penology & victim compensation article

SENTENCING POLICY & VICTIM COMPENSATION
VERY USEFUL
ARTICLE
PENOLOGY SENTENCING,
QUANTUM OF PUNISHMENT
AND
COMPENSATION UNDER SECTION
357, 357A
OF CR.P.C
& VICTIM COMPESATION SCHEME
PREPARED BY
A P RANDHIR.
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SUBJECT INDEX
SR DETAIL PAGE
NO
1 INTRODUCTION 3
2 HISTORY & CONSTITUTIONAL FRAMEWORK 3
3 RIGHT OF VICTIM 6
4 EVOLUTION OF SENTENCING POLICY. 7
5 ROLE OF COURT DETERMINATION VICTIM
COMPENSATION CASE LAWS.
12
6 ISSUE OF AGGRAVATING AND MITIGATING
CIRCUMSTANCES
16
7 SECTION 357, 357-A OF THE CRIMINAL
PROCEDURE CODE.
34
8 GUJARAT VICTIM COMPENSATION SCHEME,
2016, SOME RELEVANT AND IMPORTANT
PROVISIONS
36
9 RECENT CASE LAWS. 44
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1. INTRODUCTION.
The legislature considering the difficulty or incapacity of offenders
to pay the compensation or in cases where the offender may not be
traced and in such circumstances in order to compensate or rehabilitate
the victim/dependents enacted section 357A in the Said Code where the
state governments are required to frame a scheme in coordination with
central government for providing funds for compensation to victim /
Dependants who suffered loss or injury as a result of crime and who
require rehabilitation.
The plight of victim in criminal cases was highlighted in Malimath
committee which carries the following record.’ Very early in the
deliberations of the committee it was recognized that victims do not get
at present the legal rights and protection they deserve to play their just
role in criminal proceedings which tend to result in disinterestedness in
the proceedings and consequent distortions in criminal justice
administration. In every interactions the committee held with police, the
judges, the prosecution and defence lawyers, jail officials and general
public ,this concern for victims was quite pronounced and view was
canvassed that unless justice to victim is put as one of the focal points of
criminal proceedings, the system in unlikely to restore the balance as a
fair procedure in the pursuit of truth .’
2 . History & Constitutional framework:
The Law Commission of India in its 154 th report in the year 1996 delved
into the concept of Victimology and the importance of compensation. It
observed how the attention of criminologists, penologists and reformers
of criminal justice system has been increasingly directed to victimization
and protection of victims of crimes. The Widgery Committee in Britain
has listed several views about the rationale of the concept of
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compensation, namely, “benefit to the victims, possible deterrent effect
on the offender or on the public, the possible educative or preventive
effect on public morality, the possible reformative effect on offender, its
effect on depriving the offender of ill gotten gains and the view that
compensation has an “intrinsic moral Value of its own”.
It is pertinent to note that the victim is not a passive object but an
active component of the whole judicial process. The victim deserves
similar level of protection and attention from the court like that of an
accused. To strike a balance between the human rights of the accused
and that of a victim by plethora of decisions the Honorable Supreme
Court of India attempted to restore the dignity of the victim and to heal up
the wounds sustained by the victim. Post Code of Criminal procedure
(Amendment) Act, 2008 and Criminal Law Amendment Act 2013, a
radical and shift is noticed in the Indian criminal justice system that
introduces and redefines the rights of victim to a significant extent. For
example Section 24(8) of the Code of criminal procedure provides for
engaging of an advocate of his/her choice to assist the public prosecutor,
Trial of offense under section 376 and 376 (A) to 376 (D) of the Indian
Penal Code as far as practicable by a court presided over by a woman is
also given under Section 26 (A). Further provisions as to recording of
statement of the rape victim at her residence or in a place of her choice
or as far as practicable by the woman police officer in the presence of her
parent or guardian or near relative or a social worker of the nearby
locality are given under Section 157 of CrPC. Also Section 173(1-A) of
the Code of criminal procedure mandates a specific time of three months
for the investigating agency to complete the investigation if the allegation
relates to the offence of rape of a child.
The Constitutional provisions as to Fundamental Rights especially
Article 14 and 21 could be widely interpreted so as to include rights of the
victims of crime including right to compensation. Similarly, the
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constitutional remedies for human rights violations, is extensively
applicable to the victims of crime. There are provisions in part IV of the
constitution in Directive principles of state Policy which could be liberally
construed to cover victims of crime entitling them the right to
compensation. Art 38(1) provides that state shall strive to promote
welfare of the people by securing and protecting as effectively as it may a
social order in which social, economic and political shall inform all
institutions of national life.
This provision if interpreted creatively is inclusive of victims rights.
Similarly Art 39 which provides for policies to be followed by the state to
secure economic justice and Art 40 which provide for equal justice is
inclusive of victims rights to compensation. Article 41 inter alia states that
state shall make effective provisions for “securing public assistance in the
“cases of disablement” and in the “case of undeserved want”. The
expressions disablement and other cases of undeserved want could be
surely interpreted to include victims of crime and hence is state is obliged
to provide public assistance to victims by way of monetary compensation
apart from guaranteeing other rights to them. These directives though
non justifiable, imposes obligation on the state to take positive action for
the welfare of the people. Moreover many of the Directives are elevated
to the status of Fundamental Rights by judicial decisions. Apart from
these, as per Art 51-A of the constitution it is the Fundamental duty of
every citizen of India, “... to have compassion for living creatures” and “to
develop humanism”. These provisions also could be creatively
interpreted as to include victims of crime.
3. Right of victim
A. Reparation: Reparation is arguably the most comprehensive means
of compensating individuals and groups whose rights have been violated.
Reparation acknowledges that serious wrongs have been done and,
consequently, that the injured person is entitled to remedy and redress.
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Reparation is commonly associated with paying monetary compensation.
While this form of compensation is an important means to offset
damages suffered, India should not overlook other, non-monetary, forms
of reparations. According to the Basic Principles and Guidelines,
reparation includes “restitution, compensation, rehabilitation, satisfaction,
and guarantees of non- repetition.”
B. Victim Assistance: Apart from compensation, Victim assistance
seems to be a dire necessity for victim rehabilitation. This would include,
but is not limited to, the following services like Crisis intervention,
Counseling, Emergency shelter, Criminal justice advocacy and
Emergency transportation.
C. Right to engage an Advocate of his choice: The Court is
empowered to permit the Victim to engage an Advocate of his choice to
assist the prosecution under Section 24(8).
D. Right to prefer an appeal: The Victim shall have a right to prefer an
appeal (proviso to section 372 was inserted by the Amendment Act of
2008) against any order passed by the Court acquitting the accused or
convicting for a lesser offence or imposing inadequate compensation,
and such appeal shall lie to the Court to which an appeal ordinarily lies
against the order of conviction of such Court.
In addition to bolstering monetary reparations for Victims, a new
legislation should also address other needs of Victims, including medical
and psychological care, economic care, immediate protection and
security, and long-term rehabilitation.
4. EVOLUTION OF SENTENCING POLICY .
“Theory of reformation through punishment is
grounded on the sublime philosophy that every
man is born good, but circumstances transform
him into a criminal.”K T Thomas J
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“Reformative theory is certainly important but too
much stress to my mind cannot be laid down
on it that basic tenets of punishment
altogether vanish”.D P Wadhwa J
The ancient sages had a society in their mind and dream where
neither the state nor the king would rule the kingdom by means of fine or
penalty but every individual would protect others and the society as a
whole by performing his duty. We have miles to go before we could
achieve such an ideal society. Recently the delay in execution of convicts
facing death sentence has shaken our conscious. Debate has again
resumed, whether death sentence should remain in the statute books.
Many consider the execution by hanging by neck till death to be a
barbaric method. But repeatedly the Supreme Court of India has upheld
the constitutional validity of death sentence and the method of execution
by hanging.
In India neither the legislature nor the judiciary has issued structured
sentencing guidelines. Several governmental committees have
pointed to the need to adopt such guidelines in order to
minimize uncertainty in awarding sentences. The higher courts,
recognizing the absence of such guidelines, have provided
judicial guidance in the form of principles and factors that courts must
take into account while exercising discretion in sentencing.
Currently India does not have structured sentencing guidelines
that have been issued either by the legislature or the judiciary. In March
2003, the Committee on Reforms of Criminal Justice
System (the Malimath Committee), a body established by the
Ministry of Home Affairs, issued a report that emphasized the
need to introduce sentencing guidelines in order to minimize
uncertainty in awarding sentences, stating, The Indian Penal Code
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prescribe offences and punishments for the same. For many
offences only the maximum punishment is prescribed and for
some offences the minimum is prescribed. The Judge has wide
discretion in awarding the sentence within the statutory limits.
There is now no guidance to the Judge in regard to selecting the most
appropriate sentence given the circumstances of the case. Therefore
each Judge exercises discretion accordingly to his own judgment.
There is therefore no uniformity.
Some Judges are lenient and some Judges are harsh. Exercise of
unguided discretion is not good even if it is the Judge that exercises the
discretion. In some countries guidance regarding sentencing is
given in the penal code and sentencing guideline laws. There is need
for such law in our country to minimize uncertainty to the
matter of awarding sentence.There is several factors which are
relevant in prescribing the alternative sentences. This requires a
thorough examination by an expert statutory body.
