PROJECT WORK OF

Law And Justice In A Globalizing World

TOPIC : How Justice to victims of various kinds of Crimes is

being imparted in India.

Submitted to- Submitted by-

Prof. Shalini Marwaha Kavita Thakur
Prof. Anil Thakur LLM ( 2nd sem)
Department of Laws, Roll no. 1242/18
Panjab university, Date of submission :
Chandigarh. April 22nd 2019
 ACKNOWLEDGEMENT

The invaluable guidance from Prof. Shalini Marwaha and Prof. Anil Thakur along with the perpetual
support and encouragement from my family and friends, have resulted in the culmination of this project
work.

The constant pat on the back has enabled me to succeed in my endeavor and I express my sincerest
gratitude to them for the same.

I am extremely thankful to one and all who shared their wisdom with me, helping me channelize my
energies in the right direction.

KAVITA THAKUR

Roll No. 1242/18

LLM (2018-2019)
 CONTENTS

1. Introduction……………………………………………………………………………1

2. Some indications of crimes statistics in india…………………..1-2

3. Constitutional provisions………………………………………………3-4

4. UN principles of justice to victims………………………………..4-5

5. Compensation………………………………………………………..5-18

6. Cases of compensation………………………………………….19-22

7. Recent Trends………………………………………………………….26

8. Conclusion……………………………………………………………27
INTRODUCTION

Access to justice is a fundamental human right, guaranteed under various international, regional and
national instruments.This goal is the other side of the criminal justice system’s spectrum because
every crime has simultaneously the offender and the victim. Balance of justice can ill-afford. The very
genesis of criminal lawis trace-able to a set of principles that primarily aimed at compensating the
victim.

Impact of Crime on Victims

The UN Declaration (UN General Assembly 1985) on victims describes victims thus: “Victims means
persons who, individually or collectively, have suffered harm, including physical or mental injury, emotional
suffering, economic loss or substantial impairment of their fundamental rights, through acts or omissions that are
in violation of criminal laws, including those proscribing abuse of power.” Crime affects the individual
victims and their families. Many crimes also cause significant financial loss to the victims. The impact of
crime on the victims and their families ranges from serious physical and psychological injuries to mild
disturbances. Overall, victims felt less safe than non-victims. For example, only a smaller proportion of
violent crime victims (37%) reported feeling very safe walking alone after dark than non-victims (46%).
Just less than one-fifth (18%) of women who had been victims of violence reported feeling very safe
walking alone after dark when compared to their male counterparts.

Kinds of Victims ;
The expression victim of crime has been defined in section 2(wa)of CRPC.
“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 expression “victim” includes his or
her guardian or legal heir.
Like any other developing country, in India too, the concept and canvas of victimization is far too wide.
Victims not only include victims of conventional crimes; they include victims of social oppression (the
so called untouchables who are victims of caste atrocities), victims of gender atrocities (crime against
women), victims of economic exploitation )bonded labour/child labour and other poverty striken
groups) victims of abuse of public power (detention of innocent people), victims of holociustis, victims
of terrorist acts, victims of violation of human rights/torture, arbitrary deprivation of liberty, deaths in
police custody, encounter deaths etc.) victims of socio-economic marginality, victims of environmental
offences, victims of consumer frauds, victims of organized /syndicated crimes and victims ofthe
activities oftransnational corporations.
 Extent of Crime
In most countries, officially reported crimes are only the tip of the iceberg as many crimes go unreported due
to a variety of factors. Crimes such as family violence are hardly reported, for obvious reasons. Even in the
case of crimes committed outside the home, offences relating to sexual assault or sexual harassment are also
grossly under reported. The recent UN sponsored International Crime Victimization Surveys (ICVS)
estimates showed that one in five of all adults will be victimized by a common crime each year, with some of
them re-victimized. Violence against women is more prevalent than against men. In 2019 crime index
of the world India stands at 63rd position with 42.72 ratings. 1
India is home to 11 recognised terrorists orgsanisations , including al-qaeda and isis offshoots.2

Some Indications of Crime Statistics in India

In 2016 The National Crime Bureau (NCRB)’ the ministry of home affairs came up with its
annual data on crimes in the country. The overall crime in the country has increased by 2.6 per
cent from 47,10676 cases in 2015 to 48,31,515 cognizable crimes in 2016.Crimes against women
and cyber crimes have increased by 6.3 per cent.3

Though no separate law for victims of crime has yet been enacted in India, the silver lining is that victim
justice has been rendered through affirmative action and orders of the apex court. Besides, many
national level Commissions and Committees have strongly advocated victims’ rights and reiterated
the need for

Grievances and Problems of Victims:

The grievances of victims can be summarized as follows:

1. Inadequacy of the law in allowing the victim to participate in the
prosecution in a criminal case instituted on a police report.
2. Failure on the part of the police and prosecution to keep the victims

1 www.doiserbia.nb.rs
2 http://www.unafei.or.jp
3 www.dailyo.in
 informed about progress of the case.
C. Inconvenience during interrogation by the police and lengthy court.

D. Lack of prompt medical assistance to the victim.

E. Lack of legal assistance to the victim.
F. Lack of protection when the victims are threatened by the offender.

G. Failure in restitution of victim.

Constitutional Law of India and Victims of Crime

The Indian Constitution has several provisions which endorse the principle of victim compensation.
The constellation of clauses dealing with Fundamental Rights (Part III) and Directive Principles of
State Policy (Part IV) laid the foundation for a new social order in which justice, social and economic,
would fl ower in the national life of the country (Article 38). Article 41, which has relevance to
victimology in a wider perspective, mandates, inter alia, that the state shall make eff ective provision
for “securing public assistance in cases of disable ment and in other cases of undeserved want”. Surely,
crime victims and other victimized people swim into the haven of Article 41.

Article 51-A makes it a fundamental duty of every citizen of India “to protect and improve the natural
environment … and to have compassion for living creatures” and “to develop humanism”. If
empathetically interpreted and imaginatively expanded, we fi nd here the constitutional beginnings of
victimology. 4

Further, the guarantee against unjustifi ed deprivation of life and liberty (Article 21) has in it elements
obligating the state to compensate victims of criminal violence

The core rights for victims of crime include:

4 Basu D.D(2003) Constitutional Law of India.

* The right to attend criminal justice proceedings;
* The right to apply for compensation;
* The right to be heard and participate in criminal justice proceedings;
* The right to be informed of proceedings and events in the criminal justice process, of legal rights
and remedies,and of available services;
* The right to protection from intimidation and harassment;
* The right to restitution from the offender;
* The right to prompt return of personal property seized as evidence;
* The right to a speedy trial; and
* The right to enforcement of these rights.

Establishment of the Indian Society of Victimology (ISV)

In August 1992, a forum was founded to discuss the problems of victims, to disseminate knowledge
and awareness of the plight of crime victims and to mobilize support for creating a new law for victims.
The name of the organization was the Indian Society of Victimology, and it was located in the University
of Madras. The ISV organized many seminars and symposia and biennial conferences in Chennai and other
capital cities on subjects of topical interest in the field of Victimology. The major contribution of the ISV to
the advancement of victimology in India was the organization of a workshop to draft a Victim Assistance
Bill. This occurred in September 1996 with the support of the National Law School of India University,
Bangalore under the leadership of Professor N.
R. Madhava Menon and the National Human Rights Commission (NHRC) under the Chairmanship of the
champion of human rights and victim justice, and former justice of the Indian Supreme Court, V. R. Krishna
Iyer. The draft bill on Victim Assistance (Indian Society of Victimology, 1996) prepared by the ISV was sent
to relevant Ministries, such as the Ministry of Law and Justice and the Ministry of Home Affairs and the
Law Commission of India, NHRC, to consider enacting a national law on victim compensation/assistance in
India. The UN Commission on Crime Prevention and Criminal Justice, Vienna also supported the initiative of
the ISV by writing to the Home and Law Ministries of the Government of India to encourage it to
consider enacting a victim law, treating the draft bill on Victim Assistance prepared by the ISV as a model.

