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INTRODUCTION Victim-Defined The The conn connot otat atio ions ns of term term ‘vic ‘victim tim’’ vary vary in diff differe erent nt lega legal, l, soci social al,, psych psychol olog ogic ical al or criminological contexts. According to Declaration to Declaration of Basic Principles of Justice for Victims Victims of Crime and Abuse of Power , Article 1, “Victims” “Victims” means persons persons who, individally individally or collectively collectively,, have sffered harm, inclding physical or mental in!ry, emotional sffering, economic loss or s"stantial impairment of their fndamental rights, throgh acts or omissions that are in violation of criminal laws operative within #em"er $tates, inclding those laws prescri"ing criminal a"se of power. %rther Article & provides that a person may "e considered a victim, nder this 'eclaration, regardless of whether the perpetrator is identified, apprehended, prosected or convicted and regardless of the familial relationship "etween the perpetrator and the victim. The term “victim” “victim” also incldes, where appropriate, appropriate, the immediate immediate family or dependants dependants of the direct victim and persons who have sffered harm in intervening to assist victims in distress or to prevent victimi(ation.1 )n &**+, "y an amendment in r. -.. s.& wa/ was added, nder which the term victim has "een defined as “victim” means a person who has sffered any loss or in!ry cased "y reason of the act or omission for which the accsed person has "een charged and the expression expression “victim” incldes incldes his or her gardian or legal heir. heir.& This definition shold cover wider area.
Compensation: Meaning and definition Ubi jus, ibi remedium is remedium is the "asic principle in the tort that states that there is no wrong withot a remedy and the rle of law re0ires that wrongs shold not remain nredressed. 1 http://www.ohchr http://www.ohchr.org/EN/Profess .org/EN/ProfessionalInterest/P ionalInterest/Pages/VictimsOfCrimeAndAbseOfP ages/VictimsOfCrimeAndAbseOfP ower.asp! " N.# N .#. Paran$pe% Para n$pe% Criminology and Penology with VIctimology % Central &aw Pblications% Allahabad% "'11% p. ()*.
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The compensation constittes an important remedial measre in tort law and the principles relating to the determination of damages and compensation in tort are well esta"lished. There are several dimensions to the isse of payment of damages and compensation in the law relating to torts incldes the measre of damages, 0antm of damages, assessment of damages, intention of the wrongdoer, proximity of the case etc. 2owever, the term “ompensation” in present context means amends for the loss sstained. ompensation is anything given to ma3e things e0ivalent, a thing given to ma3e amends for loss, recompense, remneration or pay.4 5iterally, compensation means the money which is given to compensate for loss or in!ry, whole prpose of compensation is to ma3e good the losses sstained "y the victim of crime or "y the legal representative of the deceased or who has sffered pecniary loss or non6 pecniary loss. The word compensation in another sense means a thing that compensates or is given to compensate for/ a conter"alancing loss or in!ry, or for re0isitioned property.7 According to Oxford dictionary, “ompensation means something that conter"alances or ma3es p for an ndesira"le or nwelcome state of affairs”. 8 ompensation in criminal6victim relationships, concerns the conter "alancing the victim’s loss that reslts from the criminal attac3. )t means ma3ing amends to him9 or perhaps it is simply compensation for the damage or in!ry cased "y a crime against him. As commonly nderstood it carries with it, the idea of ma3ing whole, or giving an e0ivalent, to one party and has no relation to any advantage to the other. )t is conter6"alancing of the victim’s sfferings and loss that reslt from victimi(ation. :
