Orissa High Court
Abdul Rashid vs State Of Odisha & Others .... ... on 11 December, 2013
Author: A.K.Goel
Bench: A.K.Goel, A.K.Rath
IN THE HIGH COURT OF ORISSA : CUTTACK
O.J.C. No. 13765 OF 1996
Abdul Rashid .... Petitioner
-Versus-
State of Odisha & others .... Opp.Parties
For the petitioner ... None.
For the opp.parties ... Mr. R.K.Mohapatra,
Government Advocate
for O.P.Nos. 1 to 4.
BEFORE
THE HONOURABLE CHIEF JUSTICE MR. A.K.GOEL
THE HON'BLE DR. JUSTICE A.K.RATH
Date of hearing : 11.12.2013
Date of Judgment : 11.12.2013
JUDGMENT AND ORDER
( A.K.Goel, CJ.)
1. This petition seeks a direction for an independent
enquiry into the death of a child labour beaten to death.
2. The case of the petitioner is that on 14.11.1996, one
Rajunu Khan was working in a Bidi Company in Seikh Bazar was beaten
to death by the owner and died on the spot. The matter was published
in the daily newspaper "The Samaj" on 18.11.1996. The parents of the
deceased are poor and did not take remedies. The Magistrate conducted
the enquiry by getting the deadbody from the grave and found injuries
on the deadbody. The deadbody was buried by the owner of the Bidi
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Company without informing the parents of the victim. On postmortem
being conducted, the case was found to be homicidal death.
3. A counter affidavit has been filed on behalf of the State of
Odisha by the Inspector-in-charge, Lalbag Police Station. According to
the said affidavit, on 15.11.1996, the Inspector-in-charge started
enquiry and found that Nanda @ Rajun Khan, son of Mohammad Khan
of Seikhbazar, aged about 15 years was working in Tarabidi Company at
Seikhbazar and expired on 14.11.1996 and was buried at Idga
Kabarstan by his kith and kin and others. A case was registered and
inquest was held in the presence of the Magistrate. The deadbody was
recovered from the grave and sent for Postmortem. According to
Postmortem report, the injuries were antemortem and could have been
caused by blunt forcetuma. The injuries were fatal to cause death in
ordinary course of nature. The brother of the deceased made a statement
that deceased expired due to fall from the top of the building to the
watchman at the burial ground.
4. The matter has been pending for the last seventeen
years. In the meanwhile, after investigation, three accused were sent up
for trial, but the witnesses examined by the prosecution did not support
the prosecution version and stated that they did not have any direct
knowledge. Accordingly, the accused who were sent up for trial were
acquitted vide judgment dated 17.7.2002 in Sessions Trial No. 218 of
2001 (State Vrs. Apu @ Md. Afsar & ors.) rendered by Addl. Sessions
Judge, Fast Track No.1, Cuttack.
5. Though none appears for the petitioner, we have heard
learned Government Advocate. He submitted that the investigation was
proper and the State was not guilty of failure of its duty and thus, no
compensation was payable.
6. Question for consideration is whether the responsibility
of the State ends merely by registering a case, conducting investigation
and initiating prosecution and whether apart from taking these steps,
the State has further responsibility to the victim. Further question is
whether the Court has legal duty to award compensation irrespective of
conviction or acquittal. When the State fails to identify the accused or
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fails to collect and present acceptable evidence to punish the guilty, the
duty to give compensation remains. Victim of a crime or his kith and
kin have legitimate expectation that the State will punish the guilty and
compensate the victim. There are systemic or other failures responsible
for crime remaining unpunished which need to be addressed by
improvement in quality and integrity of those who deal with investigation
and prosecution, apart from improvement of infrastructure but
punishment of guilty is not the only step in providing justice to victim.
Victim expects a mechanism for rehabilitative measures, including
monetary compensation. Such compensation has been directed to be
paid in public law remedy with reference to Article 21. In numerous
cases, to do justice to the victims, the Hon'ble Supreme Court has
directed payment of monetary compensation as well as rehabilitative
settlement where State or other authorities failed to protect the life and
liberty of victims. For example, Kewal Pati Vs. State of U.P. (1995) 3
SCC 600 (death of prisoner by co-prisoner), Supreme Court Legal Aid
Committee Vs. State of Bihar, (1991) 3 SCC 482 (failure to provide timely
medical aid by jail authorities, Chairman, Rly. Board Vs. Chandrima
Das, (2000) 2 SCC 465 (rape of Bangladeshi national by Railway staff),
Nilabati Behera Vs. State of Orissa, (1993) 2 SCC 746 (Custodial death),
Khatri (I) Vs. State of Bihar (1981) 1 SCC 623 (prisoners' blinding by jail
staff), Union Carbide Corporation Vs. Union of India, (1989) 1 SCC 674
(gas leak victims).
