Compensation jurisprudence 
 
in criminal proceedings 
 
 
submitted by – 
nisha 
b.a.llb (h), 6​th​ sem 
section – b 
00616503812 
 
COMPENSATION JURISPRUDENCE
INTRODUCTION

Compensation to victims is a recognised principle of law being enforced through

the ordinary civil courts. Under the law of torts the victims can claim compensation
for the injury to the person or property suffered by them. It is taking decades for
the victims to get a decree for damages or compensation through civil courts,
which is resulting in so much hardship to them. The emergence of compensatory
jurisprudence in the light of human rights philosophy is a positive signal indicating
that the judiciary has undertaken the task of protecting the right to life and personal
liberty of all the people irrespective of the absence of any express constitutional
provision and of judicial precedents.

Article 32 of the Constitution of India confers power on the Supreme Court to issue
direction or order or writ, including writs in the nature of habeas corpus,
mandamus, prohibition, quo warranto and certiorari, whichever may be
appropriate, for the enforcement of any of the rights conferred by Part III of the
Constitution. The right to move the Supreme Court by appropriate proceedings for
the enforcement of the rights conferred by Part III is "guaranteed", that is to say,
the right to move the Supreme Court under Article 32 for the enforcement of any
of the rights conferred by Part III of the Constitution is itself a fundamental right.

The approach of redressing the wrong by award of monetary compensation against

the State for its failure to protect the fundamental right of the citizen has been
adopted by the courts of Ireland, which has a written Constitution, guaranteeing
fundamental rights, but which also like the Indian Constitution contains no
provision of remedy of compensation for the infringement of those rights. That has,
however, not prevented the courts in Ireland from developing remedies, including
the award of damages, not only against individuals guilty of infringement, but also
against the State itself.
Article 32(1) provides for the right to move the Supreme Court by appropriate
proceedings for the enforcement of the fundamental rights. The Supreme Court
under Article 32(2) is free to devise any procedure for the enforcement of
fundamental right and it has the power to issue any process necessary in a given
case. In view of this constitutional provision, the Supreme Court may even give
remedial assistance, which may include compensation in "appropriate cases"1.

COMPENSATION TO THE VICTIMS CRIME

The reactions to crime have been different at different stages of human civilization.
There are number of theories available pertaining to 'Reaction to crime'. Important
among these theories are Retribution theory, Utilitarian theory, Deterrent theory
etc. In common, every theory provides justification punishment. We can
summarise the objects of punishment as:

1. partly of making example of the criminal;

2. partly of deterring the criminal from repeating the same act;

3. partly of reforming the criminal by eradicating the evil will; and

4. Partly of satisfying society's feeling of vengeance which the act is supposed

to evoke.

The law in the early stages of civilization was to compensate the victim and not to
punish the offender. Narada was the first to recommend compensation to the
victims by the offender in order to expiate his sins. "If we go back to the origin of
criminal law, we see that the victim and his family occupy a central position: it is
the victim and his family who have the right to request revenge or penitence.
However, over the centuries, with the evolution of the state and the organization of
state prosecution the role of the victim has changed: from his central position the
victim has been shifted to a marginal one."

VICTIM COMPENSATION LAWS IN INDIA

In addition to the conviction, under Section 357 of the Code of Criminal

Procedure, 1973, the court may order the accused to pay some amount by way of
compensation to the victim who has suffered by the action of accused. According
to Sub-section (1) of Section 357, " 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 of 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 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 same if such property is restored to the possession of the
person entitled thereto.

According to Sub-section (3) of Section 357 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. According to Section 358 (1)
of Cr.P.C., 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 for causing such arrest, the Magistrate may award such compensation, not
exceeding one hundred 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.

Further, according to sub-section (2) of section 358 of Cr.P.C. In such cases, if

more persons than one are arrested, the magistrate may, in like manner, award to
each of them such compensation, not exceeding one hundred rupees, as such
Magistrate thinks fit.

Section 358 (3) of Cr.P.C. further states that all compensation awarded under this
section may be recovered as if it were a fine, and, if it cannot be so recovered the
person by whom it is payable shall be sentenced to simple imprisonment for such
term not exceeding thirty days as the Magistrate directs, unless such sum is sooner
paid.

Under Section 359 (1) of Cr.P.C. whenever any complaint of a non-cognizable

offence is made to a Court, the court, if it convicts the accused, may, in addition to
the penalty imposed upon him, order him to pay to the complainant, in whole or in
part, the cost incurred by him in the prosecution, and may further order that in
default of payment, the accused shall suffer simple imprisonment for a period not
exceeding thirty days and such costs may include any expenses incurred in respect
of process fees, witnesses and pleader's fees which the court may consider
reasonable. Section 5 (1) of the Probation of Offenders Act, 1958 state that 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. Motor Vehicles Act, 1939 is one among the other
compensatory legislations, which provides compensation to the victims of the
offence.

