Vakalpudi Venkanna S/O Apanna vs The State Of Karnataka on 18 February, 2022

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Karnataka High Court

Vakalpudi Venkanna S/O Apanna vs The State Of Karnataka on 18 February, 2022

Bench: S.R.Krishna Kumar

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            IN THE HIGH COURT OF KARNATAKA,
                   KALABURAGI BENCH

       DATED THIS THE 18TH DAY OF FEBRUARY 2022

                         BEFORE

       THE HON'BLE MR.JUSTICE S.R.KRISHNA KUMAR

        WRIT PETITION No.205671 OF 2015 (GM-RES)
BETWEEN:

VAKALPUDI VENKANNA
S/O APPANNA
AGED 62 YEARS
OCC: WASHERMAN
R/O MUSTUR CAMP
TQ: GANGAVATHI
DIST: KOPPAL-583 227
                                              ...PETITIONER
(BY SRI SACHIN M.MAHAJAN, ADVOCATE)

AND:

1.      THE STATE OF KARNATAKA
        BY ITS PRINCIPAL SECRETARY
        VIDHAN SOUDHA, HOME DEPARTMENT
        BENGALURU-560 009

2.      THE KARNATAKA STATE LEGAL
        SERVICE AUTHORITY
        NYAYA DEGULA, 1ST FLOOR,
        H.SIDDAIAH ROAD
        BENGALURU-560 027
        BY ITS SECRETARY
                                            ...RESPONDENTS
(BY SRI SHIVAKUMAR TENGLI, AGA FOR R1
    SRI SUDEER KULKARNI, ADVOCATE FOR R2)

      THIS W.P. IS FILED UNDER ARTICLES 226 AND 227 OF THE
CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT OR ORDER
OR DIRECTION IN THE NATURE OF CERTIORARI AND QUASH THE
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COMMUNICATION/LETTER       DATED     12.08.2015 BEARING
NO.KSLSA/117/PN 2015 ISSUED BY THE RESPONDENT NO.2 WHICH
IS PRODUCED AS ANNEXURE 'C' AND CONSEQUENTLY DIRECT
THE RESPONDENT NO.2 TO PAY THE COMPENSATION AS
DIRECTED BY THE VICTIM COMPENSATION COMMITTEE, RAICHUR
IN VCP NO.12/2005 AND ETC.

     THIS W.P. COMING ON FOR FURTHER HEARING THIS DAY,
THE COURT MADE THE FOLLOWING:-


                               ORDER

This petition is directed against the impugned communication / letter dated 12.08.2015 issued by respondent No.2 - Karnataka State Legal Services Authority and for a consequential direction to the respondent No.2 to pay compensation as directed by the Victim Compensation Committee, Raichur, in VCP No.12/2005 arising out of SC No.145/2010 on the file of the Fast Track Court-I, Raichur.

2. The brief facts giving rise to the present petition are as follows:-

(i) Petitioner is the father of one late Narasimhulu, who expired on 08.10.2009, pursuant to which, criminal proceedings in S.C.No.145/2010 were initiated against one Vishwanath Reddy for the alleged offence under Section 302 -3- of IPC. By Judgment and order dated 10.11.2011, the Sessions court acquitted the aforesaid accused for the aforesaid offence. In addition thereto, the Sessions court directed submission of a copy of the judgment to the District Legal Services Authority, Raichur, as stated in the evidence of PW-11 (Venkanna) for awarding victim compensation as provided under Section 357-A (3) of Cr.P.C. to the dependents of the victim i.e., deceased Narasimhalu.

(ii) Subsequent to the aforesaid decision of the sessions court, the petitioner - claimant moved an application before the Victim Compensation Committee, Raichur (for short 'the VCC') for compensation. In addition thereto, pursuant to the directions issued in the aforesaid order of the sessions court, a case in VCP No.12/2015 was registered before the VCC, Raichur. After hearing the petitioner - claimant and on perusal of the material on record, the VCC, Raichur, allowed the application filed by the petitioner, thereby awarding compensation in a sum of Rs.2 lakhs in favour of the petitioner and his family members together with issuing directions -4- regarding apportionment of compensation. In the said order passed by the VCC, Raichur on 22.07.2015, the VCC directed copy of the order to be sent / forwarded to the respondent No.2 - Karnataka State Legal Services Authority, Bengaluru, to make payment / arrange to make payment in favour of the petitioner and his family members.

3. It is the grievance of the petitioner that despite the aforesaid facts and circumstances and the specific directions issued not only by the sessions court but also by the VCC, Raichur, both of which, had attained finality and become conclusive and binding upon the respondent No.2, the respondent No.2 has proceeded to issue the impugned letter / communication dated 12.08.2015 refusing to pay compensation to the petitioner on the erroneous premise / ground that the incident, in which the deceased Narasimhulu expired / occurred on 08.10.2009, prior to the amendment to Section 357-A Cr.P.C. as well as the Karnataka Victim Compensation Scheme, 2011 and that consequently, the petitioner and his family members were not entitled to any -5- compensation. Aggrieved by the impugned Endorsement dated 12.08.2015, the petitioner is before this Court by way of the present petition.

4. Heard learned counsel for the petitioner and learned counsel for respondent No.2 as well as the learned HCGP for respondent No.1 - State and perused the material on record.

