COMPENSATION TO VICTIMS

OF CRIME

ACKNOWLEDGEMENT

In performing my assignment, I have to take help and guideline of some respected persons,
who deserve my greatest gratitude. The completion of this assignment gives me much
Pleasure. I would like to show my gratitude to Prof. Kritika for giving me a good guideline
for assignment throughout numerous consultations.

I would also like to expand my deepest gratitude to many people, especially my classmates
and friends, who give me valuable suggestions on this topic which gave me an inspiration to
improve my assignment. I thank all the people for their help directly and indirectly to
complete my assignment.

I would like to give thanks to my parents and family for their support and financial
assistance.

In last I would like to give thanks to God almighty for making me capable of completing this
assignment.

SUNANDAN GAIND

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TABLE OF CONTENTS

1. INTRODUCTION ____________________________________3

2. CONCEPT OF VICTIM________________________________4

3. COMPENSATION TO VICTIM_________________________6

4. THEORIES OF COMPENSATION_______________________7

5. COMPENSATORY PROVISIONS IN CR.P.C______________9

6. COMPENSATION UNDER PROBATION OF OFFENDERS

ACT, 1958__________________________________________12

7. COMPENSATION TO VICTIM UNDER MOTOR VEHICLE

ACT, 1988__________________________________________12

8. JUDICIAL APPROACH ______________________________12

9. CONCLUSION______________________________________15

10. BIBILOGRAPHY___________________________________16

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INTRODUCTION

VICTIMOLOGY

Victimology may be defined as the scientific study of victimization, including the

relationships between victims and offenders, the interactions between the victims and the
criminal justice system. It also includes connections between victims and other social groups
and institutions, such as the media, businesses and social movements.1

In a narrow sense, victimology is empirical, factual study of victims of crime and as

such is closely related to criminology and thus maybe regarded as a part of the general
problem of crime.

In broader sense, victimology is the entire body of knowledge regarding victims,

victimization and the efforts of society to perverse the rights of the victim. Hence, it is
composed of knowledge drawn from such fields as criminology, law, medicine, psychology,
social work, politics, education and public administration.2

The term ‘victim’ in general parlance refers to all those who experience injury, loss or
hardship due to any cause and one of such causes maybe crime. Therefore, victimology may
be defined as a study of people who experience injury or hardship due to any cause. Such
injury or harm may be physical, psychological, emotional or financial. It involves study of
victim characteristics and maybe called ‘victim profiling’.3

According to Drapkin and Viano (1974), “Victimology is the branch of criminology

which primarily studies the victims of crime and everything that is connected with such a
victim.”4

Victimology has thus emerged as a branch of criminology dealing exclusively dealing

exclusively with the victims of crime who need to be treated with compassion and rendered
compensation and assistance under the criminal justice system.5

1
Paranjape, Dr. N.V., Criminology and Penology with Victimology, 16th Ed., Central Law Publications Ltd.,
Allahabad, 2015, p. 725.
2
Randhawa, Gurpreet Singh, Victimology and Compensatory Jurisprudence, 1st Ed., Central Law Publications,
Allahabad, 2011, p. 42.
3
Paranjape, supra note 1, p. 725.
4
Randhawa, supra note 2, p. 43.
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HISTORICAL EVOLUTION

In ancient period, criminal law was victim oriented and they enjoyed the dominant
position in entire criminal legal system with certain short comings. Even certain trees and
animals were considered sacred and cutting and killing them were considered heinous sin and
criminal had to pay heavy compensation and undergo rigorous punishment. That’s why
Stephen Schafer calls it ‘Golden Age’ of victims.

