This article has been written by Muskan (pursuing BBA LLB 4th year from law college Dehradun Uttaranchal University)
Table of Contents
Introduction
In our society, a criminal commits a crime, and the state government brings him under trial. If he is found guilty, he is convicted and must go through the punishment decided by the court. The question that arises at this moment is, what about the victims? Traditionally, the criminals are caught and punished is the end of justice. The court judgment is considered the carriage of justice to the parties. But it is always misunderstood that the victims are also compensated by putting the criminal in jail. The modern approach is more focused on the victims of crime.
Victims are persons who have suffered physically, mentally, socially and financially as a result of the crime. The term ‘crime victim’ means any person, group or entity who has suffered harm, injury, or loss due to corruption. Every time a crime is committed, there are two types of victims; society, who suffers from the violations of laws and the actual victims, who suffer from the harm to the body or property. Club gets compensated by punishing the criminals, putting them in jail, and restoring the peace of society through the criminal justice system. The actual victims who have suffered the loss of life or property are given secondary status. He merely acts as a witness who watches the whole play enacted by the accused and the state playing the lead role. Simply, we have forgotten the victims and are more focused on the accused. The criminal justice system is more inclined toward the offender’s rights, to punish him and the rehabilitation system. The victim is left with himself, or no assistance is provided. The justice system fails to give the redress to the offender’s wrongdoings to the victim.
With the change in the time, Article 21 is more precise and now includes rehabilitation of the victims and their families. Previously, the scope of the victim’s remedies in terms of compensation was limited. As a result, section 357A was added to the CrPC, 1973.[1]
History and development of compensation
In the ancient period, it was never separated between the civil and criminal law realm. Still, it was required to repay the victims or the family Through for the injury or loss caused by the commission of the offence. The restitution’s primary purpose is to protect and compensate the victims but was misunderstood as a meant to protect the offender.[2]With time, the law is developed, and punishment is allocated in civil and tort cases. Compensation was regarded as the remedy to the victim’s right in the case of a crime. The victim’s position has undergone remarkable changes, as societies worldwide have increasingly felt the legislature and the courts have neglected the victim’s rights. Thus the best method is to have a state fund scheme where the victims are compensated immediately after the crime. When the offender has committed the crime and is convicted, the court ordered him to restitute a certain amount to the state.
Many states like Canada, Australia, England, New Zealand, Northern Ireland and the USA are providing restitution by courts for administering criminal justice.
The history of Indian penal law can be traced back to the times of colonisation under British era rule. The traces can be found in sub-clause (1)(a) of section 545 in the CrPC 1898, which provided that the courts may direct any person to pay the compensation for any loss or injury caused by the offence when substantial compensation is in the opinion of by the court which is recoverable in a civil court.
The law commission report and section 357 of the CrPC
In the year 1969, the law commission submitted its 41st report. The report stated that the recoverability of compensation should be enforceable in a civil court related to the public remedy available under the tort. The word ‘substantial’ was excluded in the cases where the nominal charges were recovered.
Based on the law commission report, the government of India introduced the Code of Criminal Procedure Bill, 1970, to revise to section 545 and reintroduce it in section 357 as it reads today. In the statement, section 357 intended to provide relief to the poor community, which empowered the court to order payment of compensation to the victims of crime by the accused to the greater extent previously allowed by the court.
Other provisions of the Crpc
Section 358 provides compensation to anyone who would be the victim of arrest without any reason. In that case, the magistrate may award him compensation to the victim of Rs1,000/- for the loss of time and expenses that was by the arrest.
Similarly, section 359 deals with when a complaint of non-cognizable is made to the court and the accused was convicted. The penalty imposed on the accused, the court may order the accused to pay the compensation in whole or in part which the complainant incurred in the prosecution. In addition, the court is also empowered to sentence the accused to simple imprisonment for not more than thirty days when he fails to make the payment.