7. Expanding scope of Article 21 is not limited to providing
compensation when the State or its functionaries are guilty of an act of
commission but also to rehabilitate the victim or his family where crime
is committed by an individual without any role of the State or its
functionary. Apart from the concept of compensating the victim by way
of public law remedy in writ jurisdiction, need was felt for incorporation
of a specific provision for compensation by courts irrespective of the
result of criminal prosecution. Accordingly, Section 357A has been
introduced in the Cr.P.C. and a Scheme has been framed by the State of
Odisha called 'The Odisha Victim Compensation Scheme, 2012'.
Compensation under the said Section is payable to victim of a crime in
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all cases irrespective of conviction or acquittal. The amount of
compensation may be worked out at an appropriate forum in accordance
with the said Scheme, but pending such steps being taken, interim
compensation ought to be given at the earliest in any proceedings.
8. In Ankush Vhivaji Gaikwad Vs. State of Maharashtra,
(2013) 6 SCC 770, the matter was reviewed by the Hon'ble Supreme
Court with reference to development in law and it was observed :
"33. The long line of judicial pronouncements of this
Court recognised in no uncertain terms a paradigm shift in
the approach towards victims of crimes who were held
entitled to reparation, restitution or compensation for loss or
injury suffered by them. This shift from retribution to
restitution began in the mid 1960s and gained momentum in
the decades that followed. Interestingly the clock appears to
have come full circle by the law makers and courts going
back in a great measure to what was in ancient times
common place. Harvard Law Review (1984) in an article on
"Victim Restitution in Criminal Law Process: A Procedural
Analysis" sums up the historical perspective of the concept
of restitution in the following words:
"Far from being a novel approach to sentencing,
restitution has been employed as a punitive
sanction throughout history. In ancient societies,
before the conceptual separation of civil and
criminal law, it was standard practice to require an
offender to reimburse the victim or his family for
any loss caused by the offense. The primary
purpose of such restitution was not to compensate
the victim, but to protect the offender from violent
retaliation by the victim or the community. It was a
means by which the offender could buy back the
peace he had broken. As the state gradually
established a monopoly over the institution of
punishment, and a division between civil and
criminal law emerged, the victim's right to
compensation was incorporated into civil law."
34. With modern concepts creating a distinction between
civil and criminal law in which civil law provides for
remedies to award compensation for private wrongs and
the criminal law takes care of punishing the wrong doer,
the legal position that emerged till recent times was that
criminal law need not concern itself with compensation to
the victims since compensation was a civil remedy that
fell within the domain of the civil Courts. This
conventional position has in recent times undergone a
notable sea change, as societies world over have
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increasingly felt that victims of the crimes were being
neglected by the legislatures and the Courts alike.
Legislations have, therefore, been introduced in many
countries including Canada, Australia, England, New
Zealand, Northern Ireland and in certain States in the
USA providing for restitution/reparation by Courts
administering criminal justice.
35. England was perhaps the first to adopt a separate
statutory scheme for victim compensation by the State
under the Criminal Injuries Compensation Scheme, 1964.
Under the Criminal Justice Act, 1972 the idea of payment
of compensation by the offender was introduced. The
following extract from the Oxford Handbook of
Criminology (1994 Edn., p.1237-1238), which has been
quoted with approval in Delhi Domestic Working Women's
Forum v. Union of India and Ors. (1995) 1 SCC 14 is
apposite: (SCC pp.20-21, para-16)
"16......Compensation payable by the offender was
introduced in the Criminal Justice Act 1972 which
gave the Courts powers to make an ancillary order
for compensation in addition to the main penalty in
cases where 'injury', loss, or damage' had resulted.
The Criminal Justice Act 1982 made it possible for
the first time to make a compensation order as the
sole penalty. It also required that in cases where
fines and compensation orders were given together,
the payment of compensation should take priority
over the fine. These developments signified a major
shift in penology thinking, reflecting the growing
importance attached to restitution and reparation
over the more narrowly retributive aims of
conventional punishment. The Criminal Justice Act
1982 furthered this shift. It required courts to
consider the making of a compensation order in
every case of death, injury, loss or damage and,
where such an order was not given, imposed a duty
on the court to give reasons for not doing so. It also
extended the range of injuries eligible for
compensation. These new requirements mean that if
the court fails to make a compensation order it must
furnish reasons. Where reasons are given, the
victim may apply for these to be subject to judicial
review......
