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Report No. 154

Questioning of the Victim

At all stages of the procedure, the victim should be questioned in a manner giving due consideration to his personal situation, his rights and his dignity. Whenever possible and appropriate, children and the mentally ill or handicapped should be questioned in the presence of their parents or guardians or other persons qualified to assist them.

8. The movement for compensation for victims of crime has, as we have examined above, gained momentum globally and in countries of Anglo-Saxon legal systems as in U.K., Canada, New Zealand, Australia and USA. Statutory mechanisms are in place for providing succour to crime victims through compensation.

9.1. The principles of victimology has foundations in Indian constitutional jurisprudence. The provision on Fundamental Rights (Part III) and Directive Principles of State Policy (Part IV) form the bulwark for a new social order in which social and economic justice would blossom in the national life of the country (Article 38). Article 41 mandates, inter alia, that the State shall make effective provisions for "securing the right to public assistance in cases of disablement and in other cases of undeserved want."

So also Article 51A makes it a fundamental duty of every Indian citizen, inter alia, 'to have compassion for living creatures' and 'to develop humanism'. If emphatically interpreted and imaginatively expanded these provisions can form the constitutional underpinnings for victimology.

9.2. However, in India, the criminal law Provides compensation to the victims and their dependants, only in a limited manner. Section 357 of the Code of Criminal Procedure incorporates this concept to an extent and empowers the Criminal Courts to grant compensation to the victims.

9.3. Under section 357 compensation can be given in different ways and that too only when the offender is convicted and sentenced. Under section 357(1)(b) if the sentence is of fine, it can be applied in the payment of compensation, but limits the payment to cases when compensation is, in the opinion of the court, recoverable by the victim in a civil court. Similarly, compensation may be paid at the sentencing stage to persons who are under the Fatal Accidents Act, 1855 entitled to recover damages from the convict [section 357(1)(c)].

So also in cases of theft, misappropriation, cheating and the like, the bona fide purchaser of property from the convict may also be compensated, the victim of the theft or cheating being also entitled to return of the property [section 357(1)(d)]. Under section 357(3) if the sentence is not fine, the court may order the accused to pay specified amount of compensation to the victim.

9.4. The Code of Criminal Procedure, 1973 made an improvement over the old Code of 1898 in that under sub-section (3) of section 357, it recognised the principle of compensating the victims even when no sentence of fine is imposed. Under the old Code, no compensation could be awarded unless a substantive sentence of fine was imposed and the amount of compensation too was limited only to the extent of fine actually realised. But order of compensation under section 357(3), will be futile against an accused without property or other financial resources or if lie dies.

9.5. Under section 5 of the Probation of Offenders Act, 1958, while releasing an accused on probation or with admonition, the court may order the offender to pay compensation as well as cost to the victim.

10. The aspect of compensatory justice in criminal law has been elaborately dealt with by the Supreme Court in the leading case of Hari Singh v. Sukhbir Singh1 The Court pertinently observed:

"[Section 357(3)1 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 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 an 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.

The payment by way of compensation must, however, be reasonable. What is reasonable, may depend upon the facts and circumstances of each case. The quantum of compensation may be determined by taking into account the nature of crime, the justness of claim by the victim and the ability of accused to pay. Reasonable period for payment of compensation, if necessary by instalments, may also be given. The court may enforce the order by imposing sentence in default."

1. (1988) 4 SCC 551; see also Dr. Jacob George v. State of Kerala, (1994) 3 SCC 430 (Fine imposed for offence under section 314 of Indian Penal Code in addition to sentence of imprisonment. Supreme Court enhanced the fine from Rs. 5000 as awarded by the High Court to Rs. 1,00,000 to be paid as compensation for the upkeep of the deceased's child); Baldev Singh v. State of Punjab, (1995) 6 SCC 593 [appellants were directed under section 357(3) to pay compensation to the tune of Rs. 35,000 each to the widow of the victim and her children]; Balraj v. State of Uttar Pradesh, AIR 1995 SC 1935 [appellants directed to pay by way of compensation a sum of Rs. 10,000 to the victim's widow under section 357(3)].