Simultaneously, efforts were taken by the ISV to impress upon the State Government of Tamil Nadu the
advantages of creating a Victim Assistance Fund for the benefit of crime victims within the state of Tamil
Nadu. In consequence, the then Chief Minister of Tamil Nadu announced in the Legislative Assembly in
 April 1995 the introduction of a new scheme to provide monetary assistance to certain categories of victims
of violent crime and allocated ten million rupees as a first step for the scheme (Government of Tamil Nadu,
1995; Government of Tamil Nadu, 1997). Under the scheme, victims of homicide or their bereaved relatives,
victims of serious physical injuries including rape, and victims of grievous hurt were eligible for
monetaryassistance from the government, though it is not a right of the victim as it is not a law but only an
Executive order of the Government

UN Declaration of Principles of Justice for Victims of Crimes & Abuse of Power (1995)

Realizing the gravity of the problem the United Nations General Assembly in 1985
adopted a “Declaration of the Basic Principles of Justice for victims of crime and
abuse of power5. The declaration envisages the basic norms to be adhered to for the
recognition of victims’ right to information, treatment restitution and compensation.
The Declaration also suggested certain measures to help victims and repose
confidence in them. The united Nations General Assembly approved some rights
such as :
(A) Right to protection from criminal activities through police and the law 6.
(B) Right to information from agencies of criminal justice system at every stage 7.
(C) Right to assistance at every stage, such assistance include medical, financial
and legal aid;
(D) Right to courteous and human treatment.
(E) Right to restitution from offenders 8.
(F) Right to compensation from state. 9
(G) Right to intervene at any stage through counsel including the right to seek
Review and appeal

World Society of Victimology : It was Organised by the Israel Drapkin in Israel 1973. The purpose of

5 . Lycia Zetners: Victims in “Mike Maurie” The Oxford Handbook of Criminology, (Oxford,
1994)-1207
6 Principle 4
7 Principle 5

8 Principle 8
9 Principle 12 and 13
the WSV are;
(A) to promote research on victims and victim assistance,(B) advocacy of their
interests throughout the world.(C) to encourage inter disciplinary and comparative
research in Victimology. (D) to advance the cooperation of international, regional
and local agencies, groups and individuals concerned with problems of victims.

“The European Convention on the Compensation of victims of violent crime and

guidelines in 1983. The convention deals with compensation for the victims and
guidelines deal with the treatment of victims by State agents such as the police and
courts, and the assistance which victims need State compensation is also covered in
the UN declaration, paragraphs 12-13: when compensation is not fully available
from the offender or other sources, state 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 crime.
(B) The family, particularly dependents of persons who have died or become
physically or mentally incapacitates as a result of such victimization.The establishments strengthening
and expansion of national funds for compensation
to victims of crime should be encouraged. The Fund will be administered by a
Board, which shall be of non-political composition, comprising members of
Judiciary, Social organizations, lawyers etc.

COMPENSATION TO VICTIMS OF CRIME

An ideal administration of Criminal Justice provides compensation to

victims of crime along with punishing the offender compensation denotes
reparation, restitution and damages, with slightly different shades of meaning to
denote indemnification of a victim against loss. The victim compensation scheme
in India is inefficient and inadequate. By way of amendment in Criminal Procedure
Code, 1973 right can be conferred on the victim for participation, restitution,
compensation and association of the victim of crime in the administration of the
criminal justice system which is a novel idea and if successfully meted out it shall
retains the equity between the injured and the injurer. Victims ego gets satisfied and
he feels a sense of belongingness and security in the society. It requires just not
only punishment to the accused but caring for the victim and protection of his rights
and supporting him in time of distress.

Meaning of compensation: “The term ‘Compensation” means amends

for the loss sustained” As commonly understood, it carries, with it the idea of
making whole, or giving an equivalent or substituting material payment, but imports
a recompense, or equivalent to one party and has no relation to any advantage to the
other.
In the sense of an act,, the word means “an act which a court orders to be done, or
money which a court orders to be paid by a person whose acts or omissions have
caused loss or injury to another, in order that thereby the person damnified may
receive equal value for his loss”.

The State has a humanitarian responsibility to assist crime victims. The aid is given
because of social conscience as a symbolic act of mercy, charity and compassion
but not as part of any legal obligation i.e. victims have no right to compensation as
such. The Government is responsible for the protection of its citizens because it
monopolies or reserves for itself, the right to use force to suppress crime and punish
offenders. Within the social contract that has developed between the State and its
citizens , victims can hold the State liable for damages when it fails to fulfill its
obligations to them.

Historical Development of Compensation Law:

In primitive societies the responsibility of protecting oneself against crimes and of

punishing the offenders rested with the individuals which reflect the idea of private
vengeance. Under this system compensation had to be paid by the wrongdoer to the
injured persons. As societies got organized in form of state the responsibility of
punishing the violators of Criminal Law shifted from the hands of private
individuals to the hands of political authority. The principle however continued
where the compensation is being paid by the wrong doer to the victim or his family
members.

At the end of medieval ages however the idea of crime as an act against the State
took it shape. In such a situation the State was considered to be the proper authority
to punish the offender; the victim of crime however became an irrelevant factor.
In the 19th century however the concept of compensation to the victims of crime
was sought to be revived by eminent criminologists like Earofalo and Ferri in Italy
and Bentham in England. Under the influence of these theories a system of
compensation was evolved whereby the victim had to be compensated out of the
fines imposed on the offender, the states also had accepted the responsibility of
paying compensation in varying degrees. Thus, in 1926 Sweden introduced a
system in which victims were paid compensation out of the fines imposed on the
developed at the National level by the Municipal Laws.

Eligibility for Compensation:

(A) : Ideally, all victims of all crimes should be entitled to get compensation.
However, this can be accomplished only in a phased manner over a period of years
depending on the resources of the State.

(B) : A victim should be eligible for compensation whether the offender is

convicted or not or whether the offender is not responsible for the offence because
of infancy, insanity, etc.

Compensation may be withheld or reduced if the victim himself has a criminal

record or he is injured because of his own conduct (excepting when it occurred
whilst helping a police officer or apprehending an offender). Or he failed in his
duty to inform the police Without delay, or refused to co-operative in the
investigation and prosecution of the crime

The Compensation Act should provide for a standard amount for listed injuries.
Depending on the nature of the injury, the award may be determined within the
minimum and maximum levels prescribed.
Apart from the standard tariff, victims can get additional amounts of compensation
for loss of earnings and for special expenses in connection with specialized medical
treatment. At present the Motor Accident Tribunals have adopted various methods
for computing the loss of future earnings and, in fatal injuries, loss of dependence.

Usually the method recommended is simple multiplication of annual loss of

earnings by the remaining years of the victim’s work-life expectancy. In case of
death, the deceased’s personal expenses are deducted from the amount of annual
loss of earnings before multiplication is done to determine the value for dependency
loss.

Assistance to Victims

Doubtless, the abrupt removal of the family member from the scene leaves a
void and a trail of misery. While social and physiological trauma in the bereaved
family would be there in all the cases of homicide, economic difficulties may vary,
depending upon the sex, age, education and occupation of the deceased

the below collection of data: Response of the next-of-kin to the question “Did the victim’s
family faced hardship?” (percentages).

Yes NO Total (N-)

Bangalore 97 58 2 100
Delhi’ 74 58 26 100
Table brings out the response of the next kin to the question, “Did the victim’s
family face hardship ? ” Many of the next of kin have not expressed their opinion
on the subject. Besides, inter-city differences are clear. In Bangalore 97% of the
respondents as against 74 per cent in Delhi report that bereaved family is facing
economic loss, as well.
Victim Compensation Fund proposed Paradigm

There are many ways in which the Victim Compensation Fund can be generated by
Central and State Governments. They include:

(i) Initial grants by State and/or Central Governments.

(ii) : Court fees collected in full or part which exceeds Rs.100 Crores for the
whole country every year.

STATUTORY MECHANISM FOR AWARD OF COMPENSATION

TO THE VICTIMS OF CRIMES IN INDIA

A. UNDER THE CRIMINAL PROCEDURE CODE, 1973 (2 OF 1974)

 B. SECTION 5 OF PROBATION OF OFFENDERS ACT, 1958.

C. SECTION 15-A OF POLICE ACT, 1861.

D. UNDER THE MOTOR VEHICLE ACT, 1988

E. THE SCHEDULED CASTES & SCHEDULED TRIBES (PREVENTION OF

ATROCITIES) ACT, 1989.

F. SCHEME OF COMPENSATION TO THE VICTIMS OF VIOLENCE BY

LEFT WING EXTREMISTS

G. PAYMENT OF COMPENSATION RECOMMENDED BY THE HON’BLE

SUPREME COURT IN RESPECT TO CONVICTS IN THE PRISONS.

