VICTIM COMPENSATION SCHEME – AN OUTLOOK - R. KARUNANIDHI

 VICTIM COMPENSATION SCHEME – AN OUTLOOK

        -  R. KARUNANIDHI 

SCC PRACTICAL LAWYERS MEGAZINE PUBLISHED

  (Advocate, Madurai Bench of Madras High Court) 

          

SCC PRACTICAL LAWYERS MEGAZINE PUBLISHED

INTRODUCTION    

         My endeavor in this article is to discuss about the contemporary events in the scheme of victim compensation. As many of us know the Victim Compensation scheme was came into force when the Section 357 (A) of Criminal Procedure Code was amended in the year 2009. This was ensured as a law after various Supreme Court’s judgements in different cases where Supreme Court clarified that when victim suffer injuries, criminal injuries, they need to be compensated because it’s violation of Fundamental rights. The object and purpose of the provision is to enable the Court to direct the State to pay compensation to the victim where the compensation under Section 357 was not adequate or where the case ended in acquittal or discharge and the victim was required to be rehabilitated. Indisputably, no amount of money can restore or erase the trauma and grief the victim suffers. The aid can be important with aftermath of crime.    

IMPLEMENTATION OF THE SCHEME

Earlier in the ruling of D.K. Basu –vs- State Of West Bengal (1997(1) SCC 416), the Hon’ble Supreme Court pointed out that the obligation of the State in case of victim of crime needs to be compensated monetarily where the infringement of the fundamental right is established. It must proceed further and give compensatory relief, nor by way of damages as in a civil action but by way of compensation under the public law jurisdiction for the wrong done, due to breach of public duty by the State of not protecting the fundamental right to life of the citizen. The Supreme Court expanded the scope for availing compensation from the State as vicarious liability in number cases. Our  High Courts and Apex Court questioned in several occasions, whether the responsibility of the State ends merely by registering a case, conducting investigation and initiating prosecution and whether apart from taking these steps, the State has further responsibility to the victim. When the State fails to identify the accused or fails to collect and present acceptable evidence to punish the guilty, the duty to give compensation remains. Victim of a crime or his kith and kin have legitimate expectation that the State will punish the guilty and compensate the victim. There are systemic or other failures responsible for crime remaining unpunished which need to be addressed by improvement in quality and integrity of those who deal with investigation and prosecution, apart from improvement of infrastructure but punishment of guilty is not the only step in providing justice to victim. Victim expects a mechanism for rehabilitative measures, including monetary compensation. The Government of India started this victim compensation scheme and many States drafted it and it all got into action since 2011 onwards.

After the infamous acid attack on her, Laxmi, a survivor filed a Public Interest Litigation (PIL) in the Supreme Court in 2006 on various issues related to Acid Attack victims. The Supreme Court directed the State Governments to strictly follow the laid down procedure for granting compensation to the victims. It also directed the Union Government to fix the minimum compensation at Rs. 3 lakh. [Laxmi-Vs-Union of India (2015(2) MLJ (Crl) 361)]. Subsequent to this PIL, the Ministry of Home (MHA) Affairs held consultations with various state governments & UTs and proposed setting up of a ‘Central Victim Compensation Fund’ (CVCF) that includes compensation to acid attack victims. The MHA has issued detailed guidelines of this scheme Viz., the civilian victims of cross border firing along the border will be given a compensation of Rs 5 lakh. The compensation given to those who die due to terrorism or Maoist violence has also been increased from Rs 3 lakh to Rs 5 lakh.

NOTIFICATION ISSUED BY GOVERNMENT OF TAMIL NADU 

Senior Advocate S. Sathia Chandran in the year 2012 filed a Public Interest Litigation before the Madras high court for a direction to the state government to frame a Victim compensation scheme, which envisages payment of monetary assistance to families of victims of criminal offences. [S. Sathia Chandran -Vs- State of Tamil Nadu (CDJ 2012 MHC 5554)]. Subsequent mountain pressures from Court the Government of Tamil Nadu Home Department issued G.O. (Ms.) No.1055, on 30^th November, 2013 and allocated 2 crore rupees money.

The Tamil Nadu State Government prepared scheme for providing funds for the purpose of compensation to the victim or his dependents who have suffered loss or injury as a result of the crime and who require rehabilitation. This notification defined certain terms Viz, “dependents” means spouse, father, mother, unmarried daughter, minor children and other legal heirs of the victim who, on providing sufficient proof, is found fully dependent on the victim by the District Legal Services Authority. Furthermore the notification articulates the “eligibility for compensation”. A victim or his dependents shall be eligible for the grant of compensation under the Scheme for the following terms. (i) a recommendation is made by the Court under sub - section (2) or (3) of section 357-A of the Code or the Victim or his dependents make an application to the State or the District Legal Services Authority for award of compensation under sub - section (4) of Section 357-A of the Code, (ii) the victim or his dependents shall report the crime to the officer-in-charge of the Police Station or any Senior Police officer or Executive Magistrate or Judicial Magistrate of the area within forty eight hours of the time of the occurrence of the crime, (iii) the offender is traced or identified and a trial has taken place, the victim or his dependents has co-operated with the police and the prosecution during the investigation and trial of the criminal case; (iv) the crime, on account of which the compensation is to be paid under this Scheme has been occurred within the territorial limits of the State.  It is scheduled under the Loss of life, Loss of any limb or part of body, Loss of life due to acid attack, Rape, Loss or injury causing severe mental agony to women and children in cases like human trafficking, kidnapping, molestation. Apart from amount of compensation the Funeral expenses and medical expenses shall be payable in addition to the compensation.