"Nevertheless, the problem in India is not that there are not enough laws. There are
a number of statutory laws and it is just as well, because laws are the basis, on
which comprehensive victim assistance may be built. Our problems in India are
three-fold:

(i) To create awareness among potential victims to recognize victimization,

with a view of preventing it and seeking proper assistance and remedy when
it occurs.

(ii)To sensitise the courts, the police, the medical and welfare services,
including non- official agencies, about the needs of victims and an approach
towards satisfying them, and

(iii) To organize victim assistance services on a wider front and more

comprehensively than currently exists."
JUDICIAL JURISPRUDENCE TOWARDS COMPENSATION LAW IN
INDIA:

In Rudal Sah v. State of Bihar Supreme Court through Chief Justice Chandrachud
held, "Article 21, which guarantees the right to life and liberty will be denuded of
its significant content if the power of this court were limited to passing orders of
release from illegal detention. One of the telling ways in which the violation of that
right can reasonably be prevented and due compliance with the mandate of Article
21 secured is to mulct its violators in the payment of monetary compensation."
There must be direct and proximate nexus between the complaint and the arrest for
the award of compensation under sec. 358 of the Cr. P.C. Any person is entitled to
compensation for the loss or injury caused by the offence, and it includes the "wife,
husband, parent and child" of the deceased victim. In Sarwan Singh's case court
held that in awarding such compensation, the court is to take into consideration
various factors such as capacity of the accused to pay, the nature of the crime, the
nature of the injury suffered and other relevant factors. "Power to award
compensation to victims should be liberally exercised by courts to meet the ends of
justice… in addition to the conviction; the court may order the accused to pay
some amount by way of compensation to the victim who has suffered by the action
of accused. It is not alternative to but in addition thereto. The payment of
compensation must be reasonable. The quantum of compensation depends upon
facts, circumstances, the nature of the crime, the justness of the claim of the victim
and the capacity of the accused to pay. If there are more than one accused,
quantum may be divided equally unless their capacity to pay varies considerably.
Reasonable period for payment of compensation, if necessary by instalment, may
be given.

In a certain case the Court held that where the amount fixed was repulsively low so
as to make it a mockery of the sentence, it would be enhanced; the financial
capacity of the accused, enormity of the offence, extent of damage caused to the
victim, are the relevant considerations in fixing up the amount. The court in Balraj
v. State of U.P. held that the power to award compensation under section 357 (3) is
not ancillary to other sentences but it is in addition thereto.
The compensation for illegal detention is the area, which unearthed new doctrines
pertaining to the compensation laws in India. In yet another case, two women filed
a writ of habeas corpus to produce two persons (their husbands) who were found
missing. The authorities failed to produce them. The Court concluded, on the basis
of material placed before it, that the two persons 'must have met unnatural deaths,
and that prima facie they would be offences of murder. The Supreme Court
directed the respondents to pay Rs. 1, 00, 000/- to each of the wives of the missing
persons.

In Bhim Singh v. State of Jammu and Kashmir Bhim Singh was a member of the
Legislative Assembly. He was arrested while on his way to attend a meeting of the
Assembly. Due to this arrest he was deprived of his constitutional right to attend
the Assembly session. Justice Chinnappa Reddy while speaking for the court held,
"when a person comes to us with the complaint that he has been arrested and
imprisoned with mischievous or malicious intent and that his constitutional and
legal rights were invaded, the mischief or malice and the invasion may not be
washed away or wished away by his being set free. In appropriate cases we have
the jurisdiction to compensate the victim by awarding suitable monetary
compensation. We consider this as an appropriate case." Supreme Court awarded a
sum of Rs. 50,000/- as compensation and ordered the same to be paid within two
months.

In ​Bodhisattwa​ ​Gautam v. Subhra Chakraborty​ Supreme Court provide

compensation to the victim under such conditions even when the accused is not
convicted. It further emphasized that when a court trying a rape case has the
jurisdiction to award compensation in the final stage, there is no reason to deny the
court the right to award interim compensation.

In Dr. Jacob George v. State of Kerala ​the Apex Court​ ​enhanced the fine
imposed by the High Court to Rs. one lakh from Rs. 1,000/- to be paid to the minor
son of the deceased. Not only this, Court also modified the sentence of four years
rigorous imprisonment to that of two months imprisonment, which convict had
already undergone. The main aim of the criminal justice system is to provide
compensation to the victims of crime.

