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INTRODUCTION

Victim-Defined

The connotations of term victim vary in different legal, social, psychological or

criminological contexts.

According to Declaration of Basic Principles of Justice for Victims of Crime and Abuse of
Power, Article 1, Victims means persons who, individually or collectively, have suffered
harm, including physical or mental injury, emotional suffering, economic loss or substantial
impairment of their fundamental rights, through acts or omissions that are in violation of
criminal laws operative within Member States, including those laws prescribing criminal
abuse of power.

Further Article 2 provides that a person may be considered a victim, under this Declaration,
regardless of whether the perpetrator is identified, apprehended, prosecuted or convicted and
regardless of the familial relationship between the perpetrator and the victim. The term
victim also includes, where appropriate, the immediate family or dependants of the direct
victim and persons who have suffered harm in intervening to assist victims in distress or to
prevent victimization.1

In 2008, by an amendment in Cr. P.C. s.2 (wa) was added, under which the term victim has
been defined as victim means a person who has suffered any loss or injury caused by
reason of the act or omission for which the accused person has been charged and the
expression victim includes his or her guardian or legal heir.2 This definition should cover
wider area.

Compensation: Meaning and definition

Ubi jus, ibi remedium is the basic principle in the tort that states that there is no wrong
without a remedy and the rule of law requires that wrongs should not remain unredressed.

1
http://www.ohchr.org/EN/ProfessionalInterest/Pages/VictimsOfCrimeAndAbuseOfP
ower.aspx

2 N.Y. Paranjpe, Criminology and Penology with VIctimology, Central Law

Publications, Allahabad, 2011, p. 678.
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The compensation constitutes an important remedial measure in tort law and the principles
relating to the determination of damages and compensation in tort are well established. There
are several dimensions to the issue of payment of damages and compensation in the law
relating to torts includes the measure of damages, quantum of damages, assessment of
damages, intention of the wrongdoer, proximity of the cause etc.3

However, the term Compensation in present context means amends for the loss sustained.
Compensation is anything given to make things equivalent, a thing given to make amends for
loss, recompense, remuneration or pay.4

Literally, compensation means the money which is given to compensate for loss or injury,
whole purpose of compensation is to make good the losses sustained by the victim of crime
or by the legal representative of the deceased or who has suffered pecuniary loss or non-
pecuniary loss. The word compensation in another sense means a thing that compensates or is
given to compensate (for) a counterbalancing loss or injury, or for requisitioned property.5

According to Oxford dictionary, Compensation means something that counterbalances or

makes up for an undesirable or unwelcome state of affairs.6

Compensation in criminal-victim relationships, concerns the counter balancing the victims

loss that results from the criminal attack. It means making amends to him; or perhaps it is
simply compensation for the damage or injury caused by a crime against him. As commonly
understood it carries with it, the idea of making whole, or giving an equivalent, to one party
and has no relation to any advantage to the other. It is counter-balancing of the victims
sufferings and loss that result from victimization.7

3 Mundrathi, S., Law on Compensation- To Victims of Crime and Abuse of Power 182,
Deep and DeepPublications, New Delhi, (2007) p. 9

4 State of Gujarat v. Shantilal, AIR 1969 SC 634 at 644.

5 Gurpreet Singh Randhawa, Victimology and Compensatory Jurisprudence,

Central Law Publications, Allahabad,p. 166.

6 http://www.oxforddictionaries.com/definition/english/compensation

7 Supra Note 5, p. 167

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Therefore, compensation means an act, which is ordered by the court to be done or money
which a court orders to be paid, by a person whose acts or omissions has caused loss or injury
to another in order that thereby the person damnified may receive equal value for his loss or
be made whole in respect of his injury.8

Meaning of Restitution

The term "restitution" in the criminal justice system means payment by an offender to the
victim for the harm caused by the offender's wrongful acts. Courts have the authority to order
convicted offenders to pay restitution to victims as part of their sentences. 9 Restitutions is
respiration of the victims sufferings and loss. It is victims restoration of his place in the
community and right that were injured or extinguished in the process of victimization. It is
penal in character and it stands for a correctional goal.10

