By Apurva Rathee, Advocate

STATEMENT OF FACTS:

  1. On 29th October, 1980 at around 2.00 p.m. the accused allegedly assaulted and caused injuries to one Manohar Singh (the appellant), Devi Singh, Maan Singh and Karan Singh with a view to disturb their possession on the agricultural land in dispute.
  2. As many as 13 accused were tried on these allegations and the Trial Court convicted and sentenced the said accused persons under various sections including Sections 323, 324, 325, 326 IPC to rigorous imprisonment and also imposed fine.
  3. On appeal, the Court of Sessions set aside the conviction for offences other than the one under Section 323 IPC but maintained the conviction under Section 323 IPC. The sentence of imprisonment was also set aside and the accused were granted probation subject to fine of Rs. 5,000/- which was to be paid to the victim.
  4. The injured PWs, namely, Karan Singh, Devi Singh and Maan Singh entered into the compromise and compounded the offence qua them but the appellant filed a revision in the High Court which was dismissed.
  5. The appellant Manohar Singh then preferred an appeal in Supreme Court[1] against the judgment and order dated 23rd November, 2011 passed by the High Court of Rajasthan at Jaipur in Criminal Revision No. 6 of 2009.

IDENTIFICATION OF ISSUES:

  1. Whether or not the Court of Sessions erred in setting aside the conviction for offences other than Section 323 and granting the benefit of probation to the accused persons?
  2. Whether or not the fine imposed was adequate?
  3. Whether or not adequate compensation ought to have been granted to the appellant-victim?
  4. Whether or not the High Court of Rajasthan erred in dismissing the revision petition?

ARGUMENTS ADVANCED:

ON BEHALF OF THE APPELLANT:-

  • That the Court of Sessions erred in setting aside the conviction for offences other than Section 323 and also erred in granting benefit of probation.
  • That the fine imposed was not adequate and having regard to number of injuries and their nature, adequate compensation ought to have been granted.
  • That the appellant received as many as 10 injuries including an incised wound in the parietal region by sharp edged weapon, a muscle deep injury on the front of left leg and a bone deep injury just above the front of left leg.
  • That even if technically, the injuries could be held to be simple instead of grievous, the sentence should have been adequate and in any case, due compensation ought to have been granted. Thus, the High Court erred in dismissing the revision petition.

ON BEHALF OF THE ACCUSED:-

  • That the respondent Devi Singh had died during pendency of the proceedings in the Court.
  • That interference by the Court was not called for at this stage when 35 years have passed after the occurrence.
  • That it may not be appropriate to give any sentence of imprisonment to any of the accused.
  • That at best compensation may be directed to be paid by the accused or the State to the appellant.

DECISION OF THE SUPREME COURT:

      The Bench of the Hon’ble Supreme Court that heard the appeal comprised of T.S. Thakur and Adarsh Kumar Goel, JJ. The judgment was delivered by Adarsh Kumar Goel, J.

      After due consideration of the submissions made by the parties, the Hon’ble Court was of the opinion that it would not be appropriate to impose the sentence of imprisonment at that stage. However, having regard to the nature and extent of injuries, the appellant-complainant deserved to be duly compensated.

  1. Rehabilitation of victim:

      The Hon’ble Apex Court found that the Court of Sessions and the High Court did not fully focus on the need to compensate the victim. The Court then went on to explain how compensation is now an integral part of just sentencing.

  • Order of sentence in a criminal case needs due application of mind. The Court has to give attention not only to the nature of crime, prescribed sentence, mitigating and aggravating circumstances to strike just balance in needs of society and fairness to the accused, but also to keep in mind the need to give justice to the victim of crime.
  • Rehabilitating victim is as important as punishing the accused. Victim’s plight cannot be ignored even when a crime goes unpunished for want of adequate evidence.[2] Rehabilitation of the prisoner need not be by closing the eyes towards the suffering victims of the offence.
  • A glimpse at the field of victimology reveals two types of victims. The first type consists of direct victims, i.e., those who are alive and suffering on account of the harm inflicted by the prisoner while committing the crime. The second type comprises of indirect victims who are dependants of the direct victims of crimes who undergo sufferings due to deprivation of their breadwinner.[3]
  • In spite of legislative changes and decisions of the Supreme Court, this aspect at times escapes attention of the Courts.
  1. Interpretation of Sections 357 and 357A Cr.P.C. :

     The Hon’ble Court interpreted Sections 357 and 357A of the Code of Criminal Procedure, 1973 in the present case.

