Punjab-Haryana High Court
Ms X vs State Of Punjab And Ors on 18 November, 2019
Author: Rajiv Narain Raina
Bench: Rajiv Narain Raina
CWP No.21079 of 2016 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CWP No.21079 of 2016
Date of Decision:18.11.2019
Ms X (....) ...Petitioner
Versus
State of Punjab and others ...Respondents
CORAM: HON'BLE MR.JUSTICE RAJIV NARAIN RAINA
Present: Mr.Rohit Kumar, Advocate
for the petitioner
Ms.Simran Grewal, AAG Punjab
****
RAJIV NARAIN RAINA, J. (ORAL):
1. The prayer in this petition is for issuance of a direction to the respondents for providing compensation to the petitioner, a victim of gang rape, under the provisions of the Scheduled Caste and the Scheduled Tribes Act, 1989. Though the petition has been filed disclosing her name, I have concealed it for passing this order to protect her identity. Counsel would have been well advised not to have divulged her name except in a sealed petition signed by her appending a photocopy for public use and for the court hearings. She is thus named 'Ms X' for final disposal of the case. Registry is directed to carry out necessary changes in this petition and on the web portal of this Court, accordingly.
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2. The petitioner is a victim of gang rape. She belongs to the Scheduled Castes. The perpetrators of the crime are facing trial. The petition cites the 'Norms for Relief Amount' laid down in Annexure I- Schedule [see rule 12 (4)] to the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (for short, 'the Rules') for the scale of minimum amount of compensation linked with the nature of offence. The description of offence and minimum monetary relief prescribed in the Schedule under Rule 12(4) relevant for this case is reproduced as under:-
Sr.No. Name of offence Minimum amount of Relief xx xx xx 11 Outraging the modesty of a woman One Lakh eighty thousand rupees to [Section 3(1) (xi)] each victim of the offence, 50 per 12 Sexual exploitation of a woman cent of the amount may be paid [Section 3(1) (xii)] after medical examination and remaining 50 per cent at the conclusion of the trial
3. Under these rules, a scheme has been framed for payment of victim compensation in cases of those scheduled caste persons who are covered by the provisions of the rules and have suffered atrocities. She was granted compensation by the State Government in a sum of Rs.1,80,000/- out of which Rs.90,000/- has been paid in advance while the balance kept for conclusion of the trial.
4. The date of occurrence of the sordid crime was 16.02.2016. This date has a material bearing on the claim in the petition for enhanced compensation under the new arrangement. The petitioner though has been paid according to the policy prevailing on the date of 2 of 7 ::: Downloaded on - 22-12-2019 04:54:53 ::: CWP No.21079 of 2016 3 commission of the crime, claims enhanced compensation made payable under the notification dated 14.04.2016 of the Ministry of Social Justice and Empowerment, Government of India, New Delhi, framed in exercise of powers conferred by Sub-Section 1 of Section 23 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities), Act, 1989, and the rules framed thereunder. The rules in force are called the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities Act), 1989, [Amendment Rules], 2016. For gang rape, (Section 376-D of the Indian Penal Code) compensation of Rs.8.25 lakhs is awarded to the victims. The 50% payment is made after the medical examination and confirmatory medical report, 75% when the charge sheet is filed and 25% when the conclusion of the trial by the lower Court is reached. Relevant part of Amendment Rules, 2016 reads as under:-
44 Rape or Gangrape
(i) Rape- Section 375 of the Indian Five lakh rupees to the victim. Payment Penal Code (45 of 1860) to be made as follows:
(i) 50 per cent after medical examination and confirmatory medical report;
(ii) 25 per cent when the charge sheet is sent to the court;
(iii) 25 per cent on conclusion of trial by the lower court.
(ii) Gang rape- Section 376D of the Eight lakh and twenty-five thousand Indian Penal Code (45 of 1860) rupees to the victim. Payment to be made as follows:
(i) 50 per cent after medical examination and confirmatory medical report;
(ii) 25 per cent when the charge sheet is sent to the court;
(iii) 25 per cent on conclusion of trial by the lower court.
5. The question which falls for consideration is whether in a case the occurrence of crime prior to coming into force of notification 3 of 7 ::: Downloaded on - 22-12-2019 04:54:53 ::: CWP No.21079 of 2016 4 dated 14.04.2016, victim of gang rape will still be entitled to enhanced compensation which has increased from Rs.1.80 lakhs to Rs.8.25 lakhs by the notification. The scheme of the Central Government has been adopted by the Punjab Government on 07.09.2018 as stated in para No.5 of the written statement after sanction of the Finance Department, Government of Punjab.