The 1991 Criminal Justice Act contains a
number of provisions which directly or indirectly
encourage an even greater role for compensation.'"
(emphasis supplied)
-6-
36. In the United States of America, the Victim and
Witness Protection Act of 1982 authorizes a federal court
to award restitution by means of monetary compensation
as a part of a convict's sentence. Section 3553(a)(7) of
Title 18 of the Act requires Courts to consider in every
case "the need to provide restitution to any victims of the
offense". Though it is not mandatory for the Court to
award restitution in every case, the Act demands that the
Court provide its reasons for denying the same. Section
3553(c) of Title 18 of the Act states as follows:
"If the court does not order restitution or orders only
partial restitution, the court shall include in the
statement the reason thereof." (Emphasis supplied)
37. In order to be better equipped to decide the quantum
of money to be paid in a restitution order, the United
States federal law requires that details such as the
financial history of the offender, the monetary loss caused
to the victim by the offence, etc. be obtained during a
Presentence Investigation, which is carried out over a
period of 5 weeks after an offender is convicted.
38. Domestic/Municipal Legislation apart even the UN
General Assembly recognized the right of victims of
crimes to receive compensation by passing a resolution
titled "Declaration on Basic Principles of Justice for Victims
and Abuse of Power, 1985". The Resolution contained the
following provisions on restitution and compensation:
"Restitution
8. Offenders or third parties responsible for their
behaviour should, where appropriate, make fair
restitution to victims, their families or dependants.
Such restitution should include the return of
property or payment for the harm or loss suffered,
reimbursement of expenses incurred as a result of
the victimization, the provision of services and the
restoration of rights.
9. Governments should review their practices,
Regulations and laws to consider restitution as an
available sentencing option in criminal cases, in
addition to other criminal sanctions.
10. In cases of substantial harm to the environment,
restitution, if ordered, should include, as far as
possible, restoration of the environment,
reconstruction of the infrastructure, replacement of
community facilities and reimbursement of the
expenses of relocation, whenever such harm results
in the dislocation of a community.
-7-
11. Where public officials or other agents acting in
an official or quasi-official capacity have violated
national criminal laws, the victims should receive
restitution from the State whose officials or agents
were responsible for the harm inflicted. In cases
where the Government under whose authority the
victimizing act or omission occurred is no longer in
existence, the State or Government successor in title
should provide restitution to the victims.
Compensation
12. When compensation is not fully available from
the offender or other sources, States should
endeavour to provide financial compensation to:
(a) Victims who have sustained significant bodily
injury or impairment of physical or mental health as
a result of serious crimes;
(b) The family, in particular dependants of persons
who have died or become physically or mentally
incapacitated as a result of such victimization.
13. The establishment, strengthening and
expansion of national funds for compensation to
victims should be encouraged. Where appropriate,
other funds may also be established for this
purpose, including in those cases where the State of
which the victim is a national is not in a position to
compensate the victim for the harm."
39. The UN General Assembly passed a resolution titled
"Basic Principles and Guidelines on the Right to a Remedy
and Reparation for Victims of Gross Violations of
International Human Rights Law and Serious Violations of
International Humanitarian Law, 2005" which deals with
the rights of victims of international crimes and human
rights violations. These Principles (while in their Draft
form) were quoted with approval by this Court in State of
Gujarat and Anr. v. Hon'ble High Court of Gujarat (1998) 7
SCC 392 in the following words:
"94. In recent years the right to reparation for
victims of violation of human rights is gaining
ground. United Nations Commission of Human
Rights has circulated draft Basic Principles and
Guidelines on the Right to Reparation for Victims of
Violation of Human Rights, (see Annexure)."
40. Amongst others the following provisions on
restitution and compensation have been made:
"12. Restitution shall be provided to reestablish the
situation that existed prior to the violations of
human rights or international humanitarian law.
Restitution requires inter alia, restoration of liberty,
family life citizenship, return to one's place of
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residence, and restoration of employment or
property.
13. Compensation shall be provided for any
economically Assessable damage resulting from
violations of human rights or international
humanitarian law, such as:
(a) Physical or mental harm, including pain,
suffering and emotional distress;
(b) Lost opportunities including education;
(c) Material damages and loss of earnings, including
loss of earning potential;
(d) Harm to reputation or dignity;
(e) Costs required for legal or expert assistance,
medicines and medical services."