Subsequently in 16th and 17th century, with the advent of the industrial revolution, and
French revolution, a sea change was noticed in every walk of life’s. This gave birth to
‘Adversarial System’. This was the period, in Stephen Schafer’s terminology, of decline in
victim’s role in ‘criminal justice system’. Now the criminal law became offender oriented and
the suffering of victim, often immeasurable, were entirely overlooked in misplaced sympathy
for the criminal. The victim became the forgotten men of our criminal justice system.6

It was in 20th century, after the close of the Second World War some criminologist
took upon themselves, the task of understanding the importance of studying the criminal-
victim relationship, in order to obtain a better understanding of crime, its origin and
implication. Because of their efforts, U.N passed a charter for victim’s right and on similar
line the European convention on the compensation of victims of violent crime’. Therefore
many states of Europe and America enacted their legislations for victim’s compensation in
criminal justice system. Therefore, victim’s movement has been regaining momentum in
whole world but with different shapes and nature.7

CONCEPT OF VICTIM

The UN Convention on Justice and Support for Victims of Crime and Abuse of
Power defines the victims in Article 1 & 2 as:

Article1. "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

5
Paranjape, supra note 1, p. 725.
6
Perspectives of Victimology in India’, SP Makkar, ABC Publications, p. 147.
7
Ibid.
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criminal laws operative within Member States, including those laws proscribing criminal
abuse of power.8

Article2. 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.9

The U.N. Declaration of 1985 places victims under two broad heads, namely:

1. Victims of Crime
2. Victims of Abuse of Power

In Section 2 (wa) of the Code of Criminal Procedure, 1973,“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.”10

Classification of Victim:

1. Primary Victim – Any person, group or entity who has suffered injury, harm or loss
due to illegal activity of someone is called a primary victim. The harm may be
physical, psychological or financial.
2. Secondary Victim – There may also be secondary victim who suffer injury or harm
as a result of injury or harm to the primary victim.
3. Tertiary Victim – Tertiary victim are those who experience harm or injury due to the
criminal act of the offender. He is another person besides the immediate victim, who
is victimized as a result of the perpetrator’s action.

Example, in case of rape, the woman raped is the primary victim, while a child, if
born out of such rape, is the secondary victim because he/she suffers from lack of paternity.
But the general shame and disgrace which the entire family of the raped victim has to suffer

8
Declaration of “Basic Principles of Justice for Victims of Crime and Abuse of Power “(UN, 1985)
9
Ibid.
10
Section 2(wa) of the Code of Criminal Procedure, 1973 [Inserted by Code of Criminal Procedure
(Amendment) Act, 2008 w.e.f. Dec. 31, 2009.
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at the hands of the society and the system makes them tertiary victims. However, it cannot be
assumed that secondary and tertiary victims are less traumatized than the primary victims.11

COMPENSATION TO VICTIM

Criminal Law has always discouraged the acts or omissions which in general can
affect right in rem and violators have always been punished with strict sanctions but the
crime rate is not falling and State is in regular quest to preserve social solidarity and peace in
society. The initial focus of criminologists were only on the aspect of punishment but the
focus started shifting when they encountered with the fact that the person who is victim of
crime is getting nothing out of the whole process of criminal justice system or is getting a so
called satisfaction by seeing the offender punished. Therefore jurists, penologist etc in all
countries started giving their full attention to the cause of victim in form of compensation.

Literally, compensation means the money which is given to compensate for loss or
injury, whole purpose of compensation is to make goad 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.

According to Oxford dictionary, “Compensation means to provide something good

to balance or reduce the bad effect of damage, loss, injury etc”.

It is the usual trend that term compensation and restoration or restitution are often
used interchangeably, although in fact they represent different points of view. The
compensation in criminal-victim relationships is concerned with the counterbalancing of the
victim, loss that results from the criminal attack. It means making amend to him or perhaps, it
is simply compensation for the damage or Injury caused by a crime against him It is
indication of the responsibility of the Society. It is claim for compensating action by the
society, civil in nature, and thus represents a non-criminal goal in a criminal case. However,
as opposed to compensation, restitution in criminal-victim relationships concerns reparation
of the victim, loss or, better, restoration of his position and rights that were damaged or
destroyed by and during the criminal attack. It is an indication of responsibility of the
offender. It is claim for restitutive action on the part of the criminal, it is penal in character,
and thus it represents a correctional goal in a criminal case.