The Committee advised further that, in order to bring “predictability
in the matter of sentencing, "a statutory committee should be
established “to lay guidelines on sentencing guidelines under
the Chairmanship of a former Judge of Supreme Court or a former Chief
Justice of a High Court experienced in criminal law with
other members representing the prosecution, legal profession, police,
social scientist and women representative.” In 2008, the
Committee on Draft National Policy on Criminal Justice (the
Madhava Menon Committee), reasserted the need for statutory
sentencing guidelines.
In an October 2010 news report, the Law Minister is quoted as
having stated that the government is looking into establishing a
“uniform sentencing policy” in line with the United States and
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the United Kingdom in order to ensure that judges do not issue varied
sentences. In India no uniform sentencing policy exists and sentence
awarded to an offender reflect the individual philosophy of the
judges. This is evident from the following facts.
The Code provides for wide discretionary powers to the judge
once the conviction is determined. The Code talks about
sentencing chiefly in S.235, S.248, S.325, S.360 and S.361. S.235 is a
part of Chapter 18 dealing with a proceeding in the Court of Session. It
directs the judge to pass a judgment of acquittal or conviction and in
case conviction to follow clause 2 of the section. Clause 2 of the section
gives the procedure to be followed in cases of sentencing a person
convicted of a crime.The section provides a quasi trial to ensure
that the convict is given a chance to speak for himself and give opinion
on the sentence to be imposed on him. The reasons given by the convict
may not be pertaining to the crime or be legally sound. It is just for the
judge to get an idea of the social and personal details of the convict and
to see if none of these will affect the sentence. Facts such as the convict
being a breadwinner might help in mitigating his punishment or the
conditions in which he might work. This section plainly provides that
every person must be given a chance to talk about the kind of
punishment to be imposed. Thus, the law on the issue of
sentencing policy can be summarized to the effect that
punishment should always be proportionate / commensurate to the
gravity of offence. Religion, race, caste, economic or social status of the
accused or victim are not the relevant factors for determining the
quantum of punishment. The court has to decide the punishment after
considering all aggravating and mitigating factors and the circumstances
in which the crime has been committed. Conduct and state of mind of the
accused and age of the victim and the gravity of the criminal
act are the factors of paramount importance. The court must
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exercise its discretion in imposing the punishment objectively
considering the facts and circumstances of the case. The power
under the proviso is not to be used indiscriminately in a routine, casual
and cavalier manner for the reason that an exception clause requires
strict interpretation.
4.1 Mohd. Arif @ Ashfaq Vs. The Registrar, Supreme Court of India,
(2014 Cri.L.J. 4598),
The Hon'ble Apex Court observed that Crime and punishment
are two sides of the same coin. Punishment must fit to the
crime. The notion of 'Just deserts' or a sentence proportionate to
the offender's culpability was the principle which, by passage of time,
became applicable to criminal jurisprudence. It is not out of place to
mention that in all of recorded history, there has never been a time when
crime and punishment have not been the subject of debate and
difference of opinion. There are no statutory guidelines to regulate
punishment. Therefore, in practice, there is much variance in the matter
of sentencing.
4.2 State of Madhya Pradesh Vs. Surendra Singh, (AIR 2015 SC
3980, based on the theory of proportionality, it is laid down by
Hon'ble Apex Court that,
“Undue sympathy to impose inadequate sentence would do
more harm to the justice system to undermine the public confidence in
the efficacy of law. It is the duty of every court to award proper
sentence having regard to the nature of the offence and the manner in
which it was executed or committed. The sentencing courts are
expected to consider all relevant facts and circumstances bearing
on the question of sentence and proceed to impose a sentence
commensurate with the gravity of the offence. The court must not only
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keep in view the rights of the victim of the crime but also the society at
large while considering the imposition of appropriate punishment.
Meager sentence imposed solely on account of lapse of time without
considering the degree of the offence will be counterproductive in the
long run and against the interest of the society
One of the prime objectives of criminal law is the
imposition of adequate, just, proportionate punishment which
commensurate with gravity, nature of crime and the manner in which the
offence is committed. one should keep in mind the social interest and
conscience of the society while considering the determinative factor of
sentence with gravity of crime. The punishment should not be so lenient
that it shocks the conscience of the society. It is, therefore, solemn
duty of the court to strike a proper balance while awarding the
sentence as awarding lesser sentence encourages any criminal
and, as a result of the same, the society suffers. Imposition of
sentence must commensurate with gravity of offence”.
5. ROLE OF COURT DETERMINATION VICTIM COMPENSATION
CASE LAWS.
On occasions more than one, the apex court has said that victims
of crime are neglected and they are not adequately compensated in spite
of the fact that the Cr.P.C provides therefore. The enabling compensatory
provision is hardly used by the courts in India to compensate victims of
crime. They and their legitimate interests in the administration of criminal
justice are overlooked. The apex court advised the courts subordinate
thereto to use their legislative power to compensate victims of crime
liberally to meet the ends of justice. In fact, the apex court, of late, has
been stressing that meeting interests of victims of crime is one of the
significant attributes of just and human administration of criminal justice.
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5.1. Vinay v. State of Karnataka, reiterating some of the facts and
objectives underlying the need for compensating victims of crime, re-
stressed that ‘the power of courts to award compensation is not ancillary
to other sentences but is in addition thereto’ and ‘the power is intended to
do something to reassure the victim that he is not forgotten in the
criminal justice system’. It, being a measure reconciling the victim with
the offender and a step forward in our criminal justice, ‘needs to be
exercised liberally to so as to meet the ends of justice in a better way’.
However, it cautioned the courts to take into account the facts and
circumstances of the case at hand and the capacity of the accused to
pay before issuing the compensation order.
5.2. In fact, the apex court elsewhere stressed that it is a paramount duty
of every court not to ignore the substantial sufferings of victims of crime
but to safeguard their rights as diligently as those of the perpetrators. It is
duty of the court to duly consider the aspect of rehabilitating the victim.
Apart from sentence and fine or compensation to be paid by accused to
his victim, the court, in appropriate cases, has to award compensation to
be paid by the State under section 357A of the Cr.P.C when the accused,
in its opinion, is not in a position to pay a fair compensation.
5.3. In this case the Supreme Court, to justify the period of rigorous
imprisonment reduced by the high court from 1 year (under s. 304A) and
3 months (under s. 337) to 10 days (the imprisonment already
undergone), asked the respondent to pay Rs 2 Lac by way of
compensation to the heirs of the deceased. Realising that the amount of
compensation awarded is too meagre to compensate but the respondent,
given his financial status, cannot be asked to pay more, the court
ordered the state to pay an interim compensation of Rs 3 Lacs under s
357A of the Cr.P.C. Also see, State of Himachal Pradesh v Ram Pal,
2015 (3) SCALE 111, wherein the Supreme increased the amount of
compensation of Rs 40,000 (awarded by the high court) to Rs 1 Lac.
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5.4. In Suresh v. State of Haryana, wherein the appellants-accused,
who were convicted for kidnapping for ransom and death in pursuance of
criminal conspiracy and common intention and sentenced to life
imprisonment and other minor sentences by the trial court and affirmed
by the high court, preferred appeal to the Supreme Court against their
conviction and sentence. After recalling apt judicial dicta on
compensating victims of crime and the legislative intent behind inserting
section 357A in the Cr.P.C, the Supreme Court reiterated, with emphasis,
that it is the duty of the courts, on taking cognizance of a criminal
offence, to ascertain whether the victim is identifiable and whether the
victim of crime needs immediate financial relief. If he needs it, it is
incumbent on the court, on application by the identified victim or on its
own motion, to award interim compensation, subject to determination of
final one at a later stage. While determining the amount of compensation,
gravity of the offence and need of the victim are to be kept in mind as
guiding factors. It ordered the State of Haryana to pay an interim
compensation of Rs 10 Lacs (under s. 357A, Cr.P.C) to the family of the
deceased.
5.5. Nanda Gopalan v. State of Kerala, presents a very interesting
facet of judicial zeal in compensating victims of crime.
The trial court convicted the appellant-accused under section 324
and section 326 of the IPC and sentenced him to suffer rigorous
imprisonment for a period of 2 years and of 5 years respectively. In
addition, a fine of Rs 10,000 under section 326 was also imposed on
him. The high court, on appeal, confirmed the conviction and sentence of
the accused under section 324. It, however, reduced the term of rigorous
imprisonment (awarded under section 326) to 3 years and enhanced the
amount of fine to Rs 30,000 (to be paid to the injured by way of
compensation). During pendency of the appeal before the high court,
both the parties, being close relatives, reached to a settlement and
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moved an application to the high court for compounding the offence
under section 324 and quashing the charge under section 326 on the
basis of the compromise. The high court dismissed the application on the
ground that a non-compoundable offence cannot be settled between the
parties. The Supreme Court, on appeal against the order and judgment
of the high court, was encountered with the question as to whether
charges, based on a compromise between close relatives (who were
party to the case), can be altered to section 323 and section 325, IPC,
and thereby render them compoundable. Placing reliance on its earlier
judicial pronouncements dealing with compounding of a non-
compoundable offence and relevance of compromise between the
parties in a non-compoundable offence in sentencing, the apex court
vehemently rejected such a trading- off charges (on the basis of
compromise) as there was no legal basis for the same, but accepted the
proposition that compromise between the parties to settle a non-
compoundable offence allows the court to alter punishment. It,
accordingly, reduced the sentence of imprisonment of the appellant-
accused to the period already undergone, but increased the amount of
compensation to Rs 2 Lacs to be paid to the victim within three months,
failing which the sentence given by the high court would stand affirmed.
