VICTIM COMPENSATION
Author: Busam Pushyami
INTRODUCTION
The traces of victim compensation can be seen in the Sutra period where compensation for victim is considered as royal offering. In Manu, victims were compensated by offender and for any such expenses as required for medical/damage treatment etc. Among the present following laws, this concept of victim compensation can be observed in Criminal Procedure Code, 1973 (Herein after referred as CrPC) under the sections 357, 357 A, 358, 359 and 290.
The Constitution, the Supreme Law of land in India, also have provisions which interprets the concept of victim compensation among Article 14 and Article 21.
VICTIM AND VICTIM COMPENSATION:
Section 2(wa) of CrPC explains “victim” as a person who suffered loss or injury due to the act or omission of an act by the convicted person. Victim also includes legal guardian or legal heir.
Victim compensation means compensation provided to victims for the sufferings due to the act done by the accused. Generally, in criminal cases, state assumes the position of prosecution and appellant to deal with the cases, as it is understood that any crime that has occurred in the society is threat to nation and it is state’s responsibility to protect. Thus, in most of the situations, where state takes the role of appellant the result of the judgment would stop only at punishing the offenders by following preventive methods of crime.
What happens to victim? Who will justify the loss of sufferings and future opportunities of victims? Does only punishing offender will justify the loss suffered by the victim? These were the questions that arose which lead to the introduction of concept of Victim Compensation.
Jurists like Jeremy Bentham and Margery Fry also said that governments should protect their citizens. But, if it fails then it is the duty of government to provide compensation to the victims. Victim Compensation is the amount granted by the government to meet the financial hardships of the victims that suffered. Every state maintains crime victim compensation program or scheme to provide compensation and this compensation generally includes the medical costs, loss of wages, etc. However, Indian judicial System puts fine on offender which he should pay the victim following the court directions. Only when the fine paid cannot suffice the loss of victims, the government pays victim compensation. But, not in all cases offenders were caught and convicted. In such situations also government allocate funds to victim.
LEGAL NATURE OF VICTIM COMPENSATION:
The following acts contains provisions for victim compensation
Criminal Procedure Code
Section 357 explains that Court orders to pay compensation as a part of punishment or sentence which includes loss or injury, loss in cases of death, expenses of prosecution. This section also extends to the loss or injury to the property of victims.
154th law commission report proposed the victim compensation to immediately support the victim and immediately brought out the changes by implementing a new section to CrPC. Section 357 A mandates the state to form victim compensation schemes and run programs that allocate funds to victims. Victim compensation schemes and programs also prevent fraud and abuse of funds.
Section 358 grants compensation to the individuals who became victims by getting arrested without any proper grounds. Under section 359, court orders to pay costs in non-cognizable offences.
In 2003, Malimath committee has recommended the establishment of the victim compensation fund which includes the assets confiscated in organized crimes.
Protection of Women from Domestic Violence Act, 2005
Under this Act, victims are provided compensation for domestic violence sufferings. This act also allows use of resources provided as compensation continuously. Magistrate or police officer should inform victim about her right to obtain protection order. Compensation under this act can be of monetary nature or residence. Smt. Haimanti Mal v. The State of West Bengal[i], the Calcutta High Court in 2019 has granted compensation for mental torture and emotional distress.
The Scheduled Castes And The Scheduled Tribes (Prevention Of Atrocities) Act, 1989
This act mandates the compensation of victim depending on the situation and kind of atrocity. This act protects from caste-based victimization.
Probation of Offenders Act, 1958:
Section 5 of this act empowers trial court to order for the grant of compensation. CrPC provides the procedure for acquiring this compensation. Section 421 of CrPC explains that fine is to be recovered by attaching the immovable property or by selling the movable property of offender to compensate the victim. Section 431 of CrPC provides that courts can recover amount from the offender other than the fine imposed to compensate the victim following the order in judgment.
The Indian Constitution
Article 14 gives equal opportunities for all and the victims should also be allowed to participate in proceedings and should be provided opportunity of being heard.
Article 21 establishes “Right to Life” and victims are entitled to compensation to suffer the loss when the death of bread winner in a family occurs or any other injury which may threatens the life of a person. In all such situations article 21 plays a major role in providing compensation to victims.
Directive Principles under Indian Constitution guarantees a welfare state and it is the duty of the state to take welfare measures to safeguard the victims.
JUDICIAL PRONOUNCEMENTS:
Ankush Shivaji Gaikwad v State of Maharashtra[ii], Supreme Court has observed the importance of victim compensation and mandated the trial courts to consider the grant of interim orders.
Suresh v. State of Haryana[iii], Supreme Court observed that it is the duty of the court to observe whether victim of crime needs any interim financial need and said that gravity of offence and need of victim are guiding principles to be kept in mind.
Nipun Saxena v. Union of India[iv], Supreme Court laid down guidelines for establishment of NALSA’s compensation scheme and held that this scheme should function as a guideline to special courts for award of compensation to victims of child abuse.
CHALLENGES
1. There is still confusion as to which offences come under this scheme and in turn there is either delay of compensation or denial of compensation to the victims.
2. Lack of Awareness. Many crimes are going unnoticed and uninformed as a result of lack of awareness among the victims. Thus, the court mandated the police and the magistrates to create awareness regarding the same.
3. Practical procedure of providing compensation to victims is a long process where people lose hope of getting compensation during the delay in process of documentation, application etc.
CONCLUSION:
Therefore the court and the social workers including common public should take essential steps to make the scheme of victim compensation a grand success by creating adequate awareness and also by bringing up necessary changes so as to avoid delay and denial of compensation to the victims.
References:
[i] Smt. Haimanti Mal v. State of West Bengal, C.R.R. No. 3907 of 2016 [ii] Ankush Shivaji Gaikwad v State of Maharashtra, (2013) 6 SCC 770 [iii] Suresh v. State of Haryana, (2015) 2 SCC 227 [iv] Nipun Saxena v. Union of India, W.P (Civil) No. 565 of 2012