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PUCL Bulletin, March 2005

 

Compensation & restitution to the victims of crime

-- By K.K. Bajpai

Social justice, being goal of law in action, has also been found under Indian Constitution like a golden thread. But justice itself is truth in action. Ignorance is the enemy of this truth. Victims of crime being component of criminal justice administration are entitled to share the promises of social justice contained out constitution. Novel concept of victimology is a step towards fulfilling the avowed promises made by our constitution makers. The corpus juris of India is bereft of statutory awareness of victimology of social justice, equitable and effective reparation of victims through compensation becomes imperative.

So far the present law seemingly inadequate and fragmentary in nature, justice seems a distant possibility. The answer could lie in attributing a more active role to the State. It has been suggested that State compensation scheme be introduce, but such be confined to violent crimes only.

The nation of compensation is a sound concept and a society that recognises the responsibility it over to its members is an incentive for law enforcement. But for doing such the very basis and need for compensation has to be considered – is it a right? Or is it to be awarded in extreme need? Should courts prescribe a maximum or minimum award? Should specialized bodies conduct the proceeding? But in compensation settlement the community should not be the end sufferer. Retribution should be within limits, and for such the victim-offender relationship can be studied to bridge the gap between the two. However the offender should not be the one to gain. Tangible community assistance could dilute. The retaliatory desire of the victim of crime. The victim compensation scheme in India is inefficient and inadequate understanding of different victim compensation scheme of various countries can help in understanding the issues but they are not exactly viable in our own criminal justice mean. Under the Indian Criminal Justice system, offence is regarded as against the state.

So the victim has to initiate separate suit to recover damages for the wrong that has been committed against him or her. S. 357 of Criminal Procedure Code 1973 though an important provision is applicable only when the accused is convicted and sentenced. Isn’t this a barrier to recover compensation.

In our below the poverty line economy with majority of criminals from such a background, compensation recovery is but an unequal provision that benefits those with financial means and seems unrealistic in our majority poor society with little material benefits. Injury as to financial status seems to be a good alternative, but the victim can turn out to be the looser.
The whole problem ingrained in our Compensation Law is the inability to meet the essence of it in light of our socioeconomic environment. Compensation means funds and mobilisation of such and earmarking avenues for payment is a major need. Victim compensation is a new horizon is settling claims for losses incurred and quenching the thirst for retribution, the reformative basis of such a punishment is debatable, but what cannot be questioned is the novelty of this.

There are crimes that cannot be measured or made up in terms of monetary compensation especially in cases of rape that affects the victim psychologically as much as physically. These cannot be weighed to be sufficiently avenged but to consider such means one can never draw the line. In case of rape, the trauma which the victim of the crime undergoes in our society or the stigma which a women feels after being victimised of rape is ineffable but the practical problems which comes of for as aftermath of rape is loneliness and desertion by husband and family. Consequently a woman is left to starve, just due to being victimised and now she is left in such a condition where there may be chances of repeated several abuse. It is true that money can not repair the chastity and purity which is most precious asset of Indian women, nevertheless if sufficient compensation is granted to her, she would not have to depend on the mercy of any body.
When sovereign functions are purportedly done by bosses and minions of government and the citizens are damnified, sovereign immunity is often invoked. When a soldier shoots at a citizen without any justification or a police officer tortures an innocent citizen in his custody, no democracy which honours human rights can vaccinate the Republic against liability for criminal or wrongful conduct. Such immunization negates the rule of law and discriminates unjustly in favour of the sovereign.

“Therefore, when the court moulds the relief by granting ‘compensation’ in proceedings under Article 32 or 226 of the Constitution seeking enforcement or protection of fundamental rights, it does so under the public law by way of penalizing the wrongdoer and fixing the liability for the public wrong on the State which has failed in its public duty to protect the fundamental rights of the citizen. The payment of compensation in such case is not to be understood as it is generally understood in a civil action for damages under the private law but in the broader sense of providing relief by an order of making ‘monetary amends’ under the public law for the wrong done due to breach of public duty of not protecting the fundamental rights of the citizen. The compensation is in the nature of ‘exemplary damages’ awarded against the wrongdoer for the breach of its public law duty and is independent of the rights available to the aggrieved party to claim compensation under the private law in an action based on tort. Through a suit instituted in a court of competent jurisdiction or/ and prosecute the offender under the penal law”.
The Code of Criminal Procedure can be amended to make statutory provision for participation of the victim during the stage of investigation and trial of the criminal case instituted on the basis of police report.

By way of amendment of Cr.P.C. right can be conferred on the victim to engage lawyer of his choice, whose opinion will prevail over the opinion of the public prosecutor in case of conflict and also to prefer appeal against the order of acquittal of the accused in the cases instituted on a basis of police report.