Section 237 deals with the compensation to special victims. Section 237 empowers the court of session to take by section 199(2) of CrPC. When the court considers that there is a lack of reasonable ground that the allegation was made, it is empowered to order the complainant to pay the compensation of Rs1,000/- to the victims for the false accusation. Similar power has been vested under section 250which enables the magistrate to provide compensation to the person whom the complainant made the false allegations.
Analysis of section357
Section 357 of the CrPC, extends to any compensation given by the trial court, the High court or the Session court. The Supreme court can also order compensation to the victims under this section. This section applies to four defined cases only. The compensation may be given to the complainant for meeting the expenses incurred during the prosecution. The court can compensate any person who has suffered injury or loss by the accused. The court can also provide compensation to the person entitled to recover damages under the Fatal Accidents Act when there is any conviction for the death or reduction. The court can also compensate the bona fide purchaser of the property, which is the subject matter of theft, criminal misappropriation, criminal breach of trust, cheating or retaining or receiving or disposing of any stolen property to be restored to its rightful owner. Section 357 also provides compensation in the cases where the punishment imposed by the court does not give any fine.
Criticism of section 357
Under this section, the court has the power to order compensation only in those categories in which the court has wholly or partly imposed the fine. In other words, if no sentence or fine is given, there is no compensation for the victim. It does not include cases where the police file the closure report or the person is not proved guilty. This section puts the entire payment of compensation on the convicted. The compensation provided by the court should depend on the financial position. There is no liability of the state to pay the balance. This provision does not give any possibility that the victim may demand compensation in an emergency and does not specify when the compensation would be paid.
With the limitations under section357, 357Aprovides a much better perspective on how the gap should be filled by allocating the state responsibility. It makes state governments authorized to develop their victim compensation plans. It allows the District Legal Service Authority to decide the amount to be given whenever the court or a claim makes the victim file the recommendation under the state scheme. It allows compensation and rehabilitative measures when the court compensation order is inadequate. An appeal can also be made for compensation under section 375A when there is no trace of the offender, or he is identified or cannot be found.
In terms of interim support to the victim, the District Legal Service Authority is required to make provisions for the immediate medical facility and other facilities.
However, the sole disadvantage of section 357A is that it is required by the state to announce the scheme and grant budget so that applications can be processed efficiently and the victims can be given compensation quickly.
Cases
The supreme court in Rudal Shah v State of Bihar[3] directed the state to compensate Rs 35,000 to Rudal Shah for keeping him in jail for 14 years. In the case of Bhim Singh[4], the court ordered the state to pay Rs 50,000 as compensation to Bhim Singh.
In the case of Meja Singh v SHO Police Station Zira[5], the court awarded the compensation of Rs 25,000 for the illegal detention of the petitioner’s son. The following critical case is GudalureCherian v UOI the Hon’able[6] supreme court, which directed the state to pay compensation of Rs 2,50,000 to the victim of rape and Rs 1,00,000 to other crime victims.
The next leading case is Saheli v Commissioner[7] where the court directed the Delhi administration to pay the compensation of Rs 75,000 for the ill-treatment of the son, which caused his death.
Conclusion
In India, the victim compensation scheme still needs to be updated and modified to meet the need of the hour of the victims. The criminal system must develop criminal and civil remedies and rehabilitative measures to support the victims. The proper functioning of the court and accountability of the state must be carried out harmonically.
Most of the compensation plans have been very strict for seeking compensation. Requirements to submit the medical report or other reports delay the payment of compensation to the victim who is under urgent needs. Most schemes provide compensation for treating the injury or loss that has been caused or any disabilities that have occurred but ignore the victim’s state of mind.
Section 357 and 357A compensate the victims, but to achieve success throughout the country, all states must collect some ideas and draw a framework for providing compensation.
[1]Code of Criminal Procedure Act,1973
[2] Victim Restitution in Criminal Law Process: A Procedural Analysis (1984) Harvard law review.
[3]AIR 1983 SC 1086
[4] AIR 1986 SC 494
[5] 1991 ACJ 439
[6] 1992 (1) CRIMES 2SC
[7] AIR 1990 SC 513