11
Paranjape, supra note 1, p. 728.
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The second difference is that the compensation calls for action by the victim in the
form of application of special claim, and payment by the society; restitution calls a decision
by a criminal court and payment or work by the offender.

Term reparation is also used for compensation, as well as for restitution. The simple
meaning of reparation is the action of compensating for wrong or damage done. The Supreme
Court has interpreted the meaning of reparation in Working Women, Forum case 12 as
follow, “Reparation is taken to mean the making of amends by an offender to his victim or to
victims of crime generally, and may take the form of compensation, the performance of some
service or the return of stolen property (restitution), these being types of reparation which
might be described as practical or material. The term can also be used to describe more
intangible outcomes, as where an offender makes an apology to a victim and provides some
reassurance that the offence will not be repeated, thus repairing the psychological harm
suffered as a result of the crime.”

The evolution of the concept can be traced both historically and theoretically.
Historically the concept of victimology in crude sense was not only part of Hammurabi's
code but also existed in developed sense in ancient Greek city-states.

The concept of compensation was also not new to India and existed in more
developed sense then the present. Manu in Chapter VIII, verse 287 clearly says that:
If limb is injured, a wound is caused or blood flows, the assailant shall be made to pay
the expense of the cure or the whole.

He further in verse 288 says that: He who damages the goods of another, be it
intentionally or unintentionally, shall give to the owner a kind of fine equal to damage.

Theories of Compensation:

1. Theory of State:

Modem state has assumed the role of 'Parens patriae' (Parent of the Country) hence
duty of the state to maintain law and order in the society. The state achieves its purpose
through enactment and promulgation of laws and it enforces obedience to the laws by the
exercise of power. Power is the capacity to produce intended effect, if the intended effect
cannot be produced in respect of any law, the state has to assume responsibility for the loss,

12
Working Women, Forum v. UOI (1995)1 SCC 14.
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pain, or damage caused to any law abiding citizen by someone's disobedience of the law. In
cases in which the state fails in its obligation to protect the individual it has broken its
agreement, and should be liable for the damages done to the victim of crime.

2. Welfare Theory:

Another functional justification for victim compensation is the welfare theory arising
from the assumption that the government exists and functions for the people. This approach
holds that, just as the state has humanitarian duty to the poor, the sick, the unemployed, the
underprivileged, the disabled, and so on, it has a duty towards the victims of crime also.
However, this duty is based not on any contractual obligation on the part of the state, but on
the social conscience of its rulers and citizenry.

3. The Mercy of Government Theory:

Related to the welfare theory is the mercy of the government theory. Under this
rationale, it is argued that the state has the power to "deal mercifully with certain
individuals". Thus, it may, by legislative grace, grant compensation to individuals who have
been unfortunate to become victims of specified criminal incidents.

4. Shared Risk Theory:

Yet another justification offered for victim compensation is the shared risk argument.
In a sense, the government may be viewed as an entrepreneur of an employer who includes
the cost of the risk service he renders to the consumer in the price of the product. Thus, each
consumer contributes towards the payments made to those few individuals who will be
compensated for damages, the taxes paid by the citizens are seen as payment of premium to
cover the insurance against the risk of crime victimization which every citizen shares with
every other citizen and compensation to crime victims as the payment given to any
unfortunate, injured individual or deceased individual's next-of-kin under the 'insurance'
scheme.

5. Restorative and Reparative theories:

These are not theories of punishment. Rather, their argument is that sentences should
move away from punishment of the offender towards restitution and reparation, aimed at
restoring the harm done and calculated accordingly. Restorative theories are therefore victim-

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centered although in some versions they encompass the notion of reparation to the
community for the effects of crime.

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 Vehicles Act, 1988 also contain provisions for award of compensation to victims
of crime. Besides these legislations the constitutional scheme for compensating victims is
found in the form of decisions of the Supreme Court while interpreting fundamental rights or
directive principles of State Policy or Articles 32, 136 and 142, when the Court may direct
payment of compensation to victim's of crime.