5. A perusal of the material on record will indicate that it is an undisputed fact that though the incident in which, late Narasimhulu, the son of the petitioner expired / occurred on 08.10.2009, the aforesaid judgment in S.C.No.145/2010 was passed on 10.11.2011, by which time, Section 357-A Cr.P.C.

was inserted by way of amendment by incorporating the Victim Compensation Scheme. So also, by exercising powers under Section 357-A Cr.P.C., the State Government framed "The Karnataka Victim Compensation Scheme, 2011" (for short 'the Scheme'), which came into force on 19.04.2012. It is also not in dispute that having regard to Section 357-A Cr.P.C., and the aforesaid scheme which were applicable to -6- the petitioner in relation to the demise of Sri.Narasimhulu, the VCC, Raichur, passed an order dated 22.07.2015 awarding compensation in favour of the petitioner and his family members.

6. Under these circumstances, the only question that arises for consideration in the present petition is as to, "Whether Section 357-A Cr.P.C. and the aforesaid scheme are applicable to the incidents that occurred prior to 19.04.2012?"

7. The said question is no longer res integra in the light of the decision of the Division Bench of this Court in the case of State of Karnataka vs. Rangaswamy - ILR 2015 KAR 4879, wherein this Court is held as under:-

16. Since the accused is acquitted, the only course open for the Court is to compensate P.W. 1 under the Karnataka Victim Compensation Scheme, 2011 framed by the State Government by the Notification dated 22.2.2012.

P.W. 1 is a victim, in as much as, he has suffered loss as a result of the fire incident in -7- question. He requires re-habilitation. The aforementioned scheme as amended specifies the maximum quantum of compensation at Rs.50,000/- for the purpose of re-habilitation of the victim who has suffered due to damage to the hut. We hope and trust that the Karnataka State Legal Services Authority shall decide the quantum of compensation to be awarded under the scheme, keeping in mind, the provisions of Section 357-A of Code of Criminal Procedure, 1973. However, we may mention that based on facts it appears P.W. 1 might have sustained loss of about Rs. 30,000/- in the incident. As his hut was burnt to ashes, certain amount of compensation may be paid to P.W.1 under the said scheme for the purposes of his rehabilitation.

17. The Victim Compensation Scheme, 2011 is published in the Official Gazette on 19.04.2012. Learned Government Advocate relying on the opinion given by the State Government to the Member Secretary, Karnataka Legal Services Authority submits that compensation cannot be granted to the victims who have suffered such in incidents prior to 19.4.2012. Such clarification or opinion of the State Government is unacceptable.

Sub-Section (3) of Section 357-A of the Criminal Procedure Code reads thus:

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"(3) If the trial Court, at the conclusion of the trial, is satisfied that the compensation awarded under Section 357 is not adequate for such rehabilitation, or where the cases end in acquittal or discharge and the Victim has to be rehabilitated, it may make recommendation for compensation".

18. Aforementioned provision of Section 357-A of the Code of Criminal Procedure, 1973 makes it clear that, if the cases before the Trial Court end in acquittal and if the victim has to be re-habilitated, the Trial Court after making an order of acquittal may make a recommendation for compensation to the Karnataka State Legal Services Authority.

19. The language of Section 357 Cr. P.C. at a glance may not suggest that any obligation is cast upon a Court to apply its mind to the question of compensation in every case. The word, "may" as found in Section 357(1) of Cr.P.C. prima facie means that the Court may order for the whole or any part of a fine recovered to be applied towards compensation. Section 357(3) of Cr.P.C. empowers the Court by stating that it "may" award compensation even in such cases where the sentence imposed does not include the fine. It is by now well settled that cases may arise where a provision is "mandatory" despite the use of language that makes it "discretionary" as has been -9- held by the Apex Court in the case of ANKUSH SHIVAJI GAIKWAD Vs. STATE OF MAHARASHTRA. It is also observed by the Apex Court in the aforementioned judgment that Section 357 Cr. P.C. confers a power coupled with a mandatory duty on the Court to apply its mind to the question of awarding compensation in every criminal case. While observing so, the Apex Court has kept in mind the background and context in which Section 357 Cr. P.C. was introduced.

The object of the said provision is to empower the Court to award compensation intended to reassure the victim that he or she is not a forgotten party in criminal justice system. The victim would remain forgotten if despite the Legislature having gone so far as to enact specific provisions relating to victim compensation, Courts choose to ignore the provisions altogether. It is borne out from the observations of the Court in the aforementioned judgment that if application of mind of the Court to the question of compensation in every case is not considered as mandatory, Section 357 of Cr.P.C. would be rendered a dead letter. The Court must disclose that it has applied its mind to the question in every criminal case.

Section 357A of Cr.P.C. is inserted by Act No.5 of 2009 w.e.f. 31.12.2009. The said provision states

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that if the compensation awarded under Section 357 is not adequate for rehabilitation of the victim or his dependents who have suffered loss or injury as a result of the crime, the Court may make recommendation for compensation even where the cases end in acquittal or discharge. Even where the offender is not traced or identified, but the victim is identified and where no trial takes place, the victim or his dependents may make an application to the Legal Services Authority for award of compensation. The Legal Services Authority 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 the officer in charge of the Police Station or a Magistrate of the area concerned, in order to alleviate the suffering of the victim or any other interim relief as the appropriate authority deems fit also m ay be provided. In that regard, the State Government in coordination with the Central Government has prepared a scheme for providing funds for the purpose of compensation to the victim or his dependants who have suffered loss or injury as a result of the crime and who require rehabilitation. The intention of the provision appears to provide specifically for the joint and several liability of the guilty persons and the Government and to set out the important factors to be taken into account in assessing the compensation. In that regard, the

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Victim Compensation Scheme is notified by the State Government. Having regard to the intention and the object with which the provisions of Sections 357 and 357A of Cr.P.C. are enacted, in our considered opinion, the benefit of the said provision should be given to all the pending matters, as on the date of the notification i.e., as on 31.12.2009.