Restitution can cover any out-of-pocket losses directly relating to the crime, including:
medical expenses, therapy costs, prescription charges, counselling costs, lost wages, expenses
related to participating in the criminal justice process (such as travel costs, child care
expenses, etc.), lost or damaged property, or any other expense that resulted directly from the
crime. Restitution will not cover such things as pain and suffering or emotional distress, only
damages that are easy to prove-things for which a victim might have a bill or a receipt are
covered under restitution.11

The difference between restitution and compensation

8 Ibid.

9 https://www.victimsofcrime.org/help-for-crime-victims/get-help-bulletins-for-
crime-victims/restitution

10 Supra Note 5, p. 168.

11Supra Note 9.
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However, it is usual trend that term compensation and restitution are often used
interchangeably, although in fact they represent different points of view. While restitution is
court-ordered payment from a convicted offender, compensation is a state government
program that pays many of the out-of-pocket expenses of victims of violent crime even when
there is no arrest or prosecution. Ordinarily, to be eligible for compensation the victim is
required to report the offense within a certain amount of time, cooperate in the investigation
and prosecution, and file an application within a set time. The expenses covered by
compensation vary and are usually set by state law. All compensation programs cover
medical expenses, most cover counselling, and very few cover any property loss.

In comparison, restitution can only be ordered in cases where someone has been convicted.
However, restitution can be ordered in almost any case (although courts may be required to
order it only for certain offenses), and can be ordered for a wider variety of losses, including
property loss.

A victim cannot collect both compensation and restitution for the same losses. Where
compensation has already paid for some of the victim's losses, a court may order the offender
to reimburse the state compensation program and order the offender to pay the victim for
losses that weren't covered by compensation.12

COMPENSATORY RELIEF TO VICTIMS

The legislative framework regarding compensatory relief to victims of crime in India may be
traced to the Code of Criminal Procedure. The Probation of Offenders Act, 1958 and the
Motor Vehicle Act, 1988 also contains provisions for award of compensation to victims of
crime. Besides these legislations, the constitutional scheme for compensatory victims is to be
founded in the form of decisions of the Supreme Court while interpreting fundamental rights
or directive principles of State Policy or Article 32, 136 and 142, when the Court may direct
payment of compensation to victims of crime.13

Compensation under Code of Criminal Procedure, 1973

12 Supra Note 9.

13 Supra Note 2, p. 679.

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Compensatory/Restitutive Justice to the Victims of Crime under Section 357

Sub-sections (1) and (3) of Section 357 of Cr.P.C. vest powers in the trial court to award
compensation to victims of crime whereas similar power is conferred to the appellant and
revisional court under sub-section (4). The Court may appropriate the whole or any portion of
fine recorded from the offender to be paid as compensation to the victim of crime.

The compensation ordered under Section 357(1) may be for costs, damage or injury suffered
or loss caused due to death or monetary loss incurred due to theft or destruction of property
etc.

Sub-section (3) further empowers the court, in its discretion, to order the accused to pay
compensation to victim of his crime, even though no fine has been imposed on him.

Compensation to Persons Groundlessly Arrested

The Code under Section 358(1) provides compensatory relief to victims of unlawful arrest or
detention by police without sufficient cause. Section 358(1) reads:

Whenever any person causes a police officer to arrest another person, if it

appears to the Magistrate by whom the case is heard that there was no sufficient
ground of causing such arrest, the Magistrate may award such compensation, not
exceeding one thosand rupees, to be paid by the person so causing the arrest to
the person so arrested, for his loss of time and expenses in the matter, as the
Magistrate thinks fit.

Justice to Victim through payment of costs in non-cognizable offences

According to Section 359(1), where an accused is convicted of a non-cognizable offence on a

complaint, the court may order him to pay costs to the complainant or in default, suffer simple
imprisonment for a period of not exceeding thirty days.