H. SCHEME OF COMPENSATION TO THE VICTIMS OF COMMUNAL

VIOLENCE

I. AWARD OF COMPENSATION UNDER OTHER ACTS.

A).UNDER THE CRIMINAL PROCEDURE CODE, 1973 (2 OF 1974)

Legal framework under code of Criminal Procedure, 1973

There are certain provisions for the payment of compensation to the Victims of
crime under Criminal Procedure Code and other Legislations which are given as
under:-
(i) Section 357 of Cr.P.C.
(ii) Section 358 of Cr.P.C.

(i). A. Section-357: Order to pay compensation:

The legislative measure on the subject is scattered and not properly streamlined. The Criminal
Procedure Code, 1973, the Fatal Accidents Act, 1835, the Motor Vehicles Act, 1988 and Probation of
Offenders Act, 1958 contain some provisions about victim compensation. Under Section 357(1)(b) of the
Criminal Procedure Code, 1973, when a court imposes a sentence of fine or a sentence (including a
sentence of death) of which fine forms a part, the court may, when passing judgment, order the whole or
any part of the fine recovered to be applied in the payment to any person of compensation for any loss or
injury caused by the offence, when compensation is, in the opinion of the court, recoverable by such
person in civil court.96 Compensation not exceeding one hundred rupees may also be awarded against any
person for getting another person groundlessly arrested by the police_ (Section 358)

The Supreme Court in Palaniappa Gounder case adopted a restric. tive approach about award of
compensation by observing, "Though there is power to combine a sentence of death with a sentence of fine
that power is sparingly exercised because the sentence of death is an extreme penalty to impose and adding
to that grave penalty a sentence of fine is hardly calculated to serve any social purpose. Reducing the
amount of fine (Rs 20,000) fixed by the High Court calculated on the basis of loss to dependents to Rs
3500, the Court viewed that more relevant factors to be considered were whether sentence of fine is called
for particularly when death penalty or life imprisonment is imposed; what was the motive for crime; and
pecuniary gain from the crime rather than mere loss to defendants. In Sarwan Singh the Court reiterated,
“In awarding compensation it is necessary for the Court to decide whether the case is a fit one in which
compensation has to be awarded. If it is found that compensation should be paid, then the capacity of the
accused to pay a compensation has to be determined. In directing compensation, the object is to collect the
fine and pay it to the person who has suffered the loss. The purpose will not be served if the accused is not
able to pay the fine or compensation for, imposing a default sentence for non-payment of fine would not
achieve the object. If the accused is in a position to pay the compensation to the injured or his dependents
to which they are entitled to, there could be no reason for the Court not directing such a compensation”

The widow of the deceased person in this mu rder case was awarded e compensation of Rs 3500 to be paid
by the convict. In Mangilal the High Court’s award of compensation to be contributed by each of seven
convicts at the rate of Rs 30,000 was [on nd objectionable by the Supreme Court in the absence of
imposition of fine by the trial court and absence of hearing on the point at the High Court.” It is submitted,
the CrPC provisions on compensation have severe limitations because of the archaic quantum of fine
prescribed under the Indian Penal Code and the very rare invoking of the provision due to discretion
conferred upon the courts. The judicial approach in earlier cases was more influenced by factors related to
the accused rather than factors focusing on the victim. This had adverse impact upon the growth of law
towards proper direction. In Hari Kishan, while rewarding a compensation of Rs 50,000 to the victim of
grievous hurt, the Supreme Court observed about Section 357, “It is an important provision but Courts
have-seldom invoked it. Perhaps ’due to ignorance of the object of it... It may be noted that this power of
Courts to award compensation is not ancillary to other sentences but it is in addition thereto. 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, at constructive approach to crimes. It is indeed a step forward in our
criminal justice system. We, therefore, recommend to all Courts to exercise this powar liberally so as to
meet the ends of justice in a better way.”
There is the need to' develop the compensation law under CrPC in the light of similar observation made
by AS. Anand in D.K Basu to the effect that,
“The Courts have the obligation to satisfy the social aspirations of the citizens because the Courts and the
law are for the people and expected to respond to their aspirations. A court of law cannot close its
consciousness and aliveness to stark realities. Mere punishment of the offender cannot give much solace to
the family of « the victim-civil action for damages is a long drawn and a cumbersome judicia} process.
Monetary compensétion for redressal by the Court finding the infringement of the indefeasible right to life
of the citizen is, therefore, useful and at time perhaps the only effective remedy to apply balm to the
wounds of the family members of the deceased victim , who may have been the bread winner of the
family”

UNDER THE PROBATION OF OFFENDERS ACT, 1958

STATUTORY PROVISIONS FOR COMPENSATION

(i) The probation of offenders Act 1968 has provided for compensation to the
victims of crime in case of release of the accused on probation.
Section 5(1) of the Probation of Offenders Act 1968 provides for payment of
compensation and cost. It reads:
The court directing the release of an offender under Section 3 or Section 4 may if it
thinks, make at the same time a further order directing him to pay:
(a) Such compensation as the court thinks reasonable for loss or injury caused
to any person by the commission of the offence and
(b) such costs of the proceedings as the court thinks reasonable.
 According to Section 5 of Probation of Offenders Act, 1958, a court directing the
release of an offender under Section 3 or under Section 4 of the Act may, if it
thinks fit, make, at the same time, a further order directing him to pay such
compensation as the court thinks reasonable for the loss or injury caused to any
person due to the commission of the offence by him.lt may also be seen that the
issue of compensation under the provisions of the Cr.P.C., 1973 and the Probation
of Offenders Act is directly linked with the conviction of the offender. Hence, it is
the trial court, as a legal machinery, which has to look into this aspect while
awarding sentence at the conclusion of the criminal trial.

LEGAL PROVISIONS FOR COMPENSATION UNDER THE POLICE ACT, 1861.

Section 15-A. Awarding Compensation to Sufferers from Misconduct of

Inhabitants or Persons Interested in Land— (1) if, in any area in regard to
which any proclamation notified under the last preceding section (Section 15 of the
Act) is in force, death or grievous hurt or loss of, or damage to, property has been
caused by or has ensued from the misconduct of the inhabitants of such area of any
class or section of them it shall be lawful for any person, being an inhabitant of
such area, who claims to have suffered injury from such misconduct to make,
within one month from the date of the injury or such shorter period as may be
prescribed, an application for compensation to the Magistrate of the district or of
the sub-division of a district within which such area is situated 10.

(D) LEGAL PROVISIONS FOR COMPENSATION UNDER MOTOR

VEHICLE ACT, 1988
While trying criminal cases under Sections 304 A, 279, 336, 337 and 338 of IPC
for criminal rashness and negligence, the judges implemented the provisions of
Section 357(i), Cr.P.C. under which small amounts were imposed as fine with the
result that a still smaller amount was available to the victims, if the fine was paid
or recovered. Hence to deal with disputes regarding compensation effectively and

10 Girdhari Lai vs State of Punjab, AIR 1982 SC 1229

speedily under the Motor Vehicle Act, Sections 165 of the Motor Vehicle Act
(M.V. Act), 1988,according to which, the State Governments may constitute one
or more Motor Accidents Claims Tribunals for the purpose of adjudication in
respect of claims arising out of accidents involving death of, or bodily injury.
The filling period of limitation specified in the old 1939 M.V.Act ( six months
from the date of accident) has been abolished and the claim has to be presented
along with all documentary evidence, such as police panchanama report, doctor’s
report or post-mortem report, etc. The Tribunal, after the hearings, hold an enquiry
and makes an award, determining the quantum of compensation, specifying the
person/persons to whom it should be paid and the amount to be paid by the insurer,
owner and driver, jointly or severally. There is provision of appeal to the High
Court within 90 days from the date of award provided the claim exceeds Rs.
10,000/-.
In case of default of payment of the amount so awarded, the Claims Tribunal may,
on application from the person entitled to the money, issue a certificate for the
amount to the Collector for recovery.
Section 92-A of M.V.Act 1939 (New Section 140 under the Motor Vehicle Act,
1988) is intended to provide social justice by giving compensation without proof
of fault or negligence by the driver or owner of the vehicle and as such, it is
manifest that the question as to whether the cause of action arose prior to its
coming into force or not becomes irrelevant for the material consideration for the
purpose of awarding compensation under the said provision of law irrespective of
whether the case giving rise to that liability is still pending.
The benefit of this section is to be extended to all cases arising out of the motor
vehicle accidents which are pending disposal even if the cause of action,i.e., the
accident occurred prior to the coming into force of the said provision of law.