5.6. Ranjan v. Joseph, The ruling of the apex court is not only a
welcome move in strengthening the victim-compensatory
jurisprudence in the unorganised sector but will also hopefully
initiate compensatory move in other identical fact-scenario
situations, adds another fact of long-term positive dimensions to
the victim - compensatory jurisprudence.
A maid, working with respondents, died because of electric shock
when she, on the instructions of the respondents, was operating a
washing machine. The death was accidental. But on private complaint by
her husband, the appellant, the magistrate took cognizance of the case
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under section 304-A, IPC. The high court, invoking section 482 of the
CrPC, quashed the proceedings. The appellant-husband of the
deceased, by special leave, challenged the quashing order of the high
court and contended that his wife died due to rash and negligent acts of
the respondents. The apex court, after perusal of the factual matrix, was
also of the opinion that it was an accidental death and the respondent
had no rash or negligent role in it.
It concurred with the high court’s ruling quashing the proceedings
under section 304- A. However, the apex court was of the view that since
the death of the deceased was during the course of employment in the
respondent’s home, it is axiomatic that the victim’s family is
compensated. It directed the respondents to pay 1 Lac to the appellant-
husband of the deceased within four weeks apart from Rs 1 Lac that was
to be paid to him from the Chief Minister’s Distress Relief Fund.
6. Issue of aggravating and mitigating circumstances
Full weightage should be given to the mitigating circumstances and
even after that if the court feels that justice will not be done if any
punishment less than the death sentence is awarded, then and then only
death sentence should be imposed.
The lists below bring together the most important aggravating and
mitigating features with potential application to more than one offence or
class of offences. They include some factors which are integral features
of certain offences; in such cases, the presence of the aggravating factor
is already reflected in the penalty for the offence and cannot be used as
justification for increasing the sentence further. The lists are not intended
to be comprehensive and the factors are not listed in any particular order
of priority. If two or more of the factors listed describe the same feature
care needs to be taken to avoid “double counting”.
6.1 Aggravating factors
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Factors indicating higher culpability:
 offence committed whilst on bail for other offences;
 failure to respond to previous sentences;
 offence was racially or religiously aggravated;
 offence motivated by, or demonstrating, hostility to the victim based
on his or her sexual orientation (or presumed sexual orientation);
 offence motivated by, or demonstrating, hostility based on the
victim’s disability (or presumed disability);
 previous conviction(s), particularly where a pattern of repeat
offending is disclosed;
 planning of an offence;
 an intention to commit more serious harm than actually resulted
from the offence;
 offenders operating in groups or gangs;
 ‘professional’ offending;
 commission of the offence for financial gain (where this is not
inherent in the offence itself);
 high level of profit from the offence;
 an attempt to conceal or dispose of evidence;
 failure to respond to warnings or concerns expressed by others
about the offender’s behaviour;
 offence committed whilst on licence;
 offence motivated by hostility towards a minority group, or a
member or members of it;
 deliberate targeting of vulnerable victim(s);
 commission of an offence while under the influence of alcohol or
drugs;
 use of a weapon to frighten or injure victim;
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 deliberate and gratuitous violence or damage to property, over and
above what is needed to carry out the offence;
 abuse of power;
 abuse of a position of trust.
6.2 Factors indicating a more than usually serious degree of harm:
 multiple victims;
 an especially serious physical or psychological effect on the victim,
even if unintended;
 a sustained assault or repeated assaults on the same victim;
 victim is particularly vulnerable;
 location of the offence (for example, in an isolated place);
 offence is committed against those working in the public sector or
providing a service to the public;
 presence of others for example, relatives, especially children or
partner of the victim;
 additional degradation of the victim (for example, taking
photographs of a victim as part of a sexual offence);
 In property offences, high value (including sentimental value) of
property to the victim, or substantial consequential loss (for
example, where the theft of equipment causes serious disruption to
a victim’s life or business).
6.3 Mitigating factors- Factors indicating lower culpability:
 a greater degree of provocation than normally expected;
 mental illness or disability;
 youth or age, where it affects the responsibility of the individual
defendant;
 The fact that the offender played only a minor role in the offence.
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6.4 Offender mitigation
 genuine remorse;
 admissions to police in interview;
 Ready co-operation with authorities.
6.4.1. Machhi singh vs. State of Punjab [1983] 3 SCC 470 the court
laid down:- " In order to apply these guidelines inter alia the following
questions may be asked and answered: -
(a). Is there something uncommon about the crime which renders
sentence of imprisonment for life inadequate and calls for a death
sentence?
(b). Are there circumstances of the crime such that there is no alternative
but to impose death sentence even after according maximum weightage
to the mitigating circumstances which speak in favor of the offenders?"
The SC has also discussed such aggravating and mitigating
circumstances in various cases. These circumstances include: -
Aggravating Circumstances
A. Murder committed in an extremely brutal , grotesque, diabolical ,
revolting or dastardly manner so as to arouse intense and extreme
indignation of the community.
B. Murder- for a motive which evinces total depravity and meanness.
C. Murder of a Scheduled cast or Scheduled tribe- arousing social
wrath ( not for personal reasons)
D. Bride burning/ Dowry death.
E. Murderer in a dominating position, position of trust or in course of
betrayal of the motherland.
F. Where it is enormous in proportion.
G. Victim- innocent child, helpless woman, old/infirm person, public
figure generally loved and respected by the community.
Mitigating Circumstances
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The court in its discretion, may take into consideration, the following
circumstances as mitigating, on the basis of which the lesser punishment
can be imposed:
1. That the offence was committed under the influence of extreme mental
or emotional distribution;
2. If the accused is young or old, he shall not be sentenced to death;
3. The probability that the accused would not commit criminal acts of
violence as would constitute a continuing threat to society;
4. The probability that the accused can be reformed and rehabilitated;
The state shall by evidence prove that the accused does not satisfy the
conditions (3) and (4) above;
5. That in the facts and circumstances of the case, the accused believed
that he was morally justified in committing the offence;
6. That the accused acted under the duress of domination of another
person;
7. That the condition of the accused showed that he was mentally
defective and that the said defect impaired his capacity to appreciate the
criminality of his conduct.
6.4.2. Ramnaresh and other v state of chhattisgarh CRIMINAL
APPEAL NOS.166-167 OF 2010
This Court considered the import of governing principles regarding death
sentence and summed up that it is the cumulative effect of both the
aggravating and mitigating circumstances that need to be taken into
account. Paragraphs 76 to 81 of the decision are as under:-
Para “76. The law enunciated by this Court in its recent Judgments, as
already noticed, adds and elaborates the principles that were stated in
Bachan Singh and thereafter, in Machhi Singh. The aforesaid Judgments,
primarily dissect these principles into two different compartments—one
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being the “aggravating circumstances” while the other being the
“mitigating circumstances”. The court would consider the cumulative
effect of both these aspects and normally, it may not be very appropriate
for the court to decide the most significant aspect of sentencing policy
with reference to one of the classes under any of the following heads
while completely ignoring other classes under other heads. To balance
the two is the primary duty of the court. It will be appropriate for the court
to come to a final conclusion upon balancing the exercise that would help
to administer the criminal justice system better and provide an effective
and meaningful reasoning by the court as contemplated under Section
354 (3) Cr.P.C.
Aggravating circumstances
(1) The offences relating to the commission of heinous crimes like
murder, rape, armed dacoity, kidnapping, etc. by the accused with a prior
record of conviction for capital felony or offences committed by the
person having a substantial history of serious assaults and criminal
convictions.
(2) The offence was committed while the offender was engaged in the
commission of another serious offence.
(3) The offence was committed with the intention to create a fear
psychosis in the public at large and was committed in a public place by a
weapon or device which clearly could be hazardous to the life of more
than one person.
(4) The offence of murder was committed for ransom or like offences to
receive money or monetary benefits.
(5) Hired killings.
(6) The offence was committed outrageously for want only while involving
inhumane treatment and torture to the victim.
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(7) The offence was committed by a person while in lawful custody.
(8) The murder or the offence was committed to prevent a person lawfully
carrying out his duty like arrest or custody in a place of lawful
confinement of himself or another. For instance, murder is of a person
who had acted in lawful discharge of his duty under section 43 CrPC.
(9) When the crime is enormous in proportion like making an attempt of
murder of the entire family or members of a particular community.
(10) When the victim is innocent, helpless or a person relies upon the
trust of relationship and social norms, like a child, helpless woman, a
daughter or a niece staying with a father/uncle and is inflicted with the
crime by such a trusted person.
(11) When murder is committed for a motive which evidences total
depravity and meanness.
(12) When there is a cold-blooded murder without provocation.
(13) The crime is committed so brutally that it pricks or shocks not only
the judicial conscience but even the conscience of the society.