6. The written statement does not spell out anything on the retrospective or prospective application of the victim compensation scheme. The State contests the petition urging that it is not liable to pay enhanced compensation as it has adopted the Central Government Scheme in 2018 for the first time. The Central Government Notification promulgated on 14.04.2016 is silent on this aspect, that is, date of applicability of the scheme.
7. Learned counsel for the petitioner argues that the victim compensation scheme is a beneficial piece of sub-ordinate legislation which is a social measure in a welfare state and therefore it should be applied and construed retrospectively to the case of the petitioner who was victimised two months before the notification of the Central Government was issued. The Punjab Government is also silent on the point in its written statement although it contests the petition and prays for its dismissal as it has acted in accordance with law existing on the date of the crime. It has stuck to its point during the course of hearing urging that the gang rape occurrence was prior to the notification of the new scheme. Normally, the legislation which is beneficial to the victim 4 of 7 ::: Downloaded on - 22-12-2019 04:54:53 ::: CWP No.21079 of 2016 5 and is a social measure should be read retrospectively in a welfare state as the terrible physical, psychological and deleterious social effects of stigma of such a heinous crime we are dealing with, lasts forever in the mind of the victim which will never be erased, much less by any amount of compensation. No help is available either from the notification dated 14.04.2016 or its adoption order by the Punjab Government in 2018 to come in aid of the petitioner who suffered travails two months before the 2016 scheme came into force and her case was processed thereafter. The proposals in formulating the scheme of 2016 must have started long before it was codified into the compensatory law and should be read as one in the pipeline to bring relief to the petitioner. The State Government adoption of the scheme deserves to relate back. I would therefore interpret the scheme beneficially in favour of the petitioner to bring the gang rape survivor victim compensation in line with the amendment.
8. There is another aspect which persuades me to apply the minimum amount in the enhanced compensation which is that under the old schedule amount of compensation was the minimum and not the maximum. No ceiling has been fixed. The position has not been varied in the 2016/2018 scheme/adoption. What would be the maximum compensation payable having not specified, leaves sufficient room for social engineering by the Court to award just, fair and adequate compensation without the shackles of the rules on the principle applied through the Latin phrase 'ex aequo et bono' or what is in fundamental 5 of 7 ::: Downloaded on - 22-12-2019 04:54:53 ::: CWP No.21079 of 2016 6 fairness based on equity. The writ court is a court of equity. Other than the schemes of victim compensation framed under the rules, the issue is larger and also connected with Section 357-A of the Code of Criminal Procedure, 1973 which provision activates short of court imposing sentence, which stage is not reached, but still beneath the umbrella of the the full panoply of Article 21 of the Constitution, which is every woman's right, to lead a life of self esteem, untarnished by violation of her womanhood, a life of dignity and gender equality. Let us not forget for a moment the Supreme Court recent decision ordering the State of Uttar Pradesh to provide Rs 25 lakhs to a rape survivor in the infamous Unnao rape case as an interim compensation. The case made headlines in India. Both the schemes in hand fall far short of that interim measure. In another recent case the Supreme Court ruled that compensation in the case of a gang rape survivor should carry a mandatory minimum compensation of Rs 5 lakhs with a maximum of Rs 10 lakhs.
9. Accordingly, the petition is allowed. The petitioner is held entitled to compensation of Rs.8.25 lakhs less the amount already paid to her under the old dispensation. There is no dispute that the first two tranches of the three limb break-up of compensation payable at 50% and 25% stages is an accomplished fact since the charge sheet has been filed and the criminal trial is in progress. Accordingly, 25% of the amount of Rs.8.25 lakhs i.e. Rs.2,06250/-has to be kept reserved for final conclusion of trial. The balance is payable by the State. The due amount be paid to the petitioner within 8 weeks, failing which, the 6 of 7 ::: Downloaded on - 22-12-2019 04:54:53 ::: CWP No.21079 of 2016 7 amount in default will carry interest at the rate of 8% per annum till payment.
18.11.2019 (RAJIV NARAIN RAINA)
neenu JUDGE
Whether speaking/reasoned Yes.
Whether reportable- Yes
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