Section 140 of the M.V. Act, 1988, makes a provision that where the death or
permanent disablement of any person results out of an accident, the owner of the
vehicle shall be liable to pay compensation in respect of such death or disablement.
Our discussions with the Registrars for Claims Tribunals in the centres covered
indicate that it takes about 4 to 3 years for the cases to be disposed of, because
of practical problems like non-availability of the owner’s name and address, the
owner not being traced, the name of the insurance company not known, etc. Even
after the claim has been disposed of by the Tribunal and compensation awarded,
the claimant does not get the amount immediately. This is because the insurance
companies normally deposit the amount with the Tribunal immediately, but the
owners/drivers do not do it promptly. In such cases the recovery is through the
District Collector, who in turn, entrusts it to the concerned tehsildars/circle
Inspectors. As the Collector has to attend to whole lot recoveries cases with respect
to Income Tax, Sales Tax, etc., there is always an element of delay
As per Chapter VII-A introduced through the M.V. (Amendment) Act, 1982, which
corresponds to chapter X of the M.V.Act, 1988 where the death or permanent
disablement has been caused due to a motor accident, the owner of the vehicle is
liable to pay compensation, the amount being Rs. 50,000/- in case of death and Rs.
25000/- for permanent disablement. The claimant is not required to plead or
establish wrongful act, neglect or default on the part of the owner of the vehicle.
The claim has to be made on the police enquiry report, hospital report, etc. This
does not set aside the claimant’s right to claim compensation under other
provisions of the M.V. Act or any other law in force. The amended Act provides
for expeditious disposal of these cases. These provisions have been introduced as a
social welfare measure.
Here again, our discussions indicate that the evidence is, at times, manipulated.
Undue delay may also be involved because of disputes regarding identity of the
legal heirs of the deceased or the extent of disfiguration of face or head. In such
cases of dispute the amount is deposited with the Claims Tribunal pending
settlement.

SOLATIUM FOR HIT AND RUN CASES UNDER THE MOTOR

VEHICLE ACT

The Solatium Fund was constituted from out of:-

(a) Contributions from insurance companies, the quantum to be decided by the
Government of India from time to time,
(b) Such sums as the Central Government may provide from time to time,
(c) Such sums as the State Governments may contribute from time to time,
(a) Such other sums as may be received, such as refund, gift, donation,etc.
The compensation was payable, subject to availability of funds and is recoverable
from any compensation the victim or the dependents as the case may be, got from
other claims.
It is pertinent to note that the above scheme has been replaced by a new scheme for
the Hit and Run cases according to the new provisions contained in sections 161 to
163 of the M.V.Act,1988 compensation to be paid in hit and run cases in case of
death is rupees twenty five thousands and in case of grievous hurt rupees twelve
thousands and five hundreds to be payable by the General Insurance Corporation
of India under the scheme of the M.V.Act, 1988.

SCHEDULED CASTES AND SCHEDULED TRIBES (PREVENTION

OF ATROCITIES) ACT, 1989

Section 23 (1) of the Scheduled Castes and Scheduled Tribes (Prevention of

Atrocities) Act, 1989 empowered the Central Government to make rules by
notification in the official Gazette for carrying out the purpose of this Act.
In exercise of powers conferred by the Section 23 (1) of this Act, the Government
of India has framed the SC & ST (Prevention of Atrocities) Rules, 1995 which
were notified on 31 st March, 1995.
(i) Rule 12 (4) of these notified rules provides scales for the monetary relief to the
victims of crime in a Schedule appended to these rules. Details of the norms as
indicated in the Schedule for providing relief to the victims of crimes are given as
under:-

1. Section 3(1) (i)forces a member of Scheduled Rs. 25,000/-.

Caste or a Scheduled Tribe to drink or eat any
inedible or obnoxious substance;
2. Section 3(1) (ii) acts with intent to cause injury,
insult or annoyance to any member of a
Scheduled Caste or a Scheduled Tribe by Rs 25,000/-
dumping excreta, waste matter, carcasses or any
other obnoxious substance in his premises or
neighbourhood;
3. Section 3(1) (iii) forcibly removes clothes from
the person of a member of a Scheduled Caste or RS 25,000/-
a Scheduled Tribe or parades him naked or with
painted face or body or commits any similar act
which is derogatory to human dignity;

4. Section 3(1) (iv) wrongfully occupies or

cultivates any land owned by, or allotted to, or 25,000
notified by any competent authority to be
allotted to, a member of a Scheduled Caste or a
Scheduled Tribe or gets the land allotted to him
transferred;
6. Section 3(1) (vi) compels’ or entices a member
of a Scheduled Caste or a Scheduled Tribe to do
‘begar’ or other similar forms of forced or Rs 25,000
bonded labour other than any compulsory
service for public purposes imposed by
Rs. 25,000/-.
7. . Section 3(1) (xi) assaults or uses force to any
woman belong to a Scheduled Caste or a Rs 50,000
Scheduled Tribe with intent to dishonour or
outrage her modesty
Rs. 50,000/-.
8. Section 3(1) (xiii) corrupts or fouls the water of Rs. 1,00,000/-.
any spring, reservoir or any other source
ordinarily used by members of the Scheduled
Caste or a Scheduled Tribe so as to render it less
fit for the purpose for which it is ordinarily
used;
9. Section 3(2) (i) gives or fabricates false evidence
intending thereby to cause, or knowing it to be
likely that he will thereby cause, any member of
a Scheduled Caste or a Scheduled Tribe to be
convicted of an offence which is capital by the
law for the time being in force shall be punished Rs 1,00,000/
with imprisonment for life and with fine; and if
an innocent member of a Scheduled Caste or a
Scheduled Tribe be convicted and executed in
consequence of such false or fabricated
evidence, the person who gives or fabricates
such false evidence,shall be punished with death;
10. Compensation to Physical as well as mental
Handicapped persons
(a) On 100% handicapped
→Non-earning member of the family
→Earning member of the family
(b) Less than 100% handicapped
→Non-earning member of the family Rs. 1,00,000/-
→Earning member of the family Rs.30,000/-
Murder /Death
i Non-earning member of the family Rs. 1,00,000/-
ii Earning member of the family Rs.2,00,000/-
Permanent disability due to Murder/Death/Mass
killing /Rape / Gang Rape/Dacoity.
To the Widow or any dependent Rs.1000/- Per Month or
employment for
one member of the
aggrieved family or
agricultural land
or a house, if
needed within 3
months of the
incidence..
(ii) Maintenance
and education of
the children of
victims of crime
(iii) Arrangements
of utensils, rice,
wheat, pulses etc.
within 3 months
of the incidence.

ii Earning member of the family Rs.2,00,000

The above referred schedule indicated that the monetary relief proposed to be
given to the victims of crime in one or two installments depending upon the nature
of offence. Generally 25% of the monetary relief is provided at the time of
submission of charge sheet and 75% at the time of conviction by the lower courts
but in case of heinous crimes like, murder, the victims are provided 75% monetary
relief after the post-mortem and 25% at the time of conviction by the lower court.
In case of assault on the woman with intention to dishonour or outrage her
modesty and exploit her sexually, 50% of the monetary relief is given at the time
of medical examination and the remaining 50% of the relief is given at the end of
trial irrespective of the outcome thereof.

SCHEME OF COMPENSATION TO THE VICTIMS OF VIOLENCE

BY LEFT WING EXTREMISTS
Ministry of Home Affairs has evolved a special scheme namely Security Related
Expenditure (SRE) to Naxal Affected States. To pay ex-gratia in the form of exgratia
to the victim of crime at the hands of Left wing Naxalism a s per the revised
scale laid down vide MHA’s Letter No.II-18015/4/03-IS.I1I dated 11th February,
2005 read with letter No II-18015/4/03-iS.III dated 3rd March, 2005.
The scale of ex-gratia payment provided therein is given below:-
(i) To the family of a civilian killed - 100% with a maximum ceiling of
Rs. 1 Lakh
(ii) To the family of a security personnel killed 100% with a maximum
-ceiling of Rs. 3 lakhs
It may be pertinent to mentioned here that a total of 76 Districts in the states of
Andhra Pradesh, Bihar, Jharkhand, Madhya Pradesh, Chhattisgarh, Maharashtra,
Orissa, Uttar Pradesh and West Bengal affected by Left Wing Extremism are
covered by this scheme.
PAYMENT OF COMPENSATION RECOMMENDED BY THE
HON’BLE SUPREME COURT IN RESPECT TO CONVICTS IN THE
PRISONS
It is a recent trend in the sentencing policy to look at the plight of the victims of
crime. Rehabilitation of the prisoners need not be done by overlooking the
suffering of both direct and indirect victims. It is a constructive thinking for the
State to make appropriate law for diverting some portion of the wages earned by
the prisoner from the vocational trades in prisons to be paid to deserving victims.
In the absence of any law to this effect, the court is restrained from issuing a
direction to set apart any portion of the prisoner’s earned waged for payment to the
victims. Hence, it is suggested that the State concerned may bring about a
legislation for that purpose.
The apex court, while revising the wage structure to be paid to the prisoners
involved in vocational trade in prisons, has recommended that the State concerned
should make a law for setting apart a portion of wages earned by the prisoners to
be paid as compensation to deserving victims .of crime.

