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ANALYSIS OF POWER OF COURTS UNDER SECTION 357A OF CrPC.

Author: Sandhya Gupta, B.A.,LL.B.(Hons.) LL.M. (Access to Justice) from Dr. Ram Manohar National Law University, Lucknow; TISS Mumbai.


INTRODUCTION

Victimology is an essential part of the Criminal Justice System. The 154th Report of the Law Commision(1996) consisted of a complete chapter on "Victimology" which extensively discussed the rights of victims of crime in trials. The Law Commission report mentioned how the principles of victimology were evident in Part III and Part IV of the Indian Constitution itself.


The Malimath Committee Report in 2003 also mentions the rights of the victim in great detail. The report said, "What happens to the right of the victim to get justice to the harm suffered? Well, he can be satisfied if the State successfully gets the criminal punished to death, a prison sentence or a fine. How does he get justice if the State does not succeed in so doing? Can he ask the State to compensate him for the injury? In principle, that should be the logical consequence in such a situation; but the State which makes the law absolves itself[1]."


By this time, there was a growing discussion on the need of the State to compensate a victim of crime. Hence, in 2008 significant amendments were made to the Code of Criminal Procedure, 1973 and Section 357A was inserted in the code, thus making it mandatory for every State/UT to come up with a framework for victim compensation with an obligation on the State to compensate the victim of crime. Before this amendment, the onus of compensating the victim, if ordered by the Court, was on the accused as per Section 357 of the Code.


With the 2008 amendment, a new approach to victimology was taken that ensured the rehabilitation of a crime victim by compensating his/her irrespective of conviction of the accused or the identifying of the offender.


Section 357A of the Criminal Procedure Code makes it mandatory for each State in coordination with the Central Government to prepare a scheme for compensation to victims of crime or their dependents who have suffered a loss/injury as a result of the crime and thus require rehabilitation. This Section imposes a duty on the State, i.e District Legal Services Authority or the State Legal Services Authority to award adequate compensation after due enquiry when an application for compensation under the respective State victim compensation scheme is made to it directly by the victim or his dependents or when the court orders recommendation under the said Section. The Section places a lot of importance on the victims' rehabilitation by giving power special to the Court in awarding compensation even in cases where the accused is acquitted, discharged or where the compensation awarded under Section 357 is inadequate. In the case of Rattiram vs. State of MP[2], the Honourable Supreme Court made an important observation on the protection of the rights of victims of crime. It observed, "Criminal jurisprudence, with the passage of time, has emphasized victimology which fundamentally is a perception of a trial from the viewpoint of the criminal as well as the victim. Both are viewed in the social context. The view of the victim is given due regard and respect in certain countries. It is the duty of the Court to see that the victims' right is protected."


CRITICAL ANALYSIS

Section 357A of CrPC gives power to the trial court at the conclusion of the trial to compensate the victim even in cases where the accused is discharged, acquitted or where the compensation granted under Section 357 is not adequate for his/her rehabilitation. The Section empowers not only the trial court but also the superior courts to recommend compensation. However, it must keep in mind that the power of courts under Section 357A is only recommendatory in nature. The Honourable Jharkhand High Court reiterated this view in the recent case of Sumit Kumar Shaw and Ors. vs. The State of Jharkhand and Ors[3]in which the Court held that power of the Court under Section 357A is only recommendatory. The Court cannot fix any quantum of the victim compensation, neither can it direct the DLSA/SLSA to make a payment of the same to the victim. The Court has the power only to recommend a case for compensation that has to be quantified and assessed adequately by the State or District Legal Services Authority after an enquiry.


However, the courts do not exercise the discretion granted to them under this Section as readily as they should be. Even in heinous offences like rape and sexual assault, the trial courts focus on sentencing the accused by imposing a fine and awarding imprisonment to the accused. The trial courts do not pay much attention to the rehabilitation aspect of the victim, thus abstaining from recommending compensation under Section 357A or even awarding compensation under Section 357. It is often when the case is appealed to the higher Court that High Court in its appellate jurisdiction uses its power to make a recommendation of compensation.


In the case of Ranjeet Naik v. State (NCT of Delhi)[4], the Delhi High Court, while hearing the appeal of the accused in case of rape, came down heavily on the Trial Court for not recommending compensation under Section 357A. The Court observed that the trial court had failed in duty to refer the victims' case under the Delhi Victim Compensation Scheme, which specified a minimum compensation of 4 lakhs and maximum compensation of 7 lakhs for a victim of rape. The Court quoted the case of Ankush Shivaji Gaikwad v. State of Maharashtra[5] in which the Honourable Supreme Court observed, "While the award or refusal of compensation in a particular case may be within the Court's discretion, there exists a mandatory duty on the Court to apply its mind to the question in every criminal case. Application of mind to the question is best disclosed by recording reasons for awarding/refusing compensation."