41. Back home the Code of Criminal Procedure of 1898
contained a provision for restitution in the form of
Section 545, which stated in Sub-clause 1(b) that the
Court may direct
"payment to any person of compensation for any
loss or injury caused by the offence when
substantial compensation is, in the opinion of the
Court, recoverable by such person in a Civil Court".
42. The Law Commission of India in its 41st Report
submitted in 1969 discussed Section 545 of the Code of
Criminal Procedure of 1898 extensively and stated as
follows:
"46.12.. Section 545- Under Clause (b) of
Sub-section (1) of Section 545, the Court may direct
"in the payment to any person of compensation for
any loss or injury caused by the offence when
substantial compensation is, in the opinion of the
Court, recoverable by such person in a Civil Court."
The significance of the requirement that
compensation should be recoverable in a Civil Court
is that the act which constitutes the offence in
question should also be a tort. The word
"substantial" appears to have been used to exclude
cases where only nominal damages would be
recoverable. We think it is hardly necessary to
emphasise this aspect, since in any event it is purely
within the discretion of the Criminal Courts to order
or not to order payment of compensation, and in
practice, they are not particularly liberal in utilizing
this provision. We propose to omit the word
"substantial" from the clause." (Emphasis supplied)
43. On the basis of the recommendations made by the
Law Commission in the above report, the Government of
India introduced the Code of Criminal Procedure Bill,
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1970, which aimed at revising Section 545 and
introducing it in the form of Section 357 as it reads
today. The Statement of Objects and Reasons underlying
the Bill was as follows:
"Clause 365 [now Section 357] which corresponds
to Section 545 makes provision for payment of
compensation to victims of crimes. At present such
compensation can be ordered only when the Court
imposes a fine the amount is limited to the amount
of fine. Under the new provision, compensation can
be awarded irrespective of whether the offence is
punishable with fine and fine is actually imposed,
but such compensation can be ordered only if the
accused is convicted. The compensation should be
payable for any loss or injury whether physical or
pecuniary and the Court shall have due regard to
the nature of injury, the manner of inflicting the
same, the capacity of the accused to pay and other
relevant factors." (Emphasis supplied)
44. As regards the need for Courts to obtain
comprehensive details regarding the background of the
offender for the purpose of sentencing, the Law
Commission in its 48th Report on "Some Questions Under
the Code of Criminal Procedure Bill, 1970" submitted in
1972 discussed the matter in some detail, stating as
follows:
"45. Sentencing .- It is now being increasingly
recognised that a rational and consistent
sentencing policy requires the removal of several
deficiencies in the present system. One such
deficiency is a lack of comprehensive information as
to the characteristics and background of the
offender.
The aims of sentencing--themselves obscure--
become all the more so in the absence of
comprehensive information on which the
correctional process is to operate. The public as
well as the as the courts themselves are in the dark
about judicial approach in this regard.
We are of the view that the taking of evidence as
to the circumstances relevant to sentencing should
be encouraged, and both the prosecution and the
accused should be allowed to cooperate in the
process." (Emphasis supplied)
45. The Code of Criminal Procedure of 1973 which
incorporated the changes proposed in the said Bill of
1970 states in its Objects and Reasons that Section 357
was "intended to provide relief to the proper sections of the
community" and that the amended CrPC empowered the
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Court to order payment of compensation by the accused
to the victims of crimes "to a larger extent" than was
previously permissible under the Code. The changes
brought about by the introduction of Section 357 were as
follows:
(i) The word "substantial" was excluded.
(ii) A new Sub-section (3) was added which provides
for payment of compensation even in cases where
the fine does not form part of the sentence
imposed.
(iii) Sub-section (4) was introduced which states
that an order awarding compensation may be made
by an Appellate Court or by the High Court or
Court of Session when exercising its powers of
revision.
46. The amendments to the Code of Criminal Procedure
brought about in 2008 focused heavily on the rights of
victims in a criminal trial, particularly in trials relating to
sexual offences. Though the 2008 amendments left
Section 357 unchanged, they introduced Section 357A
under which the Court is empowered to direct the State
to pay compensation to the victim in such cases where
"the compensation awarded Under Section 357 is not
adequate for such rehabilitation, or where the case ends in
acquittal or discharge and the victim has 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. This provision was
introduced due to the recommendations made by the Law
Commission of India in its 152nd and 154th Reports in
1994 and 1996 respectively.