SCHEME OF COMPENSATION TO THE VICTIMS OF COMMUNAL

VIOLENCE
The National Foundation for Communal Harmony, an autonomous organization
with the Ministry of Home Affairs, Government of India, New Delhi provides
assistance for the physical and psychological rehabilitation of child victims of
communal, castes, ethnic or terrorists violence in respect of their care, education
and training besides promoting communal harmony, fraternity and national
integration. Towards this, an amount of Rs. 13 crores has been provided by the
Government of India which constitutes the corpus of the foundation. A Group
Personal Accident Insurance is being run for child victims of communal and
terrorist violence for their rehabilitation. This scheme covers with following
benefits for child victims
SR.No. Event Compensation
Amount
(i) Death Rs. 25,000
(ii) Loss of 2 limbs or one limb and one eye Rs. 25,000
(iii) One hundred percent permanent
disablement other than those mentioned RS 25,000
above
(iv) Loss of one limb or one eye Rs. 12,500/-
(v) Reimbursement of medical expenses
'incurred by a child for treatment in a
hospital or nursing home and as an indoor Rs. 500/-
patient for an injury sustained in an accident
(based upon medical certificate from the
consulting doctor) Policy cover is effective for 24 hours.
In addition to it, the National Foundation for Communal Harmony also provide
financial assistance to the orphan or destitute children up to the age of 18 years
(extendable up to 21 years in certain cases) whose parents or their bread earner is
killed or permanently incapacitated due to communal, caste, ethnic or terrorists
violence. The scale of assistance is given as under:-
• General education : in class A & B cities
Rs. 650/- per month per child
In other places
Rs. 600/- per month per child
• Professional/vocational education:
Rs. 150/- per month per child in addition to assistance for general education.
Critical evaluation of the various statutory provisions prevailing in India for
payment of compensation or ex-gratia or relief amount to the victims of crime are
very limited in scope except the provisions falling under the Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities) Act, 1989 and the scheme introduced
by National Foundation for Communal Harmony for the Child Victim of
communal, castes, ethnic or terrorists violence. The procedure for the award and
receipt of compensation under the Cr.P.C. is quite cumbersome and is either
generally not availed of or is limited to very a small amount for the fine, which can
be imposed under Penal provisions. Therefore, we may conclude that the payment
of Compensation to the victim of crime in India is conspicuous by its absence for
n all practical purposes .

AWARD OF COMPENSATION UNDER OTHER ACTS

The Workmen’s Compensation Act 1923 prescribes a scale of compensation for
injury by accident.
Others are The Dangerous Machines (Regulation) Act 1983 and The Fatel
Accidents Act 1855, both provide for compensation to the victims.

Law Commission of India, 42nd Report:

The Law Commission felt it ‘unwise’ to create a legal right in favour of the victim
to join in the criminal proceedings as a third party to avoid mixing up of civil and
criminal proceedings, a confusion of issues and prolongation of the trial .
Similarly, it would not see any ‘great-advantage’ in providing for ‘duty to make
amend for the harm caused’ or ‘payment of compensation to the victims of the
offence’ as an additional punishment. Taking the view that an order requiring an
offender to pay a certain sums as compensation for Toss or injury caused’ and
payment of a specified part of the fine as a compensation do not differ materially
from each other, it favoured payment of compensation out of fine imposed on the
offender. Accordingly with a view to giving prominence in the Indian Penal Code
1861 (IPC) to the payment of compensation out of fine imposed and to give a
substantive power to the trial court to this effect, it recommended insertion of the
following substantive provision:

A) 62: Order to Pay Compensation out of fine to victim of offence:

Whenever a person is convicted of an offence punishable under Chapter XVI,
Chapter XVII or Chapter XXI of this code or of an abetment of such offence or of
a criminal conspiracy to commit such offence and is sentenced to fine, whether
with or without imprisonment , and the court is of opinion that compensation is
recoverable by civil suit by any person for loss or injury caused to him by that
offence, it shall be competent to the court to direct by the sentence that the whole
or any part of the fine realized from the offender shall be paid by way of
compensation to such person for the said loss or injury.
B) Explanation:- Expenses properly incurred by such person in the prosecution
of the case shall be deemed part of the loss caused to him by the offence.However,
Justice R.L. Narasimham, one of the members of the commission, in his separate
note, doubting efficacy of the compensatory scheme provided under Section 545 of
the (old) Criminal Procedure Code (Cr. P.C.) 1898 and Circuitous Procedure
involved in the realization fine and payment of compensation, strongly pleads for
direct reparation from the offender by imposing a duty on him to amend the harm
caused. Emphasizing on man’s responsibility for his own crime, ‘notwithstanding
any pessimism that may be entertained is some quarters’ he recommended direct
repairment of damages of offenders as an additional punishment. Accordingly the
recommended deletion of Selection 545 from the (old) Cr.P.C. and insertion of the
following clause in the I.P.C:

C) 70
(i) In the case of conviction for an offence against the human body, and offence
against property, defamation or an offence against privacy, the court may direct
that the person convicted shall pay compensation to the person mentioned in
Sub Section (4).
(ii) Such compensation need not be necessarily be monetary and it may be in any
forms which the court consider to be a sufficient recompense to the injured
party. But while passing the order for compensation, the court shall estimate
its monetary value for the purpose of execution of the order.

D) An order under Sub Section (1) may be made-

(a) in addition to any other punishment to which the person convicted may have
been sentenced;
(b) in substitution of fine, when the offence not being a capital offence, is
one punishable with fine.
(V) The compensation under this section may be directed to be paid-
(a) to any person who has incurred expenses in prosecution, for defraying
expense properly incurred.
(b) to any person for any loss or injury caused by the offence, when compensation
is, in the opinion of the court, recoverable by such person in a civil court;
(c) in the case of a conviction of any offence or having caused the death of
another person or of having abetted the commission of such person, to the
persons who are, under the Fatal Accidents Act, 1855, entitled to recover
damages to the person sentenced, for the loss resulting to them from such
death; or
(d) in the case of a conviction for any offence which includes theft , criminal
misappropriation, criminal breach of trust, or cheating, or of having
voluntarily assisted in disposing of, stolen property, knowing or having reason
 to believe the same to be stolen, to any bonafide purchaser of such property,
for the loss of the same, if such property is restored to the possession of the
person entitled thereto.