The appeal proceedings are nothing but continuation of trial proceedings. Therefore, it is open for the Appellate Court to recommend for compensation even after acquittal of the accused in the appeal. The trial of the criminal case and the disposal of the appeal may take two to three years. Merely because of such delay, the victim cannot suffer without any compensation. Therefore, in our considered opinion, the Karnataka Victim Compensation Scheme, 2011 as notified by the State Government under the beneficial provision i.e., Section 357(A) Cr. P.C. cannot be given effect only to the cases which arise after the date of publication of the notification, but it shall be given effect to the matters which were/are pending as on the date of notification i.e., on 31.12.2009 before the Courts of Law at various stages. Since the appeal is disposed of today by this order, the victim needs to be paid compensation as per the scheme.

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Accordingly, the following order is made:

(i) The appeal stands dismissed and the judgment and order of acquittal passed by the Trial Court dated 31.10.2011 stands confirmed.

(ii) The Karnataka State Legal Services Authority will decide the compensation to be awarded to the P.W. 1 (Sanneerappa) under the Karnataka Victim Compensation Scheme, 2011 keeping in mind the provisions of Section 357-A of the Code of Criminal Procedure, 1973 and the observations made supra.

(iii) Copy of this order shall be sent to the Secretary, Karnataka State Legal Services Authority for further action relating to payment of compensation.

20. We place on record the valuable assistance rendered by Sri. Vageesh Hiremath, Learned Amicus Curiae. Hence, the registry is directed to pay Rs.7,000/- to the Learned Amicus Curiae as honourarium.

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8. A similar view has been expressed by the Calcutta High Court while dealing with the West Bengal Victim Compensation Scheme, 2017 in the case of Piyali Dutta vs. State of West Bengal - 2017 Crl.L.J.4041, wherein it was held as under:-

6. The following issues arise for consideration in the present writ petition:--

(1) Is a person suffering acid attacks prior to December 31, 2009 entitled to compensation under Section 357-A of Code of Criminal Procedure, 1973?

(2) Does the Schemes of the State dated November 1, 2012 and February 17, 2017 cover acid attack victims suffering such attacks prior to November 1, 2012?

(3) Does Section 357A of the Code of Criminal Procedure, 1973 and the Schemes of the State contemplate any date beyond which an acid attack victim would not be entitled to compensation?

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(4) What, if any, relief or reliefs, are the parties entitled to?

7. In its 154th Report, Law Commission has recommended insertion of a section in the Code of Criminal Procedure, so as to provide for, compensation and rehabilitation of victims of criminal offences, such as rape and acid attack. A writ petition filed by Laxmi seeking a direction to make appropriate amendments in the Penal Code, 1860 and the Code of Criminal Procedure, 1973 had received the consideration of the Hon'ble Supreme Court. In such writ petition various orders were passed by the Hon'ble Supreme Court from time to time. One of such order is Laxmi (AIR 2015 SC 3662)(supra). Section 357A came to be inserted in Code of Criminal Procedure, 1973, with effect from December 31, 2009. Such section provides for preparation of a scheme for providing funds for the purpose of compensation to the victims or their dependants who has suffered loss or injury as a result of the crime and who require rehabilitation. Parivartan Kendra (2015 AIR SCW 6597) (supra) has taken into consideration the orders passed in Laxmi (supra) and has issued directions for the purpose of making the compensation receivable by victims from different States uniform.

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8. Section 357A of the Code of Criminal Procedure, 1973 is as follows:--

"357A. Victim Compensation scheme-

(1) 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.

(2) 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, shall decide the quantum of compensation to be awarded under the scheme referred to in subsection (1).

(3) If the trial Court, at the conclusion of the trial, is satisfied that the compensation awarded under section 357 is not adequate for such rehabilitation or where the cases end in acquittal or discharge and the Victim has to be rehabilitated, it may make recommendation for compensation.

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(4) Where the offender is not traced or identified, by the victim is identified, and where no trial takes place, the victim or his dependants 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 the officer in charge of the police station or a Magistrate of the area concerned, or any other interim relief as the appropriate authority deems fit."

9. The State Government had formulated and notified a Victim Compensation Scheme in 2012 by a notification dated November 1, 2012.

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10. By a notification dated April 27, 2015, the State Government noticing the orders dated July 18, 2013 and February 6, 2013 of the Hon'ble Supreme Court passed in the writ petition of Laxmi, fixed the quantum of compensation at a minimum of Rs.3 Lakhs for victims of acid attack. The notification does not prescribe that date prior to which, an acid attack victim would not come within its purview in the event of the incident happening prior to a specified date.

11. By a notification dated February 15, 2017, the State Government exercising powers conferred under Section 357A of the Code of Criminal Procedure, 1973, formulated a scheme, by the name of West Bengal Victim Compensation Scheme, 2017 clauses 2(1)(i), (4) and (9) are relevant in the context. They are as follows:--

"2(1)(i). "Victim" means a person who has suffered loss or injury as a result of crime and require rehabilitation."

"(4). Eligibility for Compensation.- where the offender is not traced or identified, but the victim is identified, and where no trial takes place, the victim or his/her dependents may make an application to the State or the District Legal Services Authority for award of compensation if,-

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(a) he/she has not been compensated for the loss or injury under any other Scheme of the Central or State Government, insurance company or any other institution.

(b) the loss or injury sustained by the victim has caused substantial loss of income to his/her family making it difficult to meet their both ends without any compensation."