47. The 154th Law Commission Report on the Code of
Criminal Procedure devoted an entire chapter to
'Victimology' in which the growing emphasis on victim's
rights in criminal trials was discussed extensively as
under:
"1. Increasingly the attention of criminologists,
penologists and reformers of criminal justice system
has been directed to victimology, control of
victimization and protection of victims of crimes.
Crimes often entail substantive harms to people and
not merely symbolic harm to the social order.
Consequently the needs and rights of victims of crime
should receive priority attention in the total response
to crime. One recognized method of protection of
victims is compensation to victims of crime. The
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needs of victims and their family are extensive and
varied.
xx xx xx xx xx
9.1 The principles of victimology has foundations in
Indian constitutional jurisprudence. The provision on
Fundamental Rights (Part III) and Directive Principles
of State Policy (Part IV) form the bulwark for a new
social order in which social and economic justice
would blossom in the national life of the country
(Article 38). Article 41 mandates inter alia that the
State shall make effective provisions for "securing the
right to public assistance in cases of disablement and
in other cases of undeserved want." So also Article
51A makes it a fundamental duty of every Indian
citizen, inter alia 'to have compassion for living
creatures' and to 'develop humanism'. If emphatically
interpreted and imaginatively expanded these
provisions can form the constitutional underpinnings
for victimology.
9.2 However, in India the criminal law provides
compensation to the victims and their dependants
only in a limited manner. Section 357 of the Code of
Criminal Procedure incorporates this concept to an
extent and empowers the Criminal Courts to grant
compensation to the victims.
xx xx xx xx
11. In India the principles of compensation to crime
victims need to be reviewed and expanded to cover
all cases. The compensation should not be limited
only to fines, penalties and forfeitures realized. The
State should accept the principle of providing
assistance to victims out of its own funds....."
48. The question then is whether the plenitude of the
power vested in the Courts Under Section 357 & 357-A,
notwithstanding, the Courts can simply ignore the
provisions or neglect the exercise of a power that is
primarily meant to be exercised for the benefit of the
victims of crimes that are so often committed though less
frequently punished by the Courts. In other words,
whether Courts have a duty to advert to the question of
awarding compensation to the victim and record reasons
while granting or refusing relief to them?
xxx xxx xxx xxx
66. To sum up: While the award or refusal of
compensation in a particular case may be within the
Court's discretion, there exists a mandatory duty on the
Court to apply its mind to the question in every criminal
case. Application of mind to the question is best disclosed
by recording reasons for awarding/refusing
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compensation. It is axiomatic that for any exercise
involving application of mind, the Court ought to have the
necessary material which it would evaluate to arrive at a
fair and reasonable conclusion. It is also beyond dispute
that the occasion to consider the question of award of
compensation would logically arise only after the court
records a conviction of the accused. Capacity of the
accused to pay which constitutes an important aspect of
any order Under Section 357 Code of Criminal Procedure
would involve a certain enquiry albeit summary unless of
course the facts as emerging in the course of the trial are
so clear that the court considers it unnecessary to do so.
Such an enquiry can precede an order on sentence to
enable the court to take a view, both on the question of
sentence and compensation that it may in its wisdom
decide to award to the victim or his/her family.
67. Coming then to the case at hand, we regret to say
that the trial Court and the High Court appear to have
remained oblivious to the provisions of Section 357 Code
of Criminal Procedure. The judgments under appeal
betray ignorance of the Courts below about the statutory
provisions and the duty cast upon the Courts. Remand at
this distant point of time does not appear to be a good
option either. This may not be a happy situation but
having regard to the facts and the circumstances of the
case and the time lag since the offence was committed,
we conclude this chapter in the hope that the courts
remain careful in future."
9. In Rohtash @ Pappu Vs. State of Haryana (Crl.A. No. 250 of
1999 decided on 1.4.2008, a Division Bench of the Punjab & Haryana High Court
observed:
"18. May be, inspite of best efforts, the State fails in
apprehending and punishing the guilty but that does not prevent
the State from taking such steps as may reassure and protect the
victims of crime. Should justice to the victims depend only on the
punishment of the guilty? Should the victims have to wait to get
justice till such time that the handicaps in the system which
result in large scale acquittals of guilty, are removed? It can be a
long and seemingly endless wait. The need to address cry of
victims of crime, for whom the Constitution in its Preamble holds
out a guarantee for 'justice' is paramount. How can the tears of
the victim be wiped off when the system itself is helpless to punish
the guilty for want of collection of evidence or for want of creating
an environment in which witnesses can fearlessly present the
truth before the Court? Justice to the victim has to be ensured
irrespective of whether or not the criminal is punished.
