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Report No. 69

8.31. Compensation in criminal court.-

Briefly, the position in this regard1is as under: (i) some countries require the court to deal with claims for damages against the accused-e.g. Cuba, Mexico, Peru, Portugal, Colombia, Uruguay, even if the victim has not applied; (ii) some countries permit the court to deal with such claims, if made by the victim-e.g., France, Spain, Chile, Venezuela, and some Provinces of Argentina; (iii) some countries relegate the claim for damages to civil courts.

This is the traditional position in most common law countries, apparently because the Crown's right to forfeit the property of the felon had, in ancient times, precedence over private claims; (iv) some countries empower the criminal court to award compensation, but without a right to demand compensation to any person. India is in this last category2(v) in some countries, the State undertakes to pay compensation. Such a scheme is in force in England (non statutory) since 1964, and in some other countries (by statute-e.g. in some States of the U.S.A.).

1. John G. Fleming, in Book Review in, (1973) 21 AJCL 614 (615).

2. See section 357, Cr. P.C., infra.

8.32. Provisions for compensation in Criminal Codes.-

In the Criminal Codes of some countries, there is a mandatory provision for compensation. For example, the provision in Peru1 is as follows:-

"In case of rape, seduction, abduction or indecent assault upon a woman, the offender shall also be sentenced to pay a special compensation to the victim if she is a single woman or a widow, according to his means and to support any offspring which may result in the same cases, the offender shall be exonerated from the effects of the sentence if he marries the victim with her full consent after she is returned to the custody of her father, guardian or some other place."

1. Article 204, Criminal Code of Peru, H.H.A. Cooper Sexual Offences in Peru, (1973) 21 AJCL 113, footnote 133.

8.33. Ancient Hindu Law.-

In ancient Hindu law, the law-givers were fully aware of the necessity of directly compensating the victim of the crime. Thus, Manu1 says-

"If a limb is injured, a sound (is caused) or blood (flows, the assailant) shall be made to pay (to the sufferer) the expenses of the cure; or the whole (both the usual amercement and the expenses of the cure as a) fine (to the King)."

Manu also says:

"He who damages the goods of another, be it intentionally or unintentionally, shall give satisfaction to the (owner) and pay to the king a fine equal to the (damages)."

Manu, thus, provides for direct reparation to the victim of the crime apart from payment or fine to the king (the State). Brihaspati says:2

"He who injures the limb, or divides it, or cuts it off, shall be compelled to pay the expenses of curing it: and (who forcibly took an article in a quarrel) restore his plunder."

"A merchant who conceals the blemish of an article which he is selling, or mixes bad and good articles together, or sells (old articles) after repairing them, shall be compelled to give the double quantity (to the purchaser) and to pay a fine equal (in amount) to the value of the article."

1. The Laws of Manu in Sacred Books of the East, by Max Muller, Vol. 25, Chapter 8, Verse 287-288.

2. Brihaspati in the Sacred Books of the East, by Max Muller, Vol. 33, Chapter 21, Verse 10, and Chapter 22, Verse 7.

8.34. Order to pay compensation.-

Section 357(1) of the Code of Criminal Procedure, 1973 is as follows:-

"357. (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, entitled for the loss resulting to them for such death;

(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 compensation 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."

8.35. Section 357(3) of the same Code provides-

"(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."

8.36. Facts necessary to determine compensation.-

It is obvious that in proceedings where issues relating to such compensation arise, whether or not section 12 applies, facts necessary in order to enable the court to determine the amount of compensation would be relevant.

8.37. In many countries, the victim is permitted to request the prosecution to include his claim in the criminal case against the accused. Amongst such countries are Austria, Colombia, Italy, Norway, Spain and Sweden1. In France, a special action known as "actionecivile" can be started by the injured person, and it is heard along with the criminal case2.

1. Articles 234, 85 to 91, 371 to 375, 418 to 426, 497, French Code of Criminal Procedure.

2. Note Crime and Punishment-Reparation to the Victim, (1959) 227 Law Times 117.

8.38. Compensation and damage.-

We have referred above to the use of the word "compensation" in some context. Dixon J. in an Australian case1 dealing with compensation for the acquisition of property, said that it means "recompense for loss", and explained that the purpose of compensation in this context is to place in the hands of the owner expropriated the full money equivalent of the thing of which he has been deprived,

1. Nelungaloo Property Ltd. v. Commonwealth, (1948) 75 Commonwealth LR 495 (571).

8.39. In another Australian case1, Lathan C.J., interpreting a provision in the Seamen's Compensation Act which barred the right of a seaman to recover "compensation" both independently of and also under the Act, said that the word "compensation" was wide enough, in its ordinary significance, to include compensation by way of damages for the injuries suffered by the seaman, whether or not some default by the employer was part of the seaman's cause of action.

1. Joyce v. Australian United Steam Navigation Co. Ltd., (1930) 62 Commonwealth LR 160 (165).

8.40. Recommendation to add compensation.-

Having regard to the fact that Indian legislative practice-vide the Indian Contract Act1 and also the Limitation Act-frequently uses the word "compensation", it is desirable2 to substitute the word "compensation" for the word "damages" in section 12. We recommend that the section should be so amended

1. Section 73, Contract Act, supra.

2. One of us-Shri Sen Verma-regards such change as unnecessary.

Indian Evidence Act, 1872 Back

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