Owing to ignorance of law or lack of sensitivity, many police officers at the police station level do not inform the victim of the action taken by police relating to the commission of the offence reported to the police station as per provisions of S. 173 (2) (i) of the Code of Criminal Procedure 1973. Nor is there any statutory provision to inform the victim of the progress of the case during trial by the prosecution. The police should ensure the victim about the action taken by the police station. It is pertinent to point out the innovative method of giving information to the victim introduced by the Apex Court before accepting the final report submitted by the police before the Court. The Supreme Court has directed the judicial magistrate to give an opportunity to the victim (informant) to be acquainted with the result of the police investigation and also to raise objection, if any, before discharging the accused on the basis of final report submitted by police u/S. 173 of Cr.P.C. The police and prosecution may also follow such procedure to Inform the victim of the progress of the case during investigation and trial respectively.

Interrogation of the victims in general and the victims of sexual offences in particular should be done by the police in a dignified manner and by following the procedure of law i.e. without calling the female victims and male victims below the age of 15 years to the police station for the purpose of any interrogation as laid down in S. 160(1) of Cr. P. C. The Government should provide sufficient fund to the police and Court administration for payment of travelling allowance, pocket allowance and professional loss to the victims appearing as witnesses whenever they will be called to the police station or Court. The Magistrates and Judges should be trained on the art of Court management and controlling lengthy cross examination by way of rejecting irrelevant Questions.

The Victims of body offences and the victims of accidents need immediate medical assistance. In a public interest litigation the question arose whether every member of the medical profession has the obligation to extend his services with due expertise for protecting life. In this case, the Doctor avoided his duty to help an injured scooterist on the plea that it was a medico-legal case and ultimately the injured succumbed to the injuries before getting medical assistance in another hospital. On consent of all concerned in the case, the Supreme Court has laid down that whenever a man of medical profession to render all help which he could do and if the case needs better assistance he must make all efforts ensure that the injured reaches the proper expert as early as possible.

The practice of certain Government institutions and private practitioners to refuse even the primary medical aid to the patient and referring them to other hospitals, because it is a Medico-Legal case, is violative of Code of Medical Council Act, 1956. The member of the medical profession must be persuaded and motivated to follow the law of the land laid down by the Apex Court.
The women police officers may take up the work of interrogation of victims of sexual offences in general and rape In particular. Where women police officers are not available, the victims of rape may be interrogated in their residence in the presence of friends and relatives. Similarly, the medical examination of the victims of rape should be done in an atmosphere where the victim is made to relax and to actively participate and cooperate during medical examination of the intimate parts of body.

The female judges may preside over the Courts constituted for the purpose of trial of sexual offences. Lady public prosecutors may also be engaged to conduct the trial of rape cases. The provision for in-camera trial must invariably be adopted by the Presiding Officers of the Courts where sexual offences are tried. The special Court for the purpose may be constituted by the Government for protection of privacy of the victims of sexual offences.

The sad plight of a ravished girl and child born as a result of the offence of rape is far too well-known in our conservative, male-dominated and double standard society.

For no fault of their own both the mother and the child become social outcastes.

Their agony beggars description and the shame and they suffer for the rest of their lives is so intense and painful that their case deserves special consideration compared to the case of any other victim of crime.
The Criminal Procedure code particularly S.357 be amended suitably so that Courts may award compensation in any offence to victims to be paid by the offender or offenders.

There should be no fixed limit of compensation as in S.358, Cr.P.C. It should be left to the discretion of the Court considering circumstances of each case and capacity of the parties.

Where the offenders could not be identified provision for ‘State Compensation in deserving cases be provided through National as well as State Human Right Commission.

Every Court be authorised to pay compensation to victims of crime out of fines collected by the respective Court in cases victim claims compensation.
The existing provisions in Criminal Procedure Code concerning the compensation to victim and conferring discretionary power on the Court should be converted to mandatory provisions, requiring to pay compensation in all suitable cases.

A comprehensive scheme for payment of compensation by offender, as well as by State, based on sound and certain legal premise should be evolved.
The compensation to the victims of crime should be State responsibility and for implementing this welfare measure an appropriate body should be set up.
A victim of an offence should be legally allowed to intervene in the criminal proceedings against the offender to claim compensation for loss or injury.
Judicial Administrative Mechanism should be established and strengthened where necessary to enable victims to obtain redress through formal or informal procedures that are expeditious, fair, inexpensive and accessible. Victims should be informed of their rights in seeking redress through such mechanisms.

Separate Administrative Tribunals or Boards to be designated as “Crime Compensation Tribunal Board” and set up at every divisional headquarter under the chairmanship of a Judicial Officer of the rank of a District and Sessions Judge with a doctor and a Social worker of standing two other members. Of these three, one shall be a woman

 

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