In case of recovery of amount of fine, of which, the whole or a part has to be paid as
compensation to the victim, the court may order attachment or sale of movable property of the
offender for its recovery as arrers of land revenue, if necessary.14

14 Supra Note 2, p. 680.

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Justice to Victim by Way of Composition or Compounding

Section 320, Cr.P.C., 1973 provides for composition as a way of doing justice to the victims of
crimes. It encourages participation of both the victims and the offender and thereby has the
healing impact with rehabilitative note. Section 320(1) gives a long table comprising of as
many as 21 sections containing different types of crimes including wounding of religious
feelings, hurt, restraint or confinement, assault or criminal use of force etc. The persons
affected by such offence can compound or have compromise with the offender. Section 320(2)
contains a table of 36 offences. The persons affected by such crime may compound with the
permission of the Court before which may prosecution for such offence pending.15

However, section 320 does not allow compound of any offence in two situations. First, where
accused is, by reasons of a previous conviction, liable to enhance punishment or to a
punishment of a different kind for such offence, and second, no offence shall be compounded
except as provided under section 320. Speaking of this limitation in Surendra Nath Mohanty
v. State of Orissa16 the Supreme Court of India made clear that in view of the legislative
mandate contained in section 320, Cr.P.C. only offence which are covered by Table 1 or 2 can
be compounded and rest of the offences punishable under the Indian Penal Code cannot be
compounded.17

Compensation for Accusation without Reasonable Cause

Section 250 of the Code provides for compensation for accusation without reasonable cause.
Section 250(1) provides that if, in any case instituted upon complaint or upon information
given to a police officer or to a Magistrate, one or more persons is or are accused before a
Magistrate of any offence triable by a Magistrate, and the Magistrate by whom the case is
heard discharges or acquits all or any of the accused, and is of opinion that there was no

15 Chandra Sen Pratap, Victims of Crime, Deep & Deep Publications (p) Ltd, New
Delhi, p. 88-89.

16 (1999) 5 SCC 238.

17 Supra Note 15, p. 90

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reasonable ground for making the accusation against them or any of them, the Magistrate
may, by his order of discharge or acquittal, if the person upon whose complaint or information
the accusation was made is present, call upon him forthwith to show cause why he should not
pay compensation to such accused or to each or any of such accused when there are more than
one or, if such person is not present direct the issue of a summons to him to appear and show
cause as aforesaid.
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Compensation to victim under Probation of Offenders Act, 1958

Section 3 of Probation of Offenders Act, 1958 provides for release of offenders after
admonition in cases in which crime is punishable with imprisonment for not more than two
years or with fine or with both. Section 4 provides for probation in some more serious cases
when offence is punishable with death or imprisonment for life but the Court is of the opinion
that having regard to the circumstances of the case, including the nature of the offence and
character of the offence it is expedient to release him on probation of good conduct. The court
may instead of sentencing him at once to any punishment, direct that he be released on his
entering into a bond with or without sureties. While exercising its power under Section 3 or 4
of the Said Act, the court may in its discretion grant reasonable compensation to any person
for loss of injury caused to him by commission of offence and cost of the proceedings.

Section 5(1) of the Probation of Offenders Act, 1958 provides for compensation. It reads as
follows:

(1) The court directing the release of an offender under section 3 or section 4,
may, if it thinks fit, make at the same time a further order directing him to pay:

(a) such compensation as the court thinks reasonable for loss or injury caused
to any person by the commission of the offence; and
(b) such costs of the proceedings as the court thinks reasonable.

Thus, the power to award compensation under this Act is vested only with the Court releasing
an offender and is purely in its discretion.

Compensatory Justice to Victims under Certain other Statutory Provisions

There are a number of statutes- increasing day by day, which provides for Victims
compensation or assistance in one way or the other, though they are not in nature of criminal
law like Cr.P.C. or Probation of Offender Act.