Mitigating circumstances
(1) The manner and circumstances in and under which the offence was
committed, for example, extreme mental or emotional disturbance or
extreme provocation in contradistinction to all these situations in normal
course.
(2) The age of the accused is a relevant consideration but not a
determinative factor by itself.
(3) The chances of the accused of not indulging in commission of the
crime again and the probability of the accused being reformed and
rehabilitated.
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(4) The condition of the accused shows that he was mentally defective
and the defect impaired his capacity to appreciate the circumstances of
his criminal conduct.
(5) The circumstances which, in normal course of life, would render such
a behaviour possible and could have the effect of giving rise to mental
imbalance in that given situation like persistent harassment or, in fact,
leading to such a peak of human behaviour that, in the facts and
circumstances of the case, the accused believed that he was morally
justified in committing the offence.
(6) Where the court upon proper appreciation of evidence is of the view
that the crime was not committed in a preordained manner and that the
death resulted in the course of commission of another crime and that
there was a possibility of it being construed as consequences to the
commission of the primary crime.
(7) Where it is absolutely unsafe to rely upon the testimony of a sole
eyewitness though the prosecution has brought home the guilt of the
accused.
77. While determining the questions relatable to sentencing policy, the
court has to follow certain principles and those principles are the loadstar
besides the above considerations in imposition or otherwise of the death
sentence. Principles
(1) The court has to apply the test to determine, if it was the “rarest of
rare” case for imposition of a death sentence.
(2) In the opinion of the court, imposition of any other punishment i.e. life
imprisonment would be completely inadequate and would not meet the
ends of justice.
(3) Life imprisonment is the rule and death sentence is an exception.
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(4) The option to impose sentence of imprisonment for life cannot be
cautiously exercised having regard to the nature and circumstances of
the crime and all relevant considerations.
(5) The method (planned or otherwise) and the manner (extent of
brutality and inhumanity, etc.) in which the crime was committed and the
circumstances leading to commission of such heinous crime.
Para 78. Stated broadly, these are the accepted indicators for the
exercise of judicial discretion but it is always preferred not to fetter the
judicial discretion by attempting to make the excessive enumeration, in
one way or another. In other words, these are the considerations which
may collectively or otherwise weigh in the mind of the court, while
exercising its jurisdiction. It is difficult to state it as an absolute rule. Every
case has to be decided on its own merits. The judicial pronouncements,
can only state the precepts that may govern the exercise of judicial
discretion to a limited extent. Justice may be done on the facts of each
case. These are the factors which the court may consider in its
endeavour to do complete justice between the parties.
Para 79. The court then would draw a balance sheet of aggravating and
mitigating circumstances. Both aspects have to be given their respective
weightage. The court has to strike a balance between the two and see
towards which side the scale/balance of justice tilts. The principle of
proportion between the crime and the punishment is the principle of “just
deserts” that serves as the foundation of every criminal sentence that is
justifiable. In other words, the “doctrine of proportionality” has a valuable
application to the sentencing policy under the Indian criminal
jurisprudence. Thus, the court will not only have to examine what is just
but also as to what the accused deserves keeping in view the impact on
the society at large.
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Para 80. Every punishment imposed is bound to have its effect not only
on the accused alone, but also on the society as a whole. Thus, the
courts should consider retributive and deterrent aspect of punishment
while imposing the extreme punishment of death.
81. Wherever, the offence which is committed, manner in which it is
committed, its attendant circumstances and the motive and status of the
victim, undoubtedly bring the case within the ambit of “rarest of rare”
cases and the court finds that the imposition of life imprisonment would
be inflicting of inadequate punishment, the court may award death
penalty. Wherever, the case falls in any of the exceptions to the “rarest of
rare” cases, the court may exercise its judicial discretion while imposing
life imprisonment in place of death sentence.”
We have given anxious consideration to the material on record but
find that the aggravating circumstances namely the extreme depravity
and the barbaric manner in which the crime was committed and the fact
that the victim was a helpless girl of four years clearly outweigh the
mitigating circumstances now brought on record. Having taken an overall
view of the matter, in our considered view, no case is made out to take a
different view in the matter. We, therefore, affirm the view taken in the
Judgment under review and dismiss the present Review Petitions.
6.4.3 . Summary of Landmark Judgment Of SC, Bachan Singh case,
SCC p. 750, para 206 and jagmohan Singh V State of Up 1973 1
SCC 20
Insofar as mitigating circumstances are concerned, they refer to the
criminal. They are:
“(1) That the offence was committed under the influence of
extreme mental or emotional disturbance.
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(2) The age of the accused. If the accused is young or old, he
shall not be sentenced to death.
(3) The probability that the accused would not commit criminal
acts of violence as would constitute a continuing threat to
society.
(4) The probability that the accused can be reformed and
rehabilitated.
The State shall by evidence prove that the accused does not
satisfy Conditions (3) and (4) above.
(5) That in the facts and circumstances of the case the accused
believed that he was morally justified in committing the offence.
(6) That the accused acted under duress or domination of
another person.
(7) That the condition of the accused showed that he was
mentally defective and that the said defect impaired his capacity
to appreciate the criminality of his conduct.”
Despite the legislative change and Bachan Singh discarding Proposition
(iv)(a) of Jagmohan Singh, this Court in Machhi Singh revived the
“balancing” of aggravating and mitigating circumstances through a
balance sheet theory. In doing so, it sought to compare aggravating
circumstances pertaining to a crime with the mitigating circumstances
pertaining to a criminal. It hardly need be stated, with respect, that these
are completely distinct and different elements and cannot be compared
with one another. A balance sheet cannot be drawn up of two distinct and
different constituents of an incident. Nevertheless, the balance sheet
theory held the field post Machhi Singh.
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Para 22. The Constitution Bench in Bachan Singh observed that under
the old Code, both the sentence of death and the sentence of
imprisonment for life provided under Section 302 IPC could be imposed
after weighing the aggravating and mitigating circumstances of the
particular case. However, in view of Section 354(3) CrPC a punishment
of imprisonment for life should normally be imposed under Section 302
IPC but a sentence of death could be imposed as an exception.
Additionally, as per the legislative requirement if a sentence of death is to
be awarded, special reasons need to be recorded. In a sense, the
legislative policy now virtually obviated the necessity of balancing the
aggravating and mitigating circumstances of the crime for the award of
punishment in respect of an offence of murder (although “aggravating
and mitigating circumstances” are repeatedly referred to in the judgment,
including as “relevant circumstances” that must be given “great weight”).
Therefore, the Constitution Bench (after a discussion in paras 161 and
162 of the Report) “adjusted and attuned” Proposition (iv)(a) by deleting
the reference to “balancing all the aggravating and mitigating
circumstances of the crime” to read as follows: (Bachan Singh case,
SCC p. 739, para 164)
“(a) The normal rule is that the offence of murder shall be
punished with the sentence of life imprisonment. The court can
depart from that rule and impose the sentence of death only if
there are special reasons for doing so. Such reasons must be
recorded in writing before imposing the death sentence.”
Any discussion on the subject of death penalty should actually
commence with the Constitution Bench decision in Bachan Singh.
However, it may be more appropriate to travel back in time to Jagmohan
singh v/s State of U.P 1973 1 SCC 20 for the limited purpose of
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indicating an important legislative change that had taken place in the
meanwhile.
(b) It is to be emphasized that in exercising its discretion to choose either
of the two alternative sentences provided in section 302 penal code, ‘the
court is principally concerned with the facts and circumstances whether
aggravating or mitigating, which are connected with the particular crime
under inquiry. All such facts and circumstances are capable of being
proved in accordance with the provisions of the evidence act in a trial
regulated by Cr.P.C. The trial does not come to an end until all the
relevant facts are proved and the counsel on both sides have an
opportunity to address the court. The only thing that remains is for the
Judge to decide on the guilt and punishment and that is what Sections
306(2) and 309(2) Cr.P.C purport to provide for. These provisions are part
of the procedure established by law and unless it is shown that they are
invalid for any other reasons they must be regarded as valid. No reasons
are offered to show that they are constitutionally invalid and hence the
death sentence imposed after trial in accordance with the procedure
established by law is not unconstitutional under Article 21.’ (Jagmohan
Singh case, SCC p. 36)”
18. It will be seen from Proposition (iv)(a) that Jagmohan Singh laid down
that discretion in the matter of sentencing is to be exercised by the Judge
after balancing all the aggravating and mitigating circumstances “of the
crime”.
19. Jagmohan Singh also laid down in Proposition (v)(b) that while
choosing between the two alternative sentences provided in Section 302
IPC (sentence of death and sentence of life imprisonment), the court is
principally concerned with the aggravating or mitigating circumstances
connected with the “particular crime under inquiry”.
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6.4.4. Sangeeta and anothers V/s State of Hariyana Criminal Appeals
Nos. 490-91 Of 2011
Para 24. The conclusion of the Constitution Bench in Bachan Singh
under these circumstances was that the sentence of death ought to be
given only in the rarest of rare cases and it should be given only when
the option of awarding the sentence of life imprisonment is
“unquestionably foreclosed”.
Para 25. Bachan Singh therefore, made two very significant departures
from Jagmohan Singh. The departures were: (i) in the award of
punishment by deleting any reference to the aggravating and mitigating
circumstances of a crime, and (ii) in introducing the circumstances of the
criminal. These departures are really the crux of the matter, as far as we
are concerned in this case.