+ ,ndrathi% -.% &aw on Compensation o Victims of Crime and Abse of Power 1*"% 0eep and 0eepPblications% New 0elhi% "'')2 p. 3
4 -tate of 5$arat 6. -hantilal% AI7 13(3 -C (+4 at (44. 8 5rpreet -ingh 7andhawa% Victimology and Compensatory Jurisprudence, Central &aw Pblications% Allahabad%p. 1((. ( http://www.o!forddictionaries.com/de9nition/english/compensation ) -pra Note 8% p. 1()
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Therefore, compensation means an act, which is ordered "y the cort to "e done or money which a cort orders to "e paid, "y a person whose acts or omissions has cased loss or in!ry to another in order that there"y the person damnified may receive e0al vale for his loss or "e made whole in respect of his in!ry.+
Meaning of Restitution The term ;restittion; in the criminal !stice system means payment "y an offender to the victim for the harm cased "y the offenderestittions is respiration of the victims sfferings and loss. )t is victim’s restoration of his place in the commnity and right that were in!red or extingished in the process of victimi(ation. )t is penal in character and it stands for a correctional goal.1* >estittion can cover any ot6of6poc3et losses directly relating to the crime, inclding? medical expenses, therapy costs, prescription charges, conselling costs, lost wages, expenses related to participating in the criminal !stice process sch as travel costs, child care expenses, etc./, lost or damaged property, or any other expense that reslted directly from the crime. >estittion will not cover sch things as pain and sffering or emotional distress, only damages that are easy to prove6things for which a victim might have a "ill or a receipt are covered nder restittion.11
The difference between restitution and compensation
* Ibid. 3 https://www.6ictimsofcrime.org/helpforcrime6ictims/gethelpblletinsfor crime6ictims/restittion 1' -pra Note 8% p. 1(*. 11-pra Note 3.
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2owever, it is sal trend that term compensation and restittion are often sed interchangea"ly, althogh in fact they represent different points of view. @hile restittion is cort6ordered payment from a convicted offender, compensation is a state government program that pays many of the ot6of6poc3et expenses of victims of violent crime even when there is no arrest or prosection. rdinarily, to "e eligi"le for compensation the victim is re0ired to report the offense within a certain amont of time, cooperate in the investigation and prosection, and file an application within a set time. The expenses covered "y compensation vary and are sally set "y state law. All compensation programs cover medical expenses, most cover conselling, and very few cover any property loss. )n comparison, restittion can only "e ordered in cases where someone has "een convicted. 2owever, restittion can "e ordered in almost any case althogh corts may "e re0ired to order it only for certain offenses/, and can "e ordered for a wider variety of losses, inclding property loss. A victim cannot collect "oth compensation and restittion for the same losses. @here compensation has already paid for some of the victim
COMPENSATOR RE!IE" TO VICTIMS The legislative framewor3 regarding compensatory relief to victims of crime in )ndia may "e traced to the ode of riminal -rocedre. The -ro"ation of ffenders Act, 1=7+ and the #otor Vehicle Act, 1=++ also contains provisions for award of compensation to victims of crime. Besides these legislations, the constittional scheme for compensatory victims is to "e fonded in the form of decisions of the $preme ort while interpreting fndamental rights or directive principles of $tate -olicy or Article &, 18 and 14&, when the ort may direct payment of compensation to victims of crime.1
Compensation unde# Code of C#imina$ P#ocedu#e% &'() 1" -pra Note 3. 1+ -pra Note "% p. ()3.