One of such Acts has been referred to in Sections 357 of the Code of Criminal Procedure
itself, i.e. Fatal Accidents Act, 1855. It provides for compensation to families (dependants) for
the loss occasioned by the death of a person caused by an actionable wrong. Secondly, The
Workmens Compensation Act, 1923 was enacted with a view to provide compensation to
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workmen working in industry. Motor Vehicles Act, 1988 is another piece of law departing
from the fault liability of tort. Section 140 of the Act, 1988 gives statutory basis to the liability
to pay compensation in certain cases on the principle of no fault. It fixes Rs. 50,000 as
compensation for death and 25,000 for permanent disablement. Section 140 does not
discharge the liability of the owner of the vehicle. He will also be responsible to pay
compensation payable under section 163-A of the Act. Thus, a claimant can claim
compensation on the basis of no-fault liability either under section 140 or under 163-A. An
additional right to claim compensation on fault liability is open under Section 165. If the
owner is liable to pay compensation under Section 165, he can deduct such amount from the
compensation payable to him either under Section 140 or under Section 163-A.

The Criminal Law (Amendment) Act, 2013

By the Amendment Act, 2013, some new sections were inserted in IPC providing that the fine
paid shall be just and reasonable to meet the medical expenses of the treatment of the victim.
Secondly, the fine imposed under these sections shall be paid to the victim e.g., Section 326A
and Section 376D clearly provides that the fine to be paid to the victim.
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Compensatory Relief to Victims-Judicial Trend

The contribution of judiciary to redress the claims of victims is no less significant. The higher
courts have played a dominant role in assuring compensatory justice to the victims of crime.
While awarding such compensatory relief, they have exercised due care and caution to ensure
that peoples faith in judicial process is not shattered and the victims protective rights are not
detained to them. Some of the landmark judgments of the Supreme Court ensuring restorative
justice to victims of crime reflect the growing concern of judiciary to protect the right of
victims.

Elaborating the scope of award of compensation to victim of crime, under section 358 of
Cr.P.C., Justice V.Y. Chandrachud, in Rudal Shah v. State of Bihar,18 observed that a person
is entitled to compensation for the loss or injury caused by the offence, and it includes the
wife, husband, parent and children of the deceased victim.

The Apex Court in Sarwan Singh v. State of Punjab, 19 enumerated the factors which the
courts should take into consideration while ordering award of compensation to the victims of
crime. These factors includes capacity of the accused to pay, nature of the offence, and the
nature of the injury suffered by the victim as also the overall effects of crime on the victims
familial and social life and emotional or financial loss caused to him/her. The Court ruled that
the quantum of compensation must be reasonable, depending upon the facts, circumstances
and justness of victims claim, the accused must be given reasonable time for a payment of
compensation and if necessary, it may be ordered to be paid in instalments.

In Bhim Singh v. State of J. & K., 20 the Apex Court observed that compensation for illegal
arrest and detention is an area which unearthed new doctrines pertaining to compensatory
jurisprudence in India. In this case, the appellant was a Member of J&K Legislative Assembly
who was arrested by the police in connivance with the local A.D.M. while on his way to
attend the assembly session. He was maliciously and deliberately arrested and detained in
police custody in order to prevent him from attending the assembly session. Allowing the
petition, Justice Chinnappa Reddy, speaking for the Apex Court observed that where a person
18 AIR 1983SC 1086.

19 AIR 2000 SC 362.

20AIR 1986 SC 498.

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has been arrested and detained with a malicious and mischievous intent and his legal and
constitutional rights are invaded, the malice and the invasion is not washed away by his being
set free. The court has the jurisdiction to order compensation to the victim. The State was
therefore, directed to pay compensation of Rs. 50,000/- to the petitioner for the violation of
his legal and constitutional right.

The question of award of compensation to a victim of rape came uo for adjudication before
the Supreme Court in the historic Bodhisatva Gautam v. Subhra Chakrabortys21 case. The
Court in this case-noted:

Rape is a crime not only against the person of a women, it is a crime against the
entire society. It destroys the entire psychology of a woman and pushes her into
deep emotional crisis. It is, therefore, a most dreaded crime. It is violative of the
victims most cherished right, namely right to life, which includes right to live
with human dignity as contained in Article 21 of the Constitution.