Compensatory Provisions in Cr.P.C

Under the provisions of code of criminal Procedure the power to award compensation
is vested under section 357.

“Section 357:- Order to pay compensation.

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 (13 of 1855 ), entitled to recover damages from the person sentenced for
the loss resulting to them from 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 compensating any bona fide purchaser of such property for the loss of the

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same if such property is restored to the possession of the person entitled

thereto.
2. If the fine is imposed in a case which is subject to appeal, no such payment shall be
made before the period allowed for presenting the appeal has elapsed, or, if an appeal
be presented, before the decision of the appeal.
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.
4. An order 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.
5. At the time of awarding compensation in any subsequent civil suit relating to the same
matter, the Court shall take into account any sum paid or recovered as compensation
under this section.”

The plain reading of the section shows that sub-section (1) and (3) vests power on the
trail court to award compensation and sub-section (4) gives power even to appellant or
revision court to order for compensation.

Sub section (1) empowers the courts to appropriate the whole or any portion of fine
recovered from the offender to be paid as compensation to the victim of crime.

The compensation ordered to be paid under Sectiroitin357(1) may be for:

a) costs;
b) damage or injury suffered; or
c) loss caused due to death; or
d) Monetary loss incurred due to theft or destruction of property etc.

Sub section (3) empowers the court, in its discretion, to order the accused to pay
compensation even though fine is imposed.

It is significant to note that a new Sec, 357-A has been inserted by Cr.P.C.
(Amendment) Act, 2008 (5 of 2009), which envisages ‘Victim Compensation Scheme.’ The
section reads as under:

“Section 357A: Victim compensation scheme:-

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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.

The Code also provides compensatory relief to victims of unlawful arrest or detention
by police without sufficient cause.13

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 not exceeding thirty days.14

13
Section 358 (1) Cr.P.C
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Compensation under Probation of Offenders Act, 1958

The Probation of Offenders Act, 1958 also contains provision for compensatory relief
to victim of crime under Section 5(1) of the Act. The section provides that the court directing
the release of an offender under Section 3 or Section 4 of the Act, may if it deems fit, further
direct the accused to pay such compensation to the victim, as the court thinks reasonable for
the loss or injury caused to the latter, as also the costs of the proceedings.

Compensation to victim under Motor Vehicle Act, 1988

The victims of vehicular accidents or their legal representatives in case of death of the
victim are entitled to claim compensation from the offender under Section 5 of the Motor
Vehicle Act. 1988. However, the power in this regard is vested only with the trial court and
none else.

Judicial Approach

The contribution of judiciary to redress the claims of victims of crime is no less

significant. The higher courts have played a dominant role in assuring compensatory justice
to the victims of crime. 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
rights of victims.

Elaborating the scope of award of compensation to victim of crime under Section 358
of Cr.P.C., the Apex court in Rudal Shah v. State of Bihar15 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 Punjab16 enumerated the factors which
the courts should take into consideration while ordering award of compensation to the victim
of crime. These factors include capacity of the accused to pay, nature of the offence and the
nature of injury suffered by the victim as also the overall effect of crime on the victim's
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

14
Section 359 (1) Cr.P.C
15
AIR 1983 SC 1086.
16
AIR 2000 SC 362
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and justness of victim’s claim. The accused must be given reasonable time for payment of
compensation and if necessary, it may be ordered to be paid in instatements.

In Bhim Singh v. State of J. & K.,17 the apex court observed that where the person
has been arrested and detained with malicious and mischievous intent and his legal and
constitutional rights are invaded, the malice and the invasion is not washed by his being set
free. The court has the jurisdiction to grant compensation to the victim.

The question of award of compensation to a victim of rape came up for adjudication

before the Supreme Court in the historic case of Bodhisatva Gautam v. Subhra
Chakaraborty’s.18 The Court in this case noted:

“Rape is a crime not only against the person of a woman; 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 victim's most
cherished right, namely right to life, which includes right to live with human dignity as
contained in Article 21 of the Constitution.”