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Compensatory/Restitutive Justice to the Victims of Crime under Section 357
$"6sections 1/ and / of $ection 7: of r.-.. vest powers in the trial cort to award compensation to victims of crime whereas similar power is conferred to the appellant and revisional cort nder s"6section 4/. The ort may appropriate the whole or any portion of fine recorded from the offender to "e paid as compensation to the victim of crime. The compensation ordered nder $ection 7:1/ may "e for costs, damage or in!ry sffered or loss cased de to death or monetary loss incrred de to theft or destrction of property etc. $"6section / frther empowers the cort, in its discretion, to order the accsed to pay compensation to victim of his crime, even thogh no fine has "een imposed on him. Compensation to Persons round!ess!y "rrested
The ode nder $ection 7+1/ provides compensatory relief to victims of nlawfl arrest or detention "y police withot sfficient case. $ection 7+1/ reads? “!ene"er any person causes a police officer to arrest anot!er person, if it appears to t!e #a$istrate by w!om t!e case is !eard t!at t!ere was no sufficient $round of causin$ suc! arrest, t!e #a$istrate may award suc! compensation, not exceedin$ one t!osand rupees, to be paid by t!e person so causin$ t!e arrest to t!e person so arrested, for !is loss of time and expenses in t!e matter, as t!e #a$istrate t!in%s fit&”
Justice to Victim throu#h payment of costs in non$co#ni%ab!e offences
According to $ection 7=1/, where an accsed is convicted of a non6cogni(a"le offence on a complaint, the cort may order him to pay costs to the complainant or in defalt, sffer simple imprisonment for a period of not exceeding thirty days. )n case of recovery of amont of fine, of which, the whole or a part has to "e paid as compensation to the victim, the cort may order attachment or sale of mova"le property of the offender for its recovery as arrers of land revene, if necessary.14 14 -pra Note "% p. (*'.
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Justice to Victim by &ay of Composition or Compoundin#
$ection &*, r.-.., 1=: provides for composition as a way of doing !stice to the victims of crimes. )t encorages participation of "oth the victims and the offender and there"y has the healing impact with reha"ilitative note. $ection &*1/ gives a long ta"le comprising of as many as &1 sections containing different types of crimes inclding wonding of religios feelings, hrt, restraint or confinement, assalt or criminal se of force etc. The persons affected "y sch offence can compond or have compromise with the offender. $ection &*&/ contains a ta"le of 8 offences. The persons affected "y sch crime may compond with the permission of the ort "efore which may prosection for sch offence pending.17 2owever, section &* does not allow compond of any offence in two sitations. %irst, where accsed is, "y reasons of a previos conviction, lia"le to enhance pnishment or to a pnishment of a different 3ind for sch offence, and second, no offence shall "e componded except as provided nder section &*. $pea3ing of this limitation in Surendra 'ath (ohanty v) State of *rissa +, the $preme ort of )ndia made clear that in view of the legislative
mandate contained in section &*, r.-.. only offence which are covered "y Ta"le 1 or & can "e componded and rest of the offences pnisha"le nder the )ndian -enal ode cannot "e componded.1:
Compensation for "ccusation without Reasonab!e Cause
$ection &7* of the ode provides for compensation for accsation withot reasona"le case. $ection &7*1/ provides that if, in any case institted pon complaint or pon information given to a police officer or to a #agistrate, one or more persons is or are accsed "efore a #agistrate of any offence tria"le "y a #agistrate, and the #agistrate "y whom the case is heard discharges or ac0its all or any of the accsed, and is of opinion that there was no 18 Chandra -en Pratap% Victims of Crime% 0eep 0eep Pblications p2 &td% New 0elhi% p. ***3. 1( 13332 8 -CC "+*. 1) -pra Note 18% p. 3'
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reasona"le grond for ma3ing the accsation against them or any of them, the #agistrate may, "y his order of discharge or ac0ittal, if the person pon whose complaint or information the accsation was made is present, call pon him forthwith to show case why he shold not pay compensation to sch accsed or to each or any of sch accsed when there are more than one or, if sch person is not present direct the isse of a smmons to him to appear and show case as aforesaid.