Para 26. Bachan Singh effectively opened up Phase II of a sentencing
policy by shifting the focus from the crime to the crime and the criminal.
This is where Bachan Singh marks a watershed in sentencing. But, how
effective has been the implementation of Bachan Singh?
Conclusion
Para 77. The broad result of our discussion is that a relook is needed at
some conclusions that have been taken for granted and we need to
continue the development of the law on the basis of experience gained
over the years and views expressed in various decisions of this Court. To
be more specific, we conclude:
Para 77.1 This Court has not endorsed the approach of aggravating and
mitigating circumstances in Bachan Singh. However, this approach has
been adopted in several decisions. This needs a fresh look. In any event,
there is little or no uniformity in the application of this approach.
Para 77.2 Aggravating circumstances relate to the crime while mitigating
circumstances relate to the criminal. A balance sheet cannot be drawn up
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for comparing the two. The considerations for both are distinct and
unrelated. The use of the mantra of aggravating and mitigating
circumstances needs a review.
Para 77.3 In the sentencing process, both the crime and the criminal are
equally important. We have, unfortunately, not taken the sentencing
process as seriously as it should be with the result that in capital
offences, it has become Judge-centric sentencing rather than principled
sentencing.
Para 77.4 The Constitution Bench of this Court has not encouraged
standardization and categorization of crimes and even otherwise it is not
possible to standardise and categories all crimes.
Para 77.5 The grant of remissions is statutory. However, to prevent its
arbitrary exercise, the legislature has built in some procedural and
substantive checks in the statute. These need to be faithfully enforced.
Para 77.6 Remission can be granted under Section 432 CrPC in the
case of a definite term of sentence. The power under this section is
available only for granting “additional” remission, that is, for a period over
and above the remission granted or awarded to a convict under the Jail
Manual or other statutory rules. If the term of sentence is indefinite (as in
life imprisonment), the power under Section 432 CrPC can certainly be
exercised but not on the basis that life imprisonment is an arbitrary or
notional figure of twenty years of imprisonment.
Para 77.7 Before actually exercising the power of remission under
Section 432 CrPC the appropriate Government must obtain the opinion
(with reasons) of the Presiding Judge of the convicting or confirming
Court. Remissions can, therefore, be given only on a case-by-case basis
and not in a wholesale manner.
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6.4.5. Vasanta Sampat Dupare Versus State of Maharashtra,Criminal
Appeal Nos.2486-2487 of 2014 In this case short fact is, In the year
2008 in Nagpur, Vasant Dupare lured the neighbouring kid girl with
a chocolate and took her with him. He raped the girl barbarically
and later murdered her with crushing blows of stones. The apex
court termed the case as shameful and rarest of rare.
Para 19. It is thus well settled, “the Court would consider the cumulative
effect of both the aspects (namely aggravating factors as well as
mitigating circumstances) and it may not be very appropriate for the
Court to decide the most significant aspect of sentencing policy with
reference to one of the classes completely ignoring other classes under
other heads and it is the primary duty of the Court to balance the two.”
Further, “it is always preferred not to fetter the judicial discretion by
attempting to make excessive enumeration, in one way or another; and
that both aspects namely aggravating and mitigating circumstances have
to be given their respective weightage and that the Court has to strike the
balance between the two and see towards which side the scale/balance
of justice tilts.” With these principles in mind we now consider the present
review petition.
6.4.6. The Hon'ble Apex court in State of Madhyaprades vs
Mehtab, (Cri. Appeal no. 290/2015, dated 13.02.2015) has observed
that, “we find force in the submission, it is the duty of the court to award
just sentence to a convict against whom charge is proved.
While mitigating and aggravating circumstance may be given
due weight, mechanical reduction of sentence to the period
already undergone cannot be appreciated. Sentence has to be fair not
only to the accused but also the victim and the society.
6.4.7. Shankar Kisanrao Khade v. State of Maharashtra, [2013
Cri.LJ 2595(SC)], the Hon’ble Apex Court held that, an attempt was
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made to do away with the preparation of balance sheet of aggravating
and mitigating circumstances for arriving at a decision on
death sentence by substituting the said exercise with “Crime test”,
“Criminal test”, and “PR test.”While restating the “rarest of rare
case” rule, Hon’ble Justice K.S.P. Radahakrishnan opined that
to award death sentence the crime test has to be fully satisfied
i.e. 100% and the criminal test shall be 0% and later it shall pass
through “PR test.” One doubts whether there can be any such cases
where there will be 100% and 0% of crime test and criminal test
respectively.
7.Section 357 in The Code Of Criminal Procedure, 1973
357. Order to pay compensation.
(1) 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-
(A) In defraying the expenses properly incurred in the prosecution;
(B)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 a Civil Court;
(C)when any person is convicted of any offence for having caused
the death of another person or of having abetted the commission of
such an offence, in paying compensation to the persons who are,
under the Fatal Accidents Act, 1855 (13 of 1855 ), entitled to
recover damages from the person sentenced for the loss resulting
to them from such death;
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(D) when any person is convicted of any offence which includes
theft, criminal misappropriation, criminal breach of trust, or
cheating, or of having dishonestly received or retained, or of having
voluntarily assisted in disposing of, stolen property knowing or
having reason to believe the same to be stolen, in compensating
any bona fide purchaser of such property for the loss of the same if
such property is restored to the possession of the person entitled
thereto.
(2) If the fine is imposed in a case which is subject to appeal, no
such payment shall be made before the period allowed for
presenting the appeal has elapsed, or, if an appeal be presented,
before the decision of the appeal.
(3) When a Court imposes a sentence, of which fine does not
form a part, the Court may, when passing judgment, order the
accused person to pay, by way of compensation, such amount
as may be specified in the order to the person who has suffered
any loss or injury by reason of the act for which the accused person
has been so sentenced.
(4) An order under this section may also be made by an Appellate
Court or by the High Court or Court of Session when exercising
its powers of revision.
(5) At the time of awarding compensation in any subsequent civil
suit relating to the same matter, the Court shall take into account
any sum paid or recovered as compensation under this section.
7.1 Section 357A of the Criminal Procedure Code.
 Every State Government in coordination with the Central
Government shall prepare a scheme for providing funds for the
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purpose of compensation to the victim or his dependents, who
have suffered loss or injury as a result of the crime and who,
require rehabilitation.
 Whenever a recommendation is made by the Court for
compensation, the District Legal Service Authority or the State
Legal Service Authority, as the case may be, shall decide the
quantum of compensation to be awarded under the scheme
referred to in sub-section (1).
 If the trial Court, at the conclusion of the trial, is satisfied, that the
compensation awarded under section 357 is not adequate for such
rehabilitation, or where the cases end in acquittal or discharge and
the victim has to be rehabilitated, it may make recommendation for
compensation.
 Where the offender is not traced or identified, but the victim is
identified,
and where no trial takes place, the victim or his dependents may make
an application to the State or the District Legal Services Authority for
award of compensation.
 On receipt of such recommendations or on the application under
sub-section (4), the State or the District Legal Services Authority
shall, after due enquiry award adequate compensation by
completing the enquiry within two months.
 The State or the District Legal Services Authority, as the case may
be, to alleviate the suffering of the victim, may order for immediate
first- aid facility or medical benefits to be made available free of
cost on the certificate of the police officer not below the rank of the
officer in charge of the police station or a Magistrate of the area
concerned, or any other interim relief as the appropriate authority
deems fit.
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8. Gujarat Victim Compensation Scheme, 2016, some relevant and
important provisions:
The objects of the said Guidelines are:-
(1) To support existing State Victim Compensation Schemes
(2) To reduce disparity in quantum of compensation amount notified by
the different States and
(3) To encourage States for effective implementation of the Schemes As
per Para No.7 of the above Guidelines, the essential requirements to
access funds under the CVCF Guidelines, following conditions should be
satisfied.
(1) State must notify Victim Compensation Scheme as provided u/s 357A
of CrPC.
(2) The amount of Compensation should not be less than what is
prescribed under Annexure-1 of the CVCF Guidelines.
(3) State must first pay amount of Compensation from its own
compensation funs and then seek reimbursement of Funds from CVCF
Guidelines.
(4) Details of every victim compensated must be maintain electronically
in Victim Compensation Module' in citizen portal of CCTNS Project
8.1 Victim Compensation Fund. —
(1) There shall be constituted a fund to be known as Victim
Compensation Fund from which amount of compensation under this
scheme shall be paid to the victim or his/her dependents.
(2) The State Government shall allot a separate budget for this Scheme
every year.
(3) The Fund shall be placed at the disposal of the Secretary to the
Government of Gujarat, Legal Department, Block No. 4, Saradar Bhavan,
Sachivalaya, Gandhinagar- 382010.
8. 2 Eligibility:--
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A victim or his dependents shall be eligible for the grant of
compensation if,- (a) the perpetrator (Accused of the Crime) of a heinous
crime is not traceable or goes unpunished after trial, but the victim is
identifiable and has to incur expenses on physical and mental
rehabilitation, such victim may also apply for the grant of compensation
under sub-section (4) of section 357A of the Code; (b) the offender (word
'Offender' is used while discussing the Crime) is not traced or identified,
but the victim is identified, and where no trial takes place, such victim
may also apply for grant of compensation under sub-section (4) of
section 357A of the Code.