In this case, no compensation was awarded to the victim in the Trial court, and the Court had just provided the accused with imprisonment and imposition of a fine of Rs 15,000. The High Court, in this case, took upon itself to recommend the compensation under the said Section and directed the Delhi State Legal Services Authority to consider the victims' case and award her compensation under the prevailing victim compensation scheme.


In the case ofLilu V State of Odisha[6], the victim was a 13-year-old girl who was wrongfully restrained and raped by the accused in the presence of the minor sister while they were coming back from the school by of the accused. The trial court in this case, too, while holding the accused guilty of section 341 of the Penal Code, 1860 and 4 of the POCSO Act, punished him with imprisonment and fine; however, neither ordered any compensation under Section 357 nor recommended any compensation to under Section 357A. It was only while the Odisha High Court was hearing the appeal of the accused against the trial court judgement that the Odisha HC recommended the victims case of compensation. The Court observed that considering the age of the victim who was a child at the commission of the offence, the nature and gravity of the offence and the family background of the victim, it was necessary to recommend the victims case to the DSLSA, Balasore, Odisha. The Court ordered the DSLSA to consider the victims' case and award her compensation after the relevant enquiry under the Odisha Victim Compensation(Amendment) Scheme, 2018.


The Calcutta High Court, in the case of Serina Modal Vs State of West Bengal[7], observed that the victims are provided with compensation under Section 357A of the CrPC because there is a violation of Right to Life under Article 21 of the Consitution of India involved. The delay or denial of this compensation on any grounds would result in a continued violation of Article 21, which would a be gross inhumanity on the victims of crime.


As per NALSA Record on Victim Compensation Scheme under Section 357A[8]we an see how in such limited cases, courts have exercised their discretion under Section 357A of CrPC. From March 2018 to April 2021, i.e. approximately five years, only 26,232 recommendations of compensation were made by the Court exercising its power under Section 357A of CrPC all over India. This number is extremely low considering the crime rate in India. As per the Crime in India Report by NCRB in 2020 alone, a total of 66,01,285 cognizable crimes comprising 42,54,356 Indian Penal Code (IPC) crimes and 23,46,929 Special & Local Laws (SLL) crimes were registered in India.


As per A National Report on Status of Victim Compensation to Survivors of Human Trafficking in India by Sanjog NGO, out of 32 States/UTs, 11 States/UTs recorded zero applications for victim compensation as well as zero court recommendations for granting victim compensation to victims of human trafficking from the time of implementation of the schemes till the year 2019. The NGO came to this finding by finding serveral RTIs in almost all States in India. This is a very upsetting figure as the need for rehabilitation for survivors of human trafficking isn't even a debate anymore, and the total failure of the courts in recommending compensation for a heinous crime like human trafficking explains the status of victim compensation in the country.


One may argue that the low numbers of victims directly making application for compensation under Section 357A schemes is because of the non-awareness of the framework in the general public, however this argument cannot be sustained when the courts who are supposed to be well versed with the laws and policies have failed to exercise the power of discretion given to them to recommend compensation under the said Section.


CONCLUSION

The poor implementation of the victim compensation schemes all over the country has always involved a lot of controversy and debates. This makes the role of Courts more critical since it plays an essential function in the scheme of victims compensation. Judiciary being the guardian of victims rights, must take recourse to this Section more often and utilize the recommendatory power given to it under the legislation. Not only must the courts exercise their mind in sentencing the accused but also pay attention to the rehabilitation needs of the victim. It is of pertinent importance that the discretionary power of the judiciary under Section 357A and Section 357 is converted to a mandatory power in suitable cases involving heinous crimes like human trafficking, acid attacks, rapes etc. It must be made mandatory for the courts to pass orders of compensation under the Section for certain offences. If it decides not to do so, it must be made obligatory to record the reasons for not doing the same. Apart from the Courts, various other stakeholders in the Criminal Justice System, like Public Prosecutors, Police Officials, Legal Service Institutions, NGOs, should help make awareness of the said scheme in the general public so that the victims of crime make use of this mechanism and avail compensation. Some institution, agency, or stakeholder must be given responsibility under the law to inform the victims/dependants about their remedy to avail compensation. Such a low number of applicants under the victim compensation schemes showcase how there is a serious lack of awareness regarding the same all across India. Media can also play a great role in creating awareness about the schemes.