Report No. 42
3.16. Not suitable for our courts.-
We do not think that any such elaborate procedure as is provided in France or Germany would be suitable for our criminal courts. It would be unwise to create a legal right in the person or persons injured by the offence to join in the criminal proceedings from the beginning as a regular third party. This would only lead to a mixing up of civil and criminal procedures which, in our legal system, are kept separate, a confusion of issues and a prolongation of the trial. The Russian model might be workable, but its field of application is obviously limited to minor offences where the harm done, or damage caused, is small. Further, it is not essentially different from compensating the victim of the offence out of the fine to which the offender could be sentenced under our law.
3.17. Payments of compensation . out of fine.-
We have a fairly comprehensive provision for payment of compensation to the injured party under section 545 of the Criminal Procedure Code. It is regrettable that our courts do not exercise their salutary powers under this section as freely and liberally as could be desired. The section has, no doubt, its limitations. Its application depends, in the first instance, on whether the court considers a substantial fine proper punishment for the offence. In the more serious cases, the court may think that a heavy fine in addition to imprisonment for a long term is not justifiable, especially when the public prosecutor ignores the plight of the victim of the offence and does not press for compensation on his behalf.
Another limitation stems from the fact that the magistrate's power to impose a fine is itself limited. At present, a magistrate of the first class cannot impose a fine exceeding two thousand rupees and a Magistrate of the second class cannot impose a fine exceeding five hundred rupees. Further, under section 545(1)(b), the court has to be satisfied that substantial compensation is recoverable in a civil court by the person to whom loss or injury has been caused by the offence. In our last Report on the Criminal Procedure Code, we have recommended1 that the word "substantial" should he omitted from this section, and also that the maximum fine imposable by magistrates of the first class should be increased to five thousand rupees and the maximum fine imposable by magistrates of the second class should be increased to one thousand rupees.2
When the law is amended as suggested by the Commission and a liberal use of section 545 of the Criminal Procedure Code is made by the courts, it would, in our opinion, go a long way to meet the complaint that the victim of the offence is ignored by the criminal courts and, if he wishes to recover damages, he has necessarily to resort to a protracted and costly civil litigation.
1. 41st Report, Vol. I, para. 46.12 and para. 3.12.
2. These recommendations have been accepted vide clauses 31 and 365 of the Code of Criminal Procedure Bill, 1970 introduced in the Rajya Sabha.
3.18. Additional punishment of "duty to make amends" not recommended.-
We do not see any great advantage in providing an additional punishment on the Russian model. Whether it is called "duty to make amends for the harm caused", or "payment of compensation to the victim of the offence", the object of the punishment is much the same as is now achieved (or can be achieved) under section 545 of the Criminal Procedure Code. It is doubtful whether an order of the sentencing court to make amends in kind ("directly eliminate, by one's own resources, the harm caused", as the Russian Code puts it) will be easy to enforce or otherwise satisfactory from the point of view of the victim of the offence.
There is no material difference between the court sentencing the offender to pay a certain sum as compensation for loss or injury caused, and the court sentencing him to a fine and simultaneously ordering that the whole or a specified part of the fine shall be paid to the victim of the offence by way of such compensation. It may be true that the latter often finds the procedure for obtaining this amount from the court, after the fine has been realised, long drawn, expensive and harassing, but he will probably find an order of the court directing the offender to pay up compensation equally difficult to execute. We are, therefore, unable to recommend this additional punishment for specific mention and inclusion in the Penal Code.1