8.3 Difference between Clause (a) and Clause (b) of Eligibility
criteria of the Victim Compensation Scheme;
Clause (a):- When the perpetrator of a heinous crime (name of the
accused is known) is (1) not traceable or goes unpunished after trial, but
(2) the victim is identifiable Clause (b):- When the offender (name of the
accused is not known) is (1) not traced or identified, but (2) the victim is
identified and where no trial takes place. Procedure for grant of
compensation other than acid attack.-
(1) Whenever a recommendation is made by the Court under sub-
sections (2) and (3) of Section 357A of the Code or an application is
made by any victim or his dependent under sub-section (4) of section
357A of the Code to the District Legal Service Authority or the State
Legal Service Authority, as the case may be, the District Legal Service
Authority or the State Legal Service Authority shall examine the case and
verify the contents of the claim with regard to the loss or injury caused to
victim/claimant and arising out of the reported criminal act and may call
for any other relevant information necessary in order to determine
genuineness of the case and occurrence of the incidence.
8.4 Procedure to be followed.The District Legal Service Authority or the
State Legal Service Authority, as the case may be, shall award
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compensation within two months, in accordance with the provisions of
this Scheme.
(3) The compensation under this Scheme shall be paid subject to the
condition that if the trial court while passing judgment at later date, order
the accused persons to pay any amount by way of compensation under
sub-section (3) of section 357 of the Code, the victim/claimant shall remit
an amount equal to the amount of compensation already paid, or the
amount ordered to be paid under the said sub-section (3) of section 357
of the Code, whichever is less. An undertaking to this effect shall be
given by the victim/claimant before disbursal of the amount of
compensation.
(4) The quantum of compensation decided by the District Legal Service
Authority or the State Legal Service Authority, as the case may be, shall
be disbursed to the victim or his dependents, as the case may be, from
the Fund.
(5) The compensation received by the victim from the State Government
in relation to the crime in question, namely, insurance, exgratia and/ or
payment received under any other Act or Scheme run by the State shall
be considered as a part of the compensation amount under this Scheme
and if the compensation amount granted under this Scheme exceeds the
payments received by the victim from collateral sources mentioned
above, the balance amount shall be paid out of Fund.
(5) The compensation received by the victim from the State Government
in
relation to the crime in question, namely, insurance, exgratia and/ or
payment received under any other Act or Scheme run by the State shall
be considered as a part of the compensation amount under this Scheme
and if the compensation amount granted under this Scheme exceeds the
payments received by the victim from collateral sources mentioned
above, the balance amount shall be paid out of Fund.
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(6) The case covered under the Motor Vehicles Act, 1988 (59 of 1988)
wherein compensation is to be awarded by the Motor Accident Claims
Tribunal, shall not be covered under Scheme.
(7) The District Legal Service Authority or the State Legal Service
Authority, as the case may be, to alleviate the suffering of the victim, may
order for immediate first aid facility or medical benefits to be made
available free of cost on the certificate of the police officer not below the
rank of the office- in-charge of the police station or Magistrate of the area
concerned, or any other interim relief as it may deem fit.
(8) The quantum of compensation to be awarded to the victim or his
dependents shall not exceed the maximum limit as specified in the
Schedule.(New Schedule has come into effect from 2/1/2016 and same
is uploaded on the webpage of the GSLSA) Procedure for grant of
compensation in case of Acid attack.-
(1) Whenever an application for the grant of compensation is made by
victim of acid attack or his dependent, to the concerned DLSA or SLSS
may call for any other relevant information necessary in order to
determine genuineness of the claim and occurrence of the crime. The
District Legal Service Authority or the State Legal Service Authority, as
the case may be, shall award the compensation not exceeding rupees
three lakhs (Rs. 3/- lakh only) out of which rupees one lakh shall be paid
as an interim compensation to facilitate immediate medical attention and
expenses within 15 days of the application to the District Legal Service
Authority or the State Legal Service Authority, as the case may be. The
balance sum upto rupees two lakhs shall be paid as expeditiously as
possible and positively within two months thereafter and in accordance
with the provisions of this Scheme.
(2) The District Legal Service Authority or the State Legal Service
Authority, as the case may be, shall decide the quantum of compensation
to be awarded to victim or his dependents on the basis of loss caused to
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the victim, medical expenses incurred and to be incurred on for
treatment, minimum amount required for rehabilitation including such
incidental charges as funeral expenses, etc. The compensation may vary
from case to case depending on facts of each case.
(3) While deciding the amount of compensation, the DLSA or SLSA, as
the case may be, has to confirm that the victim has taken treatment in
the Government Hospital or in the Hospital approved by the Health and
Family Welfare Department, Government of Gujarat. If the victim has
taken treatment in any other Hospital, then verification from concerned
Civil Surgeon shall be required to decide the amount of compensation. In
such case, medical expenses shall be paid to the extent of the actual
expenses which would occur in the Government Hospital or in the
Hospital approved by the Health and Family Welfare Department,
Government of Gujarat for the same treatment
(4) In case, while passing judgment at later date, where the court passes
the order for payment of compensation to the victim/claimant by the
accused person, the victim/claimant shall be required to remit an amount
equal to the amount of compensation already paid or the amount ordered
by the court, to the Fund.
(5) The quantum of compensation decided by the District Legal Service
Authority or the State Legal Service Authority, as the case may be, shall
be disbursed to the acid attack victim or in case of death of acid attack
victim to his dependent, as the case may be, from the Fund.
(6) The quantum of compensation to be awarded to the victim or his
dependent shall not exceed the maximum limit of Rs. 3 lakhs (Rupees
Three lakhs only). Order to be placed on record.- The copy of the order
of grant of compensation passed under this Scheme shall be placed on
record of the trial court to enable the court to pass an order of
compensation under sub-section (3) of section 357A of the code.
8.5 Recovery of Compensation.-
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(1) The DLSA or SLSA, as the case may be, if deem fit, shall institute
proceeding before the competent court in consultation with the office of
concerned public prosecutor for recovery of the compensation granted to
the victim or his dependent from the person(s) responsible for causing
loss or injury as a result of the crime committed by him/them.
(2) The amounts, so recovered, shall The Ministry of Home Affairs has
introduced the Central Victim Compensation Fund (CVCF) Guidelines,
2015 w.e.f. 21/08/2015.
Schedule (See Rule 5 (8) with effect on date : 5-1-2016, The amouts so
recovered shall be deposited in the fund.
Amount - Recovery of Compensation.
Sr No Particulars of loss or injury Maximum Limit of
Compensation
1 Loss of Life Rs.1,50,000/-
2 Loss of any limb or part of body resulting
80% or above Handicap
Rs1,00,000/-
3 Loss of any limb or part of body resulting
above 40% &below 80% Handicap.
Rs 50,000/-
4 Rape Rs. 1,00,000-
5 Loss of any injury causing severe mental
agony to women and child victim in case
like human Trafficking
Rs.25,000/-
6 Compensation in case of acid attack Rs 3,00,000/-
7 In Case of Sodomy Rs.25,000/-
8 Rehabilitation Rs 50,000/-
Thereafter the Gujarat government Home Department on dated the
7/7/2016 in the powers conferred by section 357 A of Cr. P.C they had
substituted following namely:
Sr No Particulars of loss or injury Maximum Limit of
Compensation
1 Acid Attack Rs.3 lakhs.
2 Rape Rs.3 lakhs.
3 Physical abuse of minor Rs. 2 lakhs.
4 Rehabilitation of Victim of Human Rs. 1 lakhs.
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Trafficking
5 Sexual Assault (Excluding Rape) Rs 50,000/-
6 Death Rs. 2 lakhs
7 Permanent Disability (80% or More) Rs. 2 lakhs
8 Partial Disability (40 % to 80%) Rs. 2 lakhs
9 Burns affecting greater than 25% of the
body (excluding Acid Attack cases)
Rs.2 lakhs
10 Loss of Foetus Rs 50,000/-
11 Loss of fertility Rs 1.5 lakhs
12 women Victims of Cross border Firing
(a) Death or Permanent Disability
(80 % or more)
(b) Partial Disability
(40 % to 80 %)
(a) Rs 2 lakh
(b) Rs 1 lakh.
Note: “If the victim is less than 14 years of age, the Compensation
shall be increased by 50 % of the amount specified above”
The copy of the order of grant of compensation passed under this
scheme shall be placed on record of the trial court to enable the court to
pass an order of compensation under subsection (3) of section 357 A of
the code.
9. RECENT CASE LAWS
9.1 Tekan @ Tekram v/s State Of Madhya Pradesh (Now
Chhattisgarh) it is held as under:-
It is clear that no uniform practice is being followed in providing
compensation to the rape victim for the offence and for her rehabilitation.
This practice of giving different amount ranging from Rs.20,000/- to
Rs.10,00,000/- as compensation for the offence of rape under section
357A needs to be introspected by all the States and the Union Territories.
