Compensation to Victims of Crime Under Criminal Law

Article for Blog Post Writing Competition 2011 | by Bhumika Sharma


May 10th, 201112:39 am

0


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.[1] Crime takes an enormous physical, financial and emotional hardship on its victims. The status of the victim has passed from diminution to the present degree of attention.

Victim feels agonized firstly at the hands of offender and then by dint of the technical and inhumane procedure of criminal machinery. Response of institutions and individuals to the victim in the form of intrusive or inappropriate conduct by police or other criminal justice personnel is Secondary victimization. The whole process of criminal investigation and trial is capable of causing secondary victimization, from investigation, through decisions on whether or not to prosecute, the trial itself and the sentencing of the offender, to his or her eventual release which fail to take into account the perspective of the victim

Victim orientation to criminal justice administration includes greater respect and consideration towards victims and their rights in the investigative and prosecution process and a scheme for reparation /compensation for victims. The dignity and healing of victims depends on the respect and assistance extended to them by the professionals and others who come into contact with them. These include the police and other law enforcement personnel, prosecutors, victim advocates, legal aid providers, judges, corrections personnel, medical staff, mental health providers, elected officials, ombudsmen, spiritual leaders, civil organizations, traditional leaders, the media and others. Guidelines and standards must be developed and tailored to each locality. The rationale behind State’s duty to compensate is both legal and humanitarian grounds. The legal obligation arises due to failure on the part of State to maintain law and order, resulting to crime. It has strong Constitutional foundation embedded in Article 41[2] and Article 51(c).[3]

A. Section 357A

Victim compensation as now made applicable by CrPC does not require the apprehension and conviction of the offender to provide financial relief to the victims.

  1. Scheme for compensation to be prepared by the State Governments-
  2. Scheme for providing compensation shall be prepared by State Governments- in coordination with Central Government. Such scheme shall provide for compensation for :

    1.1.Victim of Crime

    1.2.Dependents of victim who died as a result of crime,

    who have suffered loss or injury and who require compensation.

  3. Quantum of compensation-
  4. Quantum of compensation shall be decided by District Legal Service Authority or State Legal Service Authority, on recommendation for compensation by the court.

  5. Court to make recommendation-
  6. The Court shall make recommendation, if it is satisfied:

    3.1 at the conclusion of trial that compensation awarded under Section 357, CrPC is inadequate for rehabilitation or

    3.2 where the cases end in acquittal or discharge and victim has to be rehabilitated.

  7. Cases where offender is not traced or identified-
  8. An application may be presented by Victim or his dependents to District Legal Service Authority or State Legal Service Authority for compensation in cases where offender is not traced or identified and where no trial takes place.

  9. District Legal Service Authority or State Legal Service Authority to award compensation-
  10. District Legal Service Authority or State Legal Service Authority shall award adequate compensation by completing the enquiry within two months on receipt of:

    5.1 such recommendations or

    5.2 on the application

  11. Order for interim relief-
    • Either on recommendation of Court
    • On application of victim or his dependents
  12. District Legal Service Authority or State Legal Service Authority may make an order to alleviate the suffering of the victim , on the certificate of Police Officer not below the rank of officer in charge or Magistrate of area concerned , to be made available free of cost:

    6.1 First aid facility or medical facility or

    6.2 Any other interim relief.

    Thus under Section 357 A[4], CrPC, compensation has to be awarded by District Legal Service Authority or State Legal Service Authority -

B. Section 357

Both Criminal Court and Civil Courts are empowered in different manner to award compensation under this Section.

  1. Compensation payable out of fine recovered from convict-
  2. Compensation under Section 357, CrPC is payable out of fine recovered from convict.

  3. Victim or dependents to recover compensation in Civil Court-
  4. Victim or dependents may recover compensation in Civil Court under Section 357(1) (b).