1. This is the view of the majority. Shri R.L. Narasimham has given a separate note on the subject.
3.19. Substantive provision for payment of compensation out of fine recommended.-
We think, however, that the Penal Code should give prominence to this aspect of compensating the victim of the offence out of the fine imposed on the offender. At present the legal provision in this regard is tucked away in the last miscellaneous chapter of the Code of Criminal Procedure. It seems to us that, as a substantive power of the trial court, it deserves to be mentioned specifically in the Penal Code chapter on punishments along with the provisions relating to fines. We recommend the insertion of the following section immediately before section 63 of the Penal Code.-
"62. Order to pay compensation out of fine to victim of offence.- Whenever a person is convicted of an offence punishable under Chapter 16, Chapter 17 or Chapter 21 of this Code or of an abetment of such offence or of a criminal conspiracy to commit such offence and is sentenced to a fine, whether with or without imprisonment, and the Court is of opinion that compensation is recoverable by civil suit by any person for loss or injury caused to him by that offence, it shall be competent to the Court to direct by the sentence that the whole or any part of the fine realised from the offender shall be paid by way of compensation to such person for the said loss or injury.
Explanation.- Expenses properly incurred by such person in the prosecution of the case shall be deemed part of the loss caused to him by the offence."
When this provision is made in the Penal Code, it will be necessary suitably to modify section 545 of the Code of Criminal Procedure, 1898, to bring it in line with this provision. It may be provided in the modified section 545 that, in every case where the new section 62 of the Penal Code is attracted, but the Court decides not to make an order for payment of compensation out of the fine, it should record its reasons.
3.20. State's responsibility for compensating victim of crime.-
We have mentioned above1 that one of the patterns of compensating the victim of a crime noticeable in other legal systems is the State undertaking this responsibility in defined classes of cases. According to traditional legal notions, the court's adjudication in a criminal trial is directed towards the sanction to be applied to the offender, and except in a few isolated cases when the law allowed the criminal courts to grant restitution, the victim of a crime could not seek compensation in the criminal court. The responsibility of the State ended with the prosecution and it was not to be regarded as under any legal obligation to protect the lives and property of its citizens from criminal depradations. Consequently, there could be no legal claim against the State for compensation.
With the emergence of the social welfare State, these traditional notions of State immunity are undergoing rapid change. The idea that the victim of the crime deserves as much attention from the State as the criminal and that, if the State fails to protect its citizens against violence, it can legitimately be called upon to compensate the victim, is gaining ground in western countries2
In England, for instance, the position was changed in 1964 when a non-statutory scheme of ex gratia payments by the State for compensating victims of violence took effect and the Criminal Injuries Compensation Board commenced its work.
The injured victim could apply to the Board for compensation in respect of personal injury if it was directly attributable to a criminal offence, or to an arrest or attempted arrest of an offender or suspected person, or to the prevention or intended prevention of an offence, or to the giving of assistance to a constable arresting an offender, or attempting to prevent an offence. Thus, not only the intended victim of the offence, but also any third party who becomes involved by being public spirited, can claim compensation. The payment of compensation by the Board is ex gratia, but the Board is "instructed and compelled to make payments to all who come within the ambit of the scheme."
Similar programmes for compensating victims of crime have been established by law in recent years in New Zealand,3 and Northern Ireland4, and in a few States of the U.S.A., e.g. California5, Massachussets6 and New York7.
1. Para. 3.13, supra.
2.Reference may be made to the following articles.-
Rupert Cross, "Compensation for Victims of Violence" (1963) 49 The Listener 815; E.L. Johnson, "Compensation for Victims of Criminal Offences", (1964) Current Legal Problems 144; "Criminal Law Refor.-Great Britain approves compensation programme" (1965), 78 Harvard Law Review 1683; Yahuda, "Criminal Injuries Compensation" (1966) 116 New Law Journal 292; Hugh P. Price, "Compensation for victims of Crime of Violence" (Washington) Legislative Reference Service, Library of Congress (May 1966).
3. New Zealand Public Act No. 134 of 1963.
4. (Northern Ireland) Criminal Injuries to Person (Compensation) Act, 1968 (16 & 17 Eliz. 2, C. 9).
5. California Penal Code, Article 13.600 (1966), Cal. WeIf. & Insnt's. Code, Article 11.211 (1966).
6. Massachusetts General Laws, (1968), Ch. 258A.
7. New York Executive Laws, sections 620-635, 1967 Suppl.
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