PROCEDURE FOR GRANTING COMPENSATION   

When the conviction are happening or when the judge thinks that it is pertinent to give compensation then only they are giving the compensation. An application for compensation can be made as soon as the case starts into trial process, the Investigation Officer of the case can move an application or the victim herself can move an application and that application will be considered by the judge seeing the various evidences as well as the various documents prepared by the police. Rule 5 of the Tamil Nadu Government says, (1) Whenever a recommendation is made by the court under Section 357-A (2) of the Code or an application is made by any victim or his dependents under Section 357-A (4) to the State or the District Legal Services Authority, the State or the District Legal Services Authority shall examine the case, verify the contents of the claim with regard to the loss or injury caused to the victim arising out of the reported crime. The said Authority may also call for any other relevant information which may be necessary in order to determine the genuineness of the claim for compensation. After verifying such claim and conducting due enquiry, the State or the District Legal Services Authority shall award adequate compensation within two months, in accordance with the provisions of the Scheme. (2) Compensation under the Scheme shall be paid subject to the condition that if the trial court while passing judgement at a later date, order the accused person to pay any amount by way of compensation under section 357-A (3) of the Code, the victim or his dependents shall remit an amount equal to the amount of compensation paid under the Scheme or the amount ordered to be paid under sub-section (3) of said Section 357, whichever is less. (3) The State or the District Legal Services Authority shall decide the quantum of compensation to be awarded to the victim or his dependents on the basis of loss or injury caused to the victim, medical expenses to be incurred on treatment, minimum sustenance amount required for rehabilitation including such incidental charges as funeral expenses, etc. The compensation may vary from case to case depending on the facts of each case. (4) The quantum of compensation to be awarded to the victim or his dependents shall be subject to the maximum limit specified in the Schedule. (5) The amount of compensation decided under the Scheme shall be disbursed to the victim or his dependents, as the case may be, from the Fund. While making payment of the amount of compensation, the District Collector or the Commissioner of Police shall ensure that all the provisions of the Scheme are strictly complied with. (6) Any other compensation paid to the victim or his dependents by the State Government in relation to the crime, such as insurance, ex-gratia, Hon’ble Chief Minister’s Public Relief Fund, Hon’ble Chief Minister’s Accident Relief Fund, Victims Assistance Fund or interim relief under the scheme or any payment made under any other Act or any other State-run Scheme, shall be considered as part of the compensation amount decided under the Scheme. (7) The award of compensation made by the Motor Accidents Claims Tribunals under the Motor Vehicles Act, 1988 (Central Act 59 of 1988), shall not be compensated towards the compensation decided under the Scheme. (8) The State or the District Legal Services Authority, to alleviate the suffering of the victim, may order for immediate first aid facility or medical benefits to be made available free of cost on the certificate of the police officer not below the rank of the officer-in-charge of the Police Station or a Magistrate of the area concerned, or any other interim relief, as it may deem fit.

APEX COURT AND HIGH COURT DIRECTIONS 

The Supreme Court of India directed the State of Haryana to pay the interim compensation under this scheme for the two deaths Rs.10 lakhs while acquiting accused in criminal case, without prejudice to any other rights or remedies of the victim family in any other proceedings. [Suresh & Another Versus State of Haryana  2015 (2) SCC 227)].  After brutal murder of 15 year old child namely Aparna, the C.B.I officials have not secured the accused after lapes of five years of registering case. The Madurai High Court Bench directed the State to pay a sum of Rs.3 lakhs to the father of victim since CBI police were not able to solve the murder. [Kalaikumar-Vs-State of Tamil Nadu (Crl.O.P.(MD).No:3513 of 2015 order dated 22.06.2015). The Madras High Court granted compensation Rs.50,000/- in a Habeas Corpus Petition under Victim Compensation Scheme and clarified that “injury” does not indicate only physical injury alone as it includes injury of the mind also.[CDJ 2016 MHC 3465]. Recently the Hon’ble Supreme Court directed State of Madhya Pradesh for a payment of a sum of Rs.8,000/- per month as victim compensation to the victim who is physically handicapped, i.e. blind, till her life time.  The Court observed more particularly that the victim, being in a vulnerable position and who is not being taken care of by anyone and having no family to support her either emotionally or economically. [Tekan @ Tekram –Vs-State of Madhya Pradesh (2016 (2) SCC (Cr) 307]

 CONCLUSION:

i.             The Supreme Court had found that in the Tekran case, there was no uniform practice being followed in providing of compensation to rape victims and for rehabilitation. It is clear hence, that the practice of giving different amounts of money, ranging from 20 thousands to 10 lakhs rupees, as compensation for the offence of rape needs to be looked into by all the States and Union Territories. States must take all steps necessary to formulate a uniform scheme to provide compensation to victims.

ii.           While delivering judgments where the offender is not traced or identified, it is the duty of Honourable Judges to direct the State to pay compensation to the victims. It is important for the court to take into consideration the mental and physical trauma of the victims and provide compensation to help with rehabilitation.

iii.          The State must provide compensation to victims under the Victim Compensation Scheme even in cases where the accused cannot be detected viz. accident deaths with no insurance claims, cheating, cyber crimes etc,.