"(9). Limitation. - An application for compensation under subsection (4) of Section 357A of the Act shall be made within one hundred and eighty days from the date of commission of the Crime:

Provided that the State or District Legal Services Authority may entertain the application received after the expiry of said period of one hundred and eighty days if it is satisfied that the applicant was prevented by sufficient cause from filing the application in time."

12. Victim is defined in clause (2)(1)(i) of the Scheme of 2017 as a person, who has suffered loss or injury as a result of crime and require rehabilitation. Clause (4) prescribes the eligibility of compensation. It contemplates, grant of compensation to a victim, where the offender is not traced or identified but the

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victim is identified and where no trial takes place. Clause (9) of the scheme prescribes a time limit for making an application for compensation. It contemplates that, an application for compensation under Section 357A(4) of the Code of Criminal Procedure, 1973, should be made within 180 days from the date of commission of the crime. Such clause provides for an extension of time to the making of the application and its entertainabiliy of the expiry of the stipulated period of 180 days if the applicant is in a position to satisfy that, the applicant had sufficient cause in not filing the application within the prescribed time. The scheme also provides for an appeal if a victim or a dependent of victim is aggrieved by the order of the adjudicating authority. The provision of appeal is in clause (10) of the scheme. The scheme provides a Schedule for the minimum amount of compensation to be paid in respect of injury and losses as described therein. Sofaras acid attack is concerned, the scheme provides for a minimum amount of Rs.3 Lakhs as compensation. The scheme through the Schedule goes on to say that, if the victim is less than 14 years of age, the amount of compensation shall stand increased by 50% over the amount specified. The Victim Compensation Scheme, 2012, stood cancelled by the Scheme of 2017.

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13. The Victim Compensation Scheme, 2012 and the West Bengal Victim Compensation Scheme, 2017 have come into being pursuant to and by virtue of Section 357A of the Code of Criminal Procedure, 1973. Section 357A does not introduce any criminal liability to the accused. It requires and enforces the directive principles enshrined in the Constitution of India under Article 38 which obligates the State to render social justice to its citizens. Right to receive just compensation as a victim of a crime, notwithstanding the result of the criminal proceedings emanating out of the incident of crime can be read into Article 21 of the Constitution of India guaranteeing Right to life. Right to life, encompasses within its fold, the Right to live with dignity. A citizen cannot be asked to forfeit the right to live with dignity just because such citizen has become a victim of an act of crime. The state is obliged to protect the life and property of its citizen. The victim may or may not receive compensation in the criminal proceedings. The criminal proceedings may result in acquittal of the accused. Disposal of such criminal proceedings with a particular result does not mean that, the incident of crime did not happen or that, the victim is not entitled to or require compensation. In an acquittal, the Court does not find the accused guilty of the crime. Acquittal of the accused, ipso facto, does not mean that, the incident of crime did not take place. The victim of the

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crime, may require support, monetary and otherwise to mitigate the loss and injury suffered as a result of the crime. The victim may require rehabilitation. Acid attack victims require reconstruction of personal self by reason of the very nature of the crime. The victim will require medical attention. The victim may require counselling. The victim must be assisted in rehabilitating and integrating herself/himself into the society. All of these processes are time and money consuming. The victim and his/her family members may not be economically or financially favorably placed to undertake discharge of such onerous responsibilities. The victim may come from less favourable economic and financial strata of the society. It is the State's duty to come in aid to the victim of a crime to ameliorate the suffering to the extent possible. Section 357A of the Code of Criminal Procedure, 1973 and the Scheme of 2017 of the State formulated in exercise of such powers, seek to address such issues and put in ameliorative measures for the victims of the crime. Noticeably, section 357 B stipulates that, the compensation payable by the State Government under section 357A shall be in addition to the payment of fine to the victim under section 326A or section 376D of the Penal Code, 1860.

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Section 357A is a beneficial piece of legislation introduced for the benefit of the victims of a crime. It does not prescribe a time limit. It does not say that, a crime occurring prior to a specified date is not covered thereunder. As noted above, it is not introducing a criminal liability. It is time neutral, that is to say that, it does not distinguish between victims of a crime happening prior to the introduction of the section to the statute with those incidents of crime happening post its introduction in the statute book. The section itself not making any distinction between victims on the basis of the time of occurrence of the crime, the same cannot be read into it. The plain reading of the section does not permit one to interpret the same to mean that, it contemplates differential treatment of victims of the specified crimes on the basis of time of occurrence of such crime. Such a difference if sought to be read into Section 357A of the Code of Criminal Procedure, 1973 it would do violence to it. It would not be an intelligible or a reasonable differentia to distinguish between victims of crime on the basis of time of occurrence, more so when the section itself is silent on time. The requirement on the State to extend compensation for loss and injury suffered by reason of the crime and rehabilitation of the victims of the specified crimes are universal to all victims irrespective of the time of occurrence of the crime. Victims have not been

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segregated on the basis of time of occurrence of the crime. Segregation on such basis is unacceptable. It would militate against the right to equality and equal treatment by the State guaranteed under the Constitution of India. In such perspective, the victims of the specified crimes are similarly situated and circumstanced. Therefore, to segregate them on the basis of time of occurrence of crime, would be unjust, improper and militate against the very object of the Section 357A of the Code of Criminal Procedure, 1973, and the fundamental rights of the victims to be treated equally, fairly and justly. Section 357A, requires every State Government in coalition with the Central Government to prepare schemes for the purpose of compensation to the victims or their dependents who has suffered loss and injury and who require rehabilitation. Sub-section (3) allows the Trial Court, at the conclusion of the trial, to make recommendation for compensation, if the Court is satisfied that, the compensation awarded under Section 357A is not adequate and the victim has to be rehabilitated. It allows the Trial Court to undertake such exercise in cases where there is an acquittal or discharge of the accused. Victim is defined in Section 2(wa) of the Code of Criminal Procedure, 1973. It means a person who has suffered a loss or injury caused by an act or omission for which an accused

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person has been charged. Such expression includes his/her guardian/legal heir.