  5. Power of Criminal Court under Section 357 (3)[5]-
  6. Criminal Court under Section 357 (3) may order to pay compensation

  7. Right of dependents or heirs to claim compensation-
  8. Dependents or heirs of victim who are entitled under Fatal Accidents Act,1855 are entitled to claim compensation from persons convicted for death or abetment.

  9. Mode for recovery of fine as under Section 421-
  10. The Court may take action for recovery of fine by:

    5.1     Warrant for levy of amount by attachment and sale of any movable property belonging to offender

    5.2     Warrant to Collector of District authorizing him to realise the amount as arrears of land revenue from movable property or immovable property or both of defaulter.

C. Difference between compensation under Section 357 A and Section 357,CrPC

  1. Under Section 357 A, compensation is payable out of funds created by the State Government and under Section 357, it is payable out of fine recovered from convict.
  2. Under Section 357 A, compensation is payable even if offender is not traced or identified but under Section 357, it is payable only upon conviction of offender.
  3. Under Section 357 A, compensation is payable in addition to compensation awarded under Section 357 and under Section 357, there is no such provision.
  4. Section 357 A is a mandatory provision for compensation whereas Section 357 is discretionary.
  5. Under Section 357 A, order for compensation is made by District Legal Service Authority or State Legal Service Authority and under Section 357 by the Court.
  6. Section 357 A empowers District Legal Service Authority or State Legal Service Authority to make Order for interim relief and under Section 357, there is no such provision.
  7. Under Section 357 A, no criteria is specified for dependents of victim entitled to compensation under Section 357 only dependents or heirs of victim who are entitled under Fatal Accidents Act can claim compensation.

D. Probation of Offenders Act,1958

Power of court to require released offenders to pay compensation -

The Court directing the release of an offender under section 3 or section 4  may make at the same time a further order directing him to pay such compensation as the court thinks reasonable for loss or injury caused to any person by the commission of the offence; and such costs of the proceedings as the court thinks reasonable.

E. Rights other than compensation available to victim[6]

  1. Right to engage an advocate of his choice
  2. The Court is empowered to permit the victim to engage an advocate of his choice to assist the prosecution under Section 24(8).[7]

  3. Right to prefer an appeal  to victim
  4. The victim shall have a right to prefer an appeal against any order passed by the Court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation, and such appeal shall lie to the Court to which an appeal ordinarily lies against the order of conviction of such Court.[8]

    2.1 Appeal against an order

    • acquitting the accused or convicting for a lesser offence or
    • imposing inadequate compensation

    2.2 Appeal to lie to:

    Appeal shall lie to the Court to which an appeal ordinarily lies against the order of conviction of such Court.

Conclusion

Prior to CrPC (Amendment Act) 2008, India was lacking a comprehensive legislation for compensation to victims of crime. Compassionate treatment of Victims under the criminal justice system itself leads to belief in the system which is enhanced by way of compensation programs, independent of conviction of offenders.


[1] CrPC, 1973; Section 2 (wa)

[2] Right to work, to education and to public assistance in certain cases The State shall, within the limits of its economic capacity and development, make effective provision for securing the right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement, and in other cases of undeserved want

[3] The State shall endeavor to foster respect for international law and treaty obligations in the dealings of organised peoples with one another . So in pursuance of United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power,1985 India had an obligation to implement the principles.

[4] Inserted by CrPC (Amendment Act) 2008

[5] Inserted by CrPC (Amendment Act) 1973

[6] Inserted by CrPC (Amendment Act) 2008

[7] Proviso to Section 24(8)

[8] Proviso to Section 372

Article by-

Bhumika Sharma, 1st year LLM,

HP University, Shimla, Himachal Pradesh

[Submitted as an entry for the MightyLaws.in Blog Post Writing Competition, 2011]

Enter your Email Address to Get Similar Articles in your Inbox Free!

  

MightyLaws is not responsible or liable for the views expressed by the authors. The articles are general information and should not be treated as legal advice. Please read the Disclaimer for further clarifications.