In a landmark case D. K. Basu v. State of West Bengal,19 the Supreme Court, made
the following observation:

“The monetary and pecuniary compensation is an appropriate and indeed an effective

and sometimes perhaps the only suitable remedy for the redressal of the established
infringement of the fundamental right to life of a citizen by the public servants. The State is
vicariously liable to which the defence of sovereign immunity is not available and the citizen
must receive the amount of compensation from the State; which shall have the right to be
indemnified from the wrongdoer.”

In Rudal Shah v. State of Bihar20 is the most celebrated case where the Hon'ble S.C.
directed the state to pay compensation of Rs 35,000 to Rudal Sah who was kept in jail for 14
years even after his acquittal on the ground of insanity and held that it is violation of Article
21 done by the State of Bihar.

17
AIR 1986 SC 498
18
AIR 1996 SC 922
19
AIR 1997 SC 610
20
Supra 14
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In the case of SAHELI v. Commissioner of Police 21 (a women social activist

organization) the Apex Court directed the Delhi administration to pay Rs. 75,000/- as an
exemplary compensation to the mother of a nine-year-old boy who died due to beating by
police officer while extracting information from him regarding the offence.

Hon'ble S.C. in the case of Delhi Domestic Working Forum v UOI has shown its
concern in flowing words:

“It is necessary, having regard to the Directive Principles contained under Article
38(1) of the Constitution of India to set up Criminal Injuries Compensation
Board........Compensation for victims shall be awarded by the court on conviction of the
offender and by the Criminal Injuries Compensation Board whether or not a conviction has
taken place. The Board will take into account pain, suffering and shock as well as loss of
earnings due to pregnancy and the expenses of child birth if this occurred as a result...”22

In the case of State of Gujarat v Hon'ble High Court of Gujarat is relevant

where following was stated:

“Section 357 of the Criminal Procedure Code, 1973 provides some reliefs to the
victims as the court is empowered to direct payment of compensation to any person for any
loss or injury caused by the offence. But in practice the said provision has not proved to be of
much effectiveness. Many persons who are sentenced to long term imprisonment do not pay
the compensation and instead they choose to continue in jail in default thereof. It is only
when fine alone is the sentence that the convicts invariably choose to remit the fine. But those
are cases in which the harm inflicted on the victims would have been far less serious. Thus
the restorative and reparative theories are not translated into real benefits to the victims.”23

21
AIR 1990 SC 513
22
http://www.legalserviceindia.com/articles/pun.htm
23
ibid
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CONCLUSION

The victim is essentially an inseparable part of crime. Therefore the phenomenon of

crime cannot be comprehensively explained without incorporating the victim of a crime.
Crime victim, despite being an integral part of crime and a key factor in criminal justice
system, remained a forgotten entity as his status got reduced only to report crime and
appear in the court as witness and he routinely faces postponements, delays,
rescheduling, and other frustrations. All their means loss of earnings, waste of time, payment
of transportation and other expenses, discouragement, and the painful realization that the
system does not live up to its ideals and does not serve its constituency, but instead serves
only itself. Many believe that the victim is the most disregarded participant in criminal justice
proceedings. It is, therefore, the Indian Higher Courts have started to award the compensation
through their writ jurisdiction.

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BIBILOGRAPHY
BOOKS:-

 Paranjape, N.V., Criminology & Penology with Victimology, Central Law

Publications, 15th Edn, 2012.

 Siddique, Ahman, Criminology, Eastern Book Company, 5th edn, 2005

 Randhawa, Gurpreet Singh, Victimology and Compensatory Jurisprudence, 1stEd.,

Central Law Publications, Allahabad, 2011.

 Williams, Katherine, S., Textbook on Criminology, 3rd Ed., Universal Law

Publishing Co. Pvt. Ltd., New Delhi, 2001 (Indian Reprint).

WEBSITES:

 ttps://blog.ipleaders.in/compensation-victim-crime-india/

 http://www.ielrc.org/content/a0402.pdf

 http://www.worldsocietyofvictimology.org/publications/Draft%20Convention.pdf .

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