14. The petitioner relies upon four unreported decisions of the Bombay High Court in support of the contention that, acid attack victims of crimes committed prior to the introduction of Section 357A were granted compensation. Three orders of the Bombay High Court in W.P. No. 4267 of 2015 (Aarti Thakur v. State of Maharashtra) dated March 11, 2015, March 19, 2015 and March 27, 2015 are relied upon. These three orders notices the date of occurrence of the crime, the Scheme of Maharashtra prevailing and direct grant of interim compensation. The issue of a cut-off date for receipt of compensation has not yet been decided. The fourth order of the Bombay High Court Criminal is a Public Interest Litigation No. 35 of 2013 (Forum Against Oppression of Women v. Union of India) dated March 17, 2015. The issue of time limit has not been finally decided therein also.

15. When Section 357A of the Code of Criminal Procedure, 1973 is found not to impose any time restriction, can a scheme formulated in exercise of powers conferred by such section introduce a time limit or can it be read to have done so? The West Bengal Victim Compensation Scheme, 2017 does not

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specify that, a victim of a crime committed prior to a particular date will not be considered for the grant of compensation under such scheme. State, however, specifies that the application for compensation should be made within 180 days from the date of occurrence. It also allows condonation of delay in making the application within the stipulated time, if sufficient cause is shown. Clause (9) of the Scheme of 2017 cannot be read to be in derogation of Section 357A or introducing anything not contemplated by Section 357A. Section 357A not specifying a time prior to which an acid attack victim cannot receive compensation, the Scheme of 2017 and clause (9) thereunder should be read accordingly. Scheme of 2017 therefore does not prevent a victim of a crime specified therein to apply for compensation provided such applicant satisfies the adjudicating authority that he/she was prevented by sufficient cause beyond the prescribed period of 180 days from the date of occurrence of crime in applying.

16. In view of the discussions above, the first issue is answered in the affirmative and in favour of the petitioner. A person suffering an acid attack prior to December 31, 2009 is entitled to compensation under Section 357A of the Code of Criminal Procedure, 1973. The second issue is answered in the affirmative and in favour of the petitioner. The

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West Bengal Victim Compensation Scheme, 2017, allows a victim to apply for a compensation. It is for the adjudicating authority to decide on the sufficiency of the reasons shown for the delay in making such application, if it is made beyond 180 days from the occurrence of crime. The third issue is answered in the negative and in favour of the petitioner. Neither Section 357A of the Code of Criminal Procedure, 1973, nor the West Bengal Victim Compensation Scheme, 2017, prescribe a date prior to which a victim cannot be granted compensation or rehabilitation.

17. Sofar as the fourth issue is concerned, the petitioner is a victim of an acid attack occurring in 2005. On the basis of a written complaint in respect of such crime, a session proceeding was initiated and the accused was convicted on August 18, 2008. The petitioner had submitted an application for compensation to the respondent no. 2 on July 14, 2014, after becoming aware of the Supreme Court Order dated April 10, 2015 passed in Laxmi, (AIR 2015 SC 3662) (supra). Such application has not been decided yet. On the date of such application, the Victim Compensation Scheme, 2012, issued by the notification dated November 1, 2012, was in vogue. Such scheme cannot be read to negate a right conferred under Section 357A of the Code of Criminal

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Procedure, 1973. Now the West Bengal Victim Compensation Scheme, 2017, is in operation. Under the Scheme of 2017, the State or the District Legal Services Authority is empowered to decide an application for grant of compensation under Section 357A(4). In such circumstances, the respondent no. 2 will forward the application made by the petitioner dated July 15, 2014, to the appropriate authority under the West Bengal Victim Compensation Scheme, 2017 for decision. Such transmission should be made by the respondent no. 2 within a week from the date of communication of this order to him. The appropriate authority, thereafter, will decide such application, in accordance with law, after affording reasonable opportunity of hearing to the petitioner. It will pass such orders, as deemed necessary by it, as expeditiously as possible and preferably within two weeks from the date of receipt of the application for grant of compensation. The fourth issue is decided accordingly.

18. W.P.No. 26174 (W) of 2014 is disposed of. No order as to costs.

19. Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance of the requisite formalities.

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9. Similarly, in the case of District Collector vs. District Legal Services Authority & others -

W.P.No.7250/2014 dated 22.12.2020, the High Court of Kerala held as under:-

14. Criminal justice system has undergone a paradigm shift in its approach to the dispensation of criminal justice, in the last two decades. Criminal jurisprudence was always accused centric, with the victim, a forgotten entity. Victim had no role in the criminal justice system. However, with the advent of the philosophy of victim compensation, with its avowed purpose not to award damages analogous to those in cases of tortious liability, but to give solace, by way of compensation out of the public purse, for the injury sustained, whether the offender had been brought to trial or not, a new stakeholder, in the criminal law, was ushered in.

15. The Law Commission of India, in its 152nd and 154th report, recommended for the inclusion of a new provision in the Cr.P.C., providing for victim compensation, over and apart from Section 357 Cr.P.C. While recommending the inclusion of a scheme for victim compensation, the Commission, reported that the said scheme is justified from out of the State funds on the principle that the State has a

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humanitarian responsibility to assist crime victims and also that the assistance is provided because of the social conscience of its citizens and as a symbolic act of compassion. Victimology was thus proposed as a facet of criminal jurisprudence.