  • Compensation is payable under Section 357 and 357-A. While under section 357, financial capacity of the accused has to be kept in mind, Section 357-A under which compensation comes out of State funds, has to be invoked to make up the requirement of just compensation.
  • The Supreme Court in its previous judgments has recommended to all courts to exercise the power available under Section 357 CrPC liberally so as to meet the ends of justice.[4]
  • Sub-section (1) of Section 357 provides power to award compensation to victims of the offence out of the sentence of fine imposed on accused. It is an important provision but courts have seldom invoked it. Perhaps due to ignorance of the object of it.
  • It empowers the court to award compensation to victims while passing judgment of conviction.
  • In addition to conviction, the court may order the accused to pay some amount by way of compensation to victim who has suffered by the action of accused.
  • This power of courts to award compensation is not ancillary to other sentences but it is in addition thereto.
  • This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a constructive approach to crimes.
  1. Determination of amount of Compensation:

      In the present case, the appellant-complainant had received ten injuries on account of the assault, some muscle deep and some bone deep. The question before the Hon’ble Supreme Court was to determine the amount of compensation that was to be paid.

  • The power of the courts to award compensation to victims under Section 357 is not ancillary to other sentences but in addition thereto.
  • Just compensation to the victim has to be fixed having regard to the medical and other expenses, pain and suffering, loss of earning and other relevant factors.
  • The amount of compensation has to be determined by the courts depending upon the facts and circumstances of each case, the nature of the crime, the justness of the claim and the capacity of the accused to pay.
  • Thus, the amount of compensation sought to be imposed must be reasonable and not arbitrary.
  • A fortiori, an enquiry in a summary way may be necessary so as to determine the paying capacity of the accused. The purpose being that whereas the power to impose fine is limited and direction to pay compensation can be made for one or the other factors enumerated out of the same; but sub-section (3) of Section 357 does not impose any such limitation and thus, power thereunder should be exercised only in appropriate cases. Such a jurisdiction cannot be exercised at the whims and caprice of a Judge.[5]
  1. Victim’s right to compensation:

      The Supreme Court of India in its various judicial pronouncements has recognized in no uncertain terms a paradigm shift in the approach towards victims of crimes who are held entitled to reparation, restitution or compensation for loss or injury suffered by them.

      The Court agreed that this is not a novel approach, infact, the clock appears to have come full circle with lawmakers and courts going back to what had been common place in ancient times. In ancient societies, before the conceptual separation of civil and criminal law, it was standard practice to require an offender to reimburse the victim or his family for any loss caused by the offense.

  • The amendments to Code of Criminal Procedure 2008 focused heavily on the rights of victims in a criminal trial, particularly in trials relating to sexual offences.
  • Though the 2008 amendments left Section 357 unchanged, they introduced Section 357-A under which the Court is empowered to direct the State to pay compensation to the victim in such cases where, “the compensation awarded under Section 357 is not adequate for such rehabilitation, or where the cases end in acquittal or discharge and the victim has to be rehabilitated“.
  • Under this provision, even if the accused is not tried but the victim needs to be rehabilitated, the victim may request the State or District Legal Services Authority to award him/her compensation.
  • This provision was introduced due to the recommendations made by the Law Commission of India in its 152nd and 154th Reports in 1994 and 1996 respectively.
  1. Do Courts have an obligation to apply their minds to the question of compensation:

      The next question that the Hon’ble Apex Court tackled was whether the plenitude of the power vested in the courts under Sections 357 and 357-A, notwithstanding, the courts can simply ignore the provisions or neglect the exercise of a power that is primarily meant to be exercised for the benefit of the victims of crimes.

      In other words, whether courts have a duty to advert to the question of awarding compensation to the victim and record reasons while granting or refusing relief to them?

  • The language of Section 357 CrPC at a glance may not suggest that any obligation is cast upon a court to apply its mind to the question of compensation.
  • Sub-section (1) of Section 357 states that the Court “may” order for the whole or any part of a fine recovered to be applied towards compensation in the following cases:

       (i) To any person who has suffered loss or injury by the offence, when in the opinion of the court, such compensation would be recoverable by such person in a civil court.

       (ii) To a person who is entitled to recover damages under the Fatal Accidents Act, when there is a conviction for causing death or abetment thereof.

     (iii) To a bona fide purchaser of property, which has become the subject of theft, criminal misappropriation, criminal breach of trust, cheating, or receiving or retaining or disposing of stolen property, and which is ordered to be restored to its rightful owner.