11. In India the principles of compensation to crime victims need to be reviewed and expanded to cover all cases. The compensation should not be limited only to fines, penalties and forfeitures realised. The State should accept the principle of providing assistance to victims out of its own funds, (i) in cases of acquittals, or (ii) or where the offender is not traceable but the victim is identified, or (iii) and also in cases when the offence is proved.

12. The Law Commission of India in its 152nd Report on Custodial Crimes has recommended insertion of a new section 357A in the Code of Criminal Procedure regarding compensation to the victims of custodial crimes which is as follows:

"(1) Notwithstanding the provisions of section 357, where the court convicts a public servant of an offence resulting in death or bodily injury, being an offence constituted by an act of such public servant against, a person in his custody, the provisions of this section shall apply.

(2) The court, when passing judgment in any case to which this section applies, shall order that the Government in connection with the affairs of which such public servant was employed at the time when such act was committed, shall be liable jointly and severally with such public servant to pay, by way of compensation such amount as may be specified in the order.

(3) An order for payment of compensation 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.

(4) While awarding compensation in any subsequent suit relating to the same matter, the civil court shall take into account any sum paid or recovered as compensation under this section.

(5) The amount awarded under this section shall not be less than:

(a) Rupees twenty five thousand in case of bodily injury, not resulting in death;

(b) Rupees one lakh, in case of death;

(c) In fixing the amount of compensation under this section, the court shall, subject to the provisions of sub-section (5), take into account all relevant circumstances, including but not necessarily limited to the following:

(i) the type and severity of the injury suffered by the victim;

(ii) the mental anguish suffered by the victim;

(iii) the expenditure incurred or likely to be incurred on the treatment and rehabilitation of the victim;

(iv) the actual and projected earning capacity of the victim and the impact of its loss on the person entitled to compensation and other members of the family;

(v) the extent, if any to which the victim himself contributed to the injury;

(vi) the expenses incurred in the prosecution of the case.

(6) In case of death or permanent disablement of the victim, the court may take into account the estimated annual income of the victim as multiplied by the number of years of his estimated span of life.

(7) Pending final determination of the proceeding, the court may award, by way of interim relief, such compensation as it may think proper in the circumstances of the case at any stage of the case, even before judgment of conviction is passed.

(8) The Government may recover any amount paid by it as compensation under this section wholly or partly as it may think proper, from the delinquent public servant."

The above recommendations of the Law Commission though confining to victims of custodial crimes, have not been given effect to.

13. In view of the weaknesses of the existing provisions for compensation to crime victims in the criminal law we are of the view that it is necessary to incorporate a new section 357A in the Code to provide for a comprehensive scheme of payment of compensation for all victims fairly and adequately by the courts. Heads of compensation are for: (i) for injury, (ii) for any loss or damage to the property of the claimant which occurred in the course of his/her sustaining the injury, and (iii) in case of death from injury resulting in loss of support to dependants.

In the State of Tamil Nadu, a Fund called "Victim Assistance Fund" has been created and Rupees one crore has been allocated to the scheme during 1995-96. The scheme provides for financial assistance to the victim of murder, serious injuries, rape and particularly to help women, children and bread winners in distress. The amount is placed at the disposal of the Director-General of Police who will sub-allocate the amount to the Commissioners of Police of Madras. Madurai and Coimbatore and Superintendents of Police of other districts with reference to requirements and the cash relief would be sanctioned to the victims or legal heir in case of murder on the following scales:

S. No.

Particulars

Amount of cash

To whom it should be paid

1.

Murder Rs. 10,000 (Rs. ten thousand only) To the legal heir

2.

Grievous injury Rs. 5000 (Rs. Five thousand only) To the victim

3.