16. The principles of victimology have their foundations in Indian constitutional jurisprudence. The fundamental rights under Part III and the directive principles of state policy in Part IV of the Constitution of India form the bulwark for a new social order. The social and economic justice provided in Article 38 and Article 41, which mandates the State to secure the right to public assistance in case of disablement and undeserved want, Article 51A which makes it a fundamental duty to have compassion for living creatures and to develop humanism. According to the Law Commission of India, if the above Constitutional provisions are expanded and interpreted imaginatively, they could form the constitutional underpinnings for victimology in India.

17. Based on the aforesaid recommendations, the Code of Criminal Procedure Amendment Act, 2008 (No.5/2009) was brought into effect. Apart from introducing a definition for the term 'victim' in Section 2(wa), the amendment, inter-alia inserted a new provision as Section 357A to the Cr.P.C. For

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reference 'Section 2(wa)' and Section 357A Cr.P.C. are extracted as below:

"2. Definitions In this Code, unless the context otherwise requires,-

xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx (wa) "victim" means 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."

"357A - Victim Compensation Scheme- (1) 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 (2) Whenever a recommendation is made by the Court for compensation, the District Legal Services Authority or the

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State Legal Services 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 of the trial, is satisfied, that the compensation awarded under Section 357 is not adequate for such rehabilitation, or where the cases end in acquittal or discharge and the victim has to be rehabilitated, it may make recommendation for compensation.

(4) Where the offender is not traced or identified, 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.

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18. The definition of the word 'victim' as extracted above will indicate that it would apply only when the accused has been charged. This strict interpretation of the definition will create an apparent contradiction when juxtaposed against Section 357A(4) Cr.P.C. Under the aforesaid sub-clause of Section 357A, an application can be made only if the offender is not traced or identified and the trial does not take place. This anomaly in the construction of the definition of the word 'victim' is not of significance, since, like in every definition clause, Section 2 of the Cr.P.C also starts with the words "In this code, unless the context otherwise requires".

19. It is a settled proposition of law that when a strict application of the definition in a statute will

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frustrate the legislative intent of a particular provision or when the defined word is used and makes the provision unworkable, then recourse can be had to a different meaning. This recourse to a different meaning is intended by the legislature by using the legislative tool in the form of the words "unless the context otherwise requires". In the decision in Youaraj Rai and Others v. Chander Bahadur Karki [(2007) 1 SCC 770], the Supreme Court held that "Moreover the opening words of Section 2 are "unless the context otherwise requires". Hence, while construing, interpreting, and applying the definition clause, the court has to keep in view the legislative mandate and intent and consider whether the context requires otherwise."

20. Adopting the aforesaid principle of interpretation, if the word "victim" in Section 357A(4) Cr.P.C., is given the same meaning as defined in Section 2(wa), then the accused must have been charged. If the accused is charged, then the offender is already identified and the trial should also carry on. If the word victim in Section 357A(4) Cr.P.C, is interpreted based on the definition in Section 2(wa), it will render the provision in Section 357A(4) and 357A(5) nugatory and redundant. To add meaning and life to Section 357A(4) Cr.P.C., it is necessary that the offender under the said sub clause is not

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traced or identified and not charged. In that perspective, the word 'victim' as appearing in Section 357A(4) Cr.P.C., ought to be given a different meaning. The context of Section 357A(4) Cr.P.C., requires a different meaning to be adopted for the word 'victim'. To add meaning and life to Section 357A(4) Cr.P.C, it is necessary that the word 'victim' in Section 357A(4) is meant as a person who suffers any loss or injury by reason of the act or omission of another in which the offender has not been traced or identified and against whom a trial has not taken place. Such an interpretation alone would make Section 357A(4) Cr.P.C., workable, and have meaning.

21. While considering the main question about the applicability of Section 357A(4) Cr.P.C., to crimes that occurred prior to the coming into force of the said provision, it is necessary to appreciate the objects and reasons for bringing in the amendment. Prior to the Amendment Act 5 of 2009, criminal law in the country provided for compensation to victims and their dependents only in a limited manner under Section 357 Cr.P.C. Under the old Code of 1898, no compensation was payable, unless a substantive sentence of fine was imposed and the amount of compensation was limited to the extent of fine realised, that too, when compensation was, in the

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opinion of the court, recoverable by the victim in a civil court. The 1973 Code made an improvement and it recognised the principle of compensating the victim, even when no sentence of fine was imposed.

22. With the observations of the Supreme Court relating to compensatory justice in criminal law in Hari Singh v. Sukhbir Singh and Others [(1988) 4 SCC 551], it was felt that the principles of compensation to crime victims need to be reviewed and expanded to cover all cases. It was also felt that the compensation should not be limited only to fines or penalty if realised, but the State should accept the principle of providing assistance to victims out of its funds, even in case of acquittals or where the offender is not traceable or identifiable. It is in this background and after noticing that the existing provisions for compensation to crime victims had its own weaknesses that the Law Commission of India in its 154th report, recommended for incorporating a provision like Section 357A, to the Cr.P.C., so that opportunities for securing justice are not denied to any citizen on grounds of economic or other disabilities incorporating a provision like Section 357A, to the Cr.P.C., so that opportunities for securing justice are not denied to any citizen on grounds of economic or other disabilities.

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23. Section 357A Cr.P.C., was brought in with effect from 31.12.2009 through the Code of Criminal Procedure Amendment Act, 2008, (Act 5 of 2009). The amended provisions do not mention anywhere that the amendment is prospective or even retrospective in character.

