Calcutta High Court (Appellete Side)
Swapan Mandal vs The State Of West Bengal & Ors on 20 February, 2019
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IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
Appellate Side
W.P. No. 1196 (W) of 2019
Swapan Mandal
Vs.
The State of West Bengal & Ors.
For the Petitioner : Mr. Indrajit Roy Chowdhury
Mr. Jaydipata Mandal
For the Respondent No. 3. : Mr. Sandeep Prasad Shaw
For the Respondent No. 4. : Mr. Arindam Sen Hearing concluded on : February 20, 2019 Judgment on : February 20, 2019 DEBANGSU BASAK, J.:-
The father of the victim girl is before Court complaining that, State Legal Services Authority (S.L.S.A.) is yet to disburse compensation receivable by the victim girl in terms of the West Bengal Victim Compensation Scheme, 2017.
Learned Advocate appearing on behalf of the petitioner submits that, a criminal proceeding inter alia under various provisions of the 2 Protection of Children from Sexual Offences Act, 2002 was registered. Such proceeding is pending. The petitioner as the father of the victim girl applied before the District Legal Services Authority (D.L.S.A.) for compensation under the Scheme of 2017. D.L.S.A. recommended the grant of compensation. S.L.S.A. is not disbursing the compensation receivable by the victim girl in terms of the Scheme of 2017.
Learned Advocate appearing on behalf of the petitioner relies upon 2018 (2) CHN (CAL) 607 (Piyali Dutta vs. The State of West Bengal & Ors.) and submits that, the Scheme of 2017 was considered therein. The Court directed compensation to be paid. He submits that, Piyali Dutta (supra) was subsequently followed in 2018 (3) Crime 466 (CAL) (Serina Mondal alias Piyada vs. The State of West Bengal & Ors.). He submits that, the petitioner should be granted relief as prayed for.
D.L.S.A. and S.L.S.A. are represented.
Learned Advocate appearing on behalf of the D.L.S.A. submits that, D.L.S.A. has recommended the grant of compensation under the Scheme of 2017 to the victim girl. It has transmitted such recommendation to the S.L.S.A. for their necessary action. 3
Learned Advocate appearing on behalf of the S.L.S.A. refers to Clauses 4 and 6 of the Scheme of 2017 and submits that, the victim girl does not qualify the eligibility criteria specified in Clause 4 of the Scheme of 2017 as the concerned Court before which the POCSO proceedings are pending is yet to make a recommendation for grant of compensation under the Scheme of 2017. Therefore, S.L.S.A. is hesitating in disbursing the compensation in favour of the victim girl. Moreover, the S.L.S.A. is following the directions contained in the judgement and order dated March 2, 2017 delivered by a Coordinate Bench in a Criminal Appeal being CRA 663 of 2016 (CRAN 4926 of 2016) (Bijoy @ Guddu Das vs. The State of West Bengal).
The Scheme of 2018 came up for consideration in Piyali Dutta (supra). There, the claim for compensation made by an acid attack victim was sought to be resisted on the ground that the event happened prior to the introduction of Section 357A of the Code of Criminal Procedure, 1973, into the statute book. The Court held that, such a person is entitled to a compensation under the Scheme of 2017.
Piyali Dutta (supra) was followed in the Seria Mondal alias Piyada (supra). There the findings of the S.L.S.A. that the victim did 4 not fulfill the eligibility requirement were not accepted. It is of the view that, compensation awarded under the Scheme of 2017 is a fundamental right of the victim under Article 21.
Bijoy @ Guddu Das (supra) is a decision on appeal from the judgment and order of Learned Additional District and Sessions Judge convicting the appellant for commission of offence punishable under Section 8 of the POCSO. It discusses the Scheme of 2017 and is of the view that a compensation may be awarded under the Scheme of 2017 by a recommendation made by the Special Court. It does not rule out grant of compensation made on an application made by the victim or by a person on whom the victim is dependent.
The Scheme of 2017 prescribes an eligibility criteria to receive compensation in Clause 4, which is as follows:-
"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,-
(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 cause substantial loss of income to his/her family making it 5 difficult to meet their both ends without any compensation."
The Scheme of 2017 is formulated under Section 357A of the Cr.P.C., 1973 for the benefit of a victim. It is victim centric. It tries to ameliorate the hardship of a victim. The eligibility criteria should be read in the context of the effort to ameliorate the suffering of a victim. Where in a given case, the authorities are satisfied that, a victim falls within the Scheme of 2017, then such authority should disburse the compensation under the Scheme of 2017 to such victim without awaiting a direction from the Court to do so. Clause 4 of the Scheme of 2017 has to be read in such context. Clause 4 essentially requires the identification of the victim for the grant of compensation. All other criteria prescribed in Clause 4 of the Scheme of 2017 are subservient to the identification of the victim. Once the victim is identified then it is the incumbent duty of the authority concerned to process the application for grant of compensation and award the same.
Clause 6 of the Scheme of 2017 provides the procedure for grant of compensation. Clause 6 of the Scheme of 2017 is as follows:-
"6. Procedure for grant of Compensation.- (1) Whenever a recommendation is made by the Court for compensation under 6 sub-section (2) of section 357A of the Act or an application is made by any victim or his/her dependent under sub-section (4) of section 357A of the Act to the State Legal Services Authority shall examine the case and shall verify the contents of the claim with regard to the loss or injury caused to the claimant and also may call for any other relevant information necessary for consideration of the claim from the concerned victim or his/her dependent. After verifying the claim and after due enquiry the State or District Legal Services Authority shall award compensation under sub-section (5) of section 357A of the Act."
The first Sub-Clause of Clause 6 of the Scheme of 2017 allows two entry points for the purpose of consideration of grant of compensation. One entry point is the recommendation made by the Court for compensation under Section 357A (2) of the Cr.P.C., 1973. The other is an application made by the victim or by a person on whom the victim is dependent. In the present case, the father as the natural guardian of the victim girl made the application for grant of compensation. Therefore, the victim girl is dependent upon the petitioner. The petitioner, therefore, is entitled to make the application for grant of compensation under the Clause 6 of the Scheme of 2017. The petitioner has done so. D.L.S.A. has considered such application and approved of the same. The victim is identified. The eligibility of Clause 4 of the Scheme of 2017 stands 7 satisfied. The requirement of an application under Clause 6 of the Scheme of 2017 also stands satisfied, in the facts of the present case. Therefore, there is no ground on which S.L.S.A. should await the order of the concerned Court before which the proceeding is pending for awarding the compensation. Clause 6 of the Scheme of 2017 allows one more avenue for making an application for grant of compensation other than an order of Court. Neither D.L.S.A. or S.L.S.A. should await a decision or a direction of the concerned Court to award compensation when in a given case, the victim is identified and an application is received by D.L.S.A. or S.L.S.A. either from the victim or a person on whom the victim is dependent for grant of compensation.
In such circumstances, the appropriate authority of S.L.S.A. is requested to release the compensation receivable by the petitioner, in accordance with law, as expeditiously as possible, and preferably within four week from the date of communication of this order.
W.P. 1196 (W) of 2019 is disposed of without any order as to costs.
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Urgent certified website copies of this judgment and order, if applied for, be made available to the parties upon compliance of the requisite formalities.
[DEBANGSU BASAK, J.] S.D.