In ​State of Maharashtra v. Christian Community Welfare Council of India

Justice N. Santosh Hegde​ in paragraph 10 of the judgment while answering the
question whether the compensation paid by the State can be recovered from the
officers or not held that it will depend on the fact whether the alleged misdeed by
the officer concerned is committed in the course of the discharge of his lawful
duties, beyond or in excess of the same which will have to be determined in a
proper enquiry… If it is found that the appellant officers did cause the death of the
deceased and the same is not in the performance of their official duty or in excess
of the same then they cannot escape the liability.

In​ Mangilal vs. State of M.P​., the Supreme Court, in a landmark judgment, held
that the power of the court to award compensation to victims under Section 357 of
Cr. P.C. is not ancillary to other sentences but is in addition thereto. Sub-Section
(1) of Section 357 deals with a situation when a court imposes a fine or a sentence
(including sentence of death) of which fine also forms a part. It confers discretion
on the court to order as to the how the whole or any part of fine recovered is to be
applied. If no fine is imposed, sub-section (1) of section 357 is that in the former
case, the imposition of fine is the basic and essential requirement, while in the
latter even in the absence thereof empower the court to direct payment of
compensation. Such power is available to be exercised by an Appellant Court or by
the High Court or Court of Session when exercising revisional powers.

Court further held, "an opportunity of hearing has to be granted before granted
payment of compensation under Section 357 (4) of the Criminal Procedure Code.
Thus, if Appellate Court intends to award compensation, it must grant an
opportunity of hearing so that the relevant aspects like the need to award
compensation, capacity of the accused to pay and several other relevant factors can
be taken note of… Even if a statute is silent and there are no positive words in the
Act, or the Rules made there under, there could be nothing wrong in spelling out
the need to hear the parties whose rights and interest are likely to be affected by the
orders that may be passed, and making it a requirement to follow a fair procedure
before taking a decision, unless the statute provides otherwise. The Principles of
Natural Justice must be read into unoccupied interstice of the statute, unless there
is a clear mandate to the contrary. No form or procedure should ever be permitted
to exclude the presentation of a litigant's defence or stand. Even in the absence of a
provision in procedural laws, power inheres in every Tribunal/ Court of a judicial
or quasi-judicial character, to adopt modalities necessary to achieve requirements
of natural justice and fair play to ensure better and proper discharge of their duties.
Procedure is mainly grounded on the Principles of Natural Justice irrespective of
the extent of its application by express provision in that regard in a given situation.
It has always been a cherished principle.

Where the statute is silent about the observance of the Principles of Natural Justice
such statutory silence is taken to imply comply with the Principles of Natural
Justice where substantial rights of parties are considerably affected. The
application of Natural Justice becomes presumptive, unless words of statute or
necessary intendment. Its aim is to secure justice or to prevent miscarriage of
justice. Principles of Natural Justice do not supplant the law, but supplement it.
These rules operate only in areas not covered by any law validly made. They are a
means to an end and not an end in themselves."

In ​R. Gandhi vs. Union of India​, the Madras High Court, has directed the State
Government to pay Rs. 33,19,033/- as compensation, as recommended by
Coimbatore District Collector to those families of Sikhs and others in Coimbatore,
who were the victims of arson and rioting in the wake of the assassination of the
former Prime Minister. Speaking for the court, Justice S.A. Kader said, " Legally
and morally by all canons of fair-play, by all principles of justice, equity and good
conscience, the second respondent State of Tamil Nadu is bound to pay
compensation to victims as assessed and recommended by this senior official."

In another landmark judgment, Andhra Pradesh High Court awarded Rs.1,44,000/-

as damages against the State Government for the death of a person in judicial
custody. In this case, the defence by the State that the prisoner was put in jail in
exercise of sovereign function, and therefore, the state was under no obligation to
pay compensation was rejected. It was held that concept of sovereign power is not
an exception to the right to freedom of life and the constitutional guarantee of right
to live overrides the theory of immunity of State action.

In ​D.K. Basu v. State of West Bengal​ Supreme Court observed: "It is now a well
accepted preposition in most of the jurisdiction, that 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.

Though the Supreme Court clearly directed all trial courts to exercise the power of
awarding compensation to victims of crime under Section 357 Cr.P.C. liberally, so
as to meet the ends of justice yet, trial court is reluctant to use this discretion more
regularly.