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Compensation to *ictim unde# P#o+ation of Offende#s Act% &', $ection of -ro"ation of ffenders Act, 1=7+ provides for release of offenders after admonition in cases in which crime is pnisha"le with imprisonment for not more than two years or with fine or with "oth. $ection 4 provides for pro"ation in some more serios cases when offence is pnisha"le with death or imprisonment for life "t the ort is of the opinion that having regard to the circmstances of the case, inclding the natre of the offence and character of the offence it is expedient to release him on pro"ation of good condct. The cort may instead of sentencing him at once to any pnishment, direct that he "e released on his entering into a "ond with or withot sreties. @hile exercising its power nder $ection or 4 of the $aid Act, the cort may in its discretion grant “reasona"le compensation” to any person for loss of in!ry cased to him "y commission of offence and cost of the proceedings. $ection 71/ of the -ro"ation of ffenders Act, 1=7+ provides for compensation. )t reads as follows? “1/ The cort directing the release of an offender nder section or section 4, may, if it thin3s fit, ma3e at the same time a frther order directing him to pay? a/ sch compensation as the cort thin3s reasona"le for loss or in!ry cased to any person "y the commission of the offence9 and "/ sch costs of the proceedings as the cort thin3s reasona"le. Ths, the power to award compensation nder this Act is vested only with the ort releasing an offender and is prely in its discretion.
Compensato#. /ustice to Victims unde# Ce#tain ot0e# Statuto#. P#o*isions There are a nm"er of stattes6 increasing day "y day, which provides for Victim’s compensation or assistance in one way or the other, thogh they are not in natre of criminal law li3e r.-.. or -ro"ation of ffender Act. ne of sch Acts has "een referred to in $ections 7: of the ode of riminal -rocedre itself, i.e. %atal Accidents Act, 1+77. )t provides for compensation to families dependants/ for the loss occasioned "y the death of a person cased "y an actiona"le wrong. $econdly, '!e or%men(s Compensation Act, )*+ was enacted with a view to provide compensation to
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wor3men wor3ing in indstry. #otor Ve!icles Act, )*-- is another piece of law departing from the falt lia"ility of tort. $ection 14* of the Act, 1=++ gives stattory "asis to the lia"ility to pay compensation in certain cases on the principle of no falt. )t fixes >s. 7*,*** as compensation for death and &7,*** for permanent disa"lement. $ection 14* does not discharge the lia"ility of the owner of the vehicle. 2e will also "e responsi"le to pay compensation paya"le nder section 186A of the Act. Ths, a claimant can claim compensation on the "asis of no6falt lia"ility either nder section 14* or nder 186A. An additional right to claim compensation on falt lia"ility is open nder $ection 187. )f the owner is lia"le to pay compensation nder $ection 187, he can dedct sch amont from the compensation paya"le to him either nder $ection 14* or nder $ection 186A. The Crimina! -aw ."mendment "ct0 12+3
By the Amendment Act, &*1, some new sections were inserted in )- providing that the fine paid shall "e !st and reasona"le to meet the medical expenses of the treatment of the victim. $econdly, the fine imposed nder these sections shall "e paid to the victim e&$&, $ection &8A and $ection :8' clearly provides that the fine to "e paid to the victim.
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Compensato#. Re$ief to Victims-/udicia$ T#end The contri"tion of !diciary to redress the claims of victims is no less significant. The higher corts have played a dominant role in assring compensatory !stice to the victims of crime. @hile awarding sch compensatory relief, they have exercised de care and cation to ensre that people’s faith in !dicial process is not shattered and the victims protective rights are not detained to them. $ome of the landmar3 !dgments of the $preme ort ensring restorative !stice to victims of crime reflect the growing concern of !diciary to protect the right of victims. Cla"orating the scope of award of compensation to victim of crime, nder section 7+ of r.-.., Dstice V.E. handrachd, in Ruda! Shah v) State of ihar0+4 o"served that a person is entitled to compensation for the loss or in!ry cased "y the offence, and it incldes the wife, hs"and, parent and children of the deceased victim. The Apex ort in Sarwan Sin#h v) State of Punab0 +6 enmerated the factors which the corts shold ta3e into consideration while ordering award of compensation to the victims of crime. These factors incldes capacity of the accsed to pay, natre of the offence, and the natre of the in!ry sffered "y the victim as also the overall effects of crime on the victim’s familial and social life and emotional or financial loss cased to himFher. The ort rled that the 0antm of compensation mst "e reasona"le, depending pon the facts, circmstances and !stness of victim’s claim, the accsed mst "e given reasona"le time for a payment of compensation and if necessary, it may "e ordered to "e paid in instalments. )n him Sin#h v) State of J) 8)0 12 the Apex ort o"served that “compensation for illegal arrest and detention is an area which nearthed new doctrines pertaining to compensatory !risprdence in )ndia. )n this case, the appellant was a #e m"er of DGH 5egislative Assem"ly who was arrested "y the police in connivance with the local A.'.#. while on his way to attend the assem"ly session. 2e was maliciosly and deli"erately arrested and detained in police cstody in order to prevent him from attending the assem"ly session. Allowing the petition, Dstice hinnappa >eddy, spea3ing for the Apex ort o"served that where a person 1* AI7 13*+-C 1'*(. 13 AI7 "''' -C +(". "'AI7 13*( -C 43*.
