Report No. 262

I. The Move towards Restorative Justice

4.11.1 In focusing on death penalty as the ultimate measure of justice to victims, the restorative and rehabilitative aspects of justice are lost sight of. Reliance on the death penalty diverts attention from other problems ailing the criminal justice system such as poor investigation, crime prevention and rights of victims of crime.

4.11.2 A major development in the late-twentieth century was the focus on the rights and needs of victims of crime. Restorative theories of criminal justice also emerged during that time.383 As Ashworth notes "[t]he fundamental proposition is that justice to victims become a central goal of the criminal justice system and of sentencing."384 Ashworth further says that "restorative justice has considerable attractions as a constructive and socially inclusive way of responding to criminal behaviour."385

383 Andrew Ashworth, Sentencing And Criminal Justice 88 (2005).

384 Andrew Ashworth, Sentencing And Criminal Justice 88 (2005).

385 Andrew Ashworth, Sentencing And Criminal Justice 89 (2005).

4.11.3 The need for police reforms for better and more effective investigation and prosecution has also been universally felt for some time now and measures regarding the same need to be taken on a priority basis. The Supreme Court in Prakash Singh v. Union of India, (2006) 8 SCC 1 held:

Having regard to (i) the gravity of the problem; (ii) the urgent need for preservation and strengthening of the rule of law; (iii) pendency of even this petition for the last over ten years; (iv) the fact that various commissions and committees have made recommendations on similar lines for introducing reforms in the police set-up in the country; and (v) total uncertainty as to when police reforms would be introduced, we think that there cannot be any further wait, and the stage has come for issuing of appropriate directions for immediate compliance so as to be operative till such time a new model Police Act is prepared by the Central Government and/or the State Governments pass the requisite legislations.

It may further be noted that the quality of the criminal justice system in the country, to a large extent, depends upon the working of the police force. Thus, having regard to the larger public interest, it is absolutely necessary to issue the requisite directions.

Nearly ten years back, in Vineet Narain v.Union of India [(1998) 1 SCC 226 : 1998 SCC (Cri) 307] this Court noticed the urgent need for the State Governments to set up the requisite mechanism and directed the Central Government to pursue the matter of police reforms with the State Governments and ensure the setting up of a mechanism for selection/appointment, tenure, transfer and posting of not merely the Chief of the State Police but also all police officers of the rank of Superintendents of Police and above.

The Court expressed its shock that in some States the tenure of a Superintendent of Police is for a few months and transfers are made for whimsical reasons which has not only 102oliticizing effect on the police force but is also alien to the envisaged constitutional machinery. It was observed that apart from 102oliticizing the police force, it has also the adverse effect of 102oliticizing the personnel and, therefore, it is essential that prompt measures are taken by the Central Government. Prakash Singh v. Union of India, (2006) 8 SCC 1 at para 26.

4.11.4 Measures should be taken to implement the directions of the Supreme Court in Prakash Singh.

4.11.5 The voices of victims and witnesses are often silenced by threats and other coercive techniques employed by powerful accused persons. Hence it is essential that a witness protection scheme also be established. Witness protection schemes have been proposed judicially by the Delhi High Court in Neelam Katara v. Union of India, ILR (2003) 2 Del 377. A beginning has been made in this regard by the Government of Delhi, which notified a witness protection scheme in July 2015.

4.11.6 It is essential that the State establish effective victim compensation schemes to rehabilitate victims of crime. At the same time, it is also important that courts use the power granted to them under the Code of Criminal Procedure, 1973 to grant appropriate compensation to victims in suitable cases.

4.11.7 Compensation for criminal acts is provided in Sections 357 and 357A of the Code of Criminal Procedure, 1973 ("CrPC"). Under Section 357(1), when a fine is imposed on a convict as part of the sentence, the judge can order that whole or part of the fine amount be paid as compensation to the victim (including to beneficiaries under the Fatal Accidents Act, 1855). Under this provision, the compensation amount cannot be greater than the fine imposed upon the convict.

4.11.8 Under Section 357(3), when no fine has been imposed as part of the sentence, the judge may order the convict to pay, by way of compensation, such amount to the victim, as the judge may specify. While there is no limit on the amount of compensation that can be awarded under this provision, the Supreme Court has held that in fixing the amount of compensation under Section 357(3), Courts should take into account the facts and circumstances of each case, the nature of the crime, the justness of the claim and the capacity of the accused to pay. Ankush Shivaji Gaikwad v. State of Maharashtra, AIR 2013 SC 2454.

The Delhi High Court in Vikas Yadav v. State of Uttar Pradesh, (2015) 218 DLT (CN) 1, summarized the law with respect to victim compensation and provided guidelines in this regard.

4.11.9 It is pertinent to note that under clauses (1) and (3) of section 357, compensation is recoverable only from the wrongdoer, and only after the guilt of the wrongdoer is established.

4.11.10 In order to deal with cases where the compensation amount under Section 357 is not adequate to rehabilitate the victim,390 or where no wrongdoer has been identified, traced, or convicted, Section 357A provides that the State shall create a Fund for the compensation and rehabilitation of victims of crime. A scheme under this section is required to be set up by State Governments in consultation with the Centre, and the State has to allocate funds for the scheme. Several state schemes have been established under this provision since its enactment in 2008.391

390 For the definition of victim for the purposes of the CrPC, see Section 2 (wa), CrPC.

391 See e.g., Delhi Victims Compensation Scheme, 2011; Odisha Victim Compensation Scheme, 2012; Tamil Nadu Victim Compensation Scheme, 2013.

4.11.11 In this context, the Supreme Court in Suresh v. State of Haryana, (2015) 2 SCC 227 issued directions relating to victim compensation and ruled that:

We are informed that 25 out of 29 State Governments have notified victim compensation schemes. The schemes specify maximum limit of compensation and subject to maximum limit, the discretion to decide the quantum has been left with the State/District Legal Authorities. It has been brought to our notice that even though almost a period of five years has expired since the enactment of Section 357-A CrPC, the award of compensation has not become a rule and interim compensation, which is very important, is not being granted by the courts. It has also been pointed out that the upper limit of compensation fixed by some of the States is arbitrarily low and is not in keeping with the object of the legislation.

We are of the view that it is the duty of the courts, on taking cognizance of a criminal offence, to ascertain whether there is tangible material to show commission of crime, whether the victim is identifiable and whether the victim of crime needs immediate financial relief. On being satisfied on an application or on its own motion, the court ought to direct grant of interim compensation, subject to final compensation being determined later.

Such duty continues at every stage of a criminal case where compensation ought to be given and has not been given, irrespective of the application by the victim. At the stage of final hearing it is obligatory on the part of the court to advert to the provision and record a finding whether a case for grant of compensation has been made out and, if so, who is entitled to compensation and how much. Award of such compensation can be interim. Gravity of offence and need of victim are some of the guiding factors to be kept in mind, apart from such other factors as may be found relevant in the facts and circumstances of an individual case.

We are also of the view that there is need to consider upward revision in the scale for compensation and pending such consideration to adopt the scale notified by the State of Kerala in its scheme, unless the scale awarded by any other State or Union Territory is higher. The States of Andhra Pradesh, Madhya Pradesh, Meghalaya and Telangana are directed to notify their schemes within one month from the receipt of a copy of this order. Suresh v. State of Haryana, (2015) 2 SCC 227, para 15-17.

4.11.12 Accordingly, the Commission is of the view that the victim compensation scheme as recommended by the Supreme Court in Suresh be implemented.