The court ordered that the accused shall pay interm compensation of Rs. 1000/-per month to
the victim (woman) of his crime (i.e. rape) during the entire period of trial proceedings. The
Court further ruled that compensation to victim under such circumstances will be justified
even when the accused was not convicted.

21AIR 1996 SC 922.

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STATE LIABILITY TO PAY COMPENSATION

In State of M.P. v. Mangu22, Supreme Court held that the statutory liability to pay
compensation to the complainant is on the accused. The State cannot be directed to pay
compensation under s.357.

In 2000, a committee was constituted under chairmanship of Dr. V.S. Malimath i.e.
Committee on Reforms of Criminal Justice System. It submitted its report in 2003,
commonly known as Malimath Committee Report. Under this report various
recommendations were made including the Justice to Victims of Crime. The report also
suggested that victim compensation is a state obligation in all serious crimes, whether the
offender is apprehended or not, convicted or acquitted. This is to be organised in a separate
legislation by Parliament. The draft bill on the subject submitted to Government in 1995 by
the Indian Society of Victimology provides a tentative framework for consideration.

Keeping in view this end, it proposes

(i) A Victim Compensation Fund to be possibly administered by the Legal Service

Authorities created under Legal Service Authority Act, 1987;
(ii) The scale of compensation is different offences for the guidance of the court; and
(iii) T
he categories of offences in which compensation cannot be granted as well as the
conditions under which it can be awarded or withdrawn.

A Victim Compensation Fund, according to the Committee, as was also suggested by the
Law Commission, be generated by pulling together fines recovered, funds generated by
the criminal justice system and solicited public contributions. Even if part of the assets
confiscated and forfeited in organized crime and financial frauds is made part of the fund and
if it is managed efficiently there will be no paucity of resources for compensating victims of
crime. In any case the Committee asserted that in dispensing justice to victims of crime, the
scarcity of resources should not come in the way.

The main and noticeable defect of the Malimath Committee report is that it did not pay much
head to victim compensatory model suggested under the 156th Report of the Law Commission
of India which had chalked out a good model by suggesting insertion of Section 357A in
Cr.P.C., 1973. It reads interalia:
22 1995 Cri.LJ 3852
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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 compensation to the victim or his dependents who have
suffered loss or injury as a result of the crime and who require rehabilitation.

(2) 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).

(3) 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.

(4) 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.

(5) 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.

(6) 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."

The scheme contained in the section is indeed a progressive measure to ameliorate the woes
of crime victims and providing them restorative relief.23

Thus, after the insertion of Section 357A, a State is liable to pay compensation to the victim.
However, by The Criminal Law (Amendment) Act, 2013, two sections namely section 357B
and 357C has been added to Cr.P.C. it reads as follows:

23 Supra Note 15, p. 135.

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S. 357 B. Compensation to be in addition to fine under Section 326A or Section 376D of

Indian Penal Code. The compensation payable by the State Government under section
357A shall be in addition to the payment of fine to the victim under section 326A or section
376D of the Indian Penal Code.

S. 357 C. Treatment of victims. All hospitals, public or private, whether run by the Central
Government, the State Government, local bodies or any other person, shall immediately,
provide the first-aid or medical treatment, free of cost, to the victims of any offence covered
under section 326A, 376, 376A, 376B, 376C, 376D or section 376E of the Indian Penal Code,
and shall immediately inform the police of such incident.
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BIBLIOGRAPHY

Gurpreet Singh Randhawa, Victimology and Compensatory Jurisprudence, Central

Law Publications, Allahabad.
Chandra Sen Pratap, Victims of Crime, Deep & Deep Publications (p) Ltd, New
Delhi.
N.Y. Paranjape, Criminology and Penology with VIctimology, Central Law
Publications, Allahabad, 2011.
http://www.oxforddictionaries.com/definition/english/compensation
http://www.ohchr.org/EN/ProfessionalInterest/Pages/VictimsOfCrimeAndAbuseOfPo
wer.aspx
https://www.victimsofcrime.org/help-for-crime-victims/get-help-bulletins-for-crime-
victims/restitution