This is a guest post by Sushant Kumar (undergraduate student at Dr. RML National Law University, Lucknow)
Section 357 of the Code of Criminal Procedure, 1973 (CrPC) replaced its predecessor, Section 545 of the erstwhile Code of Criminal Procedure, 1898, based on the recommendations of the Law Commission (41st Report). An important distinction was that the Courts could now grant compensation for crimes not punishable with fine and irrespective of the fact, whether a fine is imposed or not. With the insertion of Sections 357A and 357B by the 2008 Amendment, the horizons of the victim compensatory regime stood broadened.
Justice Krishna Iyer, in Maru Ram v. Union of India (1981), said that victimology must find fulfilment, not through barbarity but by compulsory recoupment by the wrongdoer of the damage inflicted not by giving more pain to the offender but by lessening the loss of the forlorn.
The bench of Justices J R Midha, Rajnish Bhatnagar and Brijesh Sethi of the Hon’ble Delhi High Court, in Karan v. State NCT of Delhi (2020), found the underpinnings of its victim-centric approach in constitutional provisions and international instruments. Article 38 envisages a social order that ensures social and economic justice. Articles 41 and 51A promote the concept of ‘restorative justice’ upon which ‘victim compensation’ is based. Clause 8 of the UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power on 11th November 1985 deals with the restitution to the victims of the crime.
The Supreme Court, in State of Gujarat v. Hon’ble High Court of Gujarat (1998), remarked that ‘retribution may be the primary goal of the law, reparation is the ultimate goal’. The Court was mindful of the suffering the victim and the family go through while observing that monetary compensation would provide some solace if not a complete restoration of the loss suffered.
Interpretation of Section 357
Intending to ensure that the victim(s) is not forgotten in our Criminal Justice System, the Court held that the power under Section 357 CrPC is to be exercised liberally to meet the ends of justice.
The Court, relying primarily on Ankush Shivaji Gaikwad v State of Maharashtra (2013) and Hari Singh v Sukhbir Singh(1988) along with a catena of other precedents, has reiterated that there exists a mandatory duty on the Court to apply its mind to the question of victim compensation under Section 357 CrPC in every criminal case.
The Court held that the word ‘may’ in Section 357 means ‘shall’ as the power is coupled with a duty imposed on the Court. The Court is duty-bound to provide reasons, in every criminal case, based upon which it has exercised its discretion in awarding or refusing the compensation. This decision would also make available the material necessary for the Trial Court to reach a fair conclusion under Section 357.
The procedure laid down by the Court
While observing that the quantum of the compensation is to be determined by the Court basis the factors such as the gravity of the offence, severity of mental and physical harm/injury suffered by the victim, damage/losses suffered by the victims and the capacity of the accused to pay, the Court laid down the following steps to be followed.
- Post-conviction of the accused, the Trial Court shall direct the accused to file particulars of his income and assets through an affidavit accompanied with supporting documents (Annexure A – attached to the judgement itself) within 10 days.
- The State, too, shall file an affidavit disclosing the expenses incurred on the prosecution within 30 days after the conviction.
- On receiving the accused’s affidavit, the Trial Court shall send the copy of the judgement and the affidavit (along with the documents filed) to the DSLSA.
- The DSLSA shall then conduct a summary inquiry to compute the loss suffered by the victim and the paying capacity of the accused. It shall submit the Victim Impact Report (Annexure B/B1) along with its recommendations within 30 days. The DSLSA may request the assistance of the concerned SDM, SHO and/or the prosecution in this exercise.
- The Trial Court would then consider the Victim Impact Report, in light of the factors enumerated above, hear the parties involved including the victim(s) and accordingly award compensation to the victim(s) and cost of the prosecution to the State if the accused has the capacity to pay.
- Furthermore, the Court directed that if the compensation paid, if any, is insufficient for the purpose of victim(s) rehabilitation, the Court shall take recourse to Section 357A and recommend to the DSLSA for payment of compensation from the Victim Compensation Fund in accordance with the scheme and policy of the time (currently, the Delhi Victims Compensation Scheme, 2018).
- The High Court has also said that in matters of appeal or revision where Section 357 has not been complied with, the Public Prosecutor shall file an application seeking Court’s direction for enforcing this procedure in accordance with Section 357(4) of the CrPC.
This judgement is likely to result in a mechanism that could become the model for nationwide reforms if stakeholders involved uphold the spirit of the decision. The Court has recommended that a statutory mechanism be created by the Central Government as well, having due regard to victimology in the Criminal Justice System. We cannot ignore the social, economic and psychological impact the victim(s) of the crime suffers. It is the duty of the State that the victim(s) is rehabilitated and set on a path to be a productive member of the society in due course.
Authored by Sushant Kumar (undergraduate student at Dr. RML National Law University, Lucknow)