  • Sub-section (3) of Section 357 further empowers the court by stating that it “may” award compensation even in such cases where the sentence imposed does not include a fine.
  • The legal position is, however, well established that cases may arise where a provision is mandatory despite the use of language that makes it discretionary.
  • Section 357 is a provision that confers a power coupled with a duty on the courts to apply its mind to the question of awarding compensation in every criminal case.
  • The power to award compensation was intended to reassure the victim that he or she is not forgotten in the criminal justice system. The victim would remain forgotten in the criminal justice system if despite the legislature having gone so far as to enact specific provisions relating to victim compensation, courts choose to ignore the provisions altogether and do not even apply their mind to the question of compensation.
  • It follows that unless Section 357 is read to confer an obligation on the courts to apply their mind to the question of compensation, it would defeat the very object behind the introduction of the provision.
  • As the Courts have a duty to apply their mind to the question of compensation in every criminal case, what necessarily follows is that the court must disclose that it has applied its mind to this question in every criminal case.
  • The disclosure of application of mind is best demonstrated by recording reasons in support of the order or conclusion.[6]
  • The first and the most effective check against an arbitrary exercise of power is the well-recognised legal principle that orders can be made only after due and proper application of mind. Application of mind brings reasonableness not only to the exercise of power but to the ultimate conclusion also. Application of mind in turn is best demonstrated by disclosure of the mind. And disclosure is best demonstrated by recording reasons in support of the order or conclusion.
  • Recording of reasons in cases where the order is subject to further appeal is very important from yet another angle. An appellate court or the authority ought to have the advantage of examining the reasons that prevailed with the court or the authority making the order.
  • Thus, 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.
  • It is axiomatic that for any exercise involving application of mind, the Court ought to have the necessary material which it would evaluate to arrive at a fair and reasonable conclusion. It is also beyond dispute that the occasion to consider the question of award of compensation would logically arise only after the court records a conviction of the accused.
  1. Interim Compensation:
  • It is the duty of the Courts, on taking cognizance of a criminal offence, to ascertain whether there is tangible material to show commission of crime, whether the victim is identifiable and whether the victim of crime needs immediate financial relief.
  • On being satisfied on an application or on its own motion, the Court ought to direct grant of interim compensation, subject to final compensation being determined later.
  • Such duty continues at every stage of a criminal case where compensation ought to be given and has not been given, irrespective of the application by the victim.
  • At the stage of final hearing it is obligatory on the part of the Court to advert to the provision and record a finding whether a case for grant of compensation has been made out and, if so, who is entitled to compensation and how much. Award of such compensation can be interim.
  • Gravity of offence and need of victim are some of the guiding factors to be kept in mind, apart from such other factors as may be found relevant in the facts and circumstances of an individual case.[7]
  1. Recourse in case of default in payment of compensation:
  • A sentence of imprisonment can be granted for default in payment of compensation awarded under Section 357(3) CrPC.
  • Sometimes the situation becomes such that there is no purpose served by keeping a person behind bars. Instead directing the accused to pay an amount of compensation to the victim or affected party can ensure delivery of total justice. Therefore, this grant of compensation is sometimes in lieu of sending a person behind bars or in addition to a very light sentence of imprisonment.
  • Hence on default of payment of this compensation, there must be a just recourse.[8]
  1. Appeal allowed in following terms:

        In the present case, in the absence of any evidence about the medical expenses, loss of earning and the financial capacity of the accused, it was ordered that the appellant be paid a sum of Rs. 50,000/- as compensation under Section 357(3) within two months by the surviving respondents.

       In case of default, the surviving-respondents would undergo rigorous imprisonment for three months. Since compensation was directed to be paid the sentence of fine of Rs. 5,000/- was set aside.

[1] Criminal Appeal No. 99 of 2015 (Arising out of SLP (Crl) No. 1491 of 2012) D/d. 16.1.2015

[2] Para 10 of the judgment

[3] State of Gujarat and anr. versus Hon’ble High Court of Gujarat, 1998(4) R.C.R.(Criminal) 350 cited in Para 12 of the present case.

[4] Ankush Shivaji Gaikwad versus State of Maharashtra, 2013(2) R.C.R.(Criminal) 1036; Hari Singh versus Sukhbir Singh, 1988(2) R.C.R.(Criminal) 394 cited in Para 13 of the present case

[5] Dilip S. Dahanukar versus Kotak Mahindra Co. Ltd., 2007(2) R.C.R.(Criminal) 636 cited in Para 13 of the present case

[6] Maya Devi v. Raj Kumari Batra, 2010(4) R.C.R.(Civil) 795 cited in Para 13 of the present case

[7] Suresh and Anr. versus State of Haryana, 2015(1) R.C.R.(Criminal) 148 cited in Para 14 of the present case

[8] K.A. Abbas H.S.A. versus Sabu Joseph and anr., 2010(3) R.C.R.(Criminal) 154 cited in Para 15 of the present case

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