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19. The victims have right to get justice, to remedy
the harm suffered as a result of crime. This right is
different from and independent of the right to retribution,
responsibility of which has been assumed by the State in a society
governed by Rule of Law. But if the State fails in discharging this
responsibility, the State must still provide a mechanism to ensure
that the victim's right to be compensated for his injury is not
ignored or defeated.
20. Right of access to justice under Article 39-A and
principle of fair trial mandate right to legal aid to the victim of the
crime. It also mandates protection to witnesses, counselling and
medical aid to the victims of the bereaved family and in
appropriate cases, rehabilitation measures including monetary
compensation. It is a paradox that victim of a road accident gets
compensation under no fault theory, but the victim of crime does
not get any compensation, except in some cases where the accused
is held guilty, which does not happen in a large percentage of
cases.
21. Though a provision has been made for compensation
to victims under Section 357 Cr.P.C., there are several
inherent limitations. The said provision can be invoked only
upon conviction, that too at the discretion of the judge and
subject to financial capacity to pay by the accused. The long
time taken in disposal of the criminal case is another
handicap for bringing justice to the victims who need
immediate relief, and cannot wait for conviction, which
could take decades. The grant of compensation under the
said provision depends upon financial capacity of the
accused to compensate, for which, the evidence is rarely
collected. Further, victims are often unable to make a
representation before the Court for want of legal aid or
otherwise. This is perhaps why even on conviction this
provision is rarely pressed into service by the Courts. Rate
of conviction being quite low, inter-alia, for competence of
investigation, apathy of witnesses or strict standard of proof
required to ensure that innocent is not punished, the said
provision is hardly adequate to address to need of victims.
In Hari Krishan and State of Haryana v. Sikhbir Singh
AIR 1998 SC 2127, referring to provisions for compensation,
the Hon'ble Supreme Court observed:-
"10. ...... This power was intended to do something to
reassure the victim that he or she is not forgotten in the
criminal justice system. It is a measure of responding
appropriately to crime as well of reconciling the victim with
the offender. It is, to some extent, a constructive approach
to crimes. It is indeed a step forward in our criminal justice
system. We, therefore, recommend to all Courts to exercise
this power liberally so as to meet the ends of justice in a
better way."
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22. It is imperative to educate the investigating agency as
well as the trial Judges about the need to provide access to
justice to victims of crime, to collect evidence about financial
status of the accused. It is also imperative to create
mechanisms for rehabilitation measures by way of medical and
financial aid to the victims. The remedy in civil law of torts
against the injury caused by the accused is grossly inadequate
and illusory.
23. This unsatisfactory situation is in contrast to global
developments and suggestions of Indian experts as well. Some
of the significant developments in this regard may be noticed as
under:-
1) UN Declaration of Basic Principles of Justice for
Victims of Crime and Abuse of Power, 1985, highlighting
the following areas:-
(i) Access to Justice and fair treatment;
(ii) Restitution;
(iii) Compensation;
(iv) Assistance.
2) Council of Europe Recommendation on the Position of
the Victim in the Framework of Criminal Law and
Procedure, 1985.
3) Statement of the Victims' Rights in the Process of
Criminal Justice, issued by the European Forum for
Victims' Services in 1996.
4) European Union Framework Decision on the Standing
of Victims in Criminal Proceedings.
5) Council of Europe Recommendations on assistance to
Crime victims adopted on 14.6.2006.
6) 152nd and 154th report of the Law Commission of
India, 1994 and 1996 respectively, recommending
introduction of Section 357-A in criminal procedure code,
prescribing, inter-alia, compensation to the victims of
crime.
7) Recommendations of the Malimath Committee, 2003.
24. The subject matter has been dealt with by experts from
over 40 countries in series of meetings and a document has
been developed in cooperation with United Nations Office at
Vienna, Centre for International Crime Prevention and the
compilation under the heading "Handbook on Justice for
Victims" which deals with various aspects of impact of
victimization, victims assistance programmes and role and
responsibility of frontline professionals and others to victims.
The South African Law Commission, in its "Issue Paper 7"
(1997) under the heading "Sentencing Restorative Justice:
Compensation for victims of crime and victim empowerment"
has deliberated on various relevant aspects of this issue.