Rape Rs. 5000 (Rs. Five thousand only) To the victim

The said Scheme provides for setting up District Victims' Assistance Committee in each district comprising the following officials with the District Superintendent of Police/Deputy Commissioner of Police (Headquarters) acting as Member Secretary:

Name of the committee

Chairman

Member

(a) District Victims Assistance Committee District Collector (i) District Super-intendent of Police
(b) City Victims Assistance Committee at Madras, Madurai, Coimbatore Commissioner of Police (i) Deputy Commissioner of police (Head quarters)
(ii) City Public-Prosecutor.

The application received from the victims seeking financial assistance from the fund in District Superintendent of Police Office/Commissioner of Police Office under the scheme is required to be placed before the Committee for consideration and decision.

The assistance from the "Victim Assistance Fund" will not be given to those victims or to legal heirs, if the victim is involved in any cognizable offence.

The Tamil Nadu Scheme which is limited only to a certain class of victims is being referred to as a model to be adopted in a comprehensive manner covering all victims.

14. In order to ensure that opportunities for securing justice are not denied to any citizen by raising of economic or other disabilities as per the mandate under Article 39 A of the Constitution, the Legal Services Authorities Act, 1987 was enacted by the Parliament. It seeks to provide for the constitution of the National Legal Services Authority consisting of the Chief Justice of India and some other members.

Likewise, the Act provides for constitution of the State Legal Services Authority consisting of the Chief Justice of the High Court or any other serving or retired judge of the High Court to act as its Chairman and such other members possessing the requisite experience and qualifications.

The State Authority performs functions, namely to (a) give legal service to persons who satisfy the criteria laid down under this Act; (b) conduct Lok Adalats; (c) undertake preventive and strategic legal aid programmes; and (d) perform such other functions as the State Authority may, in consultation with the Central Government, fix by regulations.

The Act further provides for the constitution of Legal Services Authority for every district in the State consisting of district Judge, who shall be its Chairman and such other members possessing such qualifications and experience as may be prescribed and nominated by the Government. The District Authority performs the functions of co-ordinating the activities of legal services in the district; organizing Lok Adalats within the district and such other task as the State Authority may, in consultation with the State Government, fix by regulations.

15. State and District Services Authorities may be vested with the power to award the compensation in the appropriate manner by making a provision under section 357A.

16. While awarding compensation the District Legal Services Authority or the State Legal Services Authority, as the case may be, should make a special consideration in cases of: (i) victims of custodial crimes, (ii) rape victims, (iii) victims of child abuse, and (iv) physically and mentally disabled victims.

17. Accordingly, a new section, section 357A, may be incorporated in the Code on the following lines:

"Section 357A-Victim Compensation Scheme-(1) Every State Government in co-ordination with the Central Government shall prepare a Scheme for providing funds for the purpose of compensating the victim or his dependents who have suffered loss or injury as a result of the crime and who require rehabilitation.

(2) Under the Scheme the District Legal Services Authority at the district level and the State Legal Services Authority at the State level shall decide the quantum of compensation to be awarded whenever a recommendation is made by the trial court to that effect.

(3) If the trial court, at the conclusion of the trial, is satisfied, that the compensation awarded under section 357(3) is not adequate for such rehabilitation, or where the cases end in acquittal or discharge and the victim has to be rehabilitated, it may recommend to the District Legal Services Authority if the compensation in its view is less than Rs. 30,000, or to the State Legal Service Authority if the compensation is more than Rs. 30,000.

(4) Where the offender is not traced or identified, but the victim is identified, and where no trial takes place it is open to the victim or his dependents to make an application under sub-section (2) to the District Legal Services Authority at the district level and the State Legal Services Authority at the State level for award of compensation.

(5) On receipt of such recommendations or on the application under sub-section (4), as the case may be, the District Legal Services Authority or the State Legal Services Authority, as the case may be, shall after due enquiry award adequate compensation by completing the enquiry within two months.

(6) The District Legal Services Authority or the State Legal Services Authority, as the case may be to alleviate the suffering of the victim may order immediate first aid facility or for 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.



The Code of Criminal Procedure, 1973 Back




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