These two substantive provisions, in essence, reveal two-approaches for such

payment:
A) First approach pleads for compensation to be paid out of the fine imposed on
the accused for offences committed against the human body, property,
defamation or abetment of, or criminal conspiracy to commit these offences,
provided such compensation is recoverable by the victim for loss or injury
against the victim in a civil suit.
B) The second approach pleads for imposition of a Statutory duty on convicts to
amend or decompensate, monetarily or otherwise, the victims of crime, that
is to say this approach favours compensation to the victims as an additional
punishment to the accused. No doubt, this approach shows a good concern to
the victims and their proper rehabilitation but none of these find a place in
IPC.
IV. Payment of Compensation:
After analysis of Section 357 Cr.P.C. and Section 5 of Probation of Offender Act,
it becomes clear that in India, the whole scheme of providing compensation solely
depends upon the sweet will of the courts. These Statutory Provisions leave it
entirely to the discretion of the courts to exercise their power to order payment of
compensation.The court are neither under legal compulsion to award compensation
in suitable cases nor under legal obligation to record reasons for not granting the
compensation. Not only that, further the law governing recovery of compensation
again leaves it to the sweet will of the courts to initiate legal proceedings to
recover the amount of compensation and pay it to the victims.
On one side the provisions are inadequate and on the other side the courts show
reluctance. In India the courts have rarely resorted to these Statutory Provisions to
exercise their discretionary powers to compensate victims of crime.
In Hari Kishan & State of Haryana Vs Sukhbir Singh 11 honorable
Supreme Court of India, when called upon to decide legality and propriety of
compensation awarded under Section 357, Cr.P.C. by Punjab and Haryana High

11 AIR 1988 SC-2127 at 2137

 Court, appealed to all courts in India to exercise their powers liberally to meet the
ends of Justice in a better way. Referring to, and commenting on, sub-section 3 of
Section 357, the court observed:
“It is important provision but have seldom invoked it. Perhaps due to ignorance of
the object of it. It empowers the court to award compensation to victims while
passing judgement of conviction. 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 as reconciling the

victims with the offender. It is, to some extent, a constructive approach to crimes.
It is indeed a step forward in our criminal justice system.
It is true that criminal courts are busier now than they have ever been but the
victim should not be forgotten. Even though courts are busy, nevertheless, there is
clearly a vital necessity for a summary remedy to deal with cases where the victim
is in need. It is the bounden duty of the court to alleviate the sufferings of a victim
of crime or his dependants in a summary way. The Public Prosecutor should do
well to stress the need in suitable cases, by placing adequate material on record to
enable to the court to arrive at a legal conclusion in the matter of expenses and
compensation, taking advantage of the opportunity provided in the New Procedure
Code.(1973)

CASES WHERE COMPENSATION HAS BEEN AWARDED

However, of late, the courts have started granting monetary compensation to the
victims.
In Palaniappa Gounder Vs. State of Tamil Nadu 12the apex court
considered the applicability of Section 357 of the Code of Criminal Procedure. In
this case the accused were sentenced to death. On appeal filed by the accused
High Court reduced the death sentence to that of imprisonment for life. However,
while reducing the sentence High Court imposed a fine of Rs.20,000/- on the
accused and directed that out of the fine, if realized, a sum of Rs. 15,000/- should
be paid to the son and daughters of the deceased under Section 357(1) © of the
Code. This order came to be passed on an application filed by the son and
daughters of the deceased praying that the accused be asked to pay them, as heirs

12 AIR 1988 SC-2127 at 2137

 of the deceased, compensation of a sum of Rs.40,000/- for the death of their father.
Though the application filed was one under Section 482 of the Code this Court
said that it could be treated that one under Section 357 of the Code which
provisions specifically dealt with such a case. Though upholding the order of the
High Court in imposing fine and directing payment of compensation to heirs of the
deceased the Supreme Court reduced the sentence of fine to Rs. 15,000/- and
directed that the fine so recovered shall be paid to the heirs of the deceased. The
Court said that provisions of clause (a), (b) and (d) of Section 357 were
inapplicable and clause (c) of Section 357(1) was relevant. This court, however,
said that though it was legitimate to sentence the accused to fine as well “but
legitimacy is not to be confused with propriety and the fact that the Court
possesses a certain power does not mean that it must always exercise it”. It said
that the power to combine sentence of death with sentence of fine is sparingly
exercised because the sentence of death is an extreme penalty to impose and
adding to that grave penalty a sentence of fine is hardly calculated to serve any
social purpose. The approach of this Court in the present day context needs further
thought.

POWER TO AWARD COMPENSATION U.S.357(3)CrPC

In Balraj vs State of U.P.13 the Apex court has held that the power to grant
compensation to the victim is not ancilliary to other sentence but it is in addition
there-to.Wife of the deceased in this murder case was awarded Rs 10,000/-
.Similarly,in Mangi lal vs State of M.P16. the Supreme Court held in the same
terms and held that the basic difference between sub section (1) & (3) of section
357 Cr.P.C is that in the former imposition of fine is the basic and essential
requirement but in the latter even in the absence there of the court is empowered to
direct payment of compensation. Such power is exercisable by the appellate as
well as revision courts but only after affording the accused an opportunity of being
heard.

COMPENSATION FOR DEATH IN JAIL

13AIR 2004 SC 1280.

 C. Ramakonda Reddy Vs State14
Andhra Pradesh High Court awarded Rs. 1,44,000/- as damages against the State
Government for the death of a person in Judicial custody speaking for the Bench ,
Justice Jeevan Reddy said:
“We are perfectly aware that the Principle adumbrated herein open up a new vista
for individual claims for damages against the state. It may add to the present day
difficult financial position of the State. But we are of the opinion that such a
remedy is not only statutory but essential for good government and for ensuring
Rule of Law”.

COMPENSATION FOR ILLEGAL DETENTION

In Bhim Singh Vs State of Jammu and Kashmir15 the petitioner, an M.L.A. of

J&K Assembly was wrongfully detained by the police while he was going to
attend the Assembly session.
He was not produced before the Magistrate within requisite period. As a
consequence of this the member was deprived of his constitutional right to attend
the Assembly session. There was also violation of fundamental right to personal
liberty guaranteed under Article 21 of the Constitution. By the time the petition
was decided by the Supreme Court Bhim Singh had been released, but by way of
consequential relief exemplary damages amounting to Rs. 50,000/- were awarded
to him.
In Rudul Sah Vs State of Bihar16 the petitioner was acquitted by the Court in
1968 but was released from the jail in 1982, i.e. 14 years thereafter. The State
tried to justify the detention by pleading that the detention was for the medical
treatment of the petitioner for his mental imbalance. The plea was rejected. As an
ancillary relief, in a writ of habeas corpus by petitioner, a sum of Rs.35000/- was
granted as compensation as an interim measure by the Supreme Court, without
precluding the petitioner from claiming further compensation.
In Sabastian M. Hongray Vs. Union of India 17 two persons, who were detained

14 AIR 1989 A.P. 235

15 AIR 1986 SC 494

16 AIR 1983 SC 1086
17 AIR 1984 SC 1026
by the Army authorities could not be produced in the Court and were stated to be
missing. There was a possibility of their having been killed in detention. The
Supreme Court ordered that the wives of the two missing persons, who had passed
through the torture, agony and mental oppression, be paid Rs. 1,00,000/- each as
exemplary damages.

PUBLIC INTEREST LITIGATION AND COMPENSATION

In M.C.Mehta Vs Union of India28(Oleum Leakage Case) the Supreme Court
was dealing with claims arising from the leakage of oleum gas on 4th and 6th
December, 1985 from one of the units of Shriram Foods and Fertilizers Industries
in a city of Delhi,belonging to Delhi Cloth Mills Ltd; As a consequence of this
leakage, it was alleged that one advocate practicing in the Tis Hazari Court had
died and several others were affected by the same. The action was brought
through a writ petition under Article 32 of the Constitution by way of public
interest litigation. The Supreme Court took a bold decision holding that it was not
bound to follow the 19th century rule of English law, and it could evolve a rule
suitable to the social and economic conditions prevailing in India at the present
day. It evolve the rule of ‘Absolute Liability’ as part of Indian Law in preference
to the rule of Strict Liability laid down in Rylands v. Fletcher29. It expressly
declared that the new rule was not subject to any of the exceptions under the rule
in Rylands v. Fletcher.
After laying down the above mentioned rule the Court decided that the
organizations who had filed the petition may file actions in appropriate Court
within a period of 2 months to claim compensation on behalf of the victims of the
gas leak.
In all the cases, compensation awarded, ran from Rs. 15,000/- to Rs. 1,00,000/- or
so on.

CRIMINAL NEGLIGENCE AND COMPENSATION

A The long awaited Uphaar Cinema Case Delhi High Court has set a still
benchmark for setting civil disputes caused by criminals neglect Six year ago 59
persons were killed in a fire in Uphaar cinema in Delhi. The owners were accused
of violating most of the safety rules. To ensure that the powerful owners, the
Ansals, were brought to justice, the families of the victims formed the Association
 of Victims of Uphaar Tragedy. The coming together of the families was the key to
the successful handling of the suit for civil damages. The nearly Rs.21 crore
compensation package reflects efficiency of the association’s lawyers and the
sensitivity of the judiciary in deciding the quantum of compensation for the
families of the victims. The message for victims of similar tragedies is very clear.