They should consider and formulate a uniform scheme specially for the
rape victims in the light of the scheme framed in the State of Goa which
has decided to give compensation up to Rs. 10,00,000/-
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9.2 Hon'ble Apex Court in the case of Laxmi v/s Union of India
(which has been reiterated in by Hon'ble Apex Court in the recent
decision in the case of Parivartan Kendra v/s union of India) has held in
para No.21 and 22 as under:
Para 21. The final issue is with regard to the setting up of a Criminal
Injuries Compensation Board (CICB). In the meeting held on 14.03.2015,
the unanimous view was that since the DLSA is already constituted in
every district and is involved in providing appropriate assistance relating
to acid attack victims, perhaps it may not be necessary to set up a
separate Criminal Injuries Compensation Board. In other words, a
multiplicity of authority need not be created.
Para 22. In our opinion, this view is quite reasonable. Therefore, in case
of any compensation claim made by any acid attack victim, the matter
will be taken up by the District Legal Services Authority, which will include
the District Judge and such other co-opted persons who the District
Judge feels will be of assistance, particularly the District Magistrate, the
Superintendent of Police and the Civil Surgeon or the Chief Medical
Officer of that District or their nominee. This body will function as the
Criminal Injuries Compensation Board for all purposes.
9.3 Apex Court in Hari Singh v. Sukhbir Singh, (1988) 4 SCC 551, had
to issue a mild reprimand while exhorting the Courts for liberal use of this
provision to meet the ends of justice as a measure of responding
appropriately to the crime, and reconciling the victim with the offender.
The relevant portion of the said judgment is reproduced hereunder:-
... Sub-section (1) of Section 357 provides power to award compensation
to victims of the offence out of the sentence of fine imposed on
accused. ... It is an important provision but courts have seldom invoked
it. Perhaps due to ignorance of the object of it. It empowers the court to
award compensation to victims while passing judgment of conviction. In
addition to conviction, the court may order the accused to pay some
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amount by way of compensation to victim who has suffered by the action
of accused. 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, a constructive approach to
crimes. It is indeed a step forward in our criminal justice system. We,
therefore, recommend to all courts to exercise this power liberally so as
to meet the ends of justice in a better way”
9.4 Dilip S. Dahanukar v. Kotak Mahindra Co. Ltd., (2007) 6 SCC 528,
The Supreme Court explained the scope and purpose of grant of
compensation as under:- “38. The purpose of imposition of fine and/or
grant of compensation to a great extent must be considered having the
relevant factors therefore in mind. It may be compensating the person in
one way or the other. The amount of compensation sought to be
imposed, thus, must be reasonable and not arbitrary. Before issuing a
direction to pay compensation, the capacity of the accused to pay the
same must be judged. A fortiori, an enquiry in this behalf even in a
summary way, may be necessary. Some reasons, which may not be very
elaborate, may also have to be assigned; the purpose being that
whereas the power to impose fine is limited and direction to pay
compensation can be made for one or the other factors enumerated out
of the same; but sub- section (3) of Section 357 does not impose any
such limitation and thus, power there under should be exercised only in
appropriate cases. Such a jurisdiction cannot be exercised at the whims
and caprice of a judge.”
9.5 Manish Jalan v. State of Karnataka, (2008) 8 SCC 225,
The Supreme Court observed that the Courts have not made use
of the provisions regarding award of compensation to the victims as often
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as they ought to be. The relevant portion of the said judgment is
reproduced hereunder:- “12. Though a comprehensive provision enabling
the court to direct payment of compensation has been in existence all
through but the experience has shown that the provision has rarely
attracted the attention of the courts. Time and again the courts have
been reminded that the provision is aimed at serving the social purpose
and should be exercised liberally yet the results are not very heartening.”
9.6 K.A. Abbas H.S.A. v. Sabu Joseph, (2010) 6 SCC 230,
The Supreme Court again noted that Section 357 Cr.P.C. is an
important provision but the Courts have seldom invoked it, perhaps due
to the ignorance of the object of it. The relevant portion of the said
judgment is reproduced hereunder:- “18. In this case, we are not
concerned with sub-section (1). We are concerned only with sub-section
(3). It is an important provision but the courts have seldom invoked it.
Perhaps due to ignorance of the object of it. It empowers the court to
award compensation to victims while passing judgment of conviction. In
addition to conviction, the court may order the accused to pay some
amount by way of compensation to the victim who has suffered by the
action of the accused. It may be noted that this power of the 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 as of
reconciling the victim with the offender. It is, to some extent, a
constructive approach to crimes. It is indeed a step forward in our
criminal justice system. We, therefore, recommend to all the courts to
exercise this power liberally so as to meet the ends of justice in a better
way.”
9.7 Roy Fernandes v. State of Goa, (2012) 3 SCC 221,
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The Supreme Court again observed that the Criminal Courts do not
appear to have taken significant note of Section 357 Cr.P.C. or exercised
the power vested in them there under. The relevant portion of the said
judgment is reproduced thus “41. The provision of payment of
compensation has been in existence for a considerable period of time on
the statute book in this country. Even so, the criminal Courts have not, it
appears, taken significant note of the said provision or exercised the
power vested in them there under.”
9.8 Ankush Shivaji Gaikwad v. State of Maharashtra, (2013) 6 SCC
770, The Supreme Court again noted with despair that Section 357
Cr.P.C. has been consistently neglected / ignored by the Courts despite
series of pronouncements to that effect. The Supreme Court cited with
approval Sarwan Singh (supra), Maru Ram (supra), Hari Singh (supra),
Balraj (1994) 4 SCC 29, Baldev Singh v. State of Punjab, (1995) 6 SCC
593 and Dilip S. Dahanukar (supra). The Supreme Court held that
Section 357 Cr.P.C. is mandatory and has to be applied in every criminal
case and the Courts are required to record reasons for such application.
The relevant portions of the judgment are reproduced hereunder:-
Para “28. The only other aspect that needs to be examined is whether
any compensation be awarded against the appellant and in favour of the
bereaved family under Section 357 of the Code of Criminal Procedure,
1973. This aspect arises very often and has been a subject- matter of
several pronouncements of this Court. The same may require some
elaboration to place in bold relief certain aspects that need to be
addressed by the courts but have despite the decisions of this Court
remained obscure and neglected by the courts at different levels in this
country...
Para 48. The question then is whether the plenitude of the power vested
in the courts under Sections 357 and 357-A, notwithstanding, the courts
can simply ignore the provisions or neglect the exercise of a power that
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is primarily meant to be exercised for the benefit of the victims of crimes
that are so often committed though less frequently punished by the
courts. In other words, whether courts have a duty to advert to the
question of awarding compensation to the victim and record reasons
while granting or refusing relief to them? xxx xxx
Para 54. Applying the tests which emerge from the above cases to
Section 357, it appears to us that the provision confers a power coupled
with a duty on the courts to apply its mind to the question of awarding
compensation in every criminal case. We say so because in the
background and context in which it was introduced, the power to award
compensation was intended to reassure the victim that he or she is not
forgotten in the criminal justice system. The victim would remain
forgotten in the criminal justice system if despite the legislature having
gone so far as to enact specific provisions relating to victim
compensation, courts choose to ignore the provisions altogether and do
not even apply their mind to the question of compensation. It follows that
unless Section 357 is read to confer an obligation on the courts to apply
their mind to the question of compensation, it would defeat the very
object behind the introduction of the provision. xxx xxx xxx
Para 61. Section 357 CrPC confers a duty on the court to apply its mind
to the question of compensation in every criminal case. It necessarily
follows that the court must disclose that it has applied its mind to this
question in every criminal case. xxx xxx xxx
Para 66. To sum up: while the award or refusal of compensation in a
particular case may be within the court's discretion, there exists a
mandatory duty on the court to apply its mind to the question in every
criminal case. Application of mind to the question is best disclosed by
recording reasons for awarding/refusing compensation. It is axiomatic
that for any exercise involving application of mind, the Court ought to
have the necessary material which it would evaluate to arrive at a fair
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and reasonable conclusion. It is also beyond dispute that the occasion to
consider the question of award of compensation would logically arise
only after the court records a conviction of the accused. Capacity of the
accused to pay which constitutes an important aspect of any order under
Section 357 Cr.P.C would involve a certain enquiry albeit summary
unless of course the facts as emerging in the course of the trial are so
clear that the court considers it unnecessary to do so. Such an enquiry
can precede an order on sentence to enable the court to take a view,
both on the question of sentence and compensation that it may in its
wisdom decide to award to the victim or his/her family”
Para 68 of the said judgment, the Supreme Court directed the copy of
this judgment be forwarded to the Registrars of all the High Courts for
circulation among Judges handling criminal trials and hearing appeals.
9.9 Delhi Domestic Working Women’s Forum v Union of India
(1995)1 SCC 14 , the Supreme Court while stipulating the broad
parameters for assisting the victims (though in this case specifically of
the offence of rape), asserted that the victims ought to be given proper
legal representation. The court further said: “It is important to have
someone who is well- acquainted with the criminal justice system. The
role of the victim’s advocate would not only be to explain to the victim the
nature of the proceedings, to prepare her for the case and to assist her in
the police station and in court but to provide her with guidance as to how
she might obtain help of a different nature from other agencies, for
example, mind counseling or medical assistance. It is important to secure
continuity of assistance by ensuring that the same person who looked
after the complainant’s interest in the police station represents her till the
end of the case.”