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xx xx xx xx
27. In Malimath Committee Report (March 2003), it was
observed:-
"6.7.1 Historically speaking, Criminal Justice System
seems to exist to protect the power, the privilege and the
values of the elite sections in society. The way crimes are
defined and the system is administered demonstrate that
there is an element of truth in the above perception even
in modern times. However, over the years the dominant
function of criminal justice is projected to be protecting
all citizens from harm to either their person or property,
the assumption being that it is the primary duty of a
State under rule of law. The State does this by depriving
individuals of the power to take law into their own hands
and using its power to satisfy the sense of revenge
through appropriate
sanctions. The State (and society), it was argued, is itself
the victim when a citizen commits a crime and thereby
questions its norms and authority. In the process of this
transformation of torts to crimes, the focus of attention
of the system shifted from the real victim who suffered
the injury (as a result of the failure of the state) to the
offender and how he is dealt with by the State. Criminal
Justice came to comprehend all about crime, the
criminal, the way he is dealt with, the process of proving
his guilt and the ultimate punishment given to him. The
civil law was supposed to take care of the monetary and
other losses suffered by the victim. Victims were
marginalized and the state stood forth as the victim to
prosecute and punish the accused.
6.7.2What happens to the right of victim to get justice to the harm suffered? Well, he can be satisfied if the state successfully gets the criminal punished to death, a prison sentence or fine. How does he get justice if the State does not succeed in so doing? Can he ask the State to compensate him for the injury? In principle, that should be the logical consequence in such a situation; but the State which makes the law absolves itself.
6.8.1 The principle of compensating victims of crime has for long been recognized by the law though it is recognized more as a token relief rather than part of a punishment or substantial remedy. When the sentence of fine is imposed as the sole punishment or an additional punishment, the whole or part of it may be directed to be paid to the person having suffered loss or injury as per the discretion of the Court (Section 357 Cr.PC). Compensation can be awarded only if the
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offender has been convicted of the offence with which he is charged.
xxx xxx xxx 6.8.7 Sympathizing with the plight of victims under Criminal Justice administration and taking advantage of the obligation to do complete justice under the Indian Constitution in defense of human rights, the Supreme Court and High Courts in India have of late evolved the practice of awarding compensatory remedies not only in terms of money but also in terms of other appropriate reliefs and remedies. Medical justice for the Bhagalpur blinded victims, rehabilitative justice to the communal violence victims and compensatory justice to the Union Carbide victims are examples of this liberal package of reliefs and remedies forged by the apex Court. The recent decisions in Nilabati Behera V. State of Orissa (1993 2 SCC 746) and in Chairman, Railway Board V. Chandrima Das are illustrative of this new trend of using Constitutional jurisdiction to do justice to victims of crime. Substantial monetary compensations have been awarded against the instrumentalities of the state for failure to protect the rights of the victim.
6.8.8 These decisions have clearly acknowledged the need for compensating victims of violent crimes irrespective of the fact whether offenders are apprehended or punished. The principle invoked is the obligation of the state to protect basic rights and to deliver justice to victims of crimes fairly and quickly. It is time that the Criminal Justice System takes note of these principles of Indian Constitution and legislate on the subject suitably.""
10. In Re: State of Assam & 2 Others (PIL (Suo Motu) No. 26/2013) vide judgement dated 24.4.2013, a Division Bench of Gauhati High Court observed :
"We have heard learned counsel for the parties on the issue whether in absence of any prohibition under the scheme, interim compensation ought to be paid at the earliest to the victim irrespective of stage of enquiry or trial, either on application of the victim or suo motu by the Court.
In Savitri v. Govind Singh Rawat, (1985) 4 SCC 337, question of interim maintenance under Section 125 Cr.P.C. was considered and it was observed :
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"3. It is true that there is no express provision in the Code which authorises a Magistrate to make an interim order directing payment of maintenance pending disposal of an application for maintenance. The Code does not also expressly prohibit the making of such an order. The question is whether such a power can be implied to be vested in a Magistrate having regard to the nature of the proceedings under Section 125 and other cognate provisions found in Chapter IX of the Code which is entitled "Order For Maintenance of Wives, Children and Parents". Section 125 of the Code confers power on a Magistrate of the first class to direct a person having sufficient means but who neglects or refuses to maintain
(i) his wife, unable to maintain herself, or (ii) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or (iii) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself or (iv) his father or mother, unable to maintain himself or herself, upon proof of such neglect or refusal, to pay a monthly allowance for the maintenance of his wife or such child, father or mother, as the case may be, at such monthly rate not exceeding five hundred rupees in the whole as such Magistrate thinks fit. Such allowance shall be payable from the date of the order, or, if so ordered from the date of the application for maintenance. Section 126 of the Code prescribes the procedure for the disposal of an application made under Section 125. Section 127 of the Code provides for alteration of the rate of maintenance in the light of the changed circumstances or an order or decree of a competent civil court. Section 128 of the Code deals with the enforcement of the order of maintenance. It is not necessary to refer to the other details contained in the above-said provisions.