Nilabati Behera v. State of Orissa18, is another valuable authority , where the

Constitution empowers the Supreme Court to enforce rights guaranteed under it.
In this case the Supreme Court awarded damages against the State to the mother of
a young man beaten to death in police custody. The Court held that its powers of
enforcement imposed a duty to “forge new tools”, of which compensation was an
appropriate one where that was the only mode of redress available. This was not a
remedy in tort, but one in public law based on strict liability for the contravention
of fundamental rights to which the principle of sovereign immunity does not apply.
The old doctrine of only relegating the aggrieved to the remedies available in civil
law limits the role of the courts too much as protector and guarantor of the
indefeasible rights of the citizens. The courts have the obligation to satisfy the
social aspirations of the citizens because the courts and the law are for the people
and are expected to respond to their aspirations. The purpose of public law is not
only to civilize public power but alto to assure the citizen that they live under a
legal system which aims to protect their interests and preserve their rights.

RESTITUTIVE JUSTICE TO VICTIMS

Restitutive justice should be principle objective of the criminal law, requiring the offender to repay the
victim from his own resources or from wages to be earned by the offender in the prison. Restitution is
viewed as the best way to the offender to realize the harm he has done and to accept genuinely his
responsibility by repairing it, while also offering greater promises of rehabilitation than fine or
imprisonment. For offenders , who can safely be released, a restitutive theory offers an alternative to
imprisonment by providing emotional and economical satisfaction to the victims, vicarious satisfaction
to the family and friends and some degree of deterrence to the offender1 2.The Rehabilitative value of
restitution is recognized by the judges who impose restitution because of its impact on the offender

18 AIR 1993 (2) SCC 746

 and its promotion on correctional aims by legislature that authorize restitution as a criminal sanction;
and by community service programmes that use restitution as a rehabilitative tool. I. Restitution:
Restitution can be defined as a sanction imposed by the court on a person convicted of a crime which
requires the convicted person to make a monetary payment to the victims or some times, to donate his
labour for the benefit ofthe community. The word reparation, restitution and compensation is often
used by writers interchangeably, in criminal victim relationship, though they represent different view
points. All ofthem allude procedures for restoring victims to his pre crime conditions. Reparation is
obtained from the offender by the victims of crime Restitution is concerned with the reparation of the
victims 1 Bharat Bhushan Dass-Restitutive justice 2 New York State compensation Board . The victim
and criminal justice system-A report to the government and the legislature on the State of Rights, Needs
and interest of crime; 53 (1982) PP 14-15 95 loss or better restoration of his position and the rights that
are damaged or destroyed by the offender . It is an indication ofresponsibility ofthe offender .It is penal
in character and thus represent a correctional goal in criminal case. Compensation is concerned with
the counter balancing of the victims loss that result from criminal act. It means making amend the harm
caused to the victim . It indicates the responsibility ofthe State and claims State responsibility.
Restitution serves the retributive goals of punishment. It is constructed to fit the crime and to emphasize
the wrongfulness of the offence and defendant’s moral responsibility . In practice as well as in theory,
restitution orders unlike damage awards are specifically geared towards achieving the objectives of the
Criminal Justice System. When determining the amount specified in a restitution order, most court
consider not only the amount of the victim loss, but also the rehabilitative, deterrent and retributive
effects ofthe order.

VICTIMS OF RAPE
In the case of Chairman Railway Board vs.Chandrimadass19 where rape was
committed on a Bangladeshi woman by Railway employees in a building
belonging to the railways it was held that a writ petition filed by the vicim against
the government for compensation would be maintainable. Where public
functionaries are involved and the matter relates to violation of fundamental rights
in enforcement of public duties,remedy shall still be available under the public law
notwithstanding that a suit can be filed for damages in the civil court.

19 AIR 2000 SC 988.

 POLICE ENCOUNTER
In Malkiat singh vs.State of U.P. state was directed to pay a sum of Rs five lacs
to the petitioner in a habeas corpus petition whose son was killed in a police
encounter.

CURRENT SITUATION OF VICTIMS OF CRIME AT EACH STAGE OF THE

CRIMINAL JUSTICE PROCESS IN INDIA IN COMPARISON TO INTERNATIONL
STANDARDS

The Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (UN General
Assembly, 1985), considered the ‘magna carta ’ for victims, provides the basic framework of
principles which in the last two decades have been vociferously debated and converted as victims’ rights
by some of the developed countries. The international standards expected of the countries in the treatment of
victims by the CJS agencies at different stages of the criminal process have been elaborately detailed in the
UN Handbook on Justice for Victims20. The police play a pivotal role in victim assistance as it is the first
agency victims come into contact with after being victimized by a crime. The attitude of the victims towards
the entire CJS will be based on the kind of treatment the victims get from the police whom they first encounter.
Unfortunately, in India the police are still not oriented to meet the expectations of the victims as per the UN
Handbook on Justice for Victims. The police at the field level who are in actual contact with the victims in
day–to-day crime situations are blissfully ignorant of the international developments in the field of
Victimology and the better treatment victims deserve from the police. The treatment of victims by the
police also forms the basis for a negative perception of the CJS, more particularly, the police, because the
“treatment with compassion and respect for their dignity”, emphasized by the UN Declaration, is missing
completely. Because of the police behaviour and their attitude in general, the legal community opposes any
criminal law reforms which bestow trust on the police and enhance their powers. Even today, Section 25 of
the Indian Evidence Act, “No confession made to a police officer shall be proved as against a person
accused of any offence”, remains in force. But the Government and the Police Academies pursue a policy
of sensitizing the police to a better treatment of victims. The Handbook says that “victims have a valid
interest in the prosecution of the case and should be involved at all stages of the proceedings”. In practice,
the entire court proceedings protect the rights and interest of the accused, neglecting the victims’ interest.
Excepting that the victims are summoned to tender evidence in courts, the various services and assistance to
be rendered by the prosecution to victims are not practiced in the criminal courts in India. In a nutshell,

20 (United Nations Office for Drugs and Crimes, 1999, chapter III, pp.56-76).
 victims are alien to the criminal proceedings as they have no rights excepting to be a witness when summoned
by the court. With regard to the role of the judiciary in justice for victims, though judges are by and large
sympathetic towards victims, on many of the requirements, such as separate waiting halls, information about
the criminal proceedings,special services and support, ordering of restitution to victims, victim participation,
victim protection etc. we have a long way to go to realize victim justice in India.

Justice for Rape Victims - Guidelines for Victim Assistance

In Bodhisattwa Gautam vs. Subhra Chakraborty21 (AIR 1996 SC 922), the Supreme Court held that
if the court trying an offence of rape has jurisdiction to award compensation at the final stage, the Court also
has the right to award interim compensation. The court, having satisfied the prima facie culpability of the
accused, ordered him to pay a sum of Rs.1000 every month to the victim as interim compensation along with
arrears of compensation from the date of the complaint. It is a landmark case in which the Supreme Court issued
a set of guidelines to help indigenous rape victims who cannot afford legal, medical and psychological services,
in accordance with the Principles of UN Declaration of Justice for Victims of Crime and Abuse of Power,
1985;

(i) The complainants of sexual assault cases should be provided with a victim’s Advocate who is well-
acquainted with the CJS to explain to the victim the proceedings, and to assist her in the police station
and in Court and to guide her as to how to avail of psychological counselling or medical assistance
from other agencies;

(ii) Legal assistance at the police station while she is being questioned;

(iii) The police should be under a duty to inform the victim of her right to representation before any
questions are asked of her and the police report should state that the victim was so informed;

(iv) A list of Advocates willing to act in these cases should be kept at the police station for victims who
need a lawyer;

(v) The Advocate shall be appointed by the Court, in order to ensure that victims are questioned

21 (AIR 1997 SC 610),

 without undue delay;

(vi) In all rape trials, anonymity of the victims must be maintained;

(vii) It is necessary, having regard to the Directive Principles contained under Art. 38 (1) of the
Constitution of India, to set up a Criminal Injuries Compensation Board. Rape victims frequently incur
substantial financial loss. Some, for example, are too traumatized to continue in employment;

(viii) Compensation for victims shall be awarded by the Court on conviction of the offender and by the
Criminal Injuries Compensation Board whether or not a conviction has taken place. The Board will take
into account pain, suffering and shock as well as loss of earnings due to pregnancy and the expenses
of childbirth if this occurred as a result of the rape.

In another landmark case of D. K. Basu vs. State of West Bengal22 the Supreme Court held that state
compensation is mandatory in cases of abuse of power and said that “To repair the wrong done and give
judicial redress for legal injury is a compulsion of judicial conscience”.