24. There is no dispute that procedural statutes are generally retrospective in operation, while statutes that are substantive are prospective in their application unless by express stipulation or by necessary intendment, the provisions provide for otherwise. In the quest to ascertain whether Section 357A(4) Cr.P.C applies to offences that occurred prior to 31.12.2009, it is necessary to identify whether the provision is substantive or procedural.

25. Substantive law is that part of the law, which creates, defines, and regulate the rights, duties and powers of parties, while procedural law, as the name itself indicates, relates to that part of the law, which prescribes procedures and methods for enforcing rights and duties and for obtaining redress. In simpler terms, when substantive law creates, defines or regulate rights the procedural law creates the method for enforcing or having redressal for the rights so created. In the celebrated work by Salmond on 'Jurisprudence' (12th Edition, South Asian Edition,

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2016), it is stated as follows: "the law of procedure may be defined as that branch of the law which governs the process of litigation. It is the law of actions - using the term action in a wide sense to include all legal proceedings civil or criminal. All the residue is substantive law, and relates, not to the process of litigation, but to its purposes and subject matter. Substantive law is concerned with the ends which the administration of justice seeks; procedural law deals with the means and instruments by which those ends are to be attained. The latter regulate the conduct and relations of courts and litigants in respect of the litigation itself; the former determines the conduct and relations in respect of the matters litigated." In Ramanatha Aiyer's Advanced Law Lexicon 4th Edition (2013), substantive law is stated to be that part of a law that creates, defines, and regulates the rights, duties, and powers of parties. The Supreme Court has approved the aforesaid propositions on substantive law, as can be seen from the decision in Executive Engineer, Dhenkanal Minor Irrigation Division, Orissa and Others v. N.C Budharaj and Others [(2001) 2 SCC 721] wherein it was held that "substantive law is that part of law, which creates, defines and regulates rights in contrast to what is called adjective or remedial law which provides a method of enforcing rights".

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26. A reading of Sections 357A(1)(4)&(5) Cr.P.C., will make it explicit that the said sub-clauses create a right upon the victim to obtain an award of compensation on satisfying the conditions stipulated therein. There was no statutory provision akin to Section 357A(4) Cr.P.C., earlier. There was neither any remedy available to a victim to claim compensation against the State nor was there any obligation for the State to pay compensation towards a victim, especially when the accused had not been identified or traced and the trial had not taken place. This court is mindful of the occasions when the High Courts and Supreme Court have ordered payment of compensation to victims. As rightly pointed out by Adv. Vinod, the learned Government Pleader, those were all instances in which the facts warranted such a grant of compensation since the crimes were either on account of State action or inaction. Section 357A(1)(4)&(5) Cr.P.C., has thus created a right upon a victim in cases where the offender is not traced or identified and the trial has not taken place, to obtain compensation, from the State Government for the rehabilitation of the victim. It has created and defined rights for a victim, and a duty upon the State Government to pay compensation. Thus Section 357A(1)(4)&(5) Cr.P.C., is a substantive law and not procedural law.

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27. As a substantive law, the aforesaid statutory provision will have only prospective application. However, in the case of Section 357A(1)(4)&(5) Cr.P.C., there is a difference. Rehabilitation of the victim is the scope, purport and import of Section 357A(4) Cr.P.C., when read along with Section 357A (1) Cr.P.C. This is more explicit when understood in the background of the recommendation of the 154th report of the Law Commission of India. Rehabilitation of the victim was a remedial measure. It remedied the weakness in the then existing provisions for compensating the crime victims, especially to those victims, whose perpetrators had not been traced. The provision is remedial. Remedial statutes or provisions are also known as welfare, beneficent or social justice oriented legislation.

28. While interpreting a provision brought in as a remedial measure, that too, as a means of welfare for the victims of crimes, in which the perpetrators or offenders have not been identified and in which trial has not taken place, the Court must always be wary and vigilant of not defeating the welfare intended by the legislature. In remedial provisions, as well as in welfare legislation, the words of the statute must be construed in such a manner that it provides the most complete remedy which the phraseology permits. The

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Court must, always, in such circumstances, interpret the words in such a manner, that the relief contemplated by the provision, is secured and not denied to the class intended to be benefited.

29. While interpreting Section 357A(4) Cr.P.C., this Court cannot be oblivious of the agony stricken face of the victim and the trauma and travails such victims have undergone, especially when their offenders have not even been identified or traced out or a trial conducted. The agonizing face of the victims looms large upon this Court while considering the question raised for decision.

30. With the aforesaid principles hovering over Section 357A(4)&(5) Cr.P.C., the provision ought to be interpreted in such a manner that it benefits victims. If the said benefit could be conferred without violating the principles of law, then courts must adopt that approach. A substantive law that is remedial, can reckon a past event for applying the law prospectively. Such an approach does not make the substantive law retrospective in its operation. On the other hand, it only caters to the intention of the legislature.

31. In other words, when an application is made by a victim of a crime that occurred prior to the coming into force of Section 357A(4) Cr.P.C., a

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prospective benefit is given, taking into reckoning an antecedent fact. Adopting such an interpretation does not make the statute or the provision retrospective in operation. It only confers prospective benefits, in certain cases, to even antecedent facts. The statute will remain prospective in application but will draw life from a past event also. The rule against retrospectivity of substantive law is not violated or affected, merely because part of the requisites for action under the provision is drawn from a time antecedent to its passing Merely because a prospective benefit under a remedial statutory provision is measured by or dependent on antecedent facts, it does not necessarily make the provision retrospective in operation.