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has "een arrested and detained with a malicios and mischievos intent and his legal and constittional rights are invaded, the malice and the invasion is not washed away "y his "eing set free. The cort has the !risdiction to order compensation to the victim. The $tate was therefore, directed to pay compensation of >s. 7*,***F6 to the petitioner for the violation of his legal and constittional right. The 0estion of award of compensation to a victim of rape came o for ad!dication "efore the $preme ort in the historic odhisatva autam v) Subhra Cha9raborty:s 1+ case. The ort in this case6noted? “>ape is a crime not only against the person of a women, it is a crime against the entire society. )t destroys the entire psychology of a woman and pshes her into deep emotional crisis. )t is, therefore, a most dreaded crime. )t is violative of the victim’s most cherished right, namely right to life, which incldes right to live with hman dignity as contained in Article &1 of the onstittion.” The cort ordered that the accsed shall pay interm compensation of >s. 1***F6per month to the victim woman/ of his crime i&e& rape/ dring the entire period of trial proceedings. The ort frther rled that compensation to victim nder sch circmstances will "e !stified even when the accsed was not convicted.
"1AI7 133( -C 3"".
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STATE !IA1I!IT TO PA COMPENSATION )n State of ()P) v) (an#u 11, $preme ort held that the stattory lia"ility to pay compensation to the complainant is on the accsed. The $tate cannot "e directed to pay compensation nder s.7:. )n &***, a committee was constitted nder chairmanship of 'r. V.$. #alimath i.e. ‘Committee on .eforms of Criminal Justice /ystem’. )t s"mitted its report in &**, commonly
3nown
as
#alimath
ommittee
>eport.
Inder
this
report
varios
recommendations were made inclding the ‘Dstice to Victims of rime’. The report also sggested that victim compensation is a state o"ligation in all serios crimes, whether the offender is apprehended or not, convicted or ac0itted. This is to "e organised in a separate legislation "y -arliament. The draft "ill on the s"!ect s"mitted to Jovernment in 1==7 "y the )ndian $ociety of Victimology provides a tentative fra mewor3 for consideration. Heeping in view this end, it proposes i/ A ‘Victim ompensation %nd’ to "e possi"ly administered "y the 5egal $ervice Athorities created nder 5egal $ervice Athority Act, 1=+:9 ii/ The scale of compensation is different offences for the gidance of the cort9 and iii/
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he categories of offences in which compensation cannot "e granted as well as the conditions nder which it can "e awarded or withdrawn. A ‘Victim ompensation %nd’, according to the ommittee, as was also sggested "y the 5aw ommission, "e generated "y plling together ‘fines’ recovered, ‘fnds’ generated "y the criminal !stice system and solicited ‘p"lic contri"tions’. Cven if part of the assets confiscated and forfeited in organi(ed crime and financial frads is made part of the fnd and if it is managed efficiently there will "e no pacity of resorces for compensating victims of crime. )n any case the ommittee asserted that in dispensing !stice to victims of crime, the scarcity of resorces shold not come in the way. The main and noticea"le defect of the #alimath ommittee report is that it did not pay mch head to victim compensatory model sggested nder the 178 th >eport of the 5aw ommission of )ndia which had chal3ed ot a good model "y sggesting insertion of $ection 7:A in r.-.., 1=:. )t reads interalia? "" 1338 Cri.&; +*8"