Supreme Court in ​National Insurance Co. Ltd. v. Keshav Bahadur and others
held that Discretion in general, is the discernment of what is right and proper. It
denotes knowledge and prudence, that discernment which enables a person to
judge critically of what is correct and proper united with caution; nice discernment,
and judgment directed by circumspection; deliberate judgment; soundness of
judgment; a science or understanding to discern between falsity and truth, between
wrong and right, between shadow and substance, between equity and colorable
glosses and pretences, and not to do according to the will and private affections of
persons. When it is said that something is to be done within the discretion of the
authorities, then that something is to be done according to the rules of reason and
justice, not according to private opinion; according to law and not humour. It is to
be not arbitrary, vague, and fanciful, but legal and regular. And it must be
exercised within the limit, to which an honest man, competent to the discharge of
his office ought to confine himself. The word "discretion" standing single and
unsupported by circumstances signifies exercise of judgment, skill or wisdom as
distinguished from folly, unthinking or haste; evidently therefore discretion cannot
be arbitrary but must be a result of judicial thinking. The word in itself implies
vigilant circumspection and care; therefore where the legislature concedes
discretion it also imposes a heavy responsibility.

COMPENSATORY JURISPRUDENCE SCHEME

357A3: 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."

Compensation to the addition of fine: The compensation payable by the state

government u/s 357A shall be in addition to the payment of fine u/s 326A or 376D
of the Indian Penal Code (section 357B)

Treatment of Victims: All hospitals public or private whether run by Central

Government, 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
u/s 326A, 376, 376A, 376B, 376C, 376D, 376E of the Indian Penal Code and shall
immediately inform to the police of such incident (sections 357C)

The Hon'ble Supreme Court of India has

directed all the state governments and
union-territories of India to frame rules
to regulate sale of the acid and other
corrosive substances and also increase
the compensation amount.

WORKING OF NALSA AND

DLSA WITH RESPECT TO
VICTIM
COMPENSATION SCHEME

(1) Procedure for Disbursement of Compensation

For disbursement of compensation to the victim, there shall be a fund called ‘’The
Victim Compensation Fund’’ from which the amount of compensation, as decided
by the DLSA has to be paid to the victim or to her dependents. The procedure for
granting compensation is provided in section 5 of the aforesaid scheme. Whenever
the court makes recommendation for compensation:
o The DLSA, examines the case, verify the contents of the claim with regard
to the loss or injury or rehabilitation as a result of crime and may also called
for any other relevant information necessary for consideration of the claim.
o The quantum of compensation has to be decided by DLSA on the basis of
loss or injury or requirement for rehabilitation, medical expenses to be
incurred on treatment and such incidental charges, such as funeral expenses
etc.
o The compensation has to be deposited in a Nationalized Bank of the victim
or her dependents.
o Out of the amount so deposited, 75 per cent of the same is put in a fixed
deposit for a minimum period of three years and the remaining 25 per cent
shall be available for the utilization and initial expenses by the victim as the
case may be.
o In case of a minor, 80 per cent amount of the compensation is to be
deposited which can be drawn only on attainment of the age of majority, but
not before three years of the deposition. However, in exceptional cases, the
aforesaid amount may be withdrawn for educational or medical needs of the
beneficiary at the discretion of DLSA.
o The interest on the same has to be credited directly by the bank in the saving
account of the victim/dependent on monthly basis.
o This scheme also provides for the provision of immediate first aid and
medical benefit or any other interim relief to the victim on a certificate of a
police officer not below the rank of officer in-charge of police station or a
Magistrate of the area concerned.
 o Legal Services Authorities also provides interim compensation in suitable
cases where the victim needs immediate medical treatment/rehabilitation.
Such interim compensation can be payable on recommendations of SHO
concerned and Magistrate dealing with the case. This interim compensation
is provided under section 8 of the scheme.
o Legal Services Authority also has the power to institute legal proceedings
before competent court of law for recovery of compensation granted to the
victim/his or her dependents from the persons responsible for causing loss or
injury as a result of crime. In this regard it also worthwhile to mention that
the courts may also grant interim compensation to the victims. The relevant
judgments are Shri Bodhisattwa Gautam vs Miss Subhra
Chakraborty and Suresh vs State of Haryana.

(2) Limitation and Limit of Compensation

Victim Compensation Scheme also has a schedule providing for minimum and
maximum amount of compensation in different categories of offences. The
quantum of compensation cannot be less than a minimum amount and cannot be
more than the maximum amount provided in the schedule attached to the Victim
Compensation Scheme. For example in cases of rape the minimum amount of
compensation that can be recommended is Rs. 2 lacs and maximum as Rs. 3 lacs.
The limitation period for filing a claim Under section 357(4) Code of Criminal
Procedure is in cases when the offender cannot be traced or identified is 3 years
from the date of occurrence of crime.