Under criminal law , the Said Code also lays down provisions for
victim compensation. Section 357 of the Said Code is an effective
provision where section (1) (b) and (c) provide for apportioning
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compensation from fine imposed by the court to the victim. Section 357
(3) of the said Code provides unbound discretion to judges to balance
the right of victims for compensation and save them from resorting to the
cumbersome process of civil court as it does not put any limitation over
the quantum of compensation.
9.10.The judicial contribution for the effective use of section 357 of
the Said Code is seen in the case of Sarwan Singh v/s State of
Punjab [(1978) 4 SCC 111], where 5 persons committed death of
another relative in an agricultural field and before the lower court fine
was ordered to be paid to the widow of the deceased victim. It was held
by the Hon’ble Supreme Court that if it is found by the court that
compensation should be paid, then the capacity of the accused to pay
the compensation has to be determined and that if accused has the
capacity to pay there could be no reasons to court not directing such
compensation.
9.11 Palaniappa Gounder v/s State of Tamil Nadu [(1977) 2 SCC 634]
where victim’s children filed an application under section 482 of Said
Code to pay compensation for death of their father. The Hon’ble High
Court had ordered to pay fine of `. 20,000/-. It was observed by the
Hon’ble Supreme Court that courts should ensure that fine must not be
excessive and should have regard to all circumstances of the case, the
motivation of offence, the pecuniary gain likely to have been made by the
offender by committing the offence and his means to pay the fine.
9.12 Hari Singh v/s Sukhbir Singh [(1988) 4 SCC 551], the Hon’ble
Supreme Court urged all courts to exercise their power under section
357 of the Said Code liberally to safe guard the interest of victim and also
laid down principles which court should consider regarding assessment
of amount of compensation and mode of its payment.
9.14 Hon’ble Supreme Court in the case of Rachhpal Singh v/s State
of Punjab [AIR 2002 SC 2710] stress is given on sec 357(3) of Said
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Code and held that it is open to the Court ot awaraad compensation to
the victim or his family. Similarly in case of K. Baskaran v/s sankaran
Vaidhyan balan [AIR 1999 SC 3762 ] where the Hon’ble supreme court
again gave importance to section 357 of the said Code in the case of
dishonour of cheque.
9.15.A land mark decision in victim compensation under Sec 357A
came very recently in Suresh v. State of Haryana.
In this case the Supreme Court awarded an interim compensation
under Sec 357 A, and directed the state to pay an amount of Rs 10 lakhs
to the family of the victims who had been abducted and murdered. Court
held that High Court ought to have had awarded the compensation even
without an application from the dependants. The apex court lamented
that though several years had passed since the enactment of Sec 357A,
the award of compensation has not become a rule and interim
compensation was not being granted by courts. The court gave the
following directions:
1. It is the duty of the court, on taking cognizance of a criminal offence ,
to ascertain whether there is tangible material which showed the
commission of the crime, whether the victim was identifiable and whether
the victim of crime require immediate financial relief.
2. On being satisfied either on application or suo moto, the court ought to
direct the grant of interim compensation, subject to the final
determination of compensation at a later stage. This duty continues at
every stage of criminal case, where compensation ought to be given but
not given, irrespective of the application by the victim.
3. At the stage of final hearing , it is obligatory on the part of the court to
advert to the provision and record a finding as to whether a case for
grant of compensation had been made, if so who is entitled to
compensation and how much.
4. Award of the compensation can be interim.
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5. Gravity of the offence and need of victim are to be the guiding factors,
apart from other factors which are relevant to the facts and
circumstances of the case.
6. There is also a need to consider upper revision in the scale of
compensation. Pending such hike, scale notified by the state of Kerala
224 under the scheme may be adopted unless the scale awarded by any
other state or Union Territory is higher.
The court also directed the states of Andra Pradesh, Telengana,
Madhya Pradesh and Meghalaya to notify the scheme within one month
from the date of receipt of the copy of the order. The court also directed
that a copy of the judgment be forwarded to the National judicial
Academy so that all judicial officers in the country can be imparted with
the requisite knowledge so as to make the provision operative and
meaningful. Thus it can be seen that apex court is making all Endeavour
to properly implement the beneficial provisions as to victim
compensation. It is of no doubt that if the directions of Spume Court are
implemented effectively, it may give some solace to the ailing soul and
body of the victim and his dependents. This decision again points to the
lack of comprehensive legislation in this regard.
9.16 Regarding victims of acid attack, under Sec 357 A,in Laxmi v.
Union of India,
The Supreme Court, had held that, a uniform compensation of Rs 3
lakhs must be paid by all states and union territories to the victims. Of
which 1 lakh should be paid immediately within 15 days and remaining 2
lakhs should be within 2 months as expeditiously as possible. The apex
court even stated that compensation must be provided to the victim
irrespective of the outcome of the prosecution. For instance, in Abdul
rashid v. State of odisha and others it was held that Article 21 is not
limited to providing compensation when state or its agencies is guilty of
an act but also to rehabilitate the victim or his family when crime is
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committed against him. It was stated that Art 357 A was incorporated as
a need was felt to provide compensation to the victim irrespective of the
outcome of the prosecution. In this case court awarded interim
compensation to the father of the victim under Sec 357A.
As far as Sec 357 A of Crpc is concerned, though it was
incorporated in 2009, it is only very recently that the Supreme court had
begun to intervene. In Re: Indian woman says gang raped on orders of
village court published in Business and financial news dtd 23-01-2014,
the Hon’ble apex court Suo Moto took action based on news item and
directed the District judge to inspect the place and give report. The court
held that victim has suffered due to failure on the part of the state to
protect her. Though her lost prestige and honour could not be regained,
the monetary compensation could be of some solace. Court held that by
virtue of Sec357 A, state Governments has a responsibility to formulate
the schemes for compensation of the victim which is mandatory in
nature. It is for the District or the State Legal Services Authority to
determine the quantum of compensation in each case, though no rigid
formula has been evolved in this regard. In this case, the court awarded
a compensation of Rs 5 lakhs as interim compensation under Sec 357 A.
Though not under Section 357, the apex court and High Courts had
awarded compensation to victims of crime under Article 32 and 226
respectively as public law remedy. As far as sexual offences are
concerned; the apex court’s contribution is really laudable.
9.17. Delhi Domestic working women’s forum v. Union of India the
apex court had laid down several parameters in assisting victims of
rape had directed that in the case of rape,
Held, that compensation must be awarded to the victim whether or
not accused is convicted by the criminal injuries compensation Board.
But in spite of that victim’s right to compensation was not fully satisfied in
criminal justice system. This situation was highlighted by Malimath
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Committee in its report. Though victim compensation scheme was
incorporated in the legal frame work by CrPC (Amendment) Act, 2008,
and Sec 357 A had been incorporated, the award of compensation had
not become a rule. In fact some positive trends have become evident in
recent years.
9.18. Ankush Shiwaji Gaikwad V. The state of Maharashtra ,
Supreme Court had held that, taking into consideration the legislative
intention of the provisions relating to victim compensation; it seemed that
this power was conferred on the court to reassure the victim that he is
not a forgotten party in the criminal justice system. Hence Sec 357 must
be read as to confer an obligation on the courts to apply their mind in the
question of compensation in criminal case. Otherwise it would defeat the
very object of enacting this provision. Thus the word “may” used in Sec
357 must be read as “shall". Therefore apex court held that though
awarding or refusing to award compensation may be within the discretion
of the court, there exists a mandatory obligation on the part of the court
to apply its mind in every criminal case. This necessarily implies
recording of reasons for awarding or refusing compensation. The court
must consider the issue of awarding compensation, only when the
conviction of the accused is recorded. An enquiry may be conducted as
to the capacity of the accused to pay the compensation before fixing the
sentence and the compensation. Thus it can be stated the power of the
court to award compensation is tied with an obligation for the same. Thus
it is submitted that though there is no mandatory obligation on the part of
the state to award compensation under Sec 357, it is really laudable that
judiciary imposed a mandatory obligation on the part of courts to decide
in every criminal case the necessity as to awarding of compensation.
This is really a welcome trend as far as providing justice to the victims.
9.19 Ankush Shivaji Gaikwad v. State of Maharashtra (2013) 6 SCC
770 [T.S.Thakur, J. (as His Lordship then was) and Gyan Sudha
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Misra, J] and Suresh and Another v. State of Haryana(2015) 2 SCC
227 [T.S.Thakur, J. (as His Lordship then was) and Adarsh Kumar
Goel, J] are silver lining where it was observed that :
“Sec. 357 Cr.P.C confers a duty on the Court to apply its mind to
the question of compensation in every criminal case. It necessarily
follows that the Court must disclose that it has applied its mind to this
question in every criminal case.” “The object and purpose of Section 357
A is to enable the Court to direct the State to pay compensation to the
victim where the compensation under Section 357 was not adequate or
where the case ended in acquittal or discharge and the victim was
required to be rehabilitated. Under this provision, even if the accused is
not tried but the victim needs to be rehabilitated, the victim may request
the State or District Legal Services Authority to award him or her
compensation.
ARJUNSINH P RANDHIR
2ND
ADDI CIVIL JUDGE & J.M.F.C,
BORSAD,
DISTRICT: ANAND.
JUDGE CODE: GJ 01079
THANK YOU.
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