6. In view of the foregoing it is the duty of the court to interpret the provisions in Chapter IX of the Code in such a way that the construction placed on them would not defeat the very object of the legislation. In the absence of any express prohibition, it is appropriate to construe the provisions in Chapter IX as conferring an implied power on the Magistrate to direct the person against whom an application is made under Section 125 of the Code to pay some reasonable sum by way of maintenance to the applicant pending final disposal of the application. It is quite common that applications made under Section 125 of the Code also take several months for being disposed of finally. In order to enjoy the fruits of the proceedings under Section 125, the applicant should be alive till the
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date of the final order and that the applicant can do in a large number of cases only if an order for payment of interim maintenance is passed by the court. Every court must be deemed to possess by necessary intendment all such powers as are necessary to make its orders effective. This principle is embodied in the maxim "ubi aliquid conceditur, conceditur et id sine quo res ipsa esse non potest" (Where anything is conceded, there is conceded also anything without which the thing itself cannot exist). [Vide Earl Jowitt's Dictionary of English Law, 1959 Edn., p. 1797.] Whenever anything is required to be done by law and it is found impossible to do that thing unless something not authorised in express terms be also done then that something else will be supplied by necessary intendment. Such a construction though it may not always be admissible in the present case however would advance the object of the legislation under consideration. A contrary view is likely to result in grave hardship to the applicant, who may have no means to subsist until the final order is passed. There is no room for the apprehension that the recognition of such implied power would lead to the passing of interim orders in a large number of cases where the liability to pay maintenance may not exist. It is quite possible that such contingency may arise in a few cases but the prejudice caused thereby to the person against whom it is made is minimal as it can be set right quickly after hearing both the parties. The Magistrate may, however, insist upon an affidavit being filed by or on behalf of the applicant concerned stating the grounds in support of the claim for interim maintenance to satisfy himself that there is a prima facie case for making such an order. Such an order may also be made in an appropriate case ex parte pending service of notice of the application subject to any modification or even an order of cancellation that may be passed after the respondent is heard. If a civil court can pass such interim orders on affidavits, there is no reason why a Magistrate should not rely on them for the purpose of issuing directions regarding payment of interim maintenance. The affidavit may be treated as supplying prima facie proof of the case of the applicant. If the allegations in the application or the affidavit are not true, it is always open to the person against whom such an order is made to show that the order is unsustainable. Having regard to the nature of the jurisdiction exercised by a Magistrate under Section 125 of the Code, we feel that the said provision should be interpreted as conferring power by necessary implication on the Magistrate to pass an order directing a person against whom an application is made under it to pay a reasonable sum by way of interim maintenance subject to the other conditions referred to
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therein pending final disposal of the application. In taking this view we have also taken note of the provisions of Section 7(2)(a) of the Family Courts Act, 1984 (Act 66 of 1984) passed recently by Parliament proposing to transfer the jurisdiction exercisable by Magistrates under Section 125 of the Code to the Family Courts constituted under the said Act."
Above view has been reiterated, inter alia, in Shail Kumari Devi v. Krishan Bhagwan Pathak, (2008)9 SCC 632.
We are of the view that above observations support the submission that interim compensation ought to be paid at the earliest so that immediate need of victim can be met. For determining the amount of interim compensation, the Court may have regard to the facts and circumstances of individual cases including the nature of offence, loss suffered and the requirement of the victim. On an interim order being passed by the Court, the funds available with the District/State Legal Services Authorities may be disbursed to the victims in the manner directed by the Court, to be adjusted later in appropriate proceedings. If the funds already allotted get exhausted, the State may place further funds at the disposal of the Legal Services Authorities."
11. In view of the above, we are of the view that crime having admittedly taken place, the petitioner is entitled to interim compensation without prejudice to claim for final compensation, if any, being preferred at an appropriate forum. Accordingly, we direct payment of interim compensation of Rs.50,000/- (Rupees Fifty Thousand) to the petitioner, who is the father of the deceased by way of a Bank Draft. The payment may be made within two months from the date of receipt of a copy of this order which will be the responsibility of the Home Secretary to the State of Odisha.
The petition is disposed of.
Free copy of this order be given to the learned Government Advocate for compliance.
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