32. The above view is fortified by the decision in The Queen v. The Inhabitants of St. Mary, Whitechapel (1848 12 QB 120) at 127, where Lord, Denman CJ stated that "a statute is not properly called a retrospective statute because a part of the requisites for its action is drawn from a time antecedent to its passing". The observations in the decision in Master Ladies Tailors Organisation v. Minister of Labour and National Service (1950 (2) All ER 525) are also relevant. It was held at page 527 that "the fact that a prospective benefit is in certain cases to be measured by or depends on antecedent

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facts does not necessarily make the provision retrospective". The above referred, two English decisions, were relied upon by the Supreme Court, in Sree Bank Ltd. (in liquidation) v. Sarkar Dutt Roy & Co. (AIR 1966 SC 1953), while it was considering the retrospective application of Section 45O of the Banking Companies Act, 1949, (brought in by an amendment of 30-12-1953, as per which the period spent on presenting and pursuing a winding up petition can be excluded for determining the period of limitation to revive a time barred debt).

33. In the judgment in Piyali Dutta v. State of West Bengal and Others (2017 Cr.LJ 4041), the Calcutta High Court held that Section 357A is time neutral, i.e, it does not distinguish between victims of a crime happening before the introduction of the section in the statute with those incidents of crime happening post its introduction in the statute book. It was also held that the section does not make any distinction between victims on the basis of the time of occurrence of the crime and also that, segregation on the basis of time, is unacceptable and would militate against the right to equality and equal treatment by the State guaranteed under the Constitution of India.

34. The learned Amicus Curiae, brought to my attention the clause on limitation under the

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scheme framed by the Kerala Government. Clause 9 of the scheme is extracted as below;

"9. Limitation - No claim made by the victim or his dependent under subsection 4 of section 357A of the court shall be entertained after a period of 180 days from the occurrence of the crime. The District Legal Services Authority, if satisfied, for reasons to be recorded in writing, may condone the delay in filing the said claim".

35. The above extracted clause on limitation prescribed under the scheme framed by the Kerala Government is not in tune with Section 357A(4) Cr.P.C. The said clause in the scheme, can practically render the statutory prescription unworkable and even defeat the provision itself. In practical parlance, there would be numerous occasions where the investigation itself is not completed within 180 days. Law does not stipulate a time limit for completion of an investigation. To regard an offender as not identified or traced, the investigation ought to be concluded. If a limit of time of 180 days from the occurrence of crime is stipulated for preferring an application under Section 357A(4), it will only defeat the provision. The restriction of 180 days since the date of occurrence of the crime for preferring applications goes against the spirit of Section 357A(4) Cr.P.C. It is certainly not the intention

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of the legislature to deny claims for compensation from victims when the offender has not been identified or traced within a period of 180 days. However, the said clause does not apply in the instant case though the aforesaid is a matter for the State to contemplate and bring in appropriate modifications.

36. In view of the above deliberations, the following conclusions are arrived at:

(i) The provisions in Section 357A(1)(4)&(5) Cr.P.C are substantive in character.

(ii) The victims under Section 357A(4) of the Cr.P.C. are entitled to claim compensation for incidents that occurred even prior to the coming into force of the said provision.

(iii) By giving the benefit to victims under Section 357A(4) Cr.P.C., for crimes that occurred prior to 31.12.2009, the statutory provision is not given retrospective effect, and instead a prospective benefit is given based on an antecedent fact.

37. Before concluding, I wish to place on record my deep appreciation to the commendable

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efforts put in by Adv. Leah Rachel Ninan and the learned Amicus Curiae Adv. Keerthivas Giri. Both of them performed to the fullest extent and justified the confidence reposed on them by the Court.

As a result, this writ petition is dismissed. However, in the circumstances of the case, there will be no order as to costs.

10. As can be seen from the aforesaid decisions of this Court and other High Courts, Section 357-A Cr.P.C. as well as the Karnataka Victim Compensation Scheme, 2011 are applicable even to the incidents that occurred prior to the said provision / said scheme coming into force. In the instant case, apart from the fact that Section 357-A Cr.P.C., and the scheme are applicable for the purpose of awarding compensation to the petitioner in relation to the demise of his son Narasimhulu expired on 08.10.2009, the undisputed fact that the VCC, Raichur, passed an order on 22.07.2015 after coming into force of both Section 357-A Cr.P.C. as well as the scheme, is sufficient to indicate that the petitioner and his family members are entitled to compensation under Section

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357-A Cr.P.C. and the scheme as held and directed by the Victim Compensation Committee. Under these circumstances, I am of the considered opinion that the respondent No.2 clearly fell in error in issuing the impugned Endorsement / Communication dated 12.08.2015 refusing to pay compensation in favour of the petitioner and his family members and consequently, the same deserves to be quashed and the respondent no.2 be directed to pay compensation in favour of the petitioner in terms of the order dated 22.07.2015 passed in VCP No.12/2015 by the Victim Compensation Committee, Raichur.

11. In the result, I pass the following:-

ORDER

(i) Petition is hereby allowed.

(ii) The impugned Communication / Endorsement dated

12.08.2015 issued by respondent No.2 is hereby quashed.

(iii) Respondent No.2 is hereby directed to pay / release compensation in favour of the petitioner and his family members as directed in the order dated 22.07.2015 passed in

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VCP No.12/2015 by the Victim Compensation Committee, Raichur, arising out of S.C.No.145/2010 on the file of FTC-I, Raichur, within a period of three months from the date of receipt of a copy of this order.

Sd/-

JUDGE Srl.

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Karnataka High Court