A. Recommendations of Commissions and Committees on Justice to Victims in India

During the last decade, there has been significant change in the thinking of the judiciary about the human rights
of victims. The concern of the courts and the judicial commissions and committees about the need to have
a law on victim compensation or a comprehensive law on victim justice has been reflected in their judgments
and reports.

1. The Law Commission of India, 1996

The Law Commission, in its report in 1996, stated that, “The State should accept the principle of
providing assistance to victims out of its own funds, (i) in cases of acquittals; or (ii) where the offender is not
traceable, but the victim is identified; and (iii) also in cases when the offence is proved”

2. The Justice Malimath Committee on Reforms of Criminal Justice System (Government of India,
2003)
The Justice V. S. Malimath Committee has made many recommendations of far-reaching significance to
improve the position of victims of crime in the CJS, including the victim’s right to participate in cases and to
adequate compensation. Some of the significant recommendations include:

• The victim, and if he is dead, his or her legal representative, shall have the right to be impleaded as a

22 (AIR 1997 SC 610),

party in every criminal proceeding where the offence is punishable with seven years’ imprisonment or more;

• In select cases, with the permission of the court, an approved voluntary organization shall also have
the right to implead in court proceedings;

• The victim has a right to be represented by an advocate and the same shall be provided at the cost of
the State if the victim cannot afford a lawyer;

• The victim’s right to participate in criminal trial shall include the right:
to produce evidence; to ask questions of the witnesses; to be informed of the status of investigation and to
move the court to issue directions for further investigation; to be heard on issues relating to bail and
withdrawal of prosecution; and to advance arguments after the submission of the prosecutor’s arguments;

• The right to prefer an appeal against any adverse order of acquittal of the accused, convicting for a
lesser offence, imposing inadequate sentence, or granting inadequate compensation;

• Legal services to victims may be extended to include psychiatric and medical help, interim
compensation, and protection against secondary victimization;

• Victim compensation is a State obligation in all serious crimes. This is to be organized in separate
legislation by Parliament. The draft bill on the subject submitted to Government in 1995 by the Indian Society
of Victimology provides a tentative framework for consideration;

• The Victim Compensation Law will provide for the creation of a Victim Compensation Fund to be
administered possibly by the Legal Services Authority. (Government of India, 2003).

The Protection of Women from Domestic Violence Act, 2005

“The Protection of Women from Domestic Violence Act, 2005” is a major achievement of the
women’s movement towards protection of domestic violence victims after a struggle of 16 years.
This Act aims to provide for more effective protection of the rights of women guaranteed under the
Constitution. The definition of domestic violence is wide enough to include physical, sexual, verbal
and emotional abuse. The unique feature of the Act is that it prohibits denying the victim “continued
access to resources or facilities which the aggrieved person (victim) is entitled to use or enjoy by
virtue of the domestic relationship, including access to the shared household”. A police officer,
protection officer or a magistrate who has received a complaint of domestic violence has a
mandatory duty to inform the victim of her right to obtain a protection order or an order of monetary
relief, a custody order, a residence order, a compensation order or more than one such order and the
availability of the services of service providers, protection officers, and the right to free legal
services under this Act. A violation of the protection order by the respondent is an offence which can
result in imprisonment for one year or a fine up to Rs.20,000 or both. If the protection officer refuses to
discharge his duties, he shall be punished with imprisonment for one year or with a fine of 20,000 rupees
or with both.
.

1. The National Commission for Protection of Child Rights (NCPCR)

This Commission was set up in March 2007 and its mandate is to ensure that all Laws, Policies,
Programmes, and Administrative Mechanisms are in consonance with the Child Rights perspective
as enshrined in the Constitution of India and also the UN Convention on the Rights of the Child
(see at Government of India, 2009). India ratified the United Nations Convention on the Rights of the
Child in 1992 and this Act was passed as one of the necessary steps to protect the rights of children in
the country. The National Commission for Protection of Child Rights has been taking up various issues
brought forth in the area of child abuse. After inquiry, the National Commission can recommend
initiation of proceedings for prosecution or any other action it may deem fit.
 Recent trends

NALSA’s compensation scheme for women victims/survivors of sexual assault / other crimes-2018

Sr. Particulars of loss and Minimum limit of Upper limit of

injury compensation compensation

1. Loss of life Rs 5 lac Rs. 10 lac

2. Gang rape Rs 5 lac Rs 10 lac

3. Rape Rs 4 lac Rs 7 lac

4. Unnatural sexual Rs 4 lac Rs 7 lac

assault

5. Loss of limb or part of Rs 2lac Rs 5 lac

body resulting in 80%
permanent disability
or above

6. Loss of foetus or Rs. 2 lac Rs 3 lac

miscarriage due to
assault

7. In case of pregnancy on Rs 3 lac Rs 4 lac

account of rape

8. Victims of acid attack

a. In case of 7 lac Rs. 8 lac

disfigurement of face

Note ; if a woman victim of sexual assault / acid attack is covered undergone or more category of the
schedule , she shall be entitled to be considered for combined value of compensation.

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CONCLUSION AND SUGGESTIONS

CHALLENGES AND PROPOSAL FOR MEASURES FOR VICTIMS IN INDIA

In the process of prevention of victimization and the protection of victims, there are many challenges faced
in India which are being tackled through some positive measures. Some of the challenges and the
countermeasures include:

A. No Separate Law for Crime Victims Yet

But continuous efforts are going on to enact a national law for victims. The ISV’s Victim Bill is a model draft
Bill.

B. Corruption in the Indian Criminal Justice System

Corruption by public officials erodes the entire health of the society and victimizes people in all sections of
the population. Many steps to reduce the level of corruption and accumulation of illegal wealth have been
taken by the Government. Declaration of assets and wealth by judges of the higher judiciary and ministers of the
government is a recently introduced example.

C. Empowerment of Women to Prevent Victimization of Women

Serious efforts to change the traditional submissive and victimized role of women have been taken up by
NGOs and the Government. One attempt is the consistent struggle and active efforts by women’s
organizations to get more political power for women in the form of representation in the Parliament, state
legislatures and local bodies through a 33% reservation of seats for women in these bodies. Women have
already succeeded in getting representation in local self-government but the struggle continues to get
reservations for women in Parliament and state legislatures. Many concessions, special privileges and tax
rebates are provided for female students to encourage them in higher education and employment, and to
encourage senior women citizens in economic self-reliance. The Cradle Baby scheme of the Tamil Nadu
State Government is a step towards protecting female babies and preventing female infanticide.

D. Empowerment of Children
Making primary education a fundamental right under the Constitution is a leaping step to empower

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children as education is the tool for development. The implementation of this right will have a bearing on
other kinds of victimization such as child labour. Strengthening the Noon Meal scheme in the schools for the
children in Tamil Nadu and the introduction of this scheme in other states will attract more children from the
disadvantaged sections of the society to schools to pursue study.

E. Major Challenge is Implementation

Transparency and honesty among the politicians who make policies and the commitment of government
officials who are charged with the responsibility for implementation are the big challenge. Whereas the
situation of victims has not been satisfactory in India, developed countries, including the United Kingdom,
have gone far ahead to render victim justice, but the expectations and aspirations of victims remain high even
in those countries which do not match the accomplishments made elsewhere. The UK enacted the
Criminal Injuries Compensation Act in 1995. The Home Office in the UK, in its report “Criminal Justice: The
Way Ahead”, in 2001, found that “many victims felt that the rights of the accused of a crime take
precedence over theirs in criminal proceedings”. During the long proceedings of investigation and
trial, victims are not kept informed or provided with a sense of security. Very often, victims are expected to
appear in courts for cases, which are adjourned even without their notice, or they are subjected to
unnecessarily stressful courtroom experiences. The agencies meant to help victims do not always
understand and respond effectively to their needs. This revelation has made the UK recommend some
measures to balance its system of justice. Hence, victim justice has not been achieved in full even in
countries where lots of developments have been made. We have to pursue the matter vigorously

with the governments and with civil society to realize the basic provisions envisaged in U N
Declaration.

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 BIBLIOGRAPHY

1. Criminology, Penology Victimology Prof. N. V. Paranjape

2. www.lawyersclubindia.com
3. www.legalservicesindia.com
4. https://www.lawnotes.in
5. www.shodhganga.com
6. https://www.lawteacher.net
7. www.scribd.com
8.https://acadpubl.eu

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