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“),(A2 Victim Compensation Sc0eme23 1/ Cvery $tate Jovernment in co6 ordination with the entral Jovernment shall prepare a scheme for providing fnds for the prpose of compensation to the victim or his dependents who have sffered loss or in!ry as a reslt of the crime and who re0ire reha"ilitation. &/ @henever a recommendation is made "y the ort for compensation, the 'istrict 5egal $ervice Athority or the $tate 5egal $ervice Athority, as the case may "e, shall decide the 0antm of compensation to "e awarded nder the scheme referred to in s"6section 1/. / )f the trial ort, at the conclsion of the trial, is satisfied, that the compensation awarded nder section 7: is not ade0ate for sch reha"ilitation, or where the cases end in ac0ittal or discharge and the victim has to "e reha"ilitated, it may ma3e recommendation for compensation. 4/ @here the offender is not traced or identified, "t the victim is identified, and where no trial ta3es place, the victim or his dependents may ma3e an application to the $tate or the 'istrict 5egal $ervices Athority for award of compensation. 7/ n receipt of sch recommendations or on the application nder s"6section 4/, the $tate or the 'istrict 5egal $ervices Athority shall, after de en0iry award ade0ate compensation "y completing the en0iry within two months. 8/ The $tate or the 'istrict 5egal $ervices Athority, as the case may "e, to alleviate the sffering of the victim, may order for immediate first6aid facility or medical "enefits to "e made availa"le free of cost on the certificate of the police officer not "elow the ran3 of the officer in charge of the police station or a #agistrate of the area concerned, or any other interim relief as the appropriate athority deems fit.; The scheme contained in the section is indeed a progressive measre to ameliorate the woes of crime victims and providing them restorative relief .& Ths, after the insertion of $ection 7:A, a $tate is lia"le to pay compensation to the victim. 2owever, "y The riminal 5aw Amendment/ Act, &*1, two sections namely section 7:B and 7: has "een added to r.-.. it reads as follows? "+ -pra Note 18% p. 1+8.
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S2 ),( 12 Compensation to +e in addition to fine unde# Section )45A o# Section )(5D of Indian Pena$ Code23 The compensation paya"le "y the $tate Jovernment nder section
7:A shall "e in addition to the payment of fine to the victim nder section &8A or section :8' of the )ndian -enal ode. S2 ),( C2 T#eatment of *ictims23 All hospitals, p"lic or private, whether rn "y the entral
Jovernment, the $tate Jovernment, local "odies or any other person, shall immediately, provide the first6aid or medical treatment, free of cost, to the victims of any offence covered nder section &8A, :8, :8A, :8B, :8, :8' or section :8C of the )ndian -enal ode, and shall immediately inform the police of sch incident.
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1I1!IO6RAP7 •
Jrpreet $ingh >andhawa, Victimology and ompensatory Drisprdence, entral
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5aw -"lications, Allaha"ad. handra $en -ratap, Victims of rime, 'eep G 'eep -"lications p/ 5td, Kew
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'elhi. K.E. -aran!ape, riminology and -enology with V)ctimology, entral 5aw
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-"lications, Allaha"ad, &*11. http?FFwww.oxforddictionaries.comFdefinitionFenglishFcompensation http?FFwww.ohchr.orgFCKF-rofessional)nterestF-agesFVictimsfrimeAndA"sef-o
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wer.aspx https?FFwww.victimsofcrime.orgFhelp6for6crime6victimsFget6help6"lletins6for6crime6
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victimsFrestittion
