit.

(3) All compensation awarded under this section may be recovered as if it were a fine, and, if it cannot be so recovered, the person by whom it is payable shall be sentenced to simple imprisonment for such term not exceeding thirty days as the Magistrate directs, unless such sum is sooner paid.”[7]

  • Section 359: “Whenever any complaint of a non-cognizable offence is made to a Court, the Court, if it convicts the accused, may, in addition to the penalty imposed upon him, order him to pay to the complainant, in whole or in part, the cost incurred by him in the prosecution, and may further order that in default of payment, the accused shall suffer simple imprisonment for a period not exceeding thirty days and such costs may include any expenses incurred in respect of process-fees, witnesses and pleader’s fees which the Court may consider reasonable.

(2) An order under this section may also be made by an Appellate Court or by the High Court or Court of Session when exercising its powers of revision.”[8]

Hurdles in Getting Compensation:

  • Every state has its own victim compensation scheme which creates non-uniformity across all states and they don’t abide by central government guidelines and by these discrepancies victims have to suffer.
  • Wide umbrella terms have been made by the state government which includes several crimes under one ambit and they have already set a prerequisite amount of compensation which is an injustice to the victims.
  • Each state has its own theory to allocate victim compensation, some states regard nature of crime as primary fact for compensation while other states regard age as a fact of awarding compensation.
  • Due to increase in crime rate in India, the recipient of victim compensation has increased to an alarming level which directly affects the state treasury.
  • The process of awarding the compensation is very lengthy which takes a large number of times to allocate the compensation.

Measures:

  • Victimology must be introduced in the Indian criminal justice system and judges and lawyers need to understand that giving harsher punishment will not benefit the victim, rather actions which are reparative in nature will help them start their new life again.
  • A new mechanism must be made to assess the impact of the crime on the victim and after assessing all the factors than victim must be awarded the compensation.
  • Proper implementation of laws must be taken place sections 357 and 357A of the Crpc talks about compensation but their implementation is very important in mainstream to compensate the victims.

Recent developments:

  • Ministry of Home Affairs in 2018 established victim compensation scheme, which aims to provide financial assistance to victims and made the process transparent as well as speedy. This scheme works on the theory of restorative justice and help the victim to mitigate his financial burden.
  • In year 2015 the central government set up the Central Victim Compensation Fund Scheme. The main aim of this scheme is to support the various schemes going on in various states and UTs. It talks about the budget allocation, particularly for victim compensation and if any state was lacking funds central government helped the respective state by allocating the funds.
  • Supreme Court of India in its various judgements has reiterated various guidelines and orders to state as well as executive agencies to comply with it some of the landmark judgements of the Supreme Court are as follows:
  1. Ankush Shivaji Gaikwad v State of Maharashtra (2013)6 SCC 770: The Supreme Court of India in this landmark judgement made it compulsory for trial courts to consider grant of interim compensation and specifically give reasons for not awarding the interim compensation
  1. Rudal Sah V State of Bihar AIR 1983 SC 1086: The petitioner in this case was illegally detained for more than 14 years and after due deliberation he was released and a writ petition was filed by the petitioner and Supreme Court awarded the petitioner with a compensatory amount of 30,000 Rs. It was the first case in India where a writ court in India awarded compensation for illegal detention.
  1. MC Mehta V Union of India AIR 1987 SC 965: The Supreme Court held that its power under Article 32 is not just confined to preventive measures when there is a violation of fundamental right but it has its scope to remedial measures which also includes compensation where rights of the victim have already been violated.
  1. Hitendra Vishnu Thakur Vs State of Maharashtra (1994 )4 SCC 602: It was held by Supreme Court that “…A procedural statute should not generally speaking be applied retrospectively where the result would be to create new disabilities or obligations or to impose new duties…”
  2. Suresh v. State of Haryana (2015) 2 SCC 227: The Supreme Court held that “It is the duty of the courts, on taking cognizance of a criminal offence, to ascertain whether there is tangible material to show commission of crime, whether the victim is identifiable and whether the victim of crime needs immediate financial…relief.” The gravity of offence committed towards the victim and the condition of victim are the grounds to decide the compensation.

CONCLUSION & COMMENTS

Victim compensation under criminal law has witnessed systematic and fast progress in awarding compensation to the victims. Though the legal provisions in criminal law are hard to comprehend and checking the credibility of the victim is still a challenge the Supreme Court of India has played a vital role in this regard and by its myriad judgements tried to bridge the gap between courts, executive agencies and financial institutions.

Lack of funds is a very serious problem states going through but the Central Government by its various initiatives tried to release the load over state. Regular auditing of funds should be done to check the progress in compensating the victims.

By prioritize the victim compensation India can move towards a victim centric criminal justice system which not only punish the criminals but also compensate the victims and help them to get justice speedily and without any financial Hurdle.

REFERENCES

  1. Online Articles / Sources Referred
    1. efaidnbmnnnibpcajpcglclefindmkaj/https://docs.manupatra.in/newsline/articles/Upload/6F5E12E5-2A56-49A9-BF1B-CBE1DF4F8726.2-F__criminal.pdf
    2. https://www.legalserviceindia.com/legal/article-6103-a-critical-study-on-victim-compensation-under-various-laws-of-india.html
    3. https://www.livelaw.in/tags/victim-compensation
    4. https://www.scconline.com/blog/post/2024/01/10/delhi-government-published-amendment-in-delhi-victims-compensation-scheme-legal-news/
  1. Cases Referred
    1. Ankush Shivaji Gaikwad v State of Maharashtra (2013)6 SCC 770
    2. Rudal Sah V State of Bihar AIR 1983 SC 1086
    3. MC Mehta V Union of India AIR 1987 SC 965:
    4. Hitendra Vishnu Thakur Vs State of Maharashtra (1994 )4 SCC 602
    5. Suresh v. State of Haryana (2015) 2 SCC 227:
  2. Statutes Referred
    1. Code of Criminal Procedure
    2. Constitution of India
    3. Section 2 (wa) – Code of Criminal Procedure,1973
    4. UN Declaration of Basic Principles of Justice for victims of crime, including those law proscribing criminal abuse of power, 1985
    5. Constitution of India,1950
    6. Constitution of India,1950
    7. Order to pay compensation., https://www.indiacode.nic.in/show-data?actid=AC_CEN_5_23_000010_197402_1517807320555&sectionId=22766&sectionno=357&orderno=399.
    8. Victim compensation scheme., https://www.indiacode.nic.in/show-data?actid=AC_CEN_5_23_000010_197402_1517807320555&orderno=400.
    9. Compensation to persons groundlessly arrested, https://www.indiacode.nic.in/show-data?actid=AC_CEN_5_23_000010_197402_1517807320555&orderno=403.
    10. Order to pay costs in non-cognizable cases., https://www.indiacode.nic.in/show-data?actid=AC_CEN_5_23_000010